text:
    A97A1596.
    BELL SOUTH TELECOMMUNICATIONS, INC. v. WIDNER et al.
    (495 SE2d 52)
   Birdsong, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, Bell South Telecommunications, Inc., challenges the denial of its motion for summary judgment in an action brought against Bell South by Betrice and William O. Widner. Mrs. Widner sued Bell South for damages arising from her personal injuries and Mr. Widner sued for his loss of consortium after their car fell into a trench which had been dug across a public road to lay a Bell South telephone cable. The Widners contend they were driving at about 10 to 15 mph when their car came to a sudden stop because the trench collapsed under them. Mrs. Widner alleges that she was injured because of the sudden stop.

Bell South contracted with Brookins, Inc., to lay telephone cable across a county road in Miller County, Georgia. The contract specified that a trench be dug in which to lay the telephone cable and that the ditch be filled to return the road to its proper pre-construction condition as a public road. Brookins then contracted with Pro Grassing & Grading, Inc., to perform the actual work.

Brookins’ subcontract with Pro Grassing required Pro Grassing to complete the work specified by Bell South at an agreed-upon price to be paid by Brookins. In the subcontract, Brookins did not retain the right to control or supervise the work of Pro Grassing and did not exercise control or supervision over the time, manner, or method in which Pro Grassing performed the work. Pro Grassing used its own equipment and employees to perform the work. Pro Grassing billed Brookins directly by invoice and Brookins paid Pro Grassing without deductions for payroll or income taxes or other matters. None of Pro Grassing’s employees was carried on Brookins’ books as employees of Brookins. Although Pro Grassing did work for other companies as well as Brookins, Bell South had no direct contractual relationship with Pro Grassing in this matter.

Initially the Widners filed suit against Bell South and Brookins and Bell South answered and filed a third-party complaint against Pro Grassing. This first action was dismissed, however, and a timely renewal action filed subsequently. In the renewal action, Bell South moved for summary judgment contending that Bell South was not liable to the Widners for the negligence of its independent contractor. After this motion was denied because the trial court found that material issues of fact remained for trial, the trial court granted Bell South a certificate of immediate review, and upon application to this Court, Bell South was granted an interlocutory appeal. Held:

1. The general rule is that an employer is generally not “responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. The standards to be considered when determining whether an employer is liable for the negligence of a contractor are set out in OCGA § 51-2-5. Although this list is not exclusive (Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94 (327 SE2d 188)), the only provision realistically at issue is subsection (5): “If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference.”

When the contract between Bell South and Brookins is construed properly, it establishes that Brookins was an independent contractor and not an employee of Bell South. None of the traditional measures through which improper control is maintained are present (see OCGA § 51-2-5), and the contract provides for Brookins to have independence in the manner in which it performed the work.

“The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow. The right to control the time of doing the job means the right to control the hours of work.” (Citations and punctuation omitted.) RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440).

Therefore, although not necessary for disposition of this appeal, Brookins was an independent contractor.

In this case, the dissent’s analysis focuses too much on the relationship between Bell South and Brookins, and in so doing disregards the fact that the work was performed by Pro Grassing, a subcontractor of Brookins. The affidavit of Mr. Brookins, which was not rebutted by the Widners, describes his contract with Pro Grassing, and that contract completely forecloses any idea that Brookins retained the right to control the time and manner of work or that Brookins interfered with or assumed control of Pro Grassing so that a master and servant relationship was created between them. “A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment. Likewise, the bare denial of the particular agency relationship of employer-employee, made by a purported party to the relationship, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondeat superior. In such circumstances the adverse party may not rest on his pleadings, but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the specific facts required.” (Citations and punctuation omitted.) McDaniel v. Peterborough Cablevision, Ltd., 206 Ga. App. 437, 439 (425 SE2d 424). Consequently, as Pro Grassing, the entity that performed the work in question, was an independent contractor of Brookins, Pro Grassing could not be an employee of Bell South so as to impose liability upon Bell South in this case. Thus, the effect of the dissent would be to make Bell South liable for the work of an independent contractor once removed.

2. Further, unquestioned reliance on Bell South Telecommunications v. Helton, 215 Ga. App. 435, 436 (1) (451 SE2d 76), is misplaced. First, Helton is a two-judge case, and under the rules of this Court is physical precedent only. Court of Appeals Rule 33 (a). Second, and perhaps more importantly, Helton did not construe the contract at issue, and did not hold that the contract created liability under OCGA § 51-2-5 (5). Instead, Helton was a review of a trial court’s decision after a bench trial under the any. evidence standard. The import of that review on this case is shown by the following: “Although there were also contractual provisions which would support a contrary conclusion, we cannot hold that the trial court, acting as trier of fact, erred in finding for Helton on this issue. Under the ‘any evidence’ rule, we must affirm the trial court’s judgment. [Cit.]” Helton, supra at 436. Third, in Helton the work was not performed by a subcontractor of the independent contractor with which Bell South contracted to perform the work.

Therefore, Helton does not control the result in this case, and review of the contracts involved to determine the legal relationships of the parties was required. Under the contracts at issue, Bell South was not responsible for the negligence of Brookin’s independent contractor, Pro Grassing.

3. Moreover, as this Court does not have the authority to disregard controlling Supreme Court of Georgia precedent, we are required to follow Dekle v. Southern Bell Tel. &c. Co., 208 Ga. 254 (66 SE2d 218), even though the dissent may now feel it is out of date or for some other reason should not be followed. The decisions of the Supreme Court shall bind all other courts as precedent. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. Therefore, until the Supreme Court reverses Dekle we must follow the dictates of that case.

Moreover, the dissent’s effort to distinguish Dekle must fail; the distinctions raised are not differences. To say that different legal principles apply because one plaintiff was a pedestrian and another was in a vehicle ignores the underlying legal basis for the Dekle decision.

Also, the increased legislative control over the activities of public utilities working in public rights-of-way, without altering the rule of Dekle shows the opposite intent from that which the dissent suggests. “All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts. [Cits.]” Peachtree-Cain Co. v. McBee, supra at 93. Therefore, the General Assembly’s legislative activity without changing Dekle is evidence of an intent to maintain the status of the law, and not change it. “There is no peculiarity in contracts for the performance by independent contractors of work upon a highway which distinguishes them from ordinary contracts, and the general rule of the immunity of the employer in such cases applies with equal force as to other work. The court should always follow and never precede the legislative department of government in the evolution of the law.” Dekle, supra at 260.

The dissent’s conclusion that utility work on the public highways is of such a nature that liability should be imposed on Bell South because of work performed by an independent contractor is contrary to the holding in Dekle. Therefore, we cannot adopt this reasoning.

4. Finally, the dissent miscomprehends the basis for allowing recovery directly from a public utility whose independent contractor damages property in the exercise of a taking under eminent domain but prohibiting such direct recovery in other cases. The basis is not the nature of the entity damaged, but the fact that one injury arises from a constitutional taking and the other injury arises from a traditional tort.

Therefore, as we find the trial court erred by denying Bell South’s motion for summary judgment, the trial court’s order is reversed and the case remanded with direction to enter summary judgment in favor of Bell South.

Judgment reversed with direction.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I respectfully dissent.

Bell South is a public utility or a related entity, operating under a certificate of public convenience granted by the Georgia Public Service Commission allowing it, or the related entity from which it derives its rights to construct and maintain a telephone system within the meaning of OCGA §§ 46-5-1; 46-5-41 et seq. As a consequence of its status as a utility, Bell South .has the right of use of county, municipal, and state roads and streets in the exercise of its franchise, unlike non-utilities. See generally Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 453-454 (1) (288 SE2d 705) (1982); City of Macon v. Southern Bell Tel. &c. Co., 89 Ga. App. 252, 266-267 (79 SE2d 265) (1953). A telephone company can use the streets and highways for purposes related to installation and maintenance of the telephone lines. City of Macon v. Southern Bell Tel. &c. Co., supra. However, such “use” means lawful use so as not to violate the duties imposed upon it by law or by contract with a governing entity. Southern Bell Tel. &c. Co. v. Scogin, 136 Ga. App. 318, 319-320 (221 SE2d 203) (1975).

The temporary obstruction of a street or highway by a telephone company as part of its construction is not a violation of any public right to use such roadway for travel. Dekle v. Southern Bell Tel. &c. Co., 208 Ga. 254 (66 SE2d 218) (1951), overruled on other grounds, Peachtree-Cain Co. v. McBee, 254 Ga. 91 (327 SE2d 188) (1985). However, the telephone company may be liable in negligence or nuisance for creating a dangerous condition in the public roadway or unlawfully obstructing the roadway. Southern Bell Tel. &c. Co. v. Martin, 229 Ga. 881 (194 SE2d 910) (1972); Southern Bell Tel. &c. Co. v. Howell, 124 Ga. 1050, 1051-1052 (1) (53 SE 577) (1906); City Council of Augusta v. Tharpe, 113 Ga. 152, 158 (6) (38 SE 389) (1901); Southern Bell Tel. &c. Co. v. Scogin, supra at 319; General Tel. Co. &c. v. Rutland, 120 Ga. App. 291 (1) (170 SE2d 431) (1969); Southern Bell Tel. &c. Co. v. Whiddon, 108 Ga. App. 106 (3) (132 SE2d 237) (1963); Blunt v. Spears, 93 Ga. App. 623 (92 SE2d 573) (1956), rev’d on other grounds, Southern Bell Tel. &c. Co. v. Spears, 212 Ga. 537 (93 SE2d 659) (1956); Bleckley v. Western Carolina Tel. Co., 42 Ga. App. 110 (155 SE 83) (1930). “Under certain circumstances, it has been held that the failure to properly maintain utility poles may create an inherently dangerous situation and may result in liability. Lenderman v. Haynie, 89 Ga. App. 513, 519-520 (2) [(80 SE2d 216) (1954)].” Southern Bell Tel. &c. Co. v. Martin, supra at 883; see also South Ga. Power Co. v. Smith, 42 Ga. App. 100 (155 SE 80) (1930). Such inherent danger also arises from construction and maintenance work performed in the main traveled portions of highways, roads, and streets. Under OCGA § 51-2-5 (3) and (4), such duty is non-delegable and is imposed both by statute and implied contract between the utility and the county; therefore, the negligence of an independent contractor or sub-contractor is imputed to the defendant.

