author:
McMurray, Presiding Judge.
      Phipps, Judge,

text:
    A99A2040.
    WALDO v. MOORE.
    (527 SE2d 887)
   McMurray, Presiding Judge.

Plaintiff Alice Waldo, a social guest in the home of defendant Margaree Moore, brought this tort action to recover for the second degree burns she sustained from scalding hot water in the shower. The trial court directed verdict in favor of defendant, and plaintiff appeals. Held:

Because the jury is authorized to conclude that Moore’s intentional act of raising the water temperature coupled with her negligence in failing to alert her social guest to this fact after the guest announced her intention to bathe amounted to wilful and wanton behavior on Moore’s part, we reverse the direction of the verdict.

“When the defendant’s wrongful act was not only a failure in diligence but was wilful or so grossly negligent as to be wanton and reckless, the mere failure of the plaintiff or his servant in the exercise of ordinary care will not defeat a recovery.” [Central R. &c. Co. v. Newman, 94 Ga. 560, hn. 2 (21 SE 219).]

Carr v. John J. Woodside Storage Co., 217 Ga. 438, 439 (1) (123 SE2d 261).

If the negligence of the [defendant] is so gross as to amount to wanton and willful negligence [sic], such want of ordinary care by the person injured or killed to avoid the consequences of it would be no bar to a recovery for the injury. Central R. Co. v. Denson, [84 Ga. 774 (11 SE 1039)] and W. & A. R. Co. v. Bailey, [105 Ga. 100 (31 SE 547)].

Lowe v. Payne, 156 Ga. 312, 315 (118 SE 924).

These Supreme Court of Georgia authorities have long been applied by this Court in tort actions occasioned on residential premises because they are in fact applications of the identical legal duty of care a homeowner owes a social guest (licensee) under OCGA § 51-3-2 (b), namely to refrain from inflicting “willful or wanton injury.”

To the licensee, [as well as] the trespasser, no duty arises of keeping the . . . premises up to any . . . standard of safety, except that they must not contain pitfalls, mantraps, and things of that type. Mandeville Mills v. Dale, 2 Ga. App. 607 [(58 SE 1060)]. See Central of Ga. R. Co. v. Ledbetter, 46 Ga. App. 500 (168 SE 81). . . .

(Emphasis supplied.) MacKenna v. Jordan, 123 Ga. App. 801, 802 (2) (182 SE2d 550).

In this case, the complaint alleges a violation of OCGA § 51-3-2 by defendant’s knowing creation of a hidden peril by intentionally increasing the temperature of the hot water for residential use, namely to wash clothes, without informing plaintiff, her social guest. Viewed in the light most favorable to the plaintiff, this was admitted by defendant as she helped plaintiff from the bath. Plaintiff estimated she was hit by scalding water for 28 seconds, as a result of which her skin started coming off. Plaintiff’s treating physician, Sanford Hawkins, testified that the maximum safe setting for bath water is 120 degrees Fahrenheit. Judging from the little time it took for plaintiff to sustain the blistering associated with second degree burning, Dr. Hawkins estimated that the water temperature at defendant’s residence was “[g]reater than 131 [degrees] Fahrenheit.” Plaintiff had previously bathed at defendant’s residence without incident. And on the morning in question, plaintiff announced her intention to bathe to defendant, who failed to warn plaintiff that she had raised the water temperature. From the moment plaintiff first turned on the water, it felt “[v]ery hot.” Plaintiff tried to “get it to turn off, but . . . [she] fell in the tub and . . . couldn’t get up and [scalding water] kept pouring down on [her].” Whether the scalding water temperature in the shower constituted a hidden peril, mantrap, or pitfall is undoubtedly a question for jury determination. MacKenna v. Jordan, 123 Ga. App. at 802 (2), supra.

Then the question [is], would the jury be authorized to find that [defendant’s intentional conduct in increasing the water temperature combined with defendant’s negligent omission in failing to mention this fact when her guest announced the intention to bathe, when viewed in the light most favorable to the nonmovant for directed verdict], amounted to wilful and wanton negligence [or conduct], for which the defendant is liable? We think this question should be answered in the affirmative.

(Emphasis supplied.) Humphries v. Southern R. Co., 51 Ga. App. 585, 588 (181 SE 135). The dissent correctly states that the defendant host must exercise ordinary care to warn of a hidden peril. But the dissent errs in concluding that, as a matter of law applied to undisputed fact, plaintiff violated the common sense of mankind and failed to exercise such prudence as the ordinarily careful person would use in a like situation. Under the authority of Robinson v. Kroger Co., 268 Ga. 735, 741 (1) (493 SE2d 403), that determination in this routine residential premises liability case is for the jury, and not this Court. The trial court erred in directing the verdict in this case.

Judgment reversed.

Pope, P. J., and Miller, J., concur. Smith, J., concurs in the judgment only. Johnson, C. J., Andrews, P. J., and Phipps, J., dissent.

Phipps, Judge,

dissenting.

Although a business invitee who sustains injury may impose liability on a premises owner based on negligence, OCGA § 51-3-1; Jones v. Interstate North Assoc., 145 Ga. App. 366 (243 SE2d 737) (1978), a social guest or licensee may recover only for wilfulness or wantonness in causing the injury. OCGA § 51-3-2 (b); Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998). The concept of wilful and wanton negligence was rightfully disapproved in Truelove v. Wilson, 159 Ga. App. 906, 908 (4) (285 SE2d 556) (1981), and has received scant attention from the Supreme Court of Georgia ever since. The issue in this case is whether there is evidence to support a finding that homeowner Moore wilfully or wantonly injured her guest Waldo. In resolving this question, we ask two questions: What does the evidence show? What constitutes wilful or wanton injury?

The evidence shows that Waldo, who was 63 years old, spent the night at Moore’s house. After breakfast the next morning, she announced that she was going to take a shower. She entered the shower, turned on the hot water knob, and allowed the water to begin flowing directly onto herself without testing it. Because Moore had raised the thermostat on her water heater earlier that morning in order to wash clothes, the water emerging from the shower spout was approximately 130 degrees Fahrenheit. Moore had not informed Waldo of the change in the temperature setting.

Waldo testified that she had visited Moore’s home once before and had taken baths without incident. On this occasion, Waldo slipped and fell when the hot water began hitting her. She remained there until others in the house heard her cries for assistance and came to her rescue. Waldo presented no evidence showing that anyone in Moore’s house had previously received burn injuries as a result of taking a bath or shower.

Waldo’s attending physician, who is both trained and experienced in treating scald victims, testified that the maximum recommended safe temperature for bath water is 120 degrees Fahrenheit. He testified that this is also the maximum recommended safe temperature for setting residential water heaters, because children in the home cannot differentiate water temperature. But he acknowledged that residential water heaters can be set as high as 180 degrees Fahrenheit when the water is being used for purposes other than showering or bathing.

“ Wilful conduct is based on an actual intent to do harm or inflict injury. . . .’” Muller v. English, 221 Ga. App. 672, 676 (2) (c) (472 SE2d 448) (1996). Because there is no claim that Moore intentionally injured Waldo, the question is whether there is evidence from which a jury could find that Moore’s conduct amounted to the wanton infliction of injury. Wanton conduct has been described as “ ‘that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent’ [to do harm or inflict injury]. [Cit.]” Id. It is so egregious is nature that it authorizes the imposition of punitive damages, OCGA § 51-12-5.1, and deprives the defendant of the defense of contributory negligence. Hopkins v. First Union Bank &c., 193 Ga. App. 109, 111 (2) (a) (387 SE2d 144) (1989).

The majority holds that a jury could find "that Moore’s intentional act of raising the water temperature coupled with her negligence in failing to alert her social guest to this fact after the guest announced her intention to bathe amounted to wilful and wanton behavior on Moore’s part. . . .” In my opinion, this analysis is fundamentally flawed. In determining whether a defendant’s injury-causing conduct is wilful or wanton, we look to the defendant’s state of mind as it relates to both the underlying conduct and the injury such conduct produces. The questions in this case are not whether Moore intentionally raised the water temperature on her thermostat or was negligent in failing to alert Waldo to this fact. The question is whether, by doing these things, Moore either intended to injure Waldo or acted with a recklessness equivalent in spirit to an actual intent to injure.

Carr v. John J. Woodside Storage Co., 217 Ga. 438 (123 SE2d 261) (1961), and Central R. & Banking Co. v. Denson, 84 Ga. 774 (11 SE 1039) (1890), both cited in the majority opinion, are representative of cases involving such reckless conduct. In Carr, a drunk driver operated his vehicle at an excessive rate of speed and failed to slow down at. an intersection although he noticed a warning sign. In Den-son, plaintiff’s decedent was a deaf man walking on a railroad track, and the railroad company’s employees could have seen him for 400 yards before they reached him but gave no warning of the train’s approach nor made any attempt to slow the train until it was within a few feet of the deceased. Interestingly, Denson also establishes that where a person present on a railroad track is an adult not known to be laboring under a mental or physical handicap, operators of a train are entitled to assume that he will take action to avoid injury. Liability for wantonness attaches only where the train operator makes no attempt to avoid injury even after this assumption proves unfounded.

The evidence shows without dispute that Waldo is a competent adult. Her own expert testified that residential water heaters should not be set above 120 degrees because of the possibility of injury to children. Even if Moore’s failure to warn Waldo was an omission constituting negligence, there is simply an absence of evidence in this case sufficient to authorize a finding that her conduct rose to the level of wanton behavior.

