author: Johnson, Judge. McMurray, Presiding Judge,

text:
    A96A0375.
    DANIELS v. THE STATE.
    (473 SE2d 239)
   Johnson, Judge.

Michael Renard Daniels appeals from his convictions of armed robbery, possession of a firearm during the commission of a felony, and possession of a sawed-off shotgun, in connection with the armed robbery of a convenience store.

1. Daniels contends that the trial court erred in denying his motion to suppress evidence of a pretrial photographic lineup from which the victim had identified him, and to suppress any in-court identification of him by the victim. The victim was able to observe the perpetrator