text:
    A97A2003.
    WYNN v. THE STATE.
    (491 SE2d 149)
   Eldridge, Judge.

Appellant Randy O’Neal Wynn challenges his September 26, 1996 conviction for armed robbery.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed from this perspective, the evidence in the case sub judice shows that, at approximately 12:30 a.m. on January 6, 1996, Susan Leggett was leaving a Clayton County convenience store in her Chevrolet van. As Leggett pulled out of the parking lot, she was startled by appellant, who had entered the van without her knowledge and was hiding behind the driver’s seat. Appellant attempted to stab Leggett in the neck with a screwdriver and ordered her to pull over into an apartment parking lot. Leggett knocked the screwdriver away with her hand and scuffled with appellant. Leggett was able to get the van out of gear and slow it down; she then fell out of the van while it was still rolling. Appellant tried to grab Leggett, but she escaped his grasp. After watching appellant drive away in the van, Leggett ran back to the convenience store and called the police. She later testified that money was missing from the van following the robbery. Leggett also testified that she shared the van with her husband, who kept his tools in the van, including screwdrivers.

The Forest Park Police Department received a call at approximately 12:45 a.m. about a stolen van; Sergeant Morgan was dispatched to investigate. After spotting a tan van and confirming that the tag number was the same as that which had been reported, Morgan activated his lights and siren and pursued the van. Appellant, who was driving the van, did not stop, but instead drove faster. Another police car joined the pursuit, drove up next to the van, and shined an “alley light” into the driver’s side window of the van. However, the police officers inside the vehicle were forced to take evasive action when appellant twice swerved the van to the left, into their lane. Shortly thereafter, appellant missed a left turn, ran up onto a curb, and drove the van into a ditch. Appellant exited the van through the passenger side door and ran into the nearby woods. After securing the perimeter of the woods, police officers searched the area and found appellant hiding beneath some bushes behind a tree. Appellant was arrested and placed in the back seat of a police car.

Within an hour, police officers brought Leggett to the area to retrieve her van; the officers later testified that Leggett was “nervous,” “shaking,” “crying,” “very upset,” “very scared,” and “angry.” While walking past the police car in which appellant was seated, Leggett spontaneously identified appellant as the man who attacked her and stole her van. A screwdriver, along with other tools, was found in the van.

Appellant was charged with kidnapping, armed robbery, aggravated assault, entering an auto, hijacking a motor vehicle, fleeing and attempting to elude a police officer, and reckless driving. After rejecting a proposed plea bargain, appellant was tried by a jury on September 24-26,1996. The jury found appellant guilty of armed robbery, entering an auto, fleeing and attempting to elude a police officer, and reckless driving. Appellant was sentenced as a recidivist to life imprisonment for the armed robbery conviction and was given concurrent sentences for the other convictions. Appellant moved for a new trial, which was denied on March 6, 1997. This appeal follows. Held:

1. In his first enumeration of error, appellant asserts that the evidence was insufficient to support a conviction for armed robbery. Appellant claims that Leggett’s statement during cross-examination that she had knocked the screwdriver out of appellant’s hand proves that appellant was not armed at the time of his actual theft of the van. We are not persuaded.

“Under OCGA § 16-8-41 (a), a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983).” (Punctuation omitted; emphasis supplied.) Lowery v. State, 209 Ga. App. 5, 6 (1) (432 SE2d 576) (1993); Ramey v. State, 206 Ga. App. 308 (425 SE2d 385) (1992); see also Pope v. State, 201 Ga. App. 537 (411 SE2d 557) (1991); cf. Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974) (holding that defendant was not guilty of armed robbery when his theft of victim’s property preceded any show of force). A relatively brief period of time between the use of the offensive weapon and the actual theft “does not sever [the] connection between the two acts.” Lowery v. State, supra at 6 (1).

In the case sub judice, Leggett testified that appellant attempted to stab her in the neck with a screwdriver and, in response, she pushed appellant’s hand away, knocking the screwdriver out of his hand. A scuffle ensued, during which Leggett was able to slow the van down. Moments later, she fell from the van and was able to escape. These events occurred immediately prior to appellant’s theft of the van.

“Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized. . . .” (Emphasis in original.) Francis v. State, 266 Ga. 69, 70 (463 SE2d 859) (1995) (finding that the defendant was guilty of armed robbery for a theft that occurred immediately after he had killed the victim); see also Jackson v. Virginia, supra.

2. In his second enumeration of error, appellant asserts that the trial court erred in refusing to charge the jury on the lesser included offense of robbery by intimidation. However, “where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); see also Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975).

In the case sub judice, the victim testified that appellant attempted to stab her with a screwdriver while in the process of stealing her van. In response, appellant denied any involvement in the crime and asserted an alibi. Therefore, the evidence in the case sub judice did not support the proposed jury charge. In its denial of a new trial, the trial court correctly found that “the jury was authorized to find that either the defendant committed the completed offense of Armed Robbery or that the defendant was somewhere else at the time of the commission of the crime.” (Emphasis supplied.) There was no error.

3. Appellant claims that the trial court should have found that defense counsel was ineffective, so that appellant would have been entitled to a new trial. Appellant asserts four bases for his ineffectiveness claim; these bases include counsel’s failure to do the following: (a) object to the State’s notice of its intent to treat appellant as a recidivist; (b) exercise appellant’s right to call an alibi witness; (c) investigate the victim’s background for impeaching evidence; and (d) poll the jury to ensure a unanimous verdict.

“ ‘To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency.’ ” Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551) (1996); Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citations and punctuation omitted.) Adefenwa v. State, 221 Ga. App. 429, 432 (3) (a) (471 SE2d 900) (1996). Further, “ ‘[t]he trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ . . . [Cit.]” Id.

In determining whether counsel was “reasonably effective,” reviewing courts must evaluate the performance at the time of the trial, and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782 (325 SE2d 362) (1985); Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” (Citations and punctuation omitted.) Adefenwa v. State, supra at 433 (3) (b), quoting in part Strickland v. Washington, supra at 689.

(a) Prior to trial, the State gave defense counsel notice that, if appellant was convicted, they intended to present evidence upon sentencing of appellant’s previous convictions for robbery and burglary. See OCGA § 17-10-2 (a). The State did not include certified copies of the prior convictions with the notice, but made the copies available for counsel’s inspection immediately prior to trial. Such notice was determined to be sufficient under Williams v. State, 162 Ga. App. 120 (290 SE2d 341) (1982). See also Franklin v. State, 245 Ga. 141, 149 (263 SE2d 666) (1980). Therefore, any failure to object to the timeliness of the notice would have been harmless, and counsel could not have been deemed ineffective on that basis.

The purpose behind requiring notice of the State’s intent to offer evidence in aggravation is to afford the defense time to validate the prior offenses and investigate possible bases for exclusion of the evidence. See Armstrong v. State, 264 Ga. 237, 238 (442 SE2d 759) (1994); see also Franklin v. State, supra at 159. However, following defense counsel’s objection to the admissibility of the convictions during sentencing, appellant admitted to the court that he had pled guilty to the prior crimes. Further, defense counsel admitted that he had time to prepare arguments concerning the convictions prior to the sentencing hearing. Therefore, appellant has established no harm by the State’s allegedly untimely notice.

Further, although appellant asserts that the certified copies of the convictions did not indicate that the pleas were “voluntary and ' knowing,” the evidence indicates that appellant was represented by counsel when the pleas were entered, and appellant cites to no evidence in his appellate brief that indicates that the pleas were anything other than knowing and voluntary. See Court of Appeals Rule 27 (c) (3) (i). There is no merit to this enumeration.

(b) Appellant complains that his counsel’s ineffectiveness caused him to be denied the right to call an alibi witness. During the defense’s case, appellant called his sister to the stand to testify that, on the evening preceding appellant’s arrest, appellant was at her home. Appellant’s sister testified that appellant was supposed to babysit her children, but that she and her boyfriend decided to stay home instead. She further testified that appellant played cards at her home until approximately 11:00 p.m. Appellant left his sister’s home at approximately 12:30 a.m. on the morning of the robbery. His sister testified that she did not know how appellant intended to get from her home in Forest Park, Clayton County, to appellant’s home ten to fifteen miles away in Atlanta, Fulton County.

Appellant’s sister’s boyfriend, Chris Pope, was expected to testify to the same facts and was subpoenaed by defense counsel, who had previously interviewed Pope. However, Pope did not show up at trial, and defense counsel consulted with appellant as to whether or not they should ask for a continuance until Pope’s presence could be compelled. At the hearing on appellant’s motion for a new trial, defense counsel testified that appellant made the decision to go ahead with the trial instead of asking for a continuance. However, appellant testified that, in making the decision to go forward with the trial without Pope’s testimony, he relied on defense counsel’s alleged statement that they “really wouldn’t need him.”