The Georgia case which comes the closest to this case on its facts is Sarno v. Hoffman, 110 Ga. App. 164 (138 SE2d 96) (1964). There, a motel guest was standing under a shower when the water suddenly and without warning became scalding hot. He charged the operators of the motel with negligence because, among other things, the water pressure was uneven and the temperature of the water was too high for bathing. For two reasons, Sarno presented a much stronger case for liability than does this case. First, the motel owed its guest a duty to avoid injuring him through negligence. Second, the guest could not have done anything to avoid being scalded by the water. Yet, it took a divided court to allow even the plaintiff in Sarno to proceed to a jury on a negligence theory.

Decided January 12, 2000

David E. Tuszynski, for appellant.

Hull, Towill, Norman, Barrett & Salley, Floyd M. Taylor, for appellee.

Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), does not require us to reverse the trial court’s grant of Moore’s motion for directed verdict. Robinson is primarily concerned with the routine adjudication of negligence issues. The question here is whether there is evidence of wilfulness or wantonness. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), was decided because summary judgment on negligence issues in slip and fall cases was being granted too infrequently. Because the pendulum had swung too far in the opposite direction, Robinson was decided. Yet Robinson recognizes that there are cases in which it can be held that, as a matter of law, an invitee failed to exercise ordinary care for personal safety. In my opinion, a competent adult who enters a shower, turns the hot water knob, and allows the water to begin flowing directly onto herself without testing it has, as a matter of law, failed to exercise ordinary care for her own safety. In refusing to so hold, the majority, rather than complying with Robinson, is swinging the pendulum back to the pre-Alterman Foods era. I respectfully dissent.

I am authorized to state that Chief Judge Johnson and Presiding Judge Andrews join in this dissent.

       We realize the language employed by the Supreme Court of Georgia is subject to the criticism that it is an oxymoron, “for wilfulness and wantonness are so far the opposites of negligence as to make the expression . . . misleading, though it is frequently employed by many of our best jurists and law-writers.” Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 564 (2) (63 SE 642).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2431.
    DeLOACH et al. v. ROVEMA CORPORATION et al.
    (527 SE2d 882)
   Phipps, Judge.

This product liability case concerns the duty of a product seller to warn of product-related dangers which become known after the sale of the product.

Robert DeLoach, a mechanic employed by Tetley Tea Company, severely injured his hand while performing maintenance on a tea-bagging machine manufactured by Rovema Verpackungsmaschinen, GmbH (“Rovema GmbH”). DeLoach and his wife brought this action seeking damages against the manufacturer for personal injuries and loss of consortium. Rovema Packaging Machines, L.P. (“Rovema L.P.”) and Rovema Corporation were later added as party defendants in their capacities as successors to the corporation which sold and was responsible for servicing the tea-bagging machine. The DeLoaches appeal the trial court’s grant of summary judgment to Rovema L.P. and Rovema Corporation, arguing that there are triable issues concerning their claim for negligent failure to warn of a defect in the machine which became known to these defendants after the machine was sold.

Rovema GmbH, a German corporation, manufactured the subject tea-bagging machine in 1984. A Georgia corporation known as Rovema, Inc. sold the machine to Tetley the same year. Rovema, Inc. was engaged in both the sale and servicing of Rovema equipment. In 1989 or 1990, Rovema, Inc. was split into Rovema Corporation and Rovema L.P. Rovema Corporation, a Georgia corporation and wholly owned subsidiary of Rovema GmbH, now services machines manufactured by Rovema GmbH. Rovema L.P., a Georgia limited partnership partially owned by Rovema Corporation, sells Rovema machines. Prior to DeLoach’s accident in 1992, Rovema Corporation performed no service, repair, or maintenance on the machine at issue, although it responded to questions from Tetley concerning use of the machine.

Evidence presented by the defense shows that the tea-bagging machine is intended to be operated in a “run mode” and serviced in a “jog mode.” If the safety door is opened while the machine is in the run mode, a reversing mechanism causes the machine to stop. But when the jog mode is activated through a jog switch, the reverse mechanism is bypassed, and the machine goes into an operational cycle while the safety door is open thereby opening or closing a set of 430-degree heat-sealing jaws.

While attempting to clear a paper jam in the machine, DeLoach sustained severe cut and burn injuries to his hand resulting in the amputation of four fingers. He had pulled the paper through the open heat-sealing jaws and then pressed the jog switch, causing the jaws to close. He mistakenly believed that his fingers were clear of the jaws. DeLoach knew that pressing the jog switch with the safety door open would cause the jaws to close. And he was aware of the resulting danger, as he knew of others who had been injured in similar mishaps.

Among other things, plaintiffs claim that the manufacturer’s failure to install a safety device that would automatically close the jaws when the doors of the machine were open during a paper jam or other malfunction resulted in a dangerous condition constituting a product defect. But only a manufacturer is strictly liable for product defects, and the plaintiffs’ action against the manufacturer was dismissed for insufficient service of process. Plaintiffs assert that Rovema Corporation and Rovema L.P. are liable for failure to warn of the dangerous condition because they acquired knowledge of it as a result of a similar accident involving an employee of Tyco Toy Manufacturing Company in New Jersey in 1987 or 1988.

Georgia law recognizes a manufacturer’s duty to warn consumers of danger arising from the use of a product based on knowledge acquired after the product is sold. But Georgia law imposes a duty on a seller to warn only of dangers actually or constructively known at the time of the sale.

In reliance on Corbin v. Farmex’s approving citation to § 13 of the Restatement of Torts, 3rd, Product Liability, the DeLoaches argue that the seller’s duty to warn of product defects has been extended beyond the time of sale. Section 13 does provide authority for imposing liability where the successor of a product seller undertakes or agrees to provide maintenance or repair services and fails to warn of a product-related risk. But under § 13, no warning is required unless, among other things, the successor knows or reasonably should know that the product poses a substantial risk of personal or bodily harm, and those to whom a warning might be provided can reasonably be-assumed to be unaware of the risk of harm. The evidence here shows without dispute that DeLoach was aware of the risk that resulted in his injuries. Consequently, any breach of a duty to warn him could not have been the proximate cause of such injuries. Moreover, Corbin cited § 13 of the Restatement in the context of a case in which the plaintiffs were seeking to hold the defendant liable in its capacity as a successor to a company which both manufactured and sold the product. Corbin found no breach of a duty to warn because there was no evidence that the defendant knew or reasonably should have known of the product defect. Corbin should not be read as erecting a post-sale duty to warn on the part of either a product seller or its successor.

Decided January 12, 2000.

Cletus W. Bergen II, for appellants.

Hunter, Maclean, Exley & Dunn, Robert S. Glenn, Jr., for appel-lees.

Rovema Corporation and Rovema L.R were thus entitled to summary judgment.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J, concur.

       See OCGA § 51-1-11 (b) (1); Farmex v. Wainwright, 269 Ga. 548, 549 (501 SE2d 802) (1998).

       See Rovema Verpackungsmaschinen GmbH v. DeLoach, 232 Ga. App. 212 (500 SE2d 647) (1998).

       See OCGA § 51-1-11 (c); Chrysler Corp. v. Batten, 264 Ga. 723 (1), (4) (450 SE2d 208) (1994).

        Everhart v. Rich’s, Inc., 229 Ga. 798, hn. 1 (194 SE2d 425) (1972); Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1998) and cits.

       227 Ga. App. 620, 624 (2) (490 SE2d 395) (1997), rev’d on other grounds, Farmex v. Wainwright, supra.

       Section 13 (b) (1).

       Section 13 (b) (2).


author: Ellington, Judge.

text:
    A99A2498.
    In the Interest of H. D. M., a child.
    (527 SE2d 633)
   Ellington, Judge.

Appellant, the father of H. D. M., appeals from the juvenile court’s order terminating his parental rights. Appellant challenges the sufficiency of the evidence, venue, and the juvenile court’s consideration of certain evidence. Finding no error, we affirm.

1. The standard of review applicable to appellant’s challenge to the sufficiency of the evidence is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation.) In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). “[W]e defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citations and punctuation omitted.) In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998).

OCGA § 15-11-81 (a) sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines “whether there is present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Four factors must be present to establish parental misconduct or inability: (1) the child must be deprived; (2) the lack of proper parental care or control by the parent in question must cause the deprivation; (3) the cause of the deprivation must be likely to continue; and (4) continued deprivation must be likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). If the trial court finds that these four factors exist, then in the second step the court determines whether termination of parental rights is in the best interest of the child. In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998).

As to the first factor, we agree with the juvenile court’s determination that the child was deprived. Both the child and her mother tested positive for marijuana and methamphetamine when H. D. M. was bom on April 6, 1997. The child was judicially determined to be deprived and was taken into custody two days later. See In the Interest of A. W., 231 Ga. App. 770, 773 (501 SE2d 22) (1998); In the Interest of R. D. S. P., 230 Ga. App. 205, 206 (495 SE2d 867) (1998). Since no appeal was taken from the deprivation order, appellant is bound by the initial deprivation finding. In the Interest of L. H., 236 Ga. App. 132, 134 (1) (511 SE2d 253) (1999). Furthermore, appellant stipulated that the child was deprived. Therefore, the first factor is satisfied.

As to the second factor, we agree with the juvenile court’s determination that the child’s deprivation was caused by appellant’s lack of proper parental care or control. Appellant argues that the initial deprivation was attributable entirely to the mother’s actions, that is, ingesting drugs while pregnant, and not to his own parental misconduct or inability. In determining whether the child’s deprivation was caused by appellant’s lack of proper parental care or control, however, the juvenile court was authorized by statute to consider appellant’s actions following the original finding of deprivation. When the child is not in the custody of the parent whose rights are at issue, OCGA § 15-11-81 directs the trial court to consider whether the parent without justifiable cause failed significantly for a period of one year or longer (1) to communicate or make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner; (2) to provide for the care and support of the child; and (3) to comply with a court-ordered plan to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C).