Where the power of eminent domain is exercised to perform utility work, the telephone company or public utility is liable for damage to property or a taking whether or not the utility does the act or does it through an independent contractor. See OCGA §§ 22-1-2; 46-5-1; Woodside v. Fulton County, 223 Ga. 316, 319-321 (1) (155 SE2d 404) (1967); see also Ga. Power Co. v. Jones, 122 Ga. App. 614 (178 SE2d 265) (1970). Under the doctrine of inverse condemnation, where an independent contractor performs work for a governmental body or public utility within a right-of-way and causes property damage within or outside of the right-of-way, such employer, notwithstanding an independent contractor relationship, is liable for any resulting damage, because both the federal and state constitutions mandate that private property cannot be taken for public use without just and adequate compensation first being paid. Such constitutional public policy requires that such mandate override the common law doctrine of independent contractor. See Woodside v. Fulton County, supra at 320-321; Ga. Power Co. v. Jones, supra at 615-616. If the doctrine of independent contractor cannot bar liability when property is damaged, then why should such doctrine bar liability when there is personal injury?

The telephone company obtains an easement over private lands and a franchise over public streets and roads, not a fee interest. This franchise or easement allows the erection of poles and guy wires or burial of cable, and the right to enter upon such easement or franchise to construct, maintain, or repair such telephone lines; such franchise does not allow a general interference with the use of the roadway by the public, but allows temporary obstruction of users. Atlantic Coastline R. v. Postal Telegraph-Cable Co., 120 Ga. 268 (48 SE 15) (1904).

(a) Independent contractor under OCGA §§ 51-2-4; 51-2-5.

The case sub judice is distinguishable on the law and facts from Dekle v. Southern Bell Tel. &c. Co., supra, for a number of reasons. First, Dekle dealt with a pedestrian; a pedestrian has a longer opportunity to react and avoid a danger from construction in the road than does a motorist who is moving much faster and must contend with other vehicles, as well as the road conditions. Construction in the main traveled portion of a highway, road, or street has become inherently dangerous since Dekle was decided, not only to the motorist, but also to the construction worker, because of the size, speed, and number of vehicles, despite the many laws to protect the public. Second, since Dekle was decided, the rights of public utilities to work in the public rights-of-way have been further regulated and permitted, provided that the public utilities pay to restore the roadway to the prior condition and do not create an unreasonably dangerous hazard. The Georgia Department of Transportation has the right and power to allow utility work on state rights-of-way. Counties have similar power and control over the county system of roads, but the county is prohibited from imposing a franchise fee, tax, rental fee, or other charge for permission for a utility to use the county road rights-of-way outside a municipality. Where the plans and specifications of the public utility satisfactorily meet current technical requirements and criteria established by the Georgia Department of Transportation, and no valid reasons exist for the denial of a permit to built or install the utility in the rights-of-way of a street or road, the county must issue the permit to construct the utility in the road right-of-way. Third, both Woodside v. Fulton County, supra at 320-321, and Ga. Power Co. v. Jones, supra at 615-616, were decided long after Dekle, showing a growing awareness that the common law doctrine of independent contractor has no application when a governmental entity or public utility is involved in work in a public right-of-way and causes damage to property. There is no valid public policy that would allow a plaintiff to recover for the injury to property, the motor vehicle and other personal property, but would bar his or her recovery for his or her own injury; even sovereign immunity has been partially waived to allow recovery under the State Tort Claims Act for personal injury. Thus, utility construction or maintenance work in the public highways, roads, and streets creates for motorists and construction workers in the roadway an inherently dangerous condition, so that the duty of reasonable care arising from engaging in such work without closing the road, which interferes with public use of the roadways, is a non-delegable duty arising from the rights and duties granted solely to the public utility only and can only be exercised as delegated power by a third party, under the supervision and control of the utility, which imposes liability for the conduct of such independent contractor. OCGA § 51-2-5 (2) and (4). Further, the Supreme Court has not considered and ruled upon the foregoing issues.

(b) Contract granting control and supervision of the work.

The defendant had a contract with Brookins, which form contract, in Bell South Telecommunications v. Helton, 215 Ga. App. 435 (1) (451 SE2d 76) (1994), was held to create liability under OCGA § 51-2-5 (5), because appellant retained the right to control and supervise the work under the contract.

Generally, an agent cannot, by employing a sub-agent, create an agency between the principal and sub-agent without real or implied authority to do so. However, appellant cannot escape liability by allowing its agent to employ a sub-agent to perform non-delegable duties, under the contract or as a matter of law. See generally OCGA § 10-6-5; Carter v. Bishop, 209 Ga. 919, 926-930 (2) (76 SE2d 784) (1953); White v. J. E. Levi & Co., 137 Ga. 269, 270-271 (2) (73 SE 376) (1911); Burke County Bd. of Ed. v. Raley, 104 Ga. App. 717, 720-721 (1) (123 SE2d 272) (1961); Cowart v. Jordan, 75 Ga. App. 855, 859-860 (2) (44 SE2d 804) (1947); Samples v. Shaw, 47 Ga. App. 337, 338 (3) (170 SE 389) (1933); Cooper v. Lowery, 4 Ga. App. 120 (60 SE 1015) (1908). Further, by accepting the work performed by Pro Grassing and paying Brookins for such work, appellant ratified Pro Grassing as a sub-agent under the contract. See Carter v. Bishop, supra at 927; Harris v. Underwood, 208 Ga. 247, 250 (4) (66 SE2d 332) (1951); Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 859 (1) (229 SE2d 765) (1976); Burke County Bd. of Ed. v. Raley, supra at 721; OCGA § 51-2-5 (6). Therefore, Bell South has imputed to it the negligence of the sub-agent.

Decided December 3, 1997.

Langley & Lee, Donald W. Lee, for appellant.

William M. Shingler, Ronnie J. Lane, for appellees.

(c) Non-compliance with the implied promise to restore road.

The Supreme Court of Georgia in Dekle, supra at 258, held that a telephone company had an implied contract with the governmental entity that issued the permit to restore the roadway after the utility work had been completed to the roadway’s original condition. Failure by the independent contractor to so restore could constitute a violation of a duty imposed by contract under OCGA § 51-2-5 (3). The undisputed evidence in this case was that the trench in which the new telephone cable had been laid partially collapsed under the weight of appellees’ vehicle in the rain. Such evidence raised a material issue of fact as to whether or not the independent contractor performed the duty imposed on Bell South to restore the roadway to its original condition. OCGA § 51-2-5 (3); Dekle, supra at 256.

       Subsequent to Dekle, a number of statutes were passed that indicate a public safety-concern over danger on the highways, roads, and streets of Georgia, and construction on the roadways. See OCGA §§ 32-6-1; 32-6-20 et seq.; 40-6-4; 40-6-75; 40-6-181; 40-6-182; 40-6-188; 40-10-1 et seq.

       OCGA §§ 32-6-1; 32-6-170; 40-6-5; 40-6-188; Crider v. Kelley, 232 Ga. 616, 619 (208 SE2d 444) (1974); City of Fairburn v. Cook, 188 Ga. App. 58, 60-61 (2) (372 SE2d 245) (1988). Dekle, supra at 258, held that any permit from governing authorities to work on the road implies a contract with the utility to restore the roadway to its original condition after the utility work is completed.

       OCGA § 32-2-2; Crider v. Kelley, supra at 618-619.

       OCGA §§ 32-4-1 (2); 32-4-40 et seq.; Clack v. Henry County, 261 Ga. 623 (409 SE2d 647) (1991); DeKalb County v. Ga. Power Co., 249 Ga. 704 (292 SE2d 709) (1982).

        DeKalb County v. Ga. Power Co., supra at 705-707; see also Faulkner v. Ga. Power Co., 243 Ga. 649, 650-651 (256 SE2d 339) (1979); Ga. R. &c. Co. v. City of Atlanta, 154 Ga. 731, 744-746 (115 SE 263) (1922).

       The issue of sovereign immunity does not apply when the damages flow from inverse condemnation to property. Powell v. Ledbetter Brothers, Inc., 251 Ga. 649, 650-651 (2) (307 SE2d 663) (1983), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990). OCGA § 50-21-20 et seq. would allow a personal injury action where an individual was injured as a result of work performed for the state by an independent contractor in a public right-of-way, when such duty is non-delegable. See Williams v. Ga. Dept.

        of Corrections, 224 Ga. App. 571, 573-576 (481 SE2d 272) (1997); see also OCGA § 50-21-22 (7).