The trial court found that defense counsel provided appellant with “sufficient information to make an informed decision,” so that counsel “was not ineffective in that respect.” (Emphasis in original.) This finding is supported by the record and will not be disturbed on appeal.

(c) Appellant also asserts that he was entitled to a new trial because defense counsel failed to investigate the victim’s alleged criminal background in order to determine if it contained impeaching evidence. Defense counsel testified that he believed that the State had investigated the victim’s background and that, because he had not received any information from the State, he had assumed that the State did not find any information that could be used to impeach the victim at trial. Defense counsel learned after the trial that the victim had an extensive criminal history.

Without deciding whether or not defense counsel’s failure to investigate rises to the level of ineffectiveness, we affirm the trial court’s finding that appellant failed to present any evidence of the victim’s criminal convictions which could be used at trial to impeach the victim. Although the hearing transcript shows that the victim had a record of arrests, convictions, and prison terms, there is no evidence in the record that any of the convictions would have been admissible as impeachment evidence under OCGA § 24-9-82. See Smith v. State, 222 Ga. App. 366, 369-370 (474 SE2d 272) (1996). Therefore, appellant has shown no harm by defense counsel’s failure to investigate the victim’s criminal background.

(d) Finally, appellant asserts that defense counsel should have polled the jury to establish that the verdict was unanimous. Appellant notes that the jury was given the Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896) charge after it could not reach verdicts on the following charges: kidnapping, armed robbery, aggravated assault, and hijacking a motor vehicle. Appellant did not object to the Allen charge. The jury subsequently acquitted appellant on three of the four charges upon which it originally was split.

A jury’s initial failure to reach a verdict does not indicate that the ultimate verdict is automatically suspect. Once the jury was given the Allen charge, there was no further indication that the verdict was less than unanimous. Following the motion hearing, the trial court specifically found that appellant had presented no evidence that the jury’s verdict was not unanimous. “Appellant has cited us to no authority requiring trial counsel, in order to effectively represent his client, to poll the jury. . . . [W]e do not agree with appellate counsel that appellant’s trial counsel was ineffective.” Malerba v. State, 172 Ga. App. 457, 458 (1) (323 SE2d 666) (1984).

Further, we find that appellant has not established a reasonable probability that the outcome of the trial would have been different but for trial counsel’s actions. Therefore, appellant has failed to carry his burden under Strickland v. Washington, supra.

Decided August 11, 1997.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Verda M. Andrews-Stroud, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Defense counsel also admitted that he was given a certified copy of one of the convictions with the State’s notice that they intended to use it as a similar transaction during trial. The State later decided not to introduce evidence of a similar transaction.

       Notably, during the sentencing hearing, defense counsel did object to the admissibility of the prior convictions on several grounds and was overruled. As such, there was no failure to object to the evidence, as asserted by appellant.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1045.
    DEPARTMENT OF HUMAN RESOURCES v. NORTHEAST GEORGIA PRIMARY CARE, INC.
    (491 SE2d 201)
   Beasley, Judge.

Before issuing a license to a “government or governmental agency” for a new ambulance service, OCGA § 31-11-32 (d) requires the license officer for the Department of Human Resources (DHR) to establish that, due to inadequate private service, the public’s convenience and necessity require the proposed ambulance service. The question in this case is whether a private non-profit corporation which discharges the functions of a hospital authority is a government or governmental agency within the meaning of the above statute.

Northeast Georgia Primary Care, Inc. (Primary Care), a Georgia nonprofit corporation, submitted an application to the DHR for a license to operate an ambulance service in Hall County. The license officer concluded that Primary Care is a governmental agency, merely the vehicle through which the Hospital Authority of Hall County and the City of Gainesville (the Hospital Authority) seeks to operate the proposed ambulance service. Finding that Primary Care did not prove that private ambulance service in the county is inadequate, DHR denied its application. Primary Care appealed to the superior court under OCGA § 31-5-3 (3). The court reversed. We granted DHR’s application for discretionary appeal.

Primary Care’s sole member is Northeast Georgia Health Services, Inc. (Health Services), likewise a Georgia nonprofit corporation. Health Services is a holding company controlling various for-profit and non-profit corporate entities (the Health Services group). The non-profit corporations include Primary Care; Northeast Georgia Medical Center, Inc. (Medical Center); and Northeast Georgia Health Resources, Inc. (Health Resources).

The Hospital Authority owns the Medical Center, an acute-care regional hospital operated on a non-profit basis to serve the health needs of the community, including the indigent. Because of various changes in the field of health-care delivery, the Hospital Authority determined that the health needs of the community would be best served by leasing the hospital and its related facilities along with an assignment of other assets to a non-profit corporation.

As a result, a corporate reorganization plan was developed resulting in the formation in 1986 of Health Services, Medical Center, and Health Resources. Likewise in 1986, a lease agreement was entered into between the Hospital Authority and Medical Center, which manages and operates most of the inpatient activities of the Health Services Group. Health Resources, which is primarily responsible for the outpatient functions of the Health Services Group, is a sublessee of certain assets under the lease agreement. The function of Primary Care, which was incorporated in 1993, is to employ and manage primary care physicians in a primary care network maintained in the Northeast Georgia area by the Health Services Group. It has a management contract for the operation of outpatient primary care facilities owned by Health Resources.

In the 1986 lease agreement, Medical Center agreed to provide servicés to the indigent sick of Hall County, to operate emergency care facilities available to all citizens regardless of ability to pay, and to continue to participate in Medicaid and Medicare programs. In its application for a license to operate the ambulance service, Primary Care stated that indigent patients would constitute a substantial portion of its transport patients.

Both Health Services’ and Medical Center’s by-laws state that two members of their regular board of trustees shall be serving members of the governing body of the Hospital Authority if two such members are willing and able to serve. No members of the Hospital Authority are on the board of trustees of Primary Care.

1. The superior court reversed the DHR’s denial of Primary Care’s license application, based on its conclusion that under Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994), the Hospital Authority is not a government agency and therefore Primary Care cannot be considered one either. Since the question before us (whether Primary Care is a government agency) involves an application of undisputed facts, the standard of review is de novo. See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

At the outset, DHR asserts that the superior court did not have jurisdiction to consider Primary Care’s argument that a hospital authority is not a governmental agency because Primary Care never raised this issue before the department. See Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 573 (1) (396 SE2d 562) (1990) (no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency). But DHR recognizes that the question of whether a hospital authority is a government agency must be considered in order to determine whether an entity such as Primary Care is a government agency. The former question will be addressed insofar as necessary to resolve the latter.

In Thomas, supra, the plaintiff sued a county hospital authority seeking damages for permanent injury sustained in a slip and fall. The question was whether the action was barred under Art. I, Sec. II, Par. IX (e) of the Georgia Constitution under which “sovereign immunity extends to the state and all of its departments and agencies.” The Court held that the action was not so barred, basing its decision upon both legal and policy considerations.

In Division 1 of its opinion, the Court arrived at the legal conclusion that a hospital authority, though a governmental instrumentality, is not an agency or department of either the state or county because it is a public, non-profit corporation. See Richmond County Hosp. Auth. v. McLain, 112 Ga. App. 209 (144 SE2d 565) (1965). A hospital authority is a government instrumentality because it is created by local governmental units for the purpose of exercising, among other things, public and essential governmental functions, to wit: furnishing medical care and hospitalization for the indigent. See OCGA § 31-7-75; Knowles v. Housing Auth. &c. of Columbus, 94 Ga. App. 182 (94 SE2d 55) (1956), rev’d on other grounds, 212 Ga. 729 (95 SE2d 659) (1956).

In Division 2, the court in Thomas delineated the policy considerations in support of its determination that a hospital authority is not entitled to sovereign immunity. The court posited that “the function of a hospital [authority] is not, in essence, a governmental function.” 264 Ga. at 43, n. 6. It stated: “The very functions performed by the . . . Hospital Authority are performed by private hospitals and the [Hospital] Authority is in direct competition with these private hospitals for patients. If an instrumentality of the government chooses to enter an area of business ordinarily carried on by private enterprise, i.e., engage in a function that is not ‘governmental,’ there is no reason why it should not be charged with the same responsibilities and liabilities borne by a private corporation.” (Footnote omitted.) 264 Ga. at 43. Finally, the court in Thomas observed that one purpose of sovereign immunity is to preserve the protection of the public purse and that a hospital authority is a public corporation whose operations have little if any impact on the taxpayers. Id. at 43-44.