At the emergency hearing held four days after the child’s birth, appellant, who was present and represented by counsel, was directed to take steps to legitimate the child. Appellant did not legitimate the child until she was six months old. Appellant visited the child five times in the first six months, before legitimation, and three times after legitimation. He last visited the child 11 months before the termination hearing. In the Interest of R. P., 216 Ga. App. 799, 802-803 (2) (456 SE2d 107) (1995). There is no evidence that appellant attempted to contact anyone to arrange additional visits. In the Interest of D. A. P., 234 Ga. App. at 259-260. In short, appellant demonstrated very little interest in H. D. M. during the year prior to the parental rights termination hearing.

The juvenile court was also authorized to consider in determining whether the child’s deprivation was caused by appellant’s lack of proper parental care or control whether appellant had a history of chronic unrehabilitated drug abuse which rendered him “incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-81 (b) (4) (B) (ii). In the Interest of K. W., 233 Ga. App. 140, 141-142 (2) (503 SE2d 394) (1998). The juvenile court found that appellant has a long history of drug abuse, and appellant offered no evidence to rebut that finding. Furthermore, he offered no evidence that he had complied with the treatment recommendations that were incorporated into the reunification plan.

Finally, lack of proper parental care or control can also be shown by a parent’s failure to complete the goals of a reunification plan. In the Interest of I. S., 238 Ga. App. 304, 308 (520 SE2d 470) (1999). There was ample evidence that appellant failed to complete most goals of the reunification plan. Based on appellant’s delayed legitimation of the child, his limited contacts with her, his history of drug abuse, and his failure to complete the goals of the reunification plan, there was clear and convincing evidence that H. D. M.’s deprivation was caused, in part, by appellant’s lack of proper parental care or control.

We also uphold the trial court’s finding that H. D. M.’s deprivation would likely continue if appellant retained parental rights. “In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent.” In the Interest of R. D. S. P., 230 Ga. App. at 207. Although appellant asserts on appeal that he is a fit parent, he gave no testimony at trial and offered no evidence demonstrating an ability to maintain a drug-free lifestyle, to provide for his child’s material needs, and otherwise to provide proper parental care and control so that the previous deprivation would not continue.

Finally, the record supports the trial court’s conclusion that continued deprivation is likely to harm H. D. M. H. D. M. has spent her entire life in foster care and has formed no bond with appellant. “This evidence supports a finding that [H. D. M.] would suffer serious harm if returned to [appellant].” In the Interest of A. C., 230 Ga. App. at 398.

As for the second prong of the termination analysis, we are persuaded that the termination of appellant’s parental rights is in the best interest of H. D. M., considering H. D. M.’s physical, mental, emotional, and moral condition and her “need for a secure and stable home.” OCGA § 15-11-81 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134, 138 (2) (501 SE2d 296) (1998).

2. Appellant contends that the trial court improperly relied on hearsay evidence in finding that termination of his parental rights was warranted. One of the caseworkers had never met appellant and testified based on what appeared in the Department of Family & Children Services’s case records rather than based on her personal knowledge. During that witness’s testimony, however, appellant never raised a hearsay objection. Thus, appellant waived this issue by his failure to object to the evidence at trial. In the Interest of M. L. P., 236 Ga. App. 504, 510 (2) (512 SE2d 652) (1999); Hodson v. Mawson, 227 Ga. App. 490, 491 (1) (489 SE2d 855) (1997).

Decided January 12, 2000.

Larry H. Tatum, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, John L. Welsh II, for appellee.

3. We further find that appellant waived any objection to venue of the termination case in Gwinnett County. The record shows that the Gwinnett County DFACS took custody of H. D. M. because her mother gave the caseworkers a Buford, Gwinnett County, address as her residence. All proceedings for two years, beginning with the initial deprivation hearing and including the termination hearing, were conducted in Gwinnett County based on the child’s presence there. OCGA § 15-11-15. Appellant was present and represented by counsel at hearings held in Gwinnett County to address H. D. M.’s deprived status on April 10,1997, June 19,1997, October 23,1997, and March 30, 1998. Appellant filed a petition to legitimate H. D. M. in Gwin-nett County. He raised no objection to Gwinnett County venue until the termination hearing on April 28, 1999.

Although the record at the hearing shows that appellant and H. D. M.’s mother lived together in Bartow County beginning in October 1997, appellant claims that he did not know until the April 28, 1999 hearing that the mother was living in Bartow County when the child was bom. This is not a situation in which the factual basis for the objection to venue arises after the commencement of proceedings. See, e.g., Fosgate v. American Mut. &c. Ins. Co., 154 Ga. App. 510-511 (1) (268 SE2d 780) (1980). By his actions and inactions, appellant waived his right to object to Gwinnett County venue. See Holcomb v. Ellis, 259 Ga. 625, 626 (2) (385 SE2d 670) (1989).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Miller, Judge.

text:
    A99A2518.
    REECE v. THE STATE.
    (527 SE2d 642)
   Miller, Judge.

A jury found Tyler Reece guilty of one count of statutory rape and two counts of child molestation. His sole assertion of error contends the evidence is insufficient to sustain his conviction for statutory rape, arguing the victim’s outcry was inadequate to corroborate her in-court testimony implicating him. Proof that Reece contemporaneously bragged to another about having intercourse with the victim is sufficient to corroborate the victim’s testimony and sustain the conviction. We affirm.

Upon reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to support the verdict, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.

Viewed in this light, the evidence showed that the victim, C. C., then 11 years of age, was babysitting a child at the home of her mother’s employer. Around 11:00 p.m., Reece and J. N. entered the house through an unlocked door. C. C. knew J. N., but knew Reece only by sight. Once the two entered the home, C. C. took the child downstairs because she “thought it would be safer down there, and [she] didn’t know what they were going to do.” Both Reece and J. N. followed her downstairs, and J. N. took the child back upstairs to play games. While C. C. and Reece were alone downstairs, he picked her up forcefully and threw her on a couch, pulled her pants down, pulled her panties to her knees, and “stuck his penis in [her] vagina.” C. C. told him to stop and screamed for J. N. to come help her, to no avail.

J. B., an ex-boyfriend of the victim’s sister, testified Reece told him that he had sex with the victim. J. B. then informed C. C. that he knew about the rape and that she should tell her mother. The victim made an outcry to her mother about three weeks after the rape. Her mother testified that C. C. was upset and crying as she explained what happened.

Reece testified that he did not have sex with the victim and that he was out of town on the date of the incident, as did two other witnesses including his mother. But, “ [i] t is solely within the purview of the jury to weigh conflicting evidence and judge the credibility of the witnesses.”

Reece contends that the evidence was insufficient to corroborate the victim’s allegations of statutory rape. Although it is true that “no conviction shall be had for [statutory rape] on the unsupported testimony of the victim,” it is not necessary that the child be corroborated on every element of the crime, or that it establish the accused’s guilt, but only that the corroborating evidence tends to establish that guilt. Also, “[s]light circumstances may be sufficient corroboration[,] and ultimately the question of corroboration is one for the jury.”

Decided January 12, 2000.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

The act of intercourse as testified to by the victim was corroborated by her outcry to her mother three weeks after the attack. Reece’s admission to J. B. provided additional and substantial corroboration as “[t]he defendant is the most knowledgeable and unimpeachable source of information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.” In this case, proof that Reece bragged to J. B., admitting the act of intercourse, was sufficient corroboration under OCGA § 16-6-3 . (a) and under the standard of Jackson v. Virginia to authorize the jury’s verdict that Reece was guilty, beyond a reasonable doubt, of the statutory rape alleged in Count 1 of the indictment.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Cantrell v. State, 231 Ga. App. 629 (500 SE2d 386) (1998).

       (Citations omitted.) Id.; see generally OCGA § 24-9-80.

       OCGA § 16-6-3 (a).

        Legg v. State, 207 Ga. App. 399, 400 (2) (428 SE2d 87) (1993); Dye v. State, 205 Ga. App. 781, 782 (2) (423 SE2d 713) (1992).

       (Citations and punctuation omitted.) Id.

       (Citations and punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 408 (1) (457 SE2d 685) (1995), overruled on other grounds, Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A99A2215.
    ADAMS v. THE STATE.
    (527 SE2d 911)
   Phipps, Judge.

A jury found William Henry Adams guilty of two counts of felony sale of cocaine and two counts of felony possession of cocaine. After the jury returned its verdict but before sentencing, the district attorney introduced evidence of prior felony convictions for (1) possession of cocaine, (2) interference with government property, (3) obstruction of an officer, and (4) burglary.

Decided January 13, 2000.

Samuel C. Finster, Sr., William U. Hyden, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

During sentencing, the trial judge determined that the possession charges merged with the sale charges and sentenced Adams on the two counts of the sale of cocaine. The trial judge sentenced Adams on one count to thirty years confinement under Georgia’s recidivist statute. He sentenced Adams on the second count to 30 years on probation, with the sentences to run concurrently, based on his concern that the parole board may decide to release Adams prior to the completion of his 30-year sentence. Because it was his intention to impose a sentence that would keep Adams out of the judicial circuit for 30 years, as a special condition of probation and as a backup to the prison sentence, the trial judge banished Adams from the Lookout Mountain Judicial Circuit (including Chattooga, Walker, Catoosa, and Dade Counties) for 30 years. On appeal, Adams challenges the length of the banishment.

Adams was sentenced under OCGA § 17-10-7 (c), which requires that he serve the entire 30-year sentence imposed by the judge without the possibility of parole. We must assume that he will serve the entire 30 years in prison. But if he is released before the expiration of 30 years, the special condition of probation will keep him out of the judicial circuit for the remainder of the 30 years. Based on the record, we find this special condition of probation is not unreasonable.

Judgment affirmed.

Johnson, C. J, and McMurray, P. J., concur.