       As to construction work that is inherently dangerous, see Powell v. Ledbetter Brothers, Inc., supra at 651-652; see also David Allen Co. v. Benton, supra at 558; Carney v. JDN Constr. Co., 206 Ga. App. 785, 786 (1) (426 SE2d 611) (1992); Samuelson v. Lord, Aeck &c., 205 Ga. App. 568, 571 (423 SE2d 268) (1992); Johnson v. Fowler Elec. Co., 157 Ga. App. 319, 320-321 (2) (277 SE2d 312) (1981); Wilner’s, Inc. v. Fine, 153 Ga. App. 591, 592-593 (1) (266 SE2d 278) (1980); PPG Indus. v. Genson, 135 Ga. App. 248, 250-251 (2) (217 SE2d 479) (1974); Peachtree North Apts. Co. v. Huffman-Wolfe Co., 126 Ga. App. 594 (191 SE2d 485) (1972); Queen v. Craven, 95 Ga. App. 178, 183-184 (3) (97 SE2d 523) (1957).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A2165.
    COLEMAN v. THE STATE.
    (494 SE2d 549)
   Blackburn, Judge.

Artis Coleman appeals his conviction for possession of marijuana, contending that the evidence against him was insufficient as a matter of law to support the verdict. His two co-defendants were acquitted. For the reasons discussed below, we affirm the conviction.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Coleman] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson[ v. Virginia] 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.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

On the afternoon of April 1, 1995, Coleman borrowed his girlfriend’s car and made several trips across Wrightsville, Georgia on various errands with his friends Jeff Jenkins and Hollis Mason. Coleman was driving the car in which marijuana was later found on the dashboard. Jenkins was in the front passenger’s seat, and Mason was in the back seat. That evening, the three men parked the car in a lot across from a local school while they drank some liquor they had purchased. Officer Charles Kicklighter, who pulled up behind the defendants, approached the car and found a plastic bag containing two marijuana roaches in plain view on the dashboard of the car, and he arrested all three men for possession of marijuana. At trial, Coleman was found guilty, and his co-defendants were acquitted.

“[Coleman] argues that mere presence in the vicinity of contraband, without more, does not establish possession, and there must be a showing of constructive possession by [him] other than mere spatial proximity. While we agree with those principles of law, they are inapplicable here.” Blaise v. State, 185 Ga. App. 653 (365 SE2d 499) (1988). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.” (Punctuation omitted.) Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991).

“Sufficient circumstantial evidence was presented at trial to establish that [Coleman] had at least joint constructive possession of the contraband in the vehicle. [Cit.] There was evidence from which a jury could conclude that the [marijuana] was visible, and that [Coleman] had access to it and the power to exercise control over it.” Id. Coleman and his co-defendants had driven the vehicle to Wrights-ville several times that day, and they were sitting in the parked car when Officer Kicklighter pulled up behind them. Furthermore, the marijuana roaches were in plain sight on the dashboard of the car, making them visible to Coleman.

Contrary to Coleman’s contention, Farmer v. State, 152 Ga. App. 792 (264 SE2d 235) (1979), does not change this result. In Farmer, the car in question was borrowed from someone the accused did not know, and the marijuana was found wrapped in a towel beneath the passenger’s seat, almost completely out of sight. Based on these facts, we held that “where an accused presents any competent evidence that others have had equal access to the vehicle where contraband material is found, it cannot be inferred as a matter of fact, giving rise to a presumption of law, that based s.olely upon ownership or operation he or she was in actual or constructive possession of the contraband.” (Emphasis supplied.) Id. at 796.

Decided December 3, 1997.

Joe H. Thalgott, for appellant.

Ralph M. Walke, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

In the present case, on the other hand, Coleman’s possession of the contraband was not based solely upon the fact that he was operating the car in which it was found. Rather, Coleman, as the borrower of the vehicle, was also in control of the vehicle and, as the driver, was in control of the dashboard on which the marijuana was found which was within his reach. While these facts would not demand a guilty verdict, they are sufficient to support the jury’s finding in this case. Accordingly, a jury could infer that Coleman was aware of the contraband, was in control of same, and was in sole or joint constructive possession of it, and the judgment must be affirmed under the standard of Jackson v. Virginia, supra.

Judgment affirmed.

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


text:
    A97A2212.
    MARKEE et al. v. THE STATE.
    (494 SE2d 551)
   Blackburn, Judge.

Justin Markee and Jeremy Petree appeal their convictions for kidnapping and multiple counts of armed robbery, burglary, false imprisonment, and aggravated assault, which stemmed from incidents involving several victims over the course of three days in July 1995. The defendants contend that three separate trials of the defendants jointly were required, one for all the offenses committed on each of the three days enumerated in the indictment. Defendants appeal the trial court’s denial of their motion to so separate the trials. Finding sufficient evidence to support the convictions and no reversible error, we affirm.

1. The indictment charged Markee and Petree with three “groups” of offenses. The first group of charges concerned a July 11 attack on the first victim; the second group involved a July 12 home invasion; and the third group arose from a home invasion committed on July 13 as the defendants were fleeing from the police. The trial court denied the defendants’ motion to sever these three groups of offenses.

“[0]nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses.” (Punctuation omitted; emphasis in original.) Evans v. State, 201 Ga. App. 20, 25 (410 SE2d 146) (1991). “Where, however, joinder is based on the same conduct or on a series of acts connected together and evince ongoing criminality, severance lies within the sound discretion of the trial court. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.” (Citations and punctuation omitted; emphasis in original.) Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995).

Here, the State presented evidence showing that on the evening of July 11, the defendants approached the first victim in a theater parking lot known as a gay pick-up area and asked if he wanted to “have some fun.” They traveled to a DeKalb County apartment complex, where the defendants held up the victim with a shotgun and revolver, bound him and covered his eyes with duct tape, put him in the trunk of his car, and drove around in the car for several hours. They finally dragged him into the woods and duct-taped and tied him, naked, to a tree. They stole his car, his watch, and other items. The second incident occurred the next evening, July 12, when the armed defendants invaded the victims’ DeKalb County trailer, bound the victims with duct tape, hit one victim with a shotgun, and over the course of two hours ransacked the home and stole money and jewelry. On the afternoon of July 13, as the defendants were being pursued by police, they invaded another home, confined one of the victims to a laundry closet, and stole that victim’s jewelry and car keys. This evidence showed what amounted to a three-day, non-stop crime spree, and the trial court did not abuse its discretion in refusing to sever the offenses comprising this ongoing criminal conduct. See id.; Johnson v. State, 213 Ga. App. 194, 195 (1) (444 SE2d 334) (1994).

2. In their second enumeration, Markee and Petree claim that because the “photo lineups” presented to some of the victims were unduly suggestive, those victims should not have been allowed to identify the defendants in court. “In-court identification is not rendered inadmissible unless the pre-trial identification was impermis-sibly suggestive and the suggestiveness of the procedure created a substantial likelihood of misidentification.” (Emphasis in original.) Jones v. State, 226 Ga. App. 428, 431 (3) (487 SE2d 62) (1997). The likelihood of misidentification is determined based on the “totality of the circumstances” test, taking into consideration “ ‘(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation.’ ” Id. We will review these claims despite the fact that the defendants’ position at trial was not one of mistaken identity, but rather of mental distress or illness rendering the defendants incapable of forming a criminal intent.

(a) The Victim of the July 11 Attack. The first victim was engaged in casual conversation with both defendants for at least ten minutes before they attacked him, during which time he could see their faces. Two days after the attack, he picked each defendant from separate six-photograph lineups featuring similar individuals. Before reviewing the lineups, the victim signed an “admonition” that informed him he did not have to pick anyone, that he should not be influenced by police in making his selection, and that the persons who attacked him “may or may not” be among those photos. At trial, he testified he had “no doubt” that Petree and Markee were his assailants. The trial court did not err when it concluded these photo lineups were not unduly suggestive. See Jones, supra. Moreover, the mere fact that an officer told the victim that police had suspects in custody does not invalidate the photographic lineup. Reid v. State, 210 Ga. App. 783, 786 (2) (437 SE2d 646) (1993).

(b) The Victims of the July 12 Attack. The victims of this attack were a husband and wife, their nephew, and a visitor. Shown a lineup of six similar photographs two days after the incident, the wife picked Petree as her attacker and was “100 percent positive.” Before showing the wife the photo lineup, police read her the same admonition given the victim of the July 11 attack. She had seen her attackers for one and a half minutes, which she testified was long enough to identify them. She identified no one from the second photo lineup. The trial court concluded the photo lineup shown to the wife was not unduly suggestive, and we find no error in that determination. Jones, supra. As the remaining victims of this home invasion made no in-court identification of their assailants, we need not further consider this claim.

(c) The Elderly Victim of the July 13 Incident. This victim was alone with the defendants for 15 minutes. Within hours of the incident, she was shown a single lineup of six photographs containing pictures of both defendants, and she positively identified both Petree and Markee. The court committed no error by allowing this testimony at trial, despite the fact that both defendants appeared in one lineup. See Reid, supra.

3. Petree further contends a “showup” which took place within an hour of the July 13 home invasion was unduly suggestive. As police were pursuing Petree and Markee, the defendants disappeared in the vicinity of this home. About the same time, Petree and Markee invaded the home. One of the victims of that crime testified that she observed Petree as he threatened her, took her car keys, removed her jewelry, and locked her in a laundry room before leaving the house. Shortly thereafter, police found Petree and Markee at a nearby hotel. As police drove the victim past Petree at an intersection, she identified Petree as the man who assaulted her. The trial court did not err when it found this “showup” created no likelihood of misidentification. See Wright v. State, 222 Ga. App. 613, 614 (1) (475 SE2d 670) (1996); Ferguson v. State, 221 Ga. App. 415, 418-419 (1) (471 SE2d 528) (1996).