2. Crosby v. Hosp. Auth. of Valdosta & Lowndes County, 93 F3d 1515 (11th Cir. 1996), relied on by DHR, supports the proposition that whether an instrumentality such as a hospital authority is a “political subdivision” or “agency” or “department” of the state depends on the context in which the quoted terms are used.

Crosby involved the state action immunity doctrine under which states are immune from federal antitrust law for their actions as sovereign. Id. A political subdivision of the state is likewise immune if it acted pursuant to clearly-articulated and affirmatively-expressed state policy. Id. at 1521-1522. Even private parties are entitled to such immunity, if it is shown both that the challenged restraint was clearly articulated and affirmatively expressed as state policy and that the policy was actively supervised by the state. Id. at 1522.

Crosby held that because a state hospital authority is a government instrumentality, for state action immunity purposes it should be evaluated as a political subdivision of the state rather than as a private actor. Id. at 1522-1526; see also Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39 (273 SE2d 841) (1981) (a hospital authority, as a government entity, is barred from prosecuting a libel action); Martin v. Hosp. Auth. of Clarke County, 264 Ga. 626 (449 SE2d 827) (1994) (a hospital authority, as a government entity, cannot be held liable for punitive damages). Clearly, a hospital authority is in no way a “political subdivision” of the state, within the meaning of that concept under Georgia law. See Richmond County Hosp. Auth. v. McLain, supra.

3. The question in this case is whether Primary Care is a government or governmental agency within the meaning of a statute prohibiting a government-operated ambulance service unless private service is inadequate.

(a) One asserted purpose of the statute is effectuation of the general rule — espoused in Keen v. Mayor &c. of Waycross, 101 Ga. 588 (29 SE 42) (1897), and applied in Atlanta Metro Assoc. Plumbing Contractors v. Maloof, 259 Ga. 777 (386 SE2d 338) (1990) — prohibiting a local governmental unit from engaging in an occupation usually pursued by private enterprise. Keen and Maloof are inapposite. They involved government-operated businesses that were “purely private and entirely unconnected with a proper administration of . . . governmental duties.” Keen, supra at 590 (l). The ambulance service proposed by Primary Care, which would serve both paying and indigent patients, is connected with the administration of a public duty. See Knowles, supra. The concern expressed in Keen was that conduct of the business amounted to a misappropriation of government funds. Id. at 593-594 (3). That concern is not present here.

(b) The other asserted purpose for limiting competition between the governmental and private sectors is that a government agency which provides a service also provided by private enterprise has unfair competitive advantages over the private entities with which it competes.

A hospital authority does have certain competitive advantages, such as the ability to issue tax-free debt instruments, eligibility for a certain amount of public funding, a governmental exemption from taxation, and grant of the power of eminent domain. But it also has one major competitive disadvantage, i.e., the obligation to provide indigent medical care. As a private corporation, Primary Care is an entity separate and distinct from the Hospital Authority, Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 186 (1) (a) (336 SE2d 562) (1985), and does not have the power of eminent domain, although under the 1986 lease agreement the Hospital Authority agreed to exercise its power of eminent domain on behalf of Medical Center. Nor does Primary Care have the ability to issue tax-free debt instruments. And it is not publicly funded. It is exempt from the payment of taxes by reason of its status as a charitable corporation rather than as a government entity. It is part of a corporate group that has agreed to assume indigent care obligations while competing with for-profit companies which have assumed none. OCGA § 31-11-32 (d) serves to limit competition between government and private enterprise, and the DHR acknowledges that the corporations within the Hospital Services group were created for the purpose of “privatizing” the operations of the Hospital Authority.

We conclude that Primary Care is not a government or governmental agency within the meaning of the statute.

4. Red & Black Publishing Co. v. Bd. of Regents, 262 Ga. 848 (427 SE2d 257) (1993), and Northwest Ga. Health System v. Times-Journal, 218 Ga. App. 336, 338 (1) (461 SE2d 297) (1995), relied upon by the DHR, are distinguishable. These cases hold that an entity or entities to which public agencies have delegated their official responsibilities and authority are subject to the Open Records Act (OCGA § 50-18-70 et seq.) and the Open Meetings Act (OCGA § 50-14-1 et seq.). Red & Black, supra at 853-854 (3) (b); Northwest Ga., supra at 339-340 (1).

Decided August 12, 1997

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Assistant Attorney General, for appellant.

Whelchel & Dunlap, Madeline S. Wirt, for appellee.

Layfield, Rothschild & Morgan, Jerome M. Rothschild, King & Spalding, Richard L. Shackelford, Kristofer R. Schleicher, amici curiae.

Red & Black involved the student Organization Court of the University of Georgia, which had authority to hear and adjudicate cases involving violations of certain University rules and regulations. The Board of Regents delegated such authority to the University and, in turn, to the Organization Court. Like the present case, Northwest Ga. involved private, non-profit corporations which were the vehicle through which various public hospital authorities functioned. In the 1986 lease agreement, in the instant case, Medical Center agreed to hold public meetings and allow public access to its records to the same extent required of the Hospital Authority.

The two earlier case decisions are based on the applicability of the Open Records Act to items received or maintained by a private person or entity on behalf of a public office or agency (OCGA § 50-18-70 (a)) and to the principle that the Open Meetings Act “must be broadly construed to effect its remedial and protective purposes.” Atlanta Journal v. Hill, 257 Ga. 398, 399 (359 SE2d 913) (1987); see Hackworth v. Bd. of Ed. &c. of Atlanta, 214 Ga. App. 17, 20 (1) (b) (447 SE2d 78) (1994). Application of OCGA § 31-11-32 (d) to a self-funded private corporation discharging both public and private functions would not effectuate its purpose.

Judgment affirmed.

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

       As stated in a lease agreement between the Hospital Authority and Medical Center, reviewed infra, these changes include: “(i) Changing reimbursement schemes pursuant to which large purchasers of health care are actively seeking ways to decrease their health care expenditures creating a need for efficiency in order to assure survival; (ii) Increasing population over age 65 creating a greater demand for health care services; (iii) Changing technologies being developed to provide treatment in a less traumatic way but at some times prohibitive costs requiring the balancing of the cost of care with the quality of care; (iv) A physician oversupply creating greater competitiveness; (v) Limited access to equity capital because [the Hospital Authority] is prohibited from entering profit making joint ventures; (vi) Increasing costs for care for the poor.”

       In Keen, the City of Waycross was engaging in a general plumbing business on private premises. In Maloof, DeKalb County offered sewer services on privately-owned sewer lines.


author: Judge Harold R. Banke.

text:
    A97A1158.
    HOLTON v. GEORGIA POWER COMPANY.
    (491 SE2d 207)
   Judge Harold R. Banke.

James M. Holton sued Georgia Power Company for injuries allegedly sustained at Plant Hatch while he was performing maintenance work for his employer Catalytic Industrial Maintenance Company, Inc. (“CIMCO”). Holton' appeals the grant of summary judgment to Georgia Power Company.

Georgia Power is majority owner (50.1 percent) of Plant Hatch with the balance owned by Oglethorpe Electric Membership Corporation (30 percent), Municipal Electric Authority of Georgia (17.7 percent) and the City of Dalton (2.2 percent). Under the terms of the contracts of sale and operating agreements, Georgia Power assumed “sole responsibility” for the “planning, licensing, design, construction, operation, maintenance and disposal” of Plant Hatch. By contractual agreement with its fellow owners, Georgia Power had sole authority “to manage, control, maintain, and operate Plant Hatch.” Thus, Georgia Power was both majority owner of Plant Hatch and the principal contractor which was obligated by agreement to the other owners for the plant’s maintenance.

Georgia Power contracted with CIMCO to perform certain powerhouse maintenance services. While performing work for CIMCO, Holton was allegedly exposed to radiation while pulling tubes from the condenser. Holton asserted that he was injured when a Georgia Power employee treated him with a chemical to decontaminate him after the alleged exposure. Holton brought a workers’ compensation claim against CIMCO and received benefits.

In response to Holton’s suit, Georgia Power asserted that as Holton’s statutory employer under OCGA § 34-9-8, it was insulated from tort liability under OCGA § 34-9-11. On that basis, the trial court granted Georgia Power’s motion for summary judgment. Held:

In his sole enumeration of error, Holton contends that the trial court misconstrued the applicable law in finding that Georgia Power was his statutory employer. We disagree.

As a general rule, an owner who is in possession or control of the premises is not a statutory employer and is not immune from tort liability. Yoho v. Ringier of America, 263 Ga. 338, 341 (434 SE2d 57) (1993). However, an owner can attain “contractor” status under OCGA § 34-9-8 (a) “ ‘in the isolated situation, where [he] also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.’ (Cit.)” Yoho, 263 Ga. at 341. An owner who owes a secondary duty to another to perform a contractual duty is a “contractor” within the meaning of OCGA § 34-9-8 (a). Dye v. Trussway, Inc., 211 Ga. App. 139, 140 (438 SE2d 194) (1993). The secondary liability and corresponding immunity apply to those who contract to perform certain work then sublet that work in whole or in part. Redd v. Stanfield, 217 Ga. App. 573, 574 (1) (458 SE2d 394) (1995).