       OCGA § 17-10-7 (c). This statute provides:
      [A]ny person who, after having been convicted under the laws of this state for three felonies . . . commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not he eligible for parole until the maximum sentence has been served.

        Massey v. State, 229 Ga. App. 123, 124 (493 SE2d 255) (1997).


author: Johnson, Chief Judge.

text:
    A99A2257.
    KNIGHT v. THE STATE.
    (528 SE2d 258)
   Johnson, Chief Judge.

A jury found Thomas Edison Knight guilty of selling cocaine. He contends that the trial court erred in denying his motion for directed verdict of acquittal because the testimony of the confidential informant who participated in the controlled buy of the cocaine was not sufficiently corroborated. However, the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8. And though corroboration is required where the witness in a felony case is an accomplice, corroborating circumstances, rather than the testimony of a second witness, may suffice. OCGA § 24-4-8. Because the informant here was not an accomplice and, furthermore, because there was circumstantial evidence corroborating the witness’ testimony that Knight sold him cocaine, this argument is completely without merit.

The evidence shows that a confidential informant agreed to assist police in a controlled drug buy. Before conducting the purchase, police searched the informant for drugs and found none. They taped a transmitter onto his chest and gave him $20 in official funds. The informant bicycled to Knight’s home as police followed him in a van. So as not to arouse suspicion, the officers did not stop the van but kept moving; as a result, they lost sight of the informant at times.

One of the officers testified that he saw the informant cross the street toward Knight’s home, then watched and listened as the informant had a conversation with someone in the front yard of the residence. The informant asked the man where Knight was. The transmission was then interrupted by static, and the conversation became unintelligible. The officer moved the van and did not see the informant go into or come out of the residence. About two to three minutes later, the officer saw the informant come back across the street toward the officers. The informant returned to the officers’ van, handed police a piece of crack cocaine and told them he bought it from Knight.

Knight is correct that a defendant in a felony case may not be convicted on an accomplice’s uncorroborated testimony. OCGA § 24-4-8. However, an informant who is assisting police in gathering the evidence is not an accomplice. See Marshall v. State, 98 Ga. App. 429, 433 (2) (105 SE2d 748) (1958). Therefore, the informant in this case was not an accomplice.

. Furthermore, even if the informant was an accomplice, the argument is without merit. Corroborating circumstances may dispense with the need for the testimony of a second witness. OCGA § 24-4-8; Fain v. State, 211 Ga. App. 399, 400 (1) (439 SE2d 64) (1993). Slight evidence from an extraneous source identifying the defendant as a participant in the crime is all that is required to support the verdict, and it may be entirely by circumstantial evidence. Id.; Moody v. State, 232 Ga. App. 499, 503 (2) (502 SE2d 323) (1998). It is for the jury to decide whether the evidence offered as corroboration is sufficient to support the conviction. Fain, supra.

Decided January 13, 2000.

Ann C. Stahl, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

In this case, the investigating officers had the drug buy under audio and visual surveillance. Although police were unable to continuously observe the events surrounding the transaction, the informant’s testimony was corroborated by evidence that: a search of the informant just prior to the buy revealed no contraband; the informant was given $20 to buy drugs, and he returned two to three minutes later with a piece of crack cocaine and no money; and police saw him in Knight’s yard and heard him ask for Knight. The circumstantial evidence was sufficient to corroborate the informant’s testimony. See Martinez v. State, 222 Ga. App. 497, 499 (1) (474 SE2d 708) (1996). The trial court properly denied Knight’s motion for a directed verdict of acquittal. See Lester v. State, 226 Ga. App. 373, 378-379 (4) (487 SE2d 25) (1997); Hardaway v. State, 188 Ga. App. 310 (1) (372 SE2d 845) (1988).

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.


text:
    A99A2316.
    WILLIS v. THE STATE.
    (527 SE2d 895)
   Johnson, Chief Judge.

Reginald Willis appeals after being convicted of two counts of theft by taking and one count of burglary. He contends the trial court erred in (1) not granting a new trial when the evidence was insufficient to support his convictions; (2) allowing the prosecution to impeach his credibility by questioning him regarding an irrelevant matter; and (3) charging the jury that it could consider his interest in the outcome of the case in assessing his credibility as a witness. However, the evidence was sufficient; Willis waived any objection to the state’s line of questioning; and the trial court’s instruction has been approved by the Supreme Court of Georgia. Therefore, we affirm the convictions.

1. The evidence was sufficient to support the verdict. On appeal, we view the evidence in the light most favorable to the verdict; we determine the sufficiency of the evidence and do not weigh the evidence or judge the credibility of the witnesses. Gunter v. State, 237 Ga. App. 863, 864 (517 SE2d 105) (1999).

Viewed in the light most favorable to the verdict, the evidence shows that on December 9, 1997, a laundromat attendant entered the facility in which she worked and noticed Willis standing near a clothes dryer which had an open, damaged coin compartment; when she was there earlier in the day, the machine was not damaged. Willis was the only person in the business at the time. As Willis started out the door, he told the attendant that children had damaged the coin compartment. The attendant saw his face clearly and noted he wore a University of Miami Hurricanes jacket, Army pants, and a black hat. She testified that she had seen Willis in the facility earlier that day and heard him ask a customer for money.

The attendant further testified that when she reported for work on the morning of December 13, 1997, she found that the front door, which had been locked for the night, had been pried open and several of the washers and dryers had been broken into. The attendant viewed a surveillance videotape and concluded that the person shown in the closed facility the night before was “the same one that did it the first time. He had on the same coat and same outfit.”

The attendant testified that when she reported to work on December 15, she discovered that one of the dryers had again been broken into. She reviewed a surveillance videotape and recognized Willis’ face. She testified that the man shown in the videotape was the same person involved in the other two crimes and added that he wore the same clothing as in the other incidents. The attendant stated that after she gave police a description of the perpetrator, officers brought Willis into the laundry facility where she identified him as the person who committed all three crimes. The surveillance videotapes were shown to the jury.

Willis took the stand on his own behalf. He testified that he lived less than a block away from the business, visited the laundromat on a regular basis, and was wearing his Miami Hurricanes jacket at the time police stopped him. He denied committing the crimes.

Willis argues that the evidence was insufficient because the attendant, the only alleged eyewitness to any of the incidents, told the investigator on December 9 that she was not sure if she could pick Willis out of a photographic lineup; she did not actually see him on December 13, but saw only the videotape of that incident, and his face was not visible on the tape; and the clothing worn by the perpetrator and by Willis was not unique.

Willis’ arguments regarding the identification testimony go to the weight and credit to be given the evidence by the trier of fact and not to the sufficiency of the evidence. See Peek v. State, 234 Ga. App. 731, 732 (1) (507 SE2d 553) (1998). Whether the witness is credible and whether her identification should be accepted are questions for the jury. Shropshire v. State, 223 Ga. App. 118 (1) (476 SE2d 859) (1996); Spivey v. State, 193 Ga. App. 127, 129 (1) (386 SE2d 868) (1989). It is not for this court to determine the credibility of the identification. Shropshire, supra. The transcript reveals ample evidence from which any rational trier of fact could have found Willis guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Taylor v. State, 232 Ga. App. 383, 385 (501 SE2d 875) (1998).

2. Willis contends the trial court erred in allowing the prosecuting attorney to impeach his credibility by asking him questions about the University of Miami Hurricanes football program when such questions were immaterial to the issues being tried in the case.

While testifying on his own behalf, Willis stated that the University of Miami Hurricanes jacket which had been admitted into evidence was his. During cross-examination, the prosecuting attorney asked Willis if he was a fan of the Hurricanes football team. Willis replied that he was. The prosecuting attorney then asked Willis a series of questions about the team’s history, in what the state argues was an attempt to impeach his credibility by showing he was not a fan. After more than a dozen questions about the team were asked and answered, defense counsel objected, arguing that the inquiry was irrelevant. The trial court overruled the objection. The state asked a few more questions about the team before the court intervened and stopped the inquiry.

Willis’ objection to the line of questioning was made too late. Willis answered question after question about the football team before voicing any objection. If an objection is not raised until after evidence has already been admitted without objection, the objection is deemed waived. Matthews v. State, 221 Ga. App. 129 (1) (470 SE2d 518) (1996). The purpose of requiring timely objection is to prevent improper information from getting to the jury. Sieveking v. State, 220 Ga. App. 218, 220 (2) (469 SE2d 235) (1996). Willis’ late objection frustrated this purpose. His failure to timely object to the inquiry, despite having had the opportunity to do so, amounts to a waiver. See id. We note that even if the court erred in allowing the inquiry, the error was harmless; it is unlikely that Willis’ inability to correctly answer certain questions about the team’s history contributed in any way to the verdicts. See generally Ricks v. State, 178 Ga. App. 98, 100 (2) (341 SE2d 895) (1986).

3. Willis contends the trial court erred in charging the jury that it could consider Willis’ interest in the outcome of the case in deciding his credibility as a witness. He argues that this instruction implies that his testimony is unworthy of belief and is to be held to a higher standard than that of any other witness. We disagree.

The trial court charged the jury as follows:

[Wlhen an accused person testifies in his trial and in his own defense he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness. In determining the degree of credibility that should be accorded his testimony, the jury may take into consideration the fact that he is interested in the result and outcome of this prosecution.

Decided January 13, 2000.

Ellis R. Garnett, for appellant.

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

Such an instruction regarding the witness’ interest has been approved, as it merely states the self-evident fact of the defendant’s interest in the outcome of the case. Larry v. State, 266 Ga. 284, 287 (3) (466 SE2d 850) (1996). Moreover, the trial court also expressly instructed the jury to treat Willis as it would any other witness. See id. There was no error.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A00A0099.
    AIKENS v. THE STATE.
    (527 SE2d 916)
   Johnson, Chief Judge.