4. The final enumeration challenges the evidence supporting six of the convictions. Pursuant to the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we review the evidence supporting each conviction in a light most favorable to the verdict to determine whether a reasonable trier of fact could have returned a verdict of guilty beyond a reasonable doubt. Waddell v. State, 224 Ga. App. 172, 173 (1) (480 SE2d 224) (1996).

(a) Count 6: Burglary on July 12. The indictment stated that the defendants entered “the dwelling of” the victim with intent to commit a theft. Citing evidence showing the trailer was actually owned by the named victim’s wife, Petree and Markee claim the State failed to prove its case. On the contrary, the State was not required to prove this named victim owned the trailer; rather, proof that he lived there was sufficient. Phillips v. State, 152 Ga. App. 671, 672 (1) (263 SE2d 480) (1979).

(b) Count 9: Aggravated Assault on July 12. Petree and Markee claim that the State failed to prove which of the two defendants struck the named victim with a shotgun. This claim is meritless, as the evidence showed both defendants were involved in this home invasion and one of them assaulted the named victim in the manner described in the indictment, making both defendants responsible as parties to the crime. See Harper v. State, 152 Ga. App. 689, 692 (3) (263 SE2d 547) (1979).

(c) Counts 12 and 13: False Imprisonment on July 12. The evidence supports the convictions for false imprisonment of the two victims of the July 12 attack who did not testify at trial. The first of these victims was a young man who lived in the trailer. Evidence from other witnesses showed he answered the door, was threatened, and was bound with duct tape until freed after the defendants left. The second victim was a visitor who arrived during the attack. One of the other victims testified that she heard this victim scream and say, “don’t hurt me.” This witness also testified that she saw duct tape on the other victims and that the visitor “got free first” and untaped the others. Therefore, even though these victims did not testify, the evidence allowed the jury to determine that Petree and Markee confined them against their will. OCGA § 16-5-41; see George v. State, 192 Ga. App. 840, 842 (1) (386 SE2d 669) (1989).

Decided December 3, 1997.

Devon A. Orland, for appellants.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

(d) Counts 18 and 20: Aggravated Assault and False Imprisonment on July 13. Contrary to appellants’ arguments, evidence showing that the defendants, wielding a metal cane, entered the victim’s home without permission and frightened the elderly and feeble victim supports the conviction on the aggravated assault charge in Count 18 of the indictment. See Williams v. State, 207 Ga. App. 371, 372-373 (2) (427 SE2d 846) (1993). Likewise, evidence showed that the defendants ripped the telephone away from this victim when she tried to call for help, took away her walker so she could not get up from the sofa, and then refused to leave her home. This evidence supports the false imprisonment charge contained in Count 20. See George, supra.

Judgment affirmed.

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


text:
    A97A2515.
    REGISTER v. THE STATE.
    (494 SE2d 555)
   Blackburn, Judge.

In the course of a heated argument, Tommy Register shot and killed David Lariscey. Register was convicted of voluntary manslaughter, possession of a firearm during commission of a felony, and possession of a firearm by a convicted felon. He appeals his convictions, asserting numerous errors. For the reasons discussed below, we affirm.

. 1. Register contends that the trial court erred in failing to give his requested charge on accident. Because a charge on accident was not justified by the evidence, this contention is without merit.

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case.” (Punctuation omitted.) Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 33 (3) (479 SE2d 363) (1996).

The evidence showed that Lariscey demanded money from Register because he had worked on Register’s car. When Register refused to pay because Lariscey had not finished the work, the two men became involved in a heated argument outside Register’s trailer. Register testified that, after Lariscey threatened to beat him up, he told Lariscey that he was going to go into the trailer and get a gun, and that “I’m going to kill you now.” Register went into the trailer and grabbed a .22 caliber rifle, then went back outside and approached Lariscey as he was standing near Register’s car. Register said, “I done told you if you f— with me I’m gone kill you,” or words to that effect. Lariscey grabbed the gun,- and in the struggle Register shot him in the face.

In his tape-recorded statement to police introduced into evidence, Register admitted that he intentionally shot Lariscey, saying that he snatched the rifle away, pointed it, and pulled the trigger. When shown a transcript of this statement by his own attorney at trial, Register did not contradict or elaborate on any of his statements therein, saying, “Like I said, I never denied doing it.” Register never claimed during his testimony that the gun accidentally discharged during the struggle. Accordingly, the court did not err in refusing to charge on accident. Compare Turner v. State, 262 Ga. 359, 360-361 (2) (b) (418 SE2d 52) (1992) (charge on accident may be warranted where defendant claims weapon accidentally discharged while defending himself).

2. Register claims the trial court erred in conducting a portion of the voir dire examination of the jury panel outside of his presence.

The voir dire proceedings were not recorded. However, before the first witness was called, the judge recited the pertinent facts for the record. He said that Register had not been properly dressed in civilian clothes when he was brought into court. The judge stated that he had asked Register’s attorney whether he wished to begin voir dire in his client’s absence while he was changing clothes. The judge stated that Register’s attorney said he would proceed with voir dire in Register’s absence, but would not begin actual jury selection until Register was in court where the jurors could see him and be asked whether they knew him.

After the judge related these facts, Register’s attorney stated that he agreed with the judge’s description, that he saw no error in the judge’s procedure, and that “I had knowingly waived his presence here up to that point.” The judge then asked, “And you’re satisfied that when he came in you were able to. ask those questions?” Register’s attorney responded, ‘Yes, Your Honor. After the Defendant came in, had the opportunity to be viewed by the respective jurors, and it was no problem, Your Honor.” Register did not indicate any disagreement with his attorney’s responses.

A defendant has an absolute right to be present during the voir dire of prospective jurors. Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378) (1997). However, “[t]he right may be waived by the defendant personally, or by defendant’s counsel if counsel does so in the defendant’s presence or pursuant to the defendant’s express authority, or the defendant may subsequently acquiesce in counsel’s waiver.” Id.

The above-described facts clearly authorized the trial court to find that Register acquiesced in his attorney’s waiver of his right to be present during voir dire. Indeed, although Register testified at his motion for new trial hearing, he did not raise this issue or suggest that he disapproved of his attorney’s waiver. Thus, “the evidence was sufficient to support a finding that [Register] knew about the [voir dire proceedings] and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity.” Parker v. State, 220 Ga. App. 303, 312 (12) (469 SE2d 410) (1996); see also Allen v. State, 199 Ga. App. 365, 367-368 (6) (405 SE2d 94) (1991).

Contrary to Register’s contention, the fact that the judge did not specifically ask Register whether he acquiesced in his attorney’s waiver does not change the result. Indeed, the very term “acquiesce” implies something less than express assent. See Webster’s Third New International Dictionary, p. 18 (1966) (“to accept or comply tacitly or passively”). This Court has previously found acquiescence in counsel’s waiver of defendant’s right to be present at a brief hearing where the trial court never discussed the issue with defendant at all, but merely relied on defense counsel’s later recollection that “since it was his normal policy to ensure the defendant’s presence at all times, he would have informed [defendant] of what happened when he returned.” Parker, supra; see also Allen, supra. By remaining silent when his attorney acknowledged in open court that he had waived Register’s right to be present during a portion of voir dire, and then by failing to raise the issue during trial or in his motion for new trial, Register signaled his acquiescence in his attorney’s actions, and he cannot now be heard to complain for the first time. See Harmon v. State, 224 Ga. App. 890, 891-892 (1) (482 SE2d 730) (1997).

3. Register contends the trial court erred in limiting his cross-examination of a witness. During the cross-examination of Chris Padgett, a friend of the victim who was present during the shooting, Register’s attorney asked whether Padgett was aware that Register’s mobile home had been burned down after the shooting. Padgett said that he was aware of this, but that he did not know who did it. The attorney then asked if Padgett knew that David Scott and Mike Scott, another witness to the shooting who had not yet testified, had entered the mobile home. The court sustained the prosecutor’s objection to this question as irrelevant.

Register argues that the question was proper, because evidence that Mike Scott had entered and/or burned down Register’s mobile home would have demonstrated Scott’s bias. However, even if the court erred in sustaining the prosecutor’s question, Register has not shown how such error was harmful. When Scott testified after Padg-ett, he admitted that he and David Scott had entered Register’s mobile home after the shooting. Thus, the very evidence Register sought to obtain by his objected-to question to Padgett was later supplied by Scott himself, rendering any error harmless. See Turner v. State, 210 Ga. App. 303, 305 (3) (436 SE2d 229) (1993); Lewallen v. State, 199 Ga. App. 798, 800 (3) (b) (406 SE2d 255) (1991); Moore v. State, 251 Ga. 499, 502 (2) (a) (307 SE2d 476) (1983).

4. Register contends the trial court erred in refusing to allow him to question a witness about the victim’s blood alcohol content. During direct examination by the State, the county coroner testified that the cause of death was a gunshot wound to the face. On cross-examination, Register’s attorney sought to ascertain whether the coroner had investigated any other possible causes of death, such as beating. During this line of questioning, the attorney asked the coroner whether he was aware that a toxicology report showed the victim had a high blood alcohol content. In response to the prosecutor’s objection, the attorney stated that he was seeking to elicit the testimony to show how the coroner arrived at his conclusion as to the cause of death. The court sustained the prosecutor’s objection.