The unrefuted evidence shows that Georgia Power had the responsibility of contracting for the performance of the maintenance work at Plant Hatch. Notwithstanding Holton’s claim to the contrary, the record shows that Georgia Power was fulfilling its obligations as principal contractor in hiring CIMCO, an independent contractor who was Holton’s employer. See Yoho, 263 Ga. at 341. Under OCGA § 34-9-8, Georgia Power became Holton’s statutory employer, potentially liable for his workers’ compensation benefits. As Holton’s statutory employer, Georgia Power was entitled to statutory immunity from Holton’s tort claims under OCGA § 34-9-11. Yoho, 263 Ga. at 341; see Finley v. Lehman, 218 Ga. App. 789, 791 (2) (463 SE2d 709) (1995); Intl. Leadburning Co. v. Forrister, 213 Ga. App. 558, 559 (445 SE2d 546) (1994).

Decided August 12, 1997

Dickinson & Mixson, Michael K. Mixson, for appellant.

McNatt, Greene & Thompson, Hugh B. McNatt, Jones, Cork & Miller, H. Jerome Strickland, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A1278.
    ARNOLD v. THE STATE.
    (491 SE2d 205)
   Birdsong, Presiding Judge.

Lawrence S. Arnold was convicted of driving under the influence in violation of OCGA § 40-6-391 and being in possession of an open container of alcoholic beverages while operating a motor vehicle in violation of OCGA § 40-6-253. He appeals, contending the trial court erred in denying him a continuance when a material witness did not show up at trial in response to his subpoena, and that the trial court erred further in accepting the officer’s hearsay evidence of what that absent witness told him.

Appellant went with Marty Lester to McDonald’s restaurant. Lester became engaged in a disturbance in the restaurant and police were called. At trial the only State’s witness was the officer who arrested appellant, Officer Atwater. The officer testified that Lester appeared to be intoxicated and that Lester told him appellant drove him to the restaurant.

Lester did not appear in court in response to subpoena. Therefore, appellant objected to testimony by the officer as to what Lester told him. The trial court overruled the objection on grounds that this testimony was an exception to the hearsay rule, the reason for the testimony being not to show the truth of what Lester told the officer, but to show how the officer “turned his investigation in a different way,” viz., toward appellant.

Appellant testified that he had not driven the truck because he had been drinking, and, that Lester drove the car. Appellant’s father testified that when appellant and Lester left his residence earlier, he saw Lester get in the driver’s seat and drive away. Held:

1. The trial court erred in denying appellant a continuance because of the absence of the subpoenaed witness, Lester. The record shows unequivocally that appellant made the full showing required by OCGA § 17-8-25 to authorize a continuance on these grounds. Appellant also stated the fact he expected the witness to testify, which was that he, and not appellant, drove the truck to McDonald’s.

The State contends, and the trial court found, that appellant did not show Lester’s testimony was “material.” This is untrue. Appellant’s counsel stated to the court: “I state in my place as an officer of the court that [Lester’s] testimony is material as. . . . He was a witness there. The issue ... is whether [Lester] was under the influence and whether this man was driving or was [appellant] driving. I state in my place that his testimony would be material. It would be of benefit for the [appellant]. . . . The facts expected to be proven by the absent witness are that he was with [appellant], that he, in fact, drove [appellant] to McDonald’s.”

Lester’s testimony is, in fact, material. Lester is the only person who can testify as to the truth of the officer’s testimony that Lester told him appellant drove the truck. He is the only person who was in the truck with appellant. Although Lester’s testimony would be interested testimony, appellant was convinced Lester would testify that he (Lester) was driving. If so, this would discredit the officer’s testimony that both Lester and appellant had told him appellant drove Lester to McDonald’s. This Court cannot rule that the testimony of the subpoenaed witness, Lester, was not credible, was not material, or was cumulative, for it would stand to contradict the testimony of the state’s only witness and thereby would raise a reasonable doubt as to appellant’s guilt. It is always a matter for the jury to decide the credibility of any witness.

Granting or denying a continuance on account of an absent witness is generally a matter within the trial court’s discretion. However, when a criminal defendant moves for a continuance based on a witness’ absence, the trial court’s discretion may be deemed to be abused where the defendant has shown the court all the prerequisites of OCGA § 17-8-25, for where the motion for continuance complies with all of the requirements of OCGA § 17-8-25 and there is no counter showing by the State, it is error to refuse to grant the continuance. Miller v. State, 208 Ga. App. 20, 22 (430 SE2d 159). Despite the trial court’s finding and despite the State’s representations, the record may, as in Miller, show conclusively that the defendant made the requisite showings and that the State made no counter showing.

The trial court apparently rested its denial of a continuance on the equivocal testimony of the investigator who served the subpoena on Lester, that, ‘Yes, I do, possibly [expect that at a later time I might be able to find him].” But the equivocal testimony of the process server does not contradict appellant’s counsel’s statement that he would be able to get the witness to trial; much less does it conclusively establish by “counter showing” that appellant’s counsel would not be able to get the witness to trial. Moreover, we held in Miller that it was not incumbent on defense counsel to state with certitude just when the witness would be available to testify; it was enough that counsel showed he reasonably expected the witness’ presence could be obtained without undue delay. Unless proven to be false, counsel’s statements alone are sufficient to authorize the protection of the defendant’s right to compulsory process and due process. Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713). See also Thornton v. State, 238 Ga. 160 (231 SE2d 729); Jackson v. State, 184 Ga. App. 133, 134-135 (360 SE2d 907). The denial of continuance because of the absence of the witness Lester was error.

2. The trial court, over hearsay objection, admitted the officer’s statement that Lester told him appellant had driven the truck. The State contends this testimony was admissible as an exception to hearsay because it was necessary to show why the officer’s attention was directed to appellant. “When in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” (Emphasis supplied.) OCGA § 24-3-2.

The officer’s testimony as to what Lester told him was hearsay in this case, and its admission was error. The use of “explanation of conduct” testimony has been limited to the “rare instances” (Ross v. State 210 Ga. App. 455, 456 (436 SE2d 496)) where the officer’s conduct is at issue and needs to be explained. Teague v. State, 252 Ga. 534, 535 (314 SE2d 910); Momon v. State, 249 Ga. 865 (294 SE2d 482). Here, the officer’s conduct in talking to appellant and in looking at the vehicle in which Lester arrived was not in question and did not need to be explained. Goodman v. State, 167 Ga. App. 378 (306 SE2d 417). Since he perceived that Lester was drunk, it was not inappropriate for the officer to determine from a witness (appellant) whether Lester had driven to the restaurant. Moreover, since he saw appellant sitting in the driver’s seat of the car in which Lester had arrived, the officer did not require any statement from Lester to focus his attention on appellant. He might reasonably have had an articulable suspicion that the man sitting in the driver’s seat might be intoxicated. See McGaughey v. State, 222 Ga. App. 477, 478-479 (474 SE2d 676).

Even if the officer’s conduct in questioning appellant was deemed necessary to explain, it could have been dealt with by the officer’s stating that he saw appellant sitting in the driver’s seat of the car in which Lester had arrived and, after talking with Lester, who appeared drunk, the officer decided to investigate further. The admission of an alleged statement by an absent witness was prejudicial to appellant and this prejudice was not outweighed by any necessity to explain the officer’s conduct. The trial court’s failure to grant a continuance to secure this witness and the admission of his hearsay were errors, and as testimony undoubtedly affected the verdict, the verdict is reversed. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).

Decided August 12, 1997.

David A. Lamalva, for appellant.

Cheryl F. Custer, Solicitor, Charles C. Flinn, Assistant Solicitor, for appellee.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A97A1357.
    BATES et al. v. THE STATE.
    (491 SE2d 200)
   McMurray, Presiding Judge.

Melvin Grady Bates and Michael Grady Bates were jointly tried before a jury, where each was found guilty of two counts of aggravated assault with a deadly weapon, for the stabbing of Greg Mitchell (“the victim”) and an additional assault on him “with a certain pipe, a deadly weapon.” Their respective motions for new trial were denied and this appeal followed. Held-.

1. Defendants claimed self-defense. Although the general grounds are not enumerated, our review of the transcript indicates the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that Melvin Grady Bates and Michael Grady Bates are each guilty, beyond a reasonable doubt, of each count of aggravated assault with a deadly weapon as alleged in the indictment.