A criminal defendant may not directly appeal from a guilty plea on the ground of ineffective assistance of counsel if there has not been a post-plea hearing in the trial court developing that claim and instead the only evidence in the record is the transcript of the guilty plea hearing. Danny Aikens pled guilty to burglary and then directly appealed to this court on the ground that his trial counsel was ineffective. The transcripts of his guilty plea and sentencing hearings are the only pertinent evidence in the record. Is Aikens entitled to appeal directly from his guilty plea on the ground that his trial attorney was ineffective? We hold that he is not entitled to such a direct appeal because he did not develop his ineffectiveness claim in a post-plea hearing and the plea and sentencing hearing transcripts provide no evidence on that issue.

Aikens pled guilty to burglary in the Lowndes County Superior Court. The court entered a judgment of conviction on the plea and sentenced Aikens to ten years confinement. Aikens has directly appealed from the conviction entered on his guilty plea, claiming that his trial attorney was ineffective because he told Aikens he would receive only a probated sentence if he pled guilty.

Decided January 13, 2000.

L. Warren Turner, Jr. & Associates, Jody D. Peterman, for appellant.

A criminal defendant has no unqualified right to appeal directly from a judgment of conviction and sentence entered on a guilty plea. He may file a direct appeal in such a case only if the issue raised can be resolved by facts appearing in the record. If a defendant claims ineffective assistance of counsel, that issue can be developed only by a post-plea hearing in the trial court. So a defendant may not directly appeal from a guilty plea on the ground of ineffective assistance of counsel if the only evidence in the record is the transcript of the guilty plea hearing; rather, the defendant’s proper remedy is to move in the trial court to withdraw his guilty plea and, if that motion is denied, to appeal from the denial of his motion.

Aikens did not move in the trial court to withdraw his guilty plea and then appeal from the denial of that motion but instead filed this direct appeal. Because Aikens failed to develop his ineffectiveness claim in a post-plea hearing and the only evidence in the record is the transcripts of Aikens’ guilty plea and sentencing hearings, Aikens cannot properly raise the issue of ineffective assistance of counsel in this direct appeal.

Moreover, the trial court no longer has jurisdiction to consider a motion to withdraw Aikens’ guilty plea because the term of the Lowndes Superior Court in which the judgment of conviction was entered has expired. Thus, Aikens’ only remaining remedy for withdrawing his guilty plea on the ground of ineffective assistance of counsel is through a habeas corpus proceeding.

Because Aikens has improperly filed this direct appeal from his guilty plea, the appeal must be dismissed.

Appeal dismissed.

McMurray, P. J., and Phipps, J., concur.

J. David Miller, District Attorney, Bradfield M. Shealy, Laura E. Anderson, Assistant District Attorneys, for appellee.

        Obi v. State, 229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997).

       Id.

       Id.

       Id.

       Id.

       See Flanigan v. State, 238 Ga. App. 296, 297 (2) (517 SE2d 569) (1999).

         See id.; see also OCGA § 15-6-3 (35) (D).

       See Flanigan, supra; Obi, supra.


author: Eldridge, Judge.

text:
    A00A0109.
    CROWDER v. THE STATE.
    (527 SE2d 901)
   Eldridge, Judge.

After accepting many years of physical abuse from his grandfather, Thurman Martin, and vowing since he was six years old to “kill that man,” Billy Crowder shot his grandfather several times in the head, took money from his wallet, and buried him in a tomato patch in his backyard. A Long County jury found Crowder guilty of voluntary manslaughter, armed robbery, hindering the apprehension of a criminal, and possession of a firearm during the commission of a crime. He appeals, raising three enumerations of error.

1. Crowder first challenges the sufficiency of the evidence to support his conviction for armed robbery. He contends that the evidence did not establish the time frame in which the victim’s wallet was taken so as to prove the taking was from the victim through the use of a firearm, as set out in the indictment. We disagree.

On appeal the evidence must be viewed in a light most favorable to support the verdict, and Crowder no longer enjoys the presumption of innocence. “The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Arnold v. State, 238 Ga. App. 314 (518 SE2d 716) (1999). In this case, the indictment charged that Crowder: “did unlawfully and with the intent to commit theft, take property of Thurman Martin, to wit: a wallet containing U. S. Currency; said Billy Crowder taking said wallet from Thurman Martin through the use of a firearm.”

The evidence at trial showed that Crowder’s stepfather/co-defendant, John Stanton, gave a statement to the police in which he told them “Billy Crowder had took $800 from Martin’s body and gave Stanton $200 of the money to pay Diane — Diana Crowder’s mobile home trailer payment.” (Emphasis supplied.) Appellant Billy Crowder also gave a statement to the police admitting that he shot Thurman Martin, and “after my granddaddy, Thurman, was shot, we all three wrapped him in a piece of plastic. . . . We all then carried him to the garden and buried him under the tomato plants.” Crowder then told the police that “[t]he money that was in my granddaddy’s billfold, which [was] around $600, John took $200 and said he was going to make a trailer payment with it. I took the rest and paid bills with it. . . . When we got the money out of the billfold, I gave Jason $20.” In addition, Crowder took the stand at trial and testified that everything in his statement to the police was true and that after shooting his grandfather, he took the wallet out of his grandfather’s pocket and divided the money therein among the accomplices.

This evidence and the inferences reasonably drawn therefrom establish that (1) the victim’s wallet was removed after the shooting but prior to the victim’s burial in the garden and (2) the burial occurred almost immediately after the shooting. Thus, there is no merit to Crowder’s contention that the evidence failed to prove that the victim’s wallet was taken from him through the use of a firearm.

Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim’s property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly. . . . [I]f the evidence authorizes a finding that the defendant first killed the victim and then took the victim’s property, he would be guilty of armed robbery.

(Citations and punctuation omitted; emphasis in original.) Francis v. State, 266 Ga. 69, 70-71 (1) (463 SE2d 859) (1995). Accordingly, we find that the evidence was sufficient to prove beyond a reasonable doubt the essential elements of armed robbery as set out in the indictment and as reflected in the jury’s verdict. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Crowder contends that the trial court erred by refusing to instruct the jury on: (a) robbery and theft by taking as lesser included offenses of armed robbery and (b) “claim of right” as a defense to theft.

(a) The evidence was uncontradicted that the victim was killed and, immediately thereafter, his wallet was taken and the money in it disbursed. There was no evidence that the taking of the victim’s money was accomplished without a gun. In fact, Crowder conceded at trial that “the only way [he was] able to get the money was because [he] had the gun and shot [his] granddaddy.” Where the uncontra-dicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation. Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998).

(b) Likewise, Crowder was not entitled to a charge on “claim of right,” since by statute such charge is a defense to the crime of theft, not armed robbery. OCGA § 16-8-10 (2); see also, e.g., Wideman v. State, 222 Ga. App. 733 (2) (476 SE2d 49) (1996). While we agree with Crowder that “intent to commit a theft” is an essential element of armed robbery, we decline to judicially extend the defense of “claim of right” to mitigate this essential element when the uncontra-dicted evidence shows a completed armed robbery. To do so would be to find that an alleged “claim of right” justifies the use of a gun or other weapon to secure that claim. In such an instance, the ends do not justify the means, regardless of whether the defendant thinks he has a right to the property. Presumably, that is why the legislature did not include “claim of right” as a defense to armed robbery.

3. Finally, on two separate bases, Crowder challenges his conviction for possession of a firearm during the commission of a felony.

(a) First, Crowder claims that the jury found him guilty of voluntary manslaughter — not murder — under Count 1 of the indictment, but found him guilty of possession of a firearm during the commission of the murder under Count 4 of the indictment. Because of this alleged inconsistency, Crowder claims that the trial court erred by failing to direct a verdict on Count 4. However, Crowder was charged with possession of a firearm during the commission of the crime of murder, not while committing the crime of murder himself. In that regard, Crowder’s stepfather/co-defendant John Stanton was found guilty of the murder of Thurman Martin, and, as a party to the crime, Crowder may be found guilty of possession of a firearm during the commission of that murder. Brooks v. State, 208 Ga. App. 869, 870 (432 SE2d 612) (1993).

(b) Crowder’s second claim under this enumeration of error has merit, however. It appears the trial court instructed the jury that the offense of possession of a firearm during the commission of a felony could be committed in a manner other than that alleged in the indictment. The trial court charged the jury:

A person commits the offense of possession of a firearm during the commission of a crime when the person has on or within arm’s reach of his person during the commission or any attempt to commit any crime against or involve the person of another, the unlawful entry into a building or vehicle, or a theft from the building in which crime is a felony. The offenses of murder and armed robbery are felonies under the law of this state.

Decided January 13, 2000.

Hal T. Peel, for appellant.

J. Thomas Durden, Jr., District Attorney, for appellee.

(Emphasis supplied.) The trial court did not limit the jury’s consideration of the evidence to the underlying felony offense of murder as specifically alleged in Count 4 of the indictment.

[I]t is error to give a charge stating that an offense may be committed in more than one manner when (1) only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment.

(Citations omitted.) Elrod v. State, 238 Ga. App. 80, 83 (2) (517 SE2d 805) (1999). Here, the evidence that Crowder committed an armed robbery while in possession of the firearm was equally as strong as the evidence that Crowder was in possession of the firearm during the commission of the murder of Thurman Martin. Because there exists a reasonable probability that the jury convicted Crowder of possession of a firearm during the commission of an armed robbery rather than a murder as specifically alleged in Count 4, we reverse his conviction under Count 4 of the indictment.

Judgment affirmed as to Counts 1, 2, and 3 of the indictment. Judgment reversed and remanded for a new trial as to Count 4.