As Register does not dispute that the cause of death was in fact a gunshot wound to the face, the trial court clearly did not err in sustaining the State’s objection based upon the purpose stated by Register’s attorney. On appeal, however, Register contends that evidence of the victim’s blood alcohol content was relevant and admissible because it would support an inference that the victim acted in a violent manner, consistent with Register’s self-defense claim. “We will not consider whether the trial court erred in refusing to admit the evidence for a purpose raised for the first time on appeal, when the appellant affirmatively stated a different and invalid purpose at trial.” Wilcox v. State, 263 Ga. 293, 294 (1) (430 SE2d 741) (1993); see also Dukes v. State, 224 Ga. App. 305, 307 (2) (480 SE2d 340) (1997). Accordingly, this enumeration is without merit.

5. Register contends that he received ineffective assistance of counsel. However, as this enumeration is not supported in his brief by argument or citation of authority, it is deemed abandoned. See Court of Appeals Rule 27 (c) (2); Coates v. State, 222 Ga. App. 888, 889 (3) (476 SE2d 650) (1996).

6. In his final enumeration, Register contends the trial court erred in denying his motion for new trial. As this enumeration merely incorporates each of his prior enumerations, it is without merit.

Decided December 3, 1997.

Stanley C. House, for appellant.

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

Judgment affirmed.

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


text:
    A97A2541.
    In the Interest of S. K. R., a child.
    (494 SE2d 558)
   Blackburn, Judge.

In February 1993, Sandi Riley and Stephen Butler obtained a final divorce, with Butler being awarded primary custody of their minor child. On May 8, 1995, Riley filed a complaint for a change in custody, asking that she be awarded sole custody due to changed circumstances. In connection with this change in custody, she also asked that Butler be required to pay child support. Riley voluntarily dismissed her complaint without prejudice on August 25, 1995. On September 14, 1995, Butler filed a motion for attorney fees under OCGA § 19-6-2. The trial court granted the, motion arid awarded Butler $1,500 in attorney fees. We granted Riley’s application for discretionary appeal and, for the reasons discussed below, reverse the trial court’s award.

Riley contends that the award of attorney fees was not authorized by OCGA § 19-6-2, since her action was for a change of custody. Georgia courts have repeatedly held that attorney fees are not recoverable in an action where the noncustodial parent seeks a change of custody. See Owen v. Owen, 183 Ga. App. 472, 473 (2) (359 SE2d 229) (1987); see also Peacock v. Adams, 230 Ga. 774, 775 (199 SE2d 254) (1973); Wilkins v. Wilkins, 234 Ga. 404, 406 (216 SE2d 302) (1975); Haselden v. Haselden, 255 Ga. 366, 367 (1) (338 SE2d 257) (1986). However, these cases have not specifically analyzed the issue under OCGA § 19-6-2. Accordingly, it is necessary to consider the language of that statute.

OCGA § 19-6-2 (a) allows a trial court, in its discretion, to award attorney fees “at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights.” Thus, by its terms, OCGA § 19-6-2 authorizes an award of attorney fees only in (1) alimony cases, (2) divorce and alimony cases, and (3) contempt actions arising out of alimony or divorce and alimony cases.

The present case does not fit into any of these categories. A petition for a change in custody due to changed circumstances is not a continuation of the prior divorce action. When a trial court enters a final decree in a divorce case settling the issue of custody, it does not thereafter retain jurisdiction to modify the decree to change the custody terms. Fernandez v. Fernandez, 232 Ga. 697, 699 (3) (208 SE2d 498) (1974). Rather, a petition to change custody must be brought as a separate action in the county where the custodial parent resides. Jones v. Jones, 178 Ga. App. 794, 795-796 (344 SE2d 677) (1986), aff’d, 256 Ga. 742 (352 SE2d 754) (1987); see also Blalock v. Blalock, 247 Ga. 548, 550 (277 SE2d 655) (1981); Bullington v. Bullington, 181 Ga. App. 256 (1) (351 SE2d 700) (1986); OCGA § 19-9-23 (a). Thus, the petition for change of custody is not a part of the divorce action, but is a separate proceeding.

Nor can this action be considered an alimony case, notwithstanding Riley’s request for child support ancillary to the change in custody. It is true that “[t]he purpose of alimony is to provide support for the [spouse] and minor children.” McCurry v. McCurry, 223 Ga. 334, 335 (1) (155 SE2d 378) (1967). However, “[t]he right to recover alimony depends upon a valid, subsisting marriage between the applicant and the [spouse] out of whose estate the allowance of alimony is claimed, and this is true even though it is claimed only for the support of a child.” Eskew v. Eskew, 199 Ga. 513 (2) (34 SE2d 697) (1945). A court “has no power to grant a judgment awarding alimony, where at the time of the institution of suit therefor the relationship of husband and wife does not exist between the parties ... by reason of a total divorce theretofore granted between the parties.” Allen v. Baker, 188 Ga. 696 (2) (4 SE2d 642) (1939). Accordingly, Riley’s request for child support ancillary to the change in custody cannot be considered a request for alimony, but is based on the statutory obligation of all parents to provide support for their children. See OCGA § 19-7-2; see also Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984) (duty of parents to support children does not cease upon divorce).

Decided December 3, 1997.

Paul M. Ledbetter, Jr., for appellant.

Edward W. Gadrix, Jr., for appellee.

Although certain statements in Jayson v. Gardocki, 221 Ga. App. 455 (471 SE2d 545) (1996), appear to imply a contrary result, they are merely dicta and not a part of the analysis in that decision. In any event, Jayson is not binding precedent as it was not fully concurred in by all three judges. See Court of Appeals Rule 33 (a).

Accordingly, as an award of attorney fees was not authorized under OCGA § 19-6-2, and as the trial court did not base its award upon any other applicable statutes or principles of law, the award of attorney fees must be reversed.

As the trial court did not award attorney fees pursuant to OCGA § 9-15-14, we need not consider Riley’s contentions that such an award would have been improper. Given our above ruling, we also need not consider Riley’s other contentions.

Judgment reversed.

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

       “[Butler has] failed to file a brief; accordingly, [he] must stand on the strength of the record before us, as the contents thereof are interpreted by this Court, and without benefit of any written appellate brief or oral argument.” Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 213 (1) (480 SE2d 604) (1997).

       Unlike OCGA § 9-15-14, an award of attorney fees under OCGA § 19-6-2 is not predicated upon the misconduct of a party. Rather, “[t]he purpose of allowing attorney fees [under OCGA § 19-6-2] is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” Johnson v. Johnson, 260 Ga. 443, 444 (396 SE2d 234) (1990).


author: Birdsong, Presiding Judge. Ruffin, Judge,

text:
    A97A0150.
    LOMBARD CORPORATION v. COLLINS et al.
    (494 SE2d 538)
   Birdsong, Presiding Judge.

This is an appeal from the superior court’s order granting appel-lees/defendants’ motion to dismiss and dismissing appellant/plaintiff’s motion for summary judgment on the pleadings. We first reviewed this case in Lombard Corp. v. Collins, 224 Ga. App. 282 (480 SE2d 47) where the relevant facts pertinent to this appeal are reported. Appellant brought suit for declaratory judgment and injunctive relief asserting the unconstitutionality of the Georgia intangible tax (OCGA § 48-6-20 et seq.); appellant corporation had been assessed an intangible tax in the amount of $56.29. The record reflects that while suit was pending, the intangible tax assessment at issue was paid (without the prior consent of the appellant or of the trial court) by a person who was not a party to the litigation. (The tax was paid by a partner of an established law firm who apparently perceived that both himself and certain shareholders of corporations incorporated or headquartered in Georgia conceivably could be adversely affected by a ruling in the Lombard case, and that the issues there raised would be better avoided or resolved in another factual context.) Thus, the payment of the taxes was made, as we held in Lombard, supra, by a third party interloper. After payment of the taxes by the interloper, the trial court held that the appellant’s suit was moot and the motion to dismiss was granted. We found that, under current Georgia law, the action “would appear to become moot, unless there exists some exception to the rule which would preclude a third-party interloper from depriving a corporate entity of this state of a judicial adjudication of its cause of action in our courts by said third party indirectly injecting himself into the outcome of the litigation ... by paying the tax in controversy.” Id. at 284. Because this posed a question of first impression and more importantly, because of the serious public and legal policy questions which could arise if persons not parties to litigation are able to interfere at will and, in effect, buy out a pending lawsuit, we certified certain questions to the Supreme Court of this State, pursuant to Art. VI, Sec. V, Par. IV and Art. VI, Sec. VI, Par. Ill (7), Ga. Const, of 1983, seeking their guidance as to this sensitive legal issue. (We elected to seek guidance because we were concerned that if public policy allowed this type of conduct, powerful persons or legal entities could buy out lawsuits at will to which they were not party litigants but in which they had a substantial interest as to judicial outcome; and that such a policy conceivably could result in the birth of the undesirable practice of targeting suits of major social and legal import for mooting by buyout, thereby preventing legal opinions from being entered which could be detrimental to the special interests of such third-party interlopers.) The Supreme Court, however, transmitted the case back to this Court with the certified questions unanswered. We must now address this issue of first impression being ever mindful of the legal significance of our holding. Held:

1. We first sought guidance as to the application of the provisions of Art. I, Sec. I, Par. XII, Ga. Const, of 1983. The Supreme Court, citing Pitts v. General Motors &c. Corp., 231 Ga. 54 (199 SE2d 902), declined to rule on the certified constitutional question because the trial court expressly declined to rule thereon. We did not certify this issue because we believed appellant had adequately preserved a constitutional issue on appeal; rather, we certified this issue because we perceived that the answer would shed judicial light on whether the mooting of appellant’s suit, due to the actions of a third-party interloper, would violate the public policy of this state. As this Court is without authority to interpret a state constitutional provision, particularly as to issues of first impression (but can only apply established constitutional law principles to existing case facts), Kolker v. State, 193 Ga. App. 306 (1) (387 SE2d 597), aff’d 260 Ga. 240 (391 SE2d 391); accord Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (e) (464 SE2d 390), we now must consider the public policy issue without benefit of a ruling as to what effect, if any, the constitutional right to the courts has regarding this matter.