2. In their first and second enumerations, defendants allege the trial court improperly placed their characters in issue and improperly shifted the burden of proof to defendants by stating to the jury at the beginning of trial, “Ladies and Gentlemen, members of the jury we will be trying a criminal today.”

The trial court is authorized by OCGA § 5-6-41 (f) to accept amendments to the transcript in order to correct typographical errors and to make the transcript conform to the truth. See Clanton v. State, 208 Ga. App. 669, 670 (2) (431 SE2d 453). By certified supplemental transcript, the court reporter in the case sub judice has submitted a substitute “page twelve, in the above-referenced trial transcript, [to be] attached to said original transcript as being the corrected page number 12.” The court reporter’s certificate vows that the trial proceedings were “transcribed under [her] supervision and the same is a true, complete and correct transcript of the same.” According to the corrected transcript, the trial court actually stated: “Ladies and Gentlemen, members of the jury we will be trying a criminal case today.” (Emphasis supplied.) Consequently, we hold defendants’ first two enumerations are not supported by the record and are without merit.

Decided August 12, 1997.

Claude M. Kicklighter, Jr., Ronald K. Thompson, for appellants.

R. J. Martin III, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.

3. Defendant’s third enumeration contends “TO THE EXTENT THAT ANY OF THE ABOVE [TWO] ENUMERATIONS OF ERROR ARE DISALLOWED FOR FAILURE TO BE RAISED BELOW THEN THE CASE SHOULD BE REVERSED DUE TO INEFFECTIVE ASSISTANCE AT TRIAL.” Since we have considered the merits of defendant’s other enumerations of error, the contention that trial counsel might have jeopardized defendant’s rights obviously is without merit. Miller v. State, 208 Ga. App. 547, 548 (2) (430 SE2d 873).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1437.
    CRAIG v. LAKESHORE MARINE, INC. et al.
    (491 SE2d 197)
   Judge Harold R. Banke.

After sustaining injuries in a diving accident, Bobby Dean Craig sued Sonny Carr, Hudson Arthur, and Lakeshore Marine, Inc. (“Lakeshore”), the owners and operators of the premises where his injury occurred. The trial court granted Arthur and Lakeshore’s motion for summary judgment and Craig appeals, enumerating one error.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that this case arose after Craig rented a cabin from Carr on the shore of Lake Blackshear near Lakeshore’s marina. A concrete retaining wall lined the shore.

Craig and his wife spent the day sightseeing and then returned to the cabin. Later, they walked to the water’s edge and fed some ducks at a wide clearing located between a canal and a dock. He testified that he could not see the lake’s bottom when he fed the ducks because the water was “murky.” Craig also testified that he could not see any fish swimming under the water.

The next morning, Craig rose around 10:00, walked around with Carr, and had a beer. After walking around the nearby canal, he decided to go fishing. Craig then drove for bait, and returned to rig the poles.

Craig got hot around noon. He pulled his shoes and shirt off and ran full speed toward the water. Despite the lake’s murkiness and his inability to see the bottom, Craig did nothing to ascertain the water’s depth before executing a running dive into less than two feet of water, at the same place where he fed the ducks the night before. The broken neck he sustained rendered Craig a quadriplegic.

The trial court granted Arthur and Lakeshore’s motion for summary judgment, finding that Craig’s own negligence in diving into the water without verifying its depth proximately caused his injury. It held as a matter of law that the failure to post no diving signs was not the proximate cause of Craig’s injury. Held:

Summary judgment was appropriate. The owner of a swimming facility is not an insurer of his invitees’ safety. Plantation at Lenox &c. v. Lee, 196 Ga. App. 420, 423 (2) (395 SE2d 817) (1990). Owners face liability only if their negligence was the proximate cause of the injury. Id. Invitees are under a duty to use their eyes to discover any defects or dangers. First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987). The simple denial of knowledge that a particular danger existed within a generally known hazard, without more, does not create an issue of fact. Id. at 280-281. “One cannot admit knowledge of the presence of a mine field but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it.” Id. at 281.

The record shows that Craig, a Navy veteran with a “good bit” of water safety training, was 34 years old when he was injured. He testified that as a child his father taught him to dive shallow to avoid neck injuries from hitting the bottom. From the time he was ten, he always dove shallow in unfamiliar waters to avoid hitting the bottom and breaking his neck. In his past, Craig swam extensively in natural bodies of water. He distinctly remembered trying to make a shallow dive at the time of his injury “possibly” to avoid hitting the bottom if it was shallow. Further, the defense presented photographic evidence of a sign near the shore stating “Private Beach . . . Swim at Own Risk . . . Caution Lake Level Below Normal Submerged Stumps . . . Use Extreme Caution.” (Emphasis in original.) Medical records of the injury at issue state that Craig had a strong odor of alcohol on his breath and admitted he had been drinking all weekend. This evidence convinces us that the trial court correctly determined that Craig proximately caused his own injury.

Craig argues that a material issue of fact as to his awareness of the water’s depth precluded summary judgment. He maintains that the retaining wall, boats traveling in a nearby canal, and a ladder on a nearby dock led him to believe the water was deeper. However, the record shows that both the canal and the dock were a substantial distance from the spot where he took his unfortunate dive. Craig admitted that he had seen no one boating within 15 feet of the retaining wall and no other swimmers were in the water, which is not surprising considering the date, in early April. We find no evidence from which a juror could conclude that Craig behaved reasonably in failing to ascertain the water’s depth before diving into unknown waters. Compare Rowland v. Colquitt, 214 Ga. App. 544 (448 SE2d 457) (1994), rev’d on other grounds, Colquitt v. Rowland, 265 Ga. 905 (463 SE2d 491) (1995). To rule that a jury issue remains would be to assume that the ownership of any lake with a retaining wall necessarily involves an invitation to dive in blind reliance on the safety of such act without any duty of the diver to use his sight, experience, or judgment in ordinary care for his own safety. Plantation, 196 Ga. App. at 422-423.

. Craig’s reliance on swimming pool cases is misplaced. Owners of pools with or without diving boards can reasonably expect that their guests may attempt dives. Here, the body of water was a lake of widely varying depth.

Thus, Craig’s analogy to Rowland is inapt. Rowland involved a diving board placed in a shallow swimming pool, which provided an invitation to take a dive. Here, no such apparatus even hinted that diving was appropriate. And no other swimmers had successfully completed a dive. In this case, Craig, a good swimmer who had learned from an early age that neck injuries could result from diving in shallow water, admittedly executed a running dive into water of unknown depth, when no rational factors lulled him into a false sense of security about the depth or prevented him from discovering it.

A person cannot undertake an obviously dangerous activity and simultaneously relieve himself of the consequences of his own misadventure, as Craig seeks to do here. O’Brien, 184 Ga. App. at 281. Craig erroneously assumed the water was safe for a shallow dive and neglected to verify that assumption notwithstanding his admitted knowledge that such activity was dangerous. Under the facts of this case, Craig’s failure to exercise ordinary care for his own safety preeludes his recovery as a matter of law. City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995).

Decided August 12, 1997.

Harper & Barnes, John V. Harper, for appellant.

Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellees.

Judgment affirmed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    A97A1671.
    SMITH v. THE STATE.
    (491 SE2d 194)
   McMurray, Presiding Judge.

Defendant Jerry Lee Smith was charged in a special presentment with aggravated child molestation (Count 1), and three counts of child molestation. The evidence adduced at his jury trial revealed the following: the victim, five years old at the time of the incidents, was observed bothering other kindergarten students. According to Karen Smith, the victim’s teacher, this “meant that [the victim] had been pinning her [the other student] down to the bus seat, kissing her and pulling down her pants. So [Ms. Smith] talked to [the victim] about the situation and she said it happened. She said, ‘Jerry did it to me.’ . . . She said, ‘He would pull my pants down and he would kiss me,’ ” whereupon Ms. Smith notified the Department of Family & Children Services and also the victim’s foster parents. Kim Wilson, a child abuse investigator for the Polk County Department of Family & Children Services, interviewed the victim. Ms. Wilson “asked her did she know about private parts and had anyone touched her on the private parts, and she said that Jerry had. [Ms. Wilson] asked her who Jerry was, and she said Jerry Smith,” i.e., defendant. “She said he was a man that stayed at her house some. That’s how she described him.”

The victim told Ms. Wilson that “Jerry wanted her to sleep with him when he would stay at her house. And he would come and get her from her bed and take her to his bed and would take down her pajama bottoms and panties. She state[d] that he touched her on her privates and that he would have her rub lotion on him.” The victim further told Ms. Wilson “that he [defendant] would touch her private parts with his hand and with his finger. And she would state that he would put his mouth on her private part.” The child demonstrated this with anatomically correct dolls. “She then took the male doll, pulled down its pants, exposed the penis and then put the penis up to the female doll’s vaginal area. She didn’t try to insert it. She put it to there and said that that hurt. And then she said that this had happened several times with Mr. Smith.”