Blackburn, P. J., and Barnes, J., concur.

       The offenses were accomplished with the aid of appellant’s stepfather, John Stanton; his mother, Diane Crowder Stanton; his sister, Katie Crowder; and a close friend, Jason Jordan.

       Count 4 charges that Crowder “did possess a firearm . . . during the commission of a crime, to wit: the murder of Thurman Martin, and which crime is a felony.”

       In its brief before this Court, the State has not addressed this claim of error.


text:
    A00A0297.
    DOWNEY v. THE STATE.
    (527 SE2d 909)
   Eldridge, Judge.

Following a bench trial in the Superior Court of Cobb County where the relevant facts were stipulated, Jeffrey Glenn Downey was found guilty on four counts of burglary. On appeal, Downey claims error in the trial court’s denial of his motion to suppress the results of a search of his residence. Finding no error, we affirm.

Downey lived with his mother in Cobb County. He was wanted for burglary in Cherokee County, and a fugitive warrant was issued. Lieutenants Sampson and Simmons from the Cobb County Police Department went to Downey’s residence to arrest him on the fugitive warrant. Downey’s car was in the driveway. His mother answered the officers’ knock. Claiming Downey was not at home, she consented to a search of the residence pursuant to the execution of the arrest warrant.

The officers searched the residence for Downey. During the course of the search, several rifles were discovered in the bedroom, where they were “cleared” for the officers’ safety. The officers testified at the motion hearing that the process of clearing weapons found during the execution of an arrest warrant is standard procedure, because

if you’ve got a felony warrant on someone and you’re looking for him, you don’t want to leave a weapon that they can use against you. So immediately you would seize the weapon and put it someplace else secure so if there was a confrontation or a struggle that weapon couldn’t be used against you.

This is true especially when “we’re looking for an individual and have not completely cleared the house — we’re looking for an individual that may or may not be armed — we always assume that officer safety being priority — the first thing I’m going to do with any weapon is make it safe.”

Lieutenant Simmons searched the attic of the house. A styrofoam gun box was found at the top of the attic’s pull-down stairs, immediately to the right of Simmons’ head as he reached the top. Simmons could see the stock of a rifle in the partially opened box. The gun box contained a Norinco Mak 90 assault rifle. Before continuing his search of the attic, Simmons handed the gun box down the attic stairs to Sampson. Sampson cleared the weapon, as he had the other weapons. The Norinco’s serial number was located in obvious positions on both sides of the gun barrel and “jumped” out at Sampson as he cleared the assault rifle: 1-2-1-69. The day before Sampson had investigated a burglary at a local pawnshop where a Norinco Mak 90 assault rifle, serial number 1-2-1-69, was taken. Lieutenant Sampson immediately remembered the serial number because “[t]he latter part of the serial number is the police code for a weapon, sixty-nine, and it just kind of stuck in my mind when I was given that number by the [pawnshop] owner, 1-2-1 sixty-nine.”

After clearing the weapon, Sampson left it in the house while he went to his patrol car to check the notes he made on the pawnshop burglary and verify his memory of the serial number. Thereafter, the Norinco assault rifle was seized. The stolen weapon formed the basis for obtaining a search warrant for Downey’s residence. During the execution of the search warrant, other items were found and seized. These items provided proof of Downey’s participation in the four burglaries which are the subject of this appeal. Held:

Downey contends that the trial court erred in denying his motion to suppress the Norinco assault rifle. His specific claim of error is that:

the act of Officer Sampson of opening the closed three (3) foot styrofoam box and removing the gun from the box, which allowed him to observe the serial number and thus recognize the gun as contraband, was an illegal search, beyond the scope of the authority and consent to search the premises for the Appellant’s person, conducted without a search warrant.

When reviewing the decision of the trial court on a motion to suppress, the evidence is construed most favorably to uphold the court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). If there is any evidence to support the trial court’s findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous. Id.

(a) Downey’s claim of error concedes that after removing the Norinco from the gun box, the weapon’s serial number was in plain view and that Sampson’s immediate recognition of that serial number was based on knowledge he had gained from the prior pawnshop burglary. We find Downey’s concessions appropriate since the evidence shows: (1) the observation of the Norinco’s serial number was an inevitable part of “clearing” that weapon and (2) Sampson had a legitimate, independent basis for immediately recognizing the Norinco’s serial number.

(b) Contrary to Downey’s claim of error, the evidence was that the gun box was open and Simmons could plainly see the stock of the Norinco. In fact, the evidence was that the Norinco’s styrofoam gun box, which “folded together like a sandwich,” would not stay closed and had to be taped together in the police evidence room to keep it shut. After discovering the Norinco, it was then “cleared” by the officers, just like the other weapons that were found in Downey’s house during the attempted execution of the arrest warrant.

(c) The evidence also showed that the Norinco was discovered in a place Lieutenant Simmons had a right to be during the search of the residence for Downey’s “person.” Since Downey “could hide in an attic, ... it was reasonable to look for him there.” (Citation and punctuation omitted.) State v. Wright, 204 Ga. App. 382, 384 (419 SE2d 334) (1992). The gun box and the stock of the Norinco were in plain view at the top of the attic’s pull-down stairs. There was no general exploratory search in this case.

Decided January 13, 2000

Joanne E. Elsey, for appellant.

Patrick H. Head, District Attorney, Charles M. Norman, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

(d) So, Simmons and Sampson discovered the Norinco assault rifle — along with several other weapons — during the legitimate execution of Downey’s arrest warrant. In the process of “clearing,” i.e., making safe, each of the weapons found, Sampson’s immediate recognition of the Norinco’s plainly visible serial number provided a sufficient basis for its seizure. Thus, the only issue here is whether Simmons and Sampson had a right to “clear” the weapons that were discovered in areas the officers had a right to be during the attempted execution of Downey’s arrest warrant. We hold that they had that right.

Once lawfully inside Downey’s house to execute the fugitive warrant, the officers were authorized to make a search of the entire house for the limited purpose of securing it, i.e., discovering the presence of all occupants and eliminating the possibility of harm to the officers. Williams v. State, 236 Ga. App. 102, 105 (2) (511 SE2d 216) (1999); see also State v. Wright, supra at 383 (3); State v. Scott, 176 Ga. App. 887, 889 (2) (339 SE2d 276) (1985); Lentile v. State, 136 Ga. App. 611, 613 (222 SE2d 86) (1975). Further, Downey’s car was in the driveway, making it reasonable to assume that he was hiding in the house despite his mother’s protest to the contrary. With the reasonable possibility that a fugitive was present in the home, the officers were entitled to make safe any weapon discovered during their legitimate execution of Downey’s arrest warrant “to eliminate the possibility that it could be used against them.” Latimer v. State, 204 Ga. App. 639, 641 (1) (420 SE2d 91) (1992); Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443) (1983).

The trial court did not err in denying Downey’s motion to suppress.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

         An additional four counts were nol prossed.

       To “clear” a weapon is to make it safe and involves ascertaining whether the weapon is loaded, unloading it if applicable, and placing the safety in the “on” position.


author: McMurray, Presiding Judge.

text:
    A00A0498.
    A00A0628.
    A00A0708.
    BILLUPS v. THE STATE. MAXWELL v. THE STATE. PATTERSON v. THE STATE.
    (527 SE2d 905)
   McMurray, Presiding Judge.

Sylvester Billups, David Maxwell, Verrick Patterson, and Fernando Patterson were charged by a joint special presentment with armed robbery and aggravated assault with intent to rob. Fernando Patterson pled guilty before trial. The jury convicted Billups, Maxwell, and Verrick Patterson of armed robbery and acquitted them of aggravated assault. Defendants Billups, Maxwell and Verrick Patterson filed separate appeals after the denial of their respective motions for new trial. We consolidate and resolve these appeals in one opinion because defendants make similar assertions of error. Held:

1. Defendants challenge the sufficiency of the evidence, arguing they were merely present at the scene of the crime. We disagree.

Evidence adduced at trial reveals that the victim was a convenience store cashier. When she was alone one night preparing to close up, the defendants came into the store. They were frequent customers, and the victim recognized them. She commented to one of them, Fernando Patterson, that his brother Verrick looked “kind of wild.” The defendants admitted that they had been drinking. As the victim turned her back to them and walked behind the counter, she was grabbed from behind, slashed with a utility knife or a box cutter, and severely beaten. She could not recall which defendant, or how many of them, attacked her. She needed fifty staples to close the lacerations on her head and four stitches to mend a cut on her face. Shoe print-shaped bruises were found on her back and arms, and her hands were swollen and scarred.

A customer who pulled into the parking lot shortly after the attack observed three young men walk away from the store. He then saw a fourth man exit the store carrying five cartons of cigarettes. All the men walked in the same direction. Although he could not identify the men, the customer testified that the fourth man was the largest of the group. The customer went inside, saw the bloodied victim, and called the police.

Officer Daren Klitzsch of the Athens-Clarke County Police Department arrived on the scene. He noted that the cash register drawer was open, and the cigarette and counter areas were in disarray. He also observed that wires were hanging out of the wall where the video cassette recorder apparently had been pulled out. No videotape was found.

The next day, Detective Steven Fogarty, who was at that time with the Athens-Clarke County Police Department, took a statement from Travis Walton. According to Walton’s statement, after hearing the police were looking for him the previous night, Walton went to the mobile home where Fernando and Verrick Patterson resided. All the defendants were there, along with Sylvester Billups’s brother, Eric Billups. Walton said the defendants “all started telling me about robbing a lady at the Dixie Food Store. They said they only got $25 in cash. . . . Fernando said he put the lady in a choke hold and Sylvester said he hit her. Fernando said he cut her.”