2. We now consider as a matter of first impression whether it violates the public policy of this state for a third party, who is not a party to a lawsuit, to pay the taxes of a party plaintiff without the prior consent of either the trial court or the party plaintiff, thereby causing the plaintiff’s case to become moot? Considering the legitimate danger posed to the ordinary citizen’s ability to obtain meaningful access to the courts of this state should such a practice and its potential variations be condoned, the balancing of the interests of the judiciary in the preservation of the integrity of the Georgia judicial system in the eyes of the citizens of this state, and the fact that appellant has been denied his day in court (as to the adjudication of an issue which we cannot say is frivolous) by the uninvited actions of a third-party interloper, we conclude that it violates public policy of this state to allow a case to be mooted by the intervention of a third party who is not a party to the litigation, under the circumstances attendant in this particular case. Accordingly, we hold that a legitimate exception exists to the usual rules of mootness under these existing circumstances, and that the suit was not rendered moot by the payment of the tax assessment by the third party.

Judgment reversed.

Ruffin and Eldridge, JJ, concur specially.

Ruffin, Judge,

concurring specially.

I fully agree with all that is said in the majority opinion because I, too, believe that as a matter of public policy an interloper should not have the ability to deprive a party of the adjudication of his or her legitimate claims. However, payment of the intangible tax was not the trial court’s sole basis for finding appellant’s claim for declaratory relief moot. In 1996 our Legislature repealed the intangible tax which is being challenged on constitutional grounds in this case. See Ga. L. 1996, p. 117, § 6, effective March 21, 1996. The trial court held that appellant’s claim for declaratory relief was moot not only due to payment of the tax, but also because “ ‘[t]he repeal of Georgia’s intangible tax statute relieved [appellant] from any risk of an intangible tax assessment for the present or any future year. In addition, the payment of the 1994 tax also relieved [appellant] from any risk of future collection of intangible tax already assessed.’ ” Lombard Corp. v. Collins, 224 Ga. App. 282, 283 (480 SE2d 47) (1997). I write separately to address this part of the trial court’s holding.

Although I agree with the trial court that rescission of the tax relieved appellant of numerous risks associated with the present and future enforcement of the tax, the mere repeal of the tax statutes did not render all related interests moot. In a long line of cases, the United States Supreme Court has held that due process requires a clear and certain remedy for taxes collected in violation of the Constitution. See Reich v. Collins, 513 U. S._(115 SC 547, 130 LE2d 454) (1994). jn fact, the court in Reich found that “ ‘a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself a contravention of the Fourteenth Amendment[.]’ [Cit.]” Id. at 130 LE2d 454, 458. Although due process does not necessarily require a state to provide a refund of such unconstitutional taxes, it does require a state to provide taxpayers with either a predeprivation remedy in which to challenge the imposition of the tax, a postdeprivation regime such as a refund procedure, or a hybrid regime which might incorporate both. See id. at 130 LE2d 454, 459. Accordingly, though it is true that the State may no longer enforce the tax against appellant, it is also true that due process requires that the State provide appellant, and other similarly situated taxpayers, with a scheme to remedy an unconstitutionally exacted tax. Therein lies the issue which breathes life into the appellant’s constitutional challenge here.

Decided November 19, 1997

Reconsideration denied December 4, 1997

As the court found in Reich, Georgia law indeed provides for a postdeprivation remedy in the form of a refund statute. Id. This statute, codified at OCGA § 48-2-35, provides that subject to a limitation period “[a] taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from him under the laws of this state. . . .” OCGA § 48-2-35 (a). Although the Supreme Court of Georgia has held that this refund statute “does not address the situation where the law under which the taxes are assessed and collected is itself subsequently declared to be unconstitutional or otherwise invalid[,]” the decision in which that holding was presented has been vacated by the United States Supreme Court. Reich v. Collins, 262 Ga. 625, 627-628 (2) (422 SE2d 846) (1992), vacated, Reich v. Collins, 509 U. S. 918 (113 SC 3028, 125 LE2d 717) (1993). Accordingly, a viable issue exists concerning whether taxpayers have a right to a refund of intangible taxes paid if the tax is subsequently declared unconstitutional.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Marvin P. Nodvin, for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Harold D. Melton, Stefan E. Ritter, Assistant Attorneys General, Jonathan A. Weintraub, for appellees.

       For a general discussion concerning the mootness effects of statutory change, see Moore’s Federal Practice, Par. 101.98 (3rd ed. 1997).


author: Smith, Judge. Beasley, Judge, Eldridge, Judge,

text:
    A97A0963.
    COLLINS v. THE STATE.
    (495 SE2d 59)
   Smith, Judge.

William Perry Collins was indicted by a DeKalb County grand jury on one count of rape, OCGA § 16-6-1 (a), one count of statutory rape, OCGA § 16-6-3 (a), and one count of incest, OCGA § 16-6-22 (a) (1). He was convicted by a jury on all three counts, and his motion for new trial was denied. Collins appeals, asserting the general grounds and the existence of newly discovered evidence. Because the State failed to prove the element of force required in the offense of rape, we reverse as to that conviction. The remaining convictions are affirmed.

1. Collins asserts the general grounds, contending specifically that the State failed to prove force, and that the State failed to show the corroboration required for a conviction of statutory rape.

(a) Common-law or forcible rape consists of three elements: (1) carnal knowledge of a female; (2) forcibly; and (3) against her will. OCGA § 16-6-1 (a). The State points to no evidence of force, asserting that force need not be proved when the victim is a minor. This is an incorrect statement of the law.

In Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977), the Supreme Court of Georgia expressly held that force is a necessary element of the offense of common-law or forcible rape against an under-age victim. Noting that a female under the age of 14 is legally incapable of giving consent, the Supreme Court distinguished between the element of nonconsent and that of force: “When an act of sexual intercourse with a girl under 14 is shown, statutory rape is shown. If the state desires to convict a defendant of forcible rape, it must prove the element of force by acts of force (or mental coercion) — age has nothing to do with it. Considerations of ‘consent’ and ‘force’ and ‘against her will’ are irrelevant in a statutory rape case, and the age of the victim is irrelevant in a forcible rape case except insofar as it may show her incapable of giving consent and thereby supply the ‘against her will’ element. Force must also be shown, of course.” Id. at 233-234. “Were the contrary true — that the victim’s age supplies the element of force — then as a practical matter no one would be convicted of statutory rape because the state’s case making out statutory rape also would make out forcible rape.” Id. at 234.

In Edmonson v. State, 219 Ga. App. 323, 324 (2) (464 SE2d 839) (1995) (special concurrence as to Division 3 only), this Court cited Drake for the proposition that a female under 14 years old is legally incapable of consenting to sex. Again citing Drake, this Court then reasoned that “[w]here this is the case, ‘the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.’ [Cit.]” Id.

Edmonson, however, conflates the issues of lack of consent and force in precisely the manner forbidden by the Drake decision, and it takes out of context and misapplies the quoted language. The Supreme Court in Drake makes it plain that the language quoted in Edmonson applies “only where children are not involved,” and a female of legal age is unable to consent because she is “intoxicated, drugged, or mentally incompetent.” Drake, supra at 234. Only in such situations, according to the Supreme Court, “the requirement of force is found in constructive force.” Id. To the extent that Edmonson contradicts the clear holding in Drake that the victim’s age alone cannot supply the element of force, it must be overruled.

The State’s reliance on Luke v. State, 222 Ga. App. 203 (474 SE2d 49) (1996), is misplaced because that case involved aggravated sodomy rather than rape. Moreover, in that decision we discussed at length the Drake holding and the requirement of proof of force, as opposed to lack of consent, in forcible rape cases involving children. Id. at 204-205.

The dissent’s reliance on three Supreme Court of Georgia cases is similarly misplaced because none of those cases involves a charge of forcible or common-law rape. In Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987), the defendant committed aggravated sodomy on a five-year-old child. Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987), involves incest and sodomy. In Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997), the defendant was charged with malice murder and asserted justification in using deadly force to prevent the molestation of his five-year-old daughter. The dissent ignores the inevitable result of supplying the element of force in forcible rape by the age of the victim: as the Supreme Court observed in Drake, supra, the State simply by proving statutory rape would also prove every element of forcible rape, and the crime of statutory rape would cease to exist.

In this case, the victim testified that Collins asked her to rub his back and then “laid [her] on the bed,” pulled off her clothes, and had sex with her. She did not yell or scream. She acknowledged that Collins did not force her onto the bed, and that she did not tell him to stop or to leave her alone. Nowhere did the victim testify that she was threatened, intimidated, or mentally coerced by Collins.

While the State does not cite or rely on his testimony, the physician who examined the victim testified that the victim told him her stepfather “forced her to have sex.” The prosecutor then asked the physician whether another, earlier incident involving the victim was “also a forcible assault,” and the physician responded, “Yeah, it was also forcible assault. I mean, she didn’t give any consent for that.” He found no evidence of bruising, abrasions, or lacerations on the victim’s body. The physician’s ambiguous and conclusory statement with regard to whether the victim was “forced,” standing alone, cannot support proof of the necessary element of force beyond a reasonable doubt. It is apparent from his express definition of “forcible assault” as nonconsensual sex that the physician, like the State, confused the issues of nonconsent and force.