Robin Boatner, the victim’s foster mother, also related statements made by the victim. When Ms. Boatner was questioning the victim about her behavior on the bus, the victim stated, “ ‘Everybody does me that way.’ ” When asked “what she meant when she said everybody does her that way, [the victim] said that Jerry and [another adult male] had done her that way. . . . She said that he [Jerry] put his mouth on her privates and put his fingers in her privates.” Ms. Boatner “asked her where her mother was at the time, and she said her mother was there. That they did her mother the same way, and that her mother would just tell her to kick them and make them leave her alone.”

Special Agent Russell Lee Andrews of the Georgia Bureau of Investigation interviewed defendant at the Polk County Police Department. After being informed of his rights, defendant agreed to make a statement. “He indicated that at times, [the victim] would wake up in the middle of the night and that she would come over and get into the bed with him. He said at times she would have her underwear on and sometimes she had her underwear off. He indicated that on several occasions he had taken his hand and had touched [the victim’s] vaginal area with his hand. He also indicated on several occasions [the victim] had bounced up and down on his face in such a way where her vaginal area would have touched his mouth.”

Although the court called the victim to the stand for purposes of cross-examination, the then-six-year-old would not respond orally to any questions but would merely shake or nod her head. The jury acquitted defendant of all three charges of child molestation but found him guilty of aggravated child molestation as alleged in Count 1 of the special presentment. After the court received evidence of defendant’s prior conviction for incest, defendant was sentenced to serve 30 years imprisonment. From the judgment of conviction and sentence entered on the jury’s verdict defendant brings this direct appeal. Held:

1. Over defendant’s objection that the answer “would be bolstering,” the State’s Attorney was permitted to ask Kim Wilson if the victim “ever change[d] what she [said] happened to her involving [defendant]?” Ms. Wilson answered: “No, sir. She never changed from the first interview to the second. She was able to give me more detail, but she did not change anything she said.” This evidentiary ruling is enumerated as error.

The Supreme Court of Georgia “stated in Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), that a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. In Cuzzort v. State, 254 Ga. .745 (334 SE2d 661) (1985), [the Supreme Court] extended the Gibbons rule to prior consistent statements. In Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869) (1985), [the Supreme Court] stated that inquiry into impermissible bolstering no longer is necessary following Cuzzort, supra.Lumpkin v. State, 255 Ga. 363, 365 (4) (338 SE2d 431). In the case sub judice, Ms. Wilson’s testimony that the victim’s statements were consistent from one interview to the other was admissible over defendant’s objection as to bolstering. Accord Richardson v. State, 256 Ga. 746, 747 (5) (353 SE2d 342).

2. Over defendant’s objection that the recording of an interview of the victim would be the “best witness” as to what transpired during that interview, the trial court permitted Kim Wilson to testify that the victim did not tell the interviewer, Mrs. Aldridge, anything different; that the victim has “always been consistent with her story.” This evidentiary ruling is enumerated as error.

Defendant’s stated objection is truly in the nature of a “best evidence” objection. “The contents of a conversation or statement which are captured on videotape are not subject to a ‘best evidence’ objection because the ‘best evidence’ rule applies only to writings. Perkins v. State, 260 Ga. 292, 295 (7) (392 SE2d 872).” In the Interest of L. R., 219 Ga. App. 755, 757 (4) (466 SE2d 653). Despite defendant’s invitation to apply the “best evidence” rule to videotapes, we are not at liberty to disregard the binding precedent of the Supreme Court of Georgia. In the case sub judice, the trial court did not err in permitting an ear witness to the victim’s interview relate the substance of the statements she heard.

3. When the trial court called the victim as a witness, the six-year-old child refused to answer most direct questions, and then responded only with a shake or a nod of her head, never articulating a response. Since the victim refused to testify, defendant concluded that cross-examination was both futile and dangerous. He moved to strike all testimony about statements made by the victim to the adults who did testify. The overruling of that motion to strike is enumerated.

“The Child Hearsay Statute, OCGA § 24-3-16, creates an exception to the hearsay rule for statements made by a child under the age of 14 describing any act of sexual abuse ‘if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.’ The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony. See Reynolds v. State, 257 Ga. 725 (4) (363 SE2d 249) (1988).” Jones v. State, 200 Ga. App. 103 (407 SE2d 85). “OCGA § 24-9-5 (b) expressly leaves credibility to the determination of the jury. So long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsive. . . . If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility, taking into consideration the child’s maturity and ability to withstand the pressure and intimidation of the courtroom environment. The manner in which the witness responds to cross-examination is, itself, evidence as to credibility.” Bright v. State, 197 Ga. App. 784, 785 (4) (400 SE2d 18). “A witness’ responsiveness or unresponsiveness, evasiveness or directness . . . are all factors which can be assessed by the jury and may raise a reasonable doubt. (Cit.)’ [Cit.]” Byrd v. State, 204 Ga. App. 252 (1), 253 (419 SE2d 111).

Decided August 12, 1997.

In the case sub judice, the trial court did not err in refusing to strike the testimony of the adult witnesses who related the child’s out-of-court statements to them, in which the victim described acts of sexual abuse and child molestation, in spite of the victim’s unresponsiveness as a witness when called by the court. Byrd v. State, 204 Ga. App. 252 (1), 253, supra.

4. Defendant’s fourth enumeration contends the trial court erred in denying his motion for directed verdict of acquittal, arguing the only competent evidence of aggravated child molestation is defendant’s own statement, which shows at most only an accidental touching of his mouth to the child’s vagina.

“Whether an act is committed with the requisite criminal intent is a question for the jury ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6. See Blanton v. State, 191 Ga. App. 454 (1), 455 (382 SE2d 133).” Cornelius v. State, 213 Ga. App. 766, 767 (1), 768 (445 SE2d 800). The evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of committing aggravated child molestation as alleged in Count 1 of the special presentment. Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414).

Judgment affirmed.

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

Kenneth J. Jones, for appellant.

James R. Osborne, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A97A1124.
    WAGGONER v. THE STATE.
    (491 SE2d 88)
   Blackburn, Judge.

Jason Waggoner appeals his convictions of driving under the influence and several related charges arising out of a one-car accident, contending that the court erred in denying his motion to suppress and in allowing testimony regarding the results of his* blood-alcohol test. He also contends there was no probable cause for his arrest. For the reasons set forth below, we affirm.

1. Waggoner contends that the court erred in denying his motion to suppress evidence regarding a vodka bottle found in his car, arguing that the evidence was the result of an illegal search. “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Lee v. State, 222 Ga. App. 389, 390 (2) (474 SE2d 281) (1996).

Officer John Robicheaux was the only witness to testify at the hearing on the motion to suppress. He stated that when he arrived at the scene of the accident, Waggoner’s automobile was severely damaged and in the middle of an intersection. The car had hit a utility pole, and there were trees on fire and live power lines on the road. Waggoner, who had visible head injuries, told Robicheaux that he had fallen asleep while driving. Robicheaux had Waggoner wait in his patrol car while he took control of the scene and called the fire department and power company. Waggoner was not under arrest at this time, and the officer informed him that he was free to leave the vehicle. Robicheaux testified that he did not suspect alcohol was involved at this time.

As the car was severely damaged and obstructing the intersection, Robicheaux asked Waggoner if he had a preference as to who came to remove the car, and Waggoner stated that he' did not. In accordance with county policy, Robicheaux then arranged for Crane Wrecker, a county-contracted wrecker service, to remove the automobile. Robicheaux then performed an inventory search of the automobile’s contents and discovered a nearly empty bottle of vodka on the front floorboard. When he returned to the patrol car to question Wag-goner about the bottle, he noticed that Waggoner had vomited on himself in the car. Waggoner told Robicheaux that he had been drinking the vodka that night, that the bottle had been full, and that he had been the only one drinking. Robicheaux testified that there was only about an inch of vodka left in the 750-milliliter bottle after the accident. Robicheaux then arrested Waggoner for driving under the influence of alcohol.

Waggoner contends the inventory search was improper because there was no necessity for the State to seize the vehicle. However, “[i]t is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” (Citation, punctuation and emphasis omitted.) State v. Evans, 181 Ga. App. 422, 423-424 (2) (352 SE2d 599) (1986). “Inventory searches have two purposes: to protect the vehicle and the. property in it, and to safeguard the police or other officers from claims of lost possessions.” (Citations and punctuation omitted.) Pierce v. State, 194 Ga. App. 481 (391 SE2d 3) (1990). “[T]he decisive evidentiary issue in cases involving inventory searches [is] the existence of ‘reasonableness’ rather than the existence of ‘exigent circumstances.’ ” Evans, supra at 424 (2).