Five days later, Eric Billups also gave a statement to Detective Fogarty. According to Billups’s statement, Fernando Patterson said

he cut that bitch’s neck at the store. Everybody started laughing. Verrick [Patterson] said he got some cigarettes and had hid them. . . . [Maxwell] was saying that they should have kept the tape and looked at it like in Menace to Society. [Maxwell] said he busted the tape up and threw it away. [Maxwell] said he got the tape out of the store. [Maxwell] said that if the bitch saw their faces then Fernando should have killed her.

Testifying for the defense at trial, Fernando Patterson stated that he alone attacked, cut and beat the victim, as well as took $25, some lottery tickets and five or six cartons of cigarettes from the store. He testified he did not touch the VCR or take a tape out of it. Fernando Patterson also testified that the three defendants fled as soon as he grabbed the victim. He admitted that they had been “getting drunk” before going to the store together.

OCGA § 16-2-20 (b) (3) provides that an individual is a party to a crime if he or she “[intentionally aids or abets in the commission of that crime.” Mere presence at the scene of the commission of a crime is not sufficient to convict a person of being a party to that crime. But presence, companionship, and conduct before and after the offense are circumstances from which an accused’s participation in the criminal intent may be inferred. Montijo v. State, 238 Ga. App. 696 (1), 698 (520 SE2d 24); Tucker v. State, 231 Ga. App. 210, 214-215 (2) (498 SE2d 774); James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556).

The victim identified all the defendants. She testified that she was “pretty sure” the VCR had a tape in it when she came to work. The defendants had been drinking together before entering the store. After the victim was attacked, beaten and robbed, the defendants were found in the mobile home where the Pattersons resided. The defendants were all talking and laughing about the crime.

Additionally, the customer who saw a fourth man exit the store carrying five cartons of cigarettes testified that the man was the largest one of the group. Fernando Patterson testified that he was smaller than his brother.

Moreover, defendant Billups told Walton that he had hit the victim. Billups argues that his statement was not sufficiently corroborated to permit his conviction. That argument fails to distinguish between an admission and a confession. “ Tn the former only one or more facts entering into the criminal act are admitted, while in the latter the entire criminal act is confessed. [Cits.]’ Burns v. State, 188 Ga. 22 (2) (2 SE2d 627).” Lowe v. State, 267 Ga. 180, 181 (4) (476 SE2d 583). Since Billups “did not admit every essential element of the charged offense, the statement constituted an admission, not a confession. . . .” Stowers v. State, 205 Ga. App. 518, 519 (1) (422 SE2d 870).

Defendant Billups next argues that even if his statement can be construed as an admission, his acquittal of the charge of aggravated assault with intent to rob indicates the jury found the State failed to prove that he hit the victim. As there is no other evidence Billups participated in the armed robbery, he argues, the evidence is insufficient to sustain his conviction. The fact that Billups may not have struck the victim did not preclude his conviction as a party to the crime of armed robbery. As stated previously, he accompanied the other defendants before, during and after the crime, and he talked about it with the others in the presence of witnesses. Moreover, the inconsistent verdict rule has long been abolished in Georgia in criminal cases. Walker v. State, 271 Ga. 328, 329 (1) (519 SE2d 670); Travitt v. State, 228 Ga. App. 711, 712 (4) (492 SE2d 574).

The evidence was sufficient to authorize a rational trier of fact to find the defendants guilty beyond a reasonable doubt as parties to the crime of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Maxwell argues that the trial court erred in denying his motion to sever his trial from that of his co-defendants. We disagree.

Maxwell’s motion to sever his case for a separate trial was a matter within the trial court’s discretion. Felder v. State, 270 Ga. 641, 644 (5) (514 SE2d 416).

In ruling on a motion to sever, a trial court should consider whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other’s rights.

Butler v. State, 270 Ga. 441, 446 (4) (511 SE2d 180).

Moreover, to show that the trial court abused its discretion in denying the severance motion, Maxwell must demonstrate that the joint trial was prejudicial and a denial of due process. Felder v. State, 270 Ga. 641, supra.

Decided January 13, 2000

Anthony T. Pete, for appellant (case no. A00A0498).

Kristopher Shepherd, for appellant (case no. A00A0628).

Joel N. Shiver, for appellant (case no. A00A0708).

The number of defendants at the joint trial in the case sub judice was not so great as to create confusion regarding the evidence or the law. Secondly, all of the evidence that was admitted against the defendants — primarily photographs of the victim after the attack — would have been admissible against Maxwell at a separate trial to demonstrate the corpus delicti. As for the third prong of the test, Maxwell’s defense was not antagonistic to either Billups’s or Patterson’s. In fact, Fernando Patterson testified that he was the sole perpetrator and that none of the three defendants participated in the crime.

For these reasons, we conclude that the trial court did not err in denying Maxwell’s motion to sever.

3. Lastly, Maxwell contends that the indictment is fatally defective because it alleges the defendants took the property of Dixie Food Store, whereas the name of the legal entity which owned the property was actually Dixie Food Company. This contention is meritless.

The indictment alleges the offense of armed robbery in that the defendants

with the intent to commit theft did unlawfully take a sum of United Stated [sic] Currency and Cartons of Cigarettes, the property of Dixie Food Store, for [sic] the person and immediate presence of [the victim] by use of a utility knife, and [sic] offensive weapon. . . .

The indictment alleges all of the elements of the crime of armed robbery. There can be no reasonable doubt that Maxwell was sufficiently informed of the charges against him and also protected from subsequent prosecution for the same crime. Indeed, the victim as well as counsel for defendant Verrick Patterson referred to the establishment as “Dixie Food Store.” The trial court did not err in denying defendant Maxwell’s motion to dismiss the armed robbery count of the indictment. Kelly v. State, 234 Ga. App. 893, 895 (2) (508 SE2d 228); Campbell v. State, 223 Ga. App. 484, 485-486 (3) (477 SE2d 905).

Judgments affirmed.

Johnson, C. J., and Phipps, J., concur.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.


author: Johnson, Chief Judge. McMurray, Presiding Judge,

text:
    A99A1852.
    HOPSON v. KENNESTONE HOSPITAL, INC.
    (526 SE2d 622)
   Johnson, Chief Judge.

Communications between a patient and psychiatrist are absolutely privileged and not discoverable unless the patient affirmatively waives the privilege. Under OCGA § 9-11-34 (c), a party to a lawsuit may request that a nonparty hospital produce patient records that are not privileged. If the patient, hospital or any party does not object to the request within ten days of its filing, the hospital shall produce the nonprivileged records. Does a patient’s failure to object within ten days to such a request for nonprivileged matter amount to an affirmative waiver of her privileged communications with her psychiatrist? We hold that it does not amount to a waiver because privileged matter is not discoverable under a nonparty document production request, so the patient has no obligation to object to the request on the basis of her privilege.

In 1995, Sherri Hopson and her husband executed a divorce settlement agreement in which she promised to undergo drug treatment. Believing that she was not complying with the agreement, Hopson’s former husband filed an action to terminate his alimony payments in 1996. After he filed the action, Sherri Hopson participated in a drug treatment program at Kennestone Hospital. Mr. Hop-son subsequently served Kennestone with a nonparty discovery request under OCGA § 9-11-34 (c), asking the hospital to produce Sherri Hopson’s drug rehabilitation records. Sherri Hopson filed no objection to the request. Kennestone later complied with the request and gave Sherri Hopson’s medical records, which allegedly contain privileged psychiatric information, to her former husband. The Hop-sons eventually settled their alimony dispute.

In 1997, Kennestone sued Sherri Hopson to collect $704, plus interest, for the medical care it had provided to her. Hopson counterclaimed that Kennestone is liable under various tort theories for having improperly released her privileged mental health care records to her former husband. Hopson and Kennestone filed opposing motions for summary judgment. The trial court granted summary judgment to Kennestone on both its claim and Hopson’s counterclaim. Hopson appeals, challenging the court’s grant of summary judgment to the hospital on her counterclaim.

The trial court granted summary judgment on the counterclaim, and the dissent approves of that grant, by relying on Price v. State Farm &c. Ins. Co., which held that a patient waived his patient-psychiatrist privilege by failing to object within ten days to a non-party document discovery request served under OCGA § 9-11-34 (c). The Price court based its holding on language in OCGA § 9-11-34 (c) (2), which provides that the patient, any party or the nonparty may object to the discovery request and, if no objection is filed within ten days of the request, the nonparty shall comply with the request. Unlike the dissent and the Price court, we conclude that a patient’s failure to make such an objection does not waive the patient-psychiatrist privilege.

OCGA § 9-11-34 (a) (1) provides that a party may request that another party produce documents containing matter discoverable within the scope of OCGA § 9-11-26 (b), which is the general discovery provision establishing that parties may discover only matter that is not privileged. OCGA § 9-11-34 (c) (1) establishes that the discovery of nonprivileged documents also applies to nonparties. And OCGA § 9-11-34 (c) (2) extends the applicability of such discovery to hospitals. Thus, under OCGA § 9-11-34 (c), a party may request that a nonparty hospital produce patient records which are not privileged.

Communications between a patient and a psychiatrist are absolutely privileged. Consequently, those privileged communications are not within the scope of a party’s request that a nonparty hospital produce nonprivileged patient records. Because privileged patient-psychiatrist communications are not within the scope of a nonparty document production request, there is no reason for a patient to assert the privilege in opposition to such a request. Contrary to the Price holding, a patient who does not raise such an unnecessary objection is not waiving her patient-psychiatrist privilege. Rather, she is simply forgoing whatever objections she might have had to the nonparty’s production of nonprivileged matter that is properly within the scope of the OCGA § 9-11-34 (c) discovery request.