The State having failed to show the necessary element of force beyond a reasonable doubt, Collins’s conviction for common-law or forcible rape must be reversed.

(b) Collins also contends that his conviction for statutory rape cannot stand without corroboration of the victim’s testimony. While this is a correct statement of the law, see OCGA § 16-6-3 (a), “the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.” (Citations and punctuation omitted.) Dye v. State, 205 Ga. App. 781, 782 (423 SE2d 713) (1992).

Here, the victim’s testimony was sufficiently corroborated by medical testimony and physical evidence on the scene, see Shelton v. State, 196 Ga. App. 163 (1) (395 SE2d 618) (1990), and by the victim’s prior consistent statement to her mother. Turner v. State, 223 Ga. App. 448, 450 (477 SE2d 847) (1996). Collins correctly notes that the medical testimony was directly contradicted by other medical evidence in the State’s case and that the mother’s testimony was impeached to some degree. Even more troubling is the victim’s frank acknowledgment on the stand that she planned to kill Collins because he attempted to discipline her, that she told Collins she was “going to get rid of him one way or the other,” and that she “set out with the intent of getting this man out of [the] house.” Collins contends that the victim was also angry with him because he interfered in a sexual relationship between her and another man, her uncle. The victim admitted the relationship and Collins’s attempt to end it. Collins contends that, because the victim knew that her uncle had been sent to jail after their relationship came to light, she accused Collins in order to remove him from the house.

As we have noted, however, only slight evidence is necessary to corroborate the victim’s testimony. While the evidence was in sharp conflict, this Court cannot weigh testimony, judge the credibility of witnesses, or speculate as to which evidence the jury chose to believe or disbelieve. Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993). Although the trial court was also troubled and concerned over this evidence, it correctly observed that “all the evidence was presented to the jury and the jury deliberated and reached their verdict.” The evidence was sufficient to enable a rational trier of fact to find Collins guilty beyond a reasonable doubt of the offenses of statutory rape and incest as alleged in Counts 2 and 3 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his remaining enumeration of error, Collins seeks a new trial on the ground of newly discovered evidence. He contends that he should be allowed to obtain a medical examination showing that he is free of a venereal disease with which the victim was shown to be infected.

“[MJotions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused.” (Citations and punctuation omitted.) Davis v. State, 221 Ga. App. 375, 377 (471 SE2d 307) (1996). Collins must “satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Failure to show one requirement is sufficient to deny a motion for new trial. [Cits.]” Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984).

Collins has failed to satisfy the first of these criteria. Approximately eight months before trial, medical records were served on Collins. These records show the presence of the venereal infection in question on the victim’s initial medical exam. Collins has not demonstrated that the failure to obtain the necessary medical tests during the eight months before trial was not owing to his want of due diligence. The trial court did not abuse its discretion in denying Collins’s motion for new trial on the ground of newly discovered evidence.

Judgment affirmed as to convictions and sentences for the offenses of statutory rape and incest. Judgment reversed as to conviction and sentence for the offense of rape.

Andrews, C. J., Birdsong, P. J, Pope, P. J., Johnson, Blackburn, Ruffin, JJ., and Senior Appel late Judge Harold R. Banke concur. Beasley and Eldridge, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in all but Division 1 (a), from which I respectfully dissent. The majority does not take into account the 1987 Supreme Court cases of Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987) and Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987), or the 1997 case of Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997). They succeeded Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), upon which the majority depends. The trial court correctly charged the jury on this point, instructing that “[s]exual acts directed at children are, in law, forcible and against the will of the child.” The charge is not in the pattern charge book, see Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), although it contains revisions as recent as August 1996.

Applying the law in force at the time of Collins’ acts in 1994, his conviction of rape must be affirmed. See the special concurrence in Durr v. State, 229 Ga. App. 103 (493 SE2d 210) (1997). This Court’s opinion in Edmonson v. State, 219 Ga. App. 323, 324 (2) (464 SE2d 839) (1995), should not be overruled.

The trial court merged the rape and statutory rape verdicts for sentencing and conviction purposes, as the law requires. OCGA § 16-1-7 (a).

I am authorized to state that Judge Eldridge joins in this opinion.

Eldridge, Judge,

concurring in part and dissenting in part.

I dissent as to Division 1 (a). In my view, refusing to recognize the application of Edmonson v. State, 219 Ga. App. 323 (464 SE2d 839) (1995), to the instant case only creates another basis upon which the bench and bar may scratch their collective heads in bewilderment at our seemingly random employment of the law.

1. (a) The majority does not recognize that the point for which they rely upon Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), i.e., “force must be proved in a ‘forcible rape’ case against a child,” is not good law. One need only follow the progression of case law to see this:

(1) In Drake, while explaining the connection between “force” and “willingness,” the Supreme Court found that “[w]hen the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.” (Emphasis supplied.) Id. at 234-235.

(2) Then, this Court in Cooper v. State, 180 Ga. App. 37 (348 SE2d 486) (1986) (“Cooper F), analogized the above language of Drake to a situation involving a child victim, because such victim is unable to give consent to the act. This Court determined that “in rape (and perforce in sodomy) the force necessary to overcome the victim’s resistance was the force meant by the statute. Since in one incapable of resisting or of consenting or dissenting there is no predicate in law for the showing of force as a reaction in resisting defendant, the force that must be shown is simply the force necessary to commit the sexual act on one whom the law views as, in fact, having no legal capacity to resist or deny consent. From the beginning this included children of tender years and under the age of criminal responsibility[.]” (Emphasis supplied.) Id. at 38. In establishing this precedent in Cooper I, we recognized that such rule applied “in rape and perforce in sodomy” when a victim is unable to consent.

(3) Then, in its 1987 decision in Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987) (“Cooper IF), the Supreme Court of Georgia agreed with our analysis that the “constructive force” language in Drake applied to a child victim of a sexual offense, because such child is unable to give consent to the act. The Supreme Court affirmed this Court’s holding in Cooper I. In so doing, the Supreme Court expanded and laid down the precise rule of law. Justice Weltner, for a unanimous court, wrote “[a] five-year-old child cannot consent to any sexual act. [Cits.] Sexual acts directed to such child are, in law, forcible and against the will. [Cit.]” (Emphasis supplied.) Id. at 631 (2). “Any sexual act” was the language used; no distinctions were made.

(4) Then, the Supreme Court reiterated this rule of law in Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987), with regard to a 12-year-old victim: “Sexual acts directed to children are, in law, forcible and against the will.” (Emphasis supplied.) Id. at 747. No distinction was made with regard to types of sexual acts.

(5) Then in Edmonson v. State, 219 Ga. App. 323 (464 SE2d 839) (1995), utilizing the language of Drake, we reiterated this rule of law as it relates to children and sex crimes: “A female under 14 years old is legally incapable of consenting to sex. Drake, [supra]. Where this is the case, ‘the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.” (Emphasis supplied.) Id. at 324. We made no distinction between sexual acts perpetrated against children. Thereafter, the Supreme Court denied application for writ of certiorari in Edmonson, Case No. S96C0552.

(6) Then, this year in Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997), the Supreme Court again reiterated this rule of law as it relates to children and sexual offenses: “Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts ‘are, in law, forcible and against the will’ of the child.” (Emphasis supplied.) Id. at 155. Again, no distinction was made between any particular type of sex act perpetrated against children.

How much clearer can it get? By what form of logic do we take the rule, “sexual acts directed to children are, in law, forcible and against the will,” and, from that, derive the notion that the rule excludes the sexual act of “forcible rape” against a child? What Supreme Court decision has negated the evolution of Drake over the last 20 years as reflected in Cooper I, Cooper II, Richardson, Edmon-son, and Brown?

The majority attempts to distinguish both this Court’s prior cases and the above Supreme Court cases by the simple pronouncement that “none of those cases involves a charge of forcible or common-law rape.” This is no answer at all. We applied the rule to rape in the language of both Cooper I and Edmonson. And, although given ample opportunity to do so (including application for certiorari in Edmonson), the Supreme Court has declined to establish any type of sexual act against children to which the rule would not apply. Simply because the Supreme Court first laid out the rule of law in an “aggravated sodomy” case means nothing when the Supreme Court’s rule repeatedly states that sexual acts, without distinction, directed at children are, in law, forcible and against the will. In my view, the only body which appears confused about this point is this Court. See Luke v. State, 222 Ga. App. 203 (474 SE2d 49) (1996); see also Durr v. State, 229 Ga. App. 103 (493 SE2d 210) (1997).

(b) Immaterial, also, is the majority’s concern that, “the crime of statutory rape would cease to exist,” if the elements of “lack of consent” and “force” are supplied by virtue of the victim’s age. The Legislature was aware of this “inclusive” aspect when first enacting statutory rape in 1918. As enacted, statutory rape was never meant to have the effect of creating a new and separate crime of rape, but sought only to raise the age of consent from that of the common law, which was under ten years of age, to fourteen years of age. Harrison v. State, 71 Ga. App. 369 (31 SE2d 119) (1944). In statutory rape, as it was enacted, a defendant “shall be guilty of rape, and on conviction thereof shall be punished as prescribed by Section 94 of the Penal Code of Georgia of 1910 [forcible rape], unless the jury trying the cause shall recommend that the defendant be punished as for a misdemeanor.” (Emphasis supplied.) Ga. L. 1918, p. 259; see also Harrison, supra. That the elements of “force” and “lack of consent” are “presumed” when the offense of rape is committed against a child comes to us from the common law: “A child under ten years of age [then the age of consent], cannot consent to carnal intercourse, so as to rebut the presumption of force.” Stephen v. State, 11 Ga. 225 (15) (1852); see also Wright v. State, 184 Ga. 62 (190 SE 663) (1937); Cooper I. Throughout its incarnations since 1918, statutory rape has not changed in this regard: substantively, it is still inclusive in the offense of rape.