In this case, the automobile was severely damaged and blocking an intersection. When given the opportunity, Waggoner expressed no preference regarding towing companies and allowed Officer Robicheaux to make the towing arrangements. Therefore, it was necessary for the police to exercise at least temporary dominion over the vehicle. Under the circumstances, it was reasonable for Robicheaux to inventory the contents of the automobile to protect against claims of lost or stolen property while the vehicle was in the possession of the police or its contractors.

Fortson v. State, 262 Ga. 3 (412 SE2d 833) (1992), does not alter this analysis. In that case, the Supreme Court disagreed with this Court’s statement that “an inventory search is appropriate whenever the police department selects the towing vehicle rather than the defendant in order to protect the police against claims of lost or stolen property.” Fortson v. State, 201 Ga. App. 272, 274 (410 SE2d 774) (1991). However, the reason for the Supreme Court’s disagreement was that the defendant in that case made his own private contract with the towing company to remove his automobile. Fortson, 262 Ga. at 4 (1). In the present case, Waggoner did not express a preference for a towing company or make his own contractual arrangements with Crane’s Wrecker, but left such matters to the police. Therefore, the Supreme Court’s reasoning in Fortson is inapplicable.

As the evidence supports the trial court’s determination that the inventory search was proper, the court did not err in denying the motion to suppress.

2. Waggoner contends the trial court erred in finding that there was probable cause for his arrest. He argues that the results of his state-administered blood test should have been suppressed as the “fruit of the poisonous tree” arising from an improper search and a lack of probable cause for the subsequent arrest.

“For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.” (Punctuation omitted.) Lee, supra at 391.

The evidence supports the trial court’s determination that there was probable cause for Waggoner’s arrest. Waggoner admitted that he was driving the automobile, which left the road and struck a utility pole. He told Officer Robicheaux that he had fallen asleep. He admitted that he had been drinking the vodka that night, that the bottle had been full, and that he had been the only one drinking. Robicheaux testified that there was only about an inch of vodka left in the 750-milliliter bottle after the accident. Although Waggoner was free to leave the patrol car, he did not do so. He remained in the vehicle and vomited therein before being placed under arrest. Robicheaux testified that, although he did not initially notice the smell of alcohol, he did smell alcohol when talking with Waggoner after finding the vodka bottle. Under these circumstances, the trial court did not err in finding that Robicheaux had probable cause for the arrest. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); Whitener v. State, 201 Ga. App. 309, 310 (1) (410 SE2d 796) (1991); State v. Greene, 178 Ga. App. 875 (344 SE2d 771) (1986).

3. Waggoner contends that the court erred in admitting the results of his blood-alcohol test, because the State failed to satisfy the foundational requirements of OCGA § 40-6-392 (a) (1) (A).

(a) OCGA § 40-6-392 (a) (1) (A) requires, inter alia, that blood-alcohol tests be performed “by an individual possessing a valid permit issued by the Division of Forensic Sciences.” Waggoner contends the State failed to satisfy this requirement because it did not introduce the relevant permit into evidence. However, Dr. Robert Brown, the forensic chemist who performed the blood tests, testified without objection that he had been issued such a permit. The statute does not require that the actual permit be offered into evidence, and Wag-goner did not raise a best-evidence objection to Brown’s testimony. See Koulianos v. State, 192 Ga. App. 90 (2) (383 SE2d 642) (1989) (officer’s testimony that he was a licensed intoximeter operator sufficient foundation to show he was certified to perform test). Accordingly, this testimony satisfies the statutory requirement.

(b) OCGA § 40-6-392 (a) (1) (A) also requires that the test “shall have been performed . . . on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order.” Waggoner contends that the State failed to satisfy this foundational requirement.

The statute provides that “[t]he Division of Forensic Sciences of the Georgia Bureau of Investigation shall. . . issue certificates certifying that instruments have met those requirements.” OCGA § 40-6-392 (a) (1) (A). At trial, the State introduced a certificate stating that the blood test machine was approved for use and that “[a]ll of its electronic and operating components prescribed by its manufacturer are properly attached and in good working order.” However, this certificate was dated March 6, 1996, several months after the test of Wag-goner’s blood, and does not indicate when the machine was inspected. Accordingly, the certificate does not by itself establish that the foundational requirements were satisfied at the time the blood test was performed. Compare Williams v. State, 224 Ga. App. 368, 369 (2) (481 SE2d 535) (1997) (certificate issued on August 29, 1995, stating that machine was tested on December 19, 1994 and found to be in good working order, satisfied statute).

However, “ ‘[certificates’ are not the exclusive means of laying the foundation to admit alcohol test results,” Bazemore v. State, 225 Ga. App. 741, 745 (2) (484 SE2d 673) (1997), and “substantial statutory compliance can be established by circumstantial evidence arising from the testimony of a chemist who operated the machine and performed the test.” Id. at 744. The State in this case presented the testimony of Dr. Brown, the forensic chemist at the Division of Forensic Sciences who performed the blood test on Waggoner. Brown testified that he was trained to operate the blood test machine, and that he used the machine almost daily. He testified that, when he performed Waggoner’s blood test, the machine was working properly and all of its working parts were in order. He further testified that no additions, deletions, or alterations had been made to the machine since it was assembled by the manufacturer’s factory service engineer. Brown also testified without objection, in response to a leading question by the prosecutor, that all electronic and operating components prescribed by the manufacturer were properly attached and in good working order at the time of the test. Brown’s testimony, particularly when combined with the certificate certifying that all components were properly attached and in good working order as of March 6, 1996, was sufficient to enable the trial judge to find that the foundational requirements of OCGA § 40-6-392 (a) (1) (A) were met.

Decided July 30, 1997

Reconsideration denied August 13, 1997

H. Darrell Greene & Associates, Patrick H. Head, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Laura J. Murphree, Assistant Solicitors, for appellee.

(c) Waggoner also contends that the State failed to establish that the blood test was “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation,” as required by OCGA § 40-6-392 (a) (1) (A). However, Waggoner failed to raise this objection at trial, and so it is not preserved for appellate review. See McDaniel v. Dept. of Transp., 200 Ga. App. 674, 679 (3) (409 SE2d 552) (1991) (“an objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal”); Hight v. State, 221 Ga. App. 574, 576 (6) (472 SE2d 113) (1996). Moreover, this contention is without merit, as the record reflects that Dr. Brown testified that the headspace gas chromatography method utilized for the test was approved by the director of the Division of Forensic Sciences.

Judgment affirmed.

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


text:
    A97A1323.
    FLORES v. THE STATE.
    (491 SE2d 86)
   Blackburn, Judge.

Alejandro Gonzales Flores appeals his conviction of sexual battery. Flores contends that his conviction should be reversed because the victim’s identification of him was impermissibly suggestive due to the one man show-up conducted by the arresting officers.

The evidence indicated that the victim was finishing her work in the laundry room at a Red Roof Inn when she was approached by Flores. Flores grabbed her from behind, putting one hand across her mouth and his other hand on her breast. The victim struggled, and Flores grabbed both of her breasts while she screamed for help. Flores then attempted to push her into the laundry room while he rubbed his hand on her vagina. After struggling with the victim, Flores ran away.

Within 30 to 45 minutes, the police located Flores in a parking lot a few hundred yards from the crime scene. An officer took the victim to the parking lot where she viewed Flores from the police car. Several police cars were shining their lights on Flores, who was standing outside a police car. The victim testified, at the hearing on Flores’ motion to suppress, that she was able to clearly see Flores and that she immediately identified him. After she identified him she asked that he turn around. When she saw the orange writing on the back of his jacket, she was positive that he was the perpetrator.

“There is no per se exclusionary rule applied to pre-indictment confrontations. Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).” (Citations and punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 418 (471 SE2d 528) (1996).

At the hearing on Flores’ motion to suppress the victim’s identification, the victim testified that she got a good look at Flores when the incident took place. The victim testified that as Flores approached her she thought he was a hotel guest coming to request extra towels from her. She stated that he had dark shoulder-length hair, a thin mustache, a baseball cap that she thought was white but she was not sure, black pants or black jeans, work boots, and a jacket with orange writing on the back. The victim further testified that her assailant was five feet eight to five feet nine inches tall and weighed between 175 and 180 pounds. Additionally, the assailant smelled of alcoholic beverages. The victim gave this description to the Cobb County police officer who arrived on the scene. Although the victim’s glasses were knocked off in the struggle, the victim testified regarding her ability to see without them.