In fact, the statute itself clearly expresses the legislature’s intent that a patient does not waive the privilege protecting her confidential communications simply by not objecting to a request for her nonprivi-leged medical records. OCGA § 9-11-34 (d), entitled Confidentiality, states, “The provisions of this Code section shall not be deemed to repeal the confidentiality provided by Code Sections 37-3-166 concerning mental illness, 37-4-125 concerning mental retardation, and 37-7-166 concerning drug and alcohol treatment.” To hold that a patient waives the confidentiality protected by the patient-psychiatrist privilege by not objecting to a discovery request which, by the very terms of OCGA § 9-11-34, cannot include such privileged matter, contravenes the legislature’s express intent.

Moreover, other than Price, the courts of this state have been reluctant to find a waiver of the absolutely privileged communications between a patient and psychiatrist. We have discovered only one sort of case in which a waiver was found, and that is where the patient actually calls the psychiatrist as a witness at trial to testify about the patient’s mental state. Unlike that affirmative act clearly waiving the privilege, courts have found that the privilege is not waived in cases where a patient seeks to recover damages for mental and emotional damages, where a third party necessary for the psychiatric treatment is present during the patient’s treatment, or where the patient has made disclosures in a separate unrelated action. And the privilege does not end upon the death of the patient.

According to the established case law, it is apparent that in order to waive the privilege a patient must take an affirmative action obviously giving up the confidentiality of communications with a psychiatrist, such as calling the psychiatrist as a trial witness. But nowhere in the case law, other than the Price holding that a failure to object creates a waiver, is some failure to act — some omission by the patient — deemed to be a waiver of the privilege. Based on the case law and the plain language of OCGA § 9-11-34, the holding in Price is erroneous and is hereby overruled.

In the current case, the trial court’s summary judgment ruling relying on Price is also erroneous. Contrary to the trial court’s ruling, Hopson’s failure to object to the request for her medical records from Kennestone did not amount to a waiver of her patient-psychiatrist privilege. By not objecting to the request, Hopson waived only the objections that she might have made to the production of her medical records that are not privileged. The trial court’s improper grant of summary judgment to Kennestone on Hopson’s counterclaim is therefore reversed.

Judgment reversed.

Pope, P. J., Blackburn, P. J., Smith, Ruffin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ, concur. McMur-ray, P. J., and Andrews, P. J., dissent.

Decided December 6, 1999

Reconsideration denied January 14, 2000

Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, for appellant.

Browning & Tanksley, Henry D. Green, Jr., David V. Johnson, for appellee.

McMurray, Presiding Judge,

dissenting.

The section of the Civil Practice Act regarding requests for the production of documents applies to nonparties as well as parties, including a practitioner of the healing arts, in which event:

The nonparty, any party, or the person whose records are sought may file an objection . . . and shall serve a copy of such objection on the nonparty to whom the request is directed, who shall not furnish the requested materials until further order of the court, and on all other parties to the action.

(Emphasis supplied.) OCGA § 9-11-34 (c) (2). In this case, Hopson (through her counsel) was notified of her former husband’s request for documents, including a request for letters, communications, et cetera, served on Kennestone Hospital as a nonparty record holder. No objection was lodged.

“Although the psychiatrist-patient privilege is frequently characterized as ‘absolute,’ it can be waived. [Cits.] [Further,] it is well-established that a party’s failure to timely object to a discovery request will result in a waiver of the right to object. . . .” Price v. State Farm &c. Ins. Co., 235 Ga. App. 792, 793 (1) (510 SE2d 582). Under this precedent, Hopson waived any valid claim of patient-psychiatrist privilege by failing to interpose a timely objection to the properly noticed request for production of documents served on the nonparty hospital. It follows she has sustained no legal damage by the nonconsensual release of her drug rehabilitation file to her ex-husband’s counsel. Rather than overrule Price, I would adhere to its well-reasoned holding. The trial court correctly granted summary judgment to the hospital on all theories of recovery and should be affirmed. I respectfully dissent.

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

       OCGA § 24-9-21 (5); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995); Dynin v. Hall, 207 Ga. App. 337, 338 (1) (428 SE2d 89) (1993).

       OCGA § 9-11-34 (c) (2).

       235 Ga. App. 792, 793-794 (1) (510 SE2d 582) (1998).

       OCGA § 24-9-21 (5); Plunkett, supra; Dynin, supra.

        Wiles v. Wiles, 264 Ga. 594, 596 (1) (448 SE2d 681) (1994); Griggs v. State, 241 Ga. 317, 318-319 (3) (245 SE2d 269) (1978); Fields v. State, 221 Ga. 307, 308-309 (2) (144 SE2d 339) (1965).

        Bobo v. State, 256 Ga. 357, 358 (2) (349 SE2d 690) (1986).

        Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 191-192 (2) (196 SE2d 172) (1973).


text:
    A99A2277.
    DEPARTMENT OF REVENUE et al. v. SLEDGE et al.
    (528 SE2d 260)
   Ellington, Judge.

The Georgia Department of Revenue denied the application for a refund of income taxes assessed against Tennessee residents William and Mary Sledge in connection with certain limited partnerships. The Sledges brought an action in the superior court for a refund pursuant to OCGA § 48-2-35. On stipulated facts, the trial court reversed the Department’s decision to deny the refund. We granted the Department’s application for appeal under OCGA § 5-6-35 (a) (l). We find that the trial court misconstrued applicable provisions of Georgia’s Public Revenue Code and, accordingly, reverse.

Because the superior court’s decision was based upon the application of the law to stipulated facts, we apply a de novo standard of review. Dept. of Human Resources v. Woodruff, 234 Ga. App. 513 (507 SE2d 249) (1998).

The stipulated facts show that the Sledges are residents of Tennessee who invested in two limited partnerships organized under the laws of Georgia. The principal place of business of the partnerships was in Georgia. The general partners, who carried out all partnership-related activities in Georgia, were Georgia residents and maintained an office in Georgia. The business of the partnerships was investment in securities held in a New York brokerage account. The Sledges, as passive limited partners, did not participate in the management of the partnerships in any way. The partnerships withheld Georgia income taxes on the Sledges’ share of the profits for the years 1992, 1993, and 1994.

1. For the tax years 1992, 1993, and 1994, the applicable Code section provided as follows: “When one or more of the individual members of a partnership doing business in this state are nonresidents of this state, the nonresidents shall be taxable on their share of the net profits of the partnership.” OCGA § 48-7-24 (a). When construing a statute a court must first look to the literal meaning of the act, and if the language is plain and does not lead to absurd or impractical consequences, the court has no authority to place a different construction upon it but must construe it according to its terms. Diefenderfer v. Pierce, 260 Ga. 426 (396 SE2d 227) (1990). The Department contends that the statute is unambiguous and plainly applies to the Sledges and the partnerships in which they invested. We agree. The Sledges contend that OCGA § 48-7-24 taxes the profits of a partnership only if the individual member does business in Georgia and that, because they personally did not do business in Georgia, they owed no income tax on their share of the partnership profits. But we find the literal meaning of the statute is that where a partnership does business in Georgia, its individual members are taxable on their share of the net profits of the partnership — regardless of whether the individual members qualify as doing business in Georgia. Because the statute is plain, we construe it literally and will not read it to excuse the Sledges from paying taxes on their share of the profits of the limited partnerships even though they did not individually do business in Georgia. World Trade Business v. Amit, Inc., 239 Ga. App. 383, 385-387 (1) (521 SE2d 40) (1999).

Decided January 14, 2000

Thurhert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Stefan E. Ritter,. Anthony J. Musto, Assistant Attorneys General, for appellants.

Alston & Bird, Timothy J. Peaden, Mary T. Benton, for appellees.

2. The Sledges also contend that OCGA § 48-7-24 (a) does not apply to the limited partnerships in which they were members because the investment activities of those partnerships did not constitute “doing business” in Georgia. In the absence of any controlling authority for this position, we must be guided by the general principle of Georgia law that “the phrase ‘doing business’ means any activity or transaction for the purpose of financial profit or gain.” Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 606 (2) (261 SE2d 599) (1979). See OCGA § 48-7-31 (a). Because the stipulated facts show that the limited partnerships at issue engaged in an activity for the purpose of financial profit or gain, Georgia law deems them to be doing business in Georgia. Id.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       The Department filed its application in the Supreme Court of Georgia. The Supreme Court found that the trial court had not reached the Sledges’ argument that OCGA § 48-7-24 (a) was unconstitutional and transferred the application to this Court for disposition.

       In 1997, the General Assembly amended OCGA § 48-7-24 by adding the following language to subsection (c):
      Notwithstanding any other provision of this chapter to the contrary, the distributive share of a nonresident member of a resident limited partnership or any other similar nontaxable entity which derives income exclusively from buying, selling, dealing in, and holding securities on its own behalf and not as a broker shall not constitute taxable income under this chapter.
      Ga. L. 1997, p. 450, §§ 2, 4 (amending OCGA § 48-7-24 effective January 1, 1997).


text:
    A00A0117.
    GOODMAN v. EDD’S PACKAGE STORE.
    (528 SE2d 262)
    Decided January 14, 2000.
    Gene N. Goodman, pro se.

   Eldridge, Judge.

Gene Nelson Goodman attempted to file a pro se complaint in Ware County Superior Court against Edd’s Package Store. However, the trial court denied the filing of Goodman’s complaint under OCGA § 9-15-2 (d). This statute requires the trial court to review a pro se complaint instituted by an indigent party before the complaint is filed and to deny its filing “if. . . the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.” OCGA § 9-15-2 (d). Goodman appeals from the trial court’s order. Held,-.

After reviewing Goodman’s complaint, this Court finds that he has failed to allege facts that would give rise to any relief in Georgia’s courts. Therefore, we affirm the trial court’s denial of Goodman’s right to-file such claim.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.