Moreover, contrary to the position of the majority, the substantive offense of statutory rape does not “cease to exist” because “sexual acts directed to children are, in law, forcible and against the will.” When statutory rape is charged, the jury has the option to find a defendant guilty thereof, in addition to or in lieu of rape. “[T]he jury shall be the judges of the law and the facts.” Ga. Const, of 1983, Art. I, Sec. I, Par. XI. “Juries in criminal cases in this country are free to render verdicts that are inconsistent or even the result of mistake or compromise. Dunn v. United States, 284 U. S. 390, 393 (52 SC 189, 76 LE 356) (1932).” Dixon v. State, 157 Ga. App. 550, 551 (278 SE2d 130) (1981). The majority’s real concern is that the statutory rape sentencing options “cease to exist” when, as here, a defendant is found guilty of both statutory rape and forcible rape, because the offense of statutory rape is merged into the offense of forcible rape for purposes of sentencing. Wofford, supra. However, the creation of different sentencing options, wherein the judge may use his discretion to sentence as for rape or for statutory rape when a defendant is convicted of both (a choice the jury used to have), is beyond the authority of this Court. Meanwhile, the substantive offense of statutory rape still “exists” and still relates to the substantive offense of forcible rape in the same manner the Legislature intended from the beginning: as inclusive.

Decided December 4, 1997

Kendal D. Silas, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

2. In the instant case, the trial court charged the jury that “Sexual acts directed at children are, in law, forcible and against the will of the child.” (Emphasis supplied.) As noted by the majority, no evidence of force was presented. Thus, the jury convicted the appellant of forcible rape on the authority of the rule of law contained in this charge. Notably, appellant does not claim that this charge is error.

The above charge does not come from Edmonson. This is the language of the rule of law as laid out by the Supreme Court in Cooper II, Richardson, and Brown. This Court cannot reject those cases and their holdings. Procedurally, overruling our decision in Edmonson provides no basis whatsoever upon which to reverse appellant’s conviction for forcible rape when Edmonson provided no basis whatsoever for appellant’s conviction in the first place. Accordingly, the majority may overrule Edmonson, but the trial court still correctly charged the jury that “sexual acts directed to children are, in law, forcible and against the will,” and the jury had the authority to so find.

3. In my view, what seems to drive this case is the fact that we are faced with a less than sympathetic 13-year-old child/victim. See majority, Division (1) (b), supra. That a victim’s youth, alone, should be sufficient to elevate a defendant’s act to “forcible rape” may go against the grain when the victim’s actions appear not particularly naive or “youthful” and no “force” was necessary. However, the majority’s dislike of the end result does not justify the means by which they seek to alter it. As I have stated, the harder course, always, is to dispassionately examine the law, and how it relates to the facts as alleged in the indictment and as proved at trial. Unless and until the Supreme Court of Georgia declares differently, the rule of law is that “sexual acts [without distinction] directed to children are, in law, forcible and against the will.” Richardson, supra at 747; see Drake; Cooper I; Cooper II; Edmonson; Brown; see also Huggins, supra; Luke, supra. Accordingly, the evidence was sufficient in this case for a rational trier of fact to have found appellant guilty of the sexual act of “forcible rape” against the 13-year-old victim.

       The trial court also charged the jury in this language. But Collins does not enumerate this as error.

       Aggravated sodomy requires the same elements of “force” and “lack of consent” as does forcible rape.

       As a practical matter, one does not need to use force when consent is given. “Consent: a concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith.” (Emphasis supplied.) Black’s Law Dictionary, 5th ed., p. 276. Thus, when consent is not an issue, a showing of force is needless.

       See also Huggins v. State, 192 Ga. App. 820 (386 SE2d 703) (1989): “the Supreme Court has ruled that ‘sexual acts directed to children are, in law, forcible and against the will.’ Richardson, [supra]. See also Cooper [II].”

       See Buice v. Dixon, 223 Ga. 645 (157 SE2d 481) (1967); City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996).

       Statutory rape is included in the offense of rape when an act of sexual intercourse is perpetrated against a child and forms the basis for an indictment. Wofford, v. State, 226 Ga. App. 487 (486 SE2d 697) (1997); compare Andrews v. State, 200 Ga. App. 47 (406 SE2d 801) (1991); see Pryor v. State, 238 Ga. 698, 700-701 (234 SE2d 918) (1977) (the “alternative test”: a crime is included in the other when (a) it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or (b) it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission); see also Marcello v. State, 220 Ga. App. 284 (3) (469 SE2d 252) (1996); cf. Hill v. State, 246 Ga. 402, 405 (271 SE2d 802) (1980) (statutory rape is not a lesser included offense of rape as a matter of law because of the additional element of “age”).


author: Ruffin, Judge.

text:
    A97A1861.
    EUBANKS v. THE STATE.
    (494 SE2d 564)
   Ruffin, Judge.

Eugene Keller Eubanks pled guilty to the felony óf making ter-roristic threats and a misdemeanor battery charge. The trial court sentenced Eubanks to serve 90 days in the Douglas County jail with the remainder of the sentence on probation. The same day he was sentenced, the Douglas County jail released him. The superior court ordered Eubanks rearrested, finding that the jail had improperly released him prior to the expiration of his 90-day sentence. Eubanks appealed, arguing that the jail correctly credited him for days he attained due to good behavior. For the following reasons, we affirm the decision of the lower court.

Thé record shows that Eubanks voluntarily and knowingly pled guilty to the felony of making terroristic threats and misdemeanor battery. Under the sentence portion of Eubanks’ court disposition sheet, the trial court checked the “Felony Sentence” box. The sentence provided for “confinement for a period of 3 years on terroristic threats Count (3); 12 months concurrent on battery.” The disposition form also provided that upon serving “90 days in Douglas Co. Jail,” Eubanks would serve the remainder of the sentence on probation.

The Douglas County jail interpreted the language “90 days in Douglas Co. Jail” on the disposition form to mean that it had the authority to compute the sentence pursuant to its own guidelines, including the allowances it gave for good behavior. After considering the time Eubanks had already served, combined with the allowance of time off for good behavior, the jail released him.

On appeal, Eubanks asserts that the trial court erred in having him rearrested because the court’s order of “90 days in Douglas Co. Jail” applied to the misdemeanor charge and not the felony, and thus his sentence was correctly calculated by the county jail. However, the record clearly shows that the trial court sentenced Eubanks as a felon. The court checked the “Felony Sentence” box on the disposition sheet, and the three-year sentence on the felony charge of terroristic threats is greater than that allowed for misdemeanor sentencing. See OCGA § 17-10-3. The 12-month sentence on the battery conviction was clearly concurrent with the felony sentence. Consequently, because Eubanks was sentenced as a felon, the Department of Corrections, rather than the county, had authority over him in accordance with OCGA § 42-5-51.

Under OCGA § 42-5-51 (b), when a person is convicted of a felony and sentenced to serve time in any penal institution in Georgia, “he shall be committed to the custody of the commissioner [of corrections].” It is the duty of the clerk of the trial court to notify the commissioner of a felony sentence within 30 working days after receiving the sentence. OCGA § 42-5-50 (a). Thereafter, the commissioner,, with the Board of Corrections’ approval, “shall designate the place of confinement where the sentence shall be served.” OCGA § 42-5-51 (b). The commissioner has the authority to designate the place of confinement, regardless of “any language in the sentence as passed by the court. . . .” OCGA § 42-5-51 (d).

Decided December 4, 1997

Winn, Price & Winn, Frank C. Winn, for appellant.

David McDade, District Attorney, Irene M. Jacobsen, Assistant District Attorney, for appellee.

In this case Eubanks received a felony sentence, therefore the trial court had no authority to sentence him to a specific institution and the county had no authority to calculate Eubanks’ jail time. See In re Prisoners Awaiting Transfer, 236 Ga. 516 (224 SE2d 905) (1976). “Any language in the sentence purporting to designate a place of confinement is mere surplusage which is not binding . . .” on the commissioner. 1993 Op. Atty. Gen., 93-17. Even if the sentence is not technically in the right form due to the insertion of “90 days in Douglas Co. Jail,” the irregularity was not harmful to any right of liberty and was not such a defect that rendered the sentence void. See Mathis v. Scott, 199 Ga. 743 (35 SE2d 285) (1945).

While it is clear that Eubanks was sentenced as a felon, that the county did not have authority to compute his sentence and that the trial court properly rearrested Eubanks and disallowed the county jail’s allowance for good time, it is not clear from the record whether the clerk of court properly notified the commissioner of Eubanks’ sentence pursuant to OCGA § 42-5-50 or whether Eubanks was in fact committed to the custody of the commissioner in accordance with OCGA § 42-5-51 (b). Thus, we remand this case for the trial court to determine whether the commissioner received the appropriate notice as well as custody of Eubanks. If not, the trial court is directed to order the clerk of court to provide said notice and to commit Eubanks to the custody of the commissioner.

Judgment affirmed and remanded with direction.

Birdsong, P. J., and Eldridge, J., concur.