In the present case, the victim got a good look at her assailant as he approached her. She also noted his clothing as they struggled. Although more details could always be provided, the victim’s description of Flores to the police was substantially correct, and her identification of Flores within an hour of the incident was positive.

“Prompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, nevertheless are permissible in aiding a speedy police investigation and where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. Bennefield, v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972).” (Citation and punctuation omitted.) Ferguson, supra at 418.

Decided July 28, 1997

Reconsideration denied August 13, 1997

Roland R. Castellanos, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Aurieanne T. Sneed, Assistant Solicitors, for appellee.

The cases cited by Flores are distinguishable and are not controlling. Under the facts of this case, “[t]he trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed.” (Punctuation omitted.) Id. at 419.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A97A0986.
    In the Interest of J. H., a child.
    (491 SE2d 209)
   Smith, Judge.

In September 1996 a petition was filed in the Juvenile Court of Fulton County alleging that J. H. had committed a drug offense and had violated probation. Following a hearing during which witnesses testified, the juvenile court dismissed the charges against J. H., concluding that J. H. did not voluntarily consent to the search which resulted in his arrest and that the seizure of the juvenile’s property was illegal. This appeal by the State ensued. J. H. then filed a motion to dismiss the appeal on the ground that this Court does not have jurisdiction to consider the State’s appeal. We agree and dismiss the appeal.

OCGA § 5-7-1.1 specificálly delineates the circumstances under which the State may appeal a decision in a delinquency case: “An appeal may be taken by and on behalf of the State of Georgia from the juvenile courts and such other courts from which a direct appeal is authorized to the Court of Appeals ... in delinquency cases in the following instances: (1) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; or (2) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the first witness being sworn.”

The ruling appealed in this case, the dismissal of a petition in juvenile court, falls into neither category specified by OCGA § 5-7-1.1, and an appeal is therefore not authorized under this section. Had the legislature wished to allow for an appeal of the dismissal of a juvenile court petition during trial, it could have done so, much as it has provided for the appeal in a criminal case of “an order, decision, or judgment setting aside or dismissing any indictment or accusation.” OCGA § 5-7-1 (a) (1). Although the State indicated in its notice of appeal that it relied upon OCGA § 5-7-1 in addition to OCGA § 5-7-1.1, OCGA § 5-7-1 does not authorize an appeal here. See In the Interest of D. Q. H., 212 Ga. App. 271 (441 SE2d 411) (1994). In addition, the notice of appeal reflects the State’s reliance on OCGA § 15-11-64 as the basis for appeal. That statute, however, does not list the types of juvenile court rulings from which the State may appeal.

Decided August 14, 1997.

Paul L. Howard, Jr., District Attorney, Peter H. Boehm, Carl P. Greenberg, Assistant District Attorneys, .for appellant.

John L. Williams, Steven E. Phillips, for appellee.

In short, because the legislature has not specifically provided for appeal of the dismissal of a juvenile court petition under the circumstances present in this case, we are without jurisdiction to entertain the State’s appeal. As stated in State v. Hollomon, 132 Ga. App. 304 (208 SE2d 167) (1974), “[t]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts. . . . The General Assembly having placed the specific conditions upon appeals by the state in criminal [and juvenile] cases ... we will not by judicial construction extend the right of appeal beyond these instances.” (Citation and punctuation omitted.) Id. at 306. We therefore dismiss the State’s appeal.

Appeal dismissed.

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


text:
    A97A1183.
    PRICE v. THE STATE.
    (491 SE2d 210)
   Smith, Judge.

Dock Price appeals his conviction and sentence on three counts of child molestation and three counts of aggravated child molestation, contending that he was denied effective assistance of counsel and deprived of his constitutional right to appointed counsel on appeal, that the trial court erred in holding a joint trial, and that the evidence was insufficient to support the convictions. Finding no merit in any of Price’s claims, we affirm the judgment below.

Price was indicted with his brother Charles Price on multiple counts of child molestation, aggravated child molestation, and aggravated sodomy. At a joint trial, the trial court granted a directed verdict of acquittal as to four counts in the indictment, and Price was found guilty by a jury of all remaining counts. Following sentencing, the trial court appointed Charles Price’s trial counsel to represent both defendants on appeal. Counsel filed a motion for new trial on .behalf of both defendants. The motion was denied, and counsel filed a notice of appeal on behalf of both defendants. Because counsel failed to file a brief and enumeration of errors after being ordered to do so, Dock Price’s appeal was dismissed by this Court. Acting pro se, Dock Price then filed a habeas corpus petition, and the habeas court directed that he be granted an out-of-time appeal. The trial court granted the out-of-time appeal and appointed current counsel to represent Price. Current counsel did not file a motion for new trial in the trial court, but immediately instituted this appeal by filing a notice of appeal.

After briefs were filed in this Court, Price moved to strike the State’s brief on the ground that a conflict of interest existed, in that before being elected to his present position, the District Attorney had represented Price on the trial of this case. We remanded the case to the trial court for an evidentiary hearing on this issue. During the remand, Price filed an extraordinary motion for new trial in the trial court, alleging ineffective assistance of trial and previous appellate counsel. The trial court denied Price’s motion to disqualify the entire staff of the District Attorney’s office but ruled that the District Attorney, who had been Price’s trial counsel, and one present Assistant District Attorney with whom he had a previous business relationship at the time of Price’s trial, would be disqualified from representing the State on this appeal.

The court also ruled on the extraordinary motion for new trial, finding that the remand from this Court was limited to the disqualification issue and that it had no jurisdiction to hear the ineffectiveness claim. The appeal was then redocketed in this Court.

1. Price’s contention that his trial counsel and previous appointed appellate counsel were ineffective is procedurally barred by current appointed counsel’s failure to raise this claim in a motion for new trial before filing the notice of appeal. The grant of an out-of-time appeal includes the right to file a motion for new trial. Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991). And failure to seize an opportunity to file such a motion for new trial is a bar to raising it on appeal. Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996). In Glover, the Supreme Court overruled the line of cases that held that “new appellate counsel may bypass an opportunity to raise ineffectiveness of trial counsel before appeal by way of a motion for new trial and then raise the issue on appeal and be entitled to a remand'fo the trial court for a resolution of the issue.” Id. at 184, n. 6. Although in Glover the Supreme Court állowed a remand because it was not previously known that no remand was available, id. at 184-185 (2), that rule has been in place sufficiently long to bar such a remand in this case. Although it is true that appellate counsel raised this claim in the trial court, he did not do so before first filing the notice of appeal. This issue was therefore waived.

2. The cases cited by Price direct that when the constitutional right to assistance of appointed counsel on appeal is violated, the remedy consists of the appointment of counsel and the right to an out-of-time appeal. See, e.g., McAuliffe v. Rutledge, 231 Ga. 745 (204 SE2d 141) (1974); Roberts v. Caldwell, 230 Ga. 223 (196 SE2d 444) (1973). Since counsel has been appointed for Price and he has been granted the right to an out-of-time appeal, the wrong has been remedied and his contention has no merit.

3. Price’s contention that the trial court denied his motion for severance of parties is belied by the record, which shows that he made no such motion. At the beginning of the trial, counsel for Price’s brother Charles, his co-defendant, moved for severance based upon the fact that evidence would be introduced regarding physical abuse of the child victims by appellant, which would prejudice Charles’s defense. Price raised no objection when the trial court denied Charles’s motion and did not himself move for severance. He has therefore shown no basis for appealing the trial court’s ruling. Holland v. State, 197 Ga. App. 496, 497 (1) (398 SE2d 810) (1990).

4. Price raises the general grounds. At trial, the seven-year-old female victim testified that Price and his brother touched her “private” with their fingers and forced her to commit oral sex. She also testified that she committed oral sodomy with her own half-brother, Price’s son, while Price and his brother watched because she feared if they did not, Price would “whoop” her half-brother with a belt buckle. Her brother testified that he witnessed Price and Charles each commit oral sodomy with his sister. A DFACS investigator and an investigator for the Lumpkin County Sheriff’s Department both testified at trial that the seven-year-old victim told them of sexual abuse. An audiotape of a DFACS interview with the seven-year-old female victim in which she described the molestation was introduced at trial and played for the jury. A psychologist testified that the seven-year-old exhibited characteristics of an abused child.

Any inconsistencies in the testimony or between the testimony at trial and the taped testimony goes only to the credibility of the witnesses, which was for the jury to weigh. Ramsey v. State, 214 Ga. App. 743, 744 (1) (448 SE2d 790) (1994). This evidence was sufficient to authorize the jury to convict Price of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 15, 1997.

John R. Burdges, for appellant.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Darrell E. Wilson, Assistant District Attorneys, for appellee.

Judgment affirmed.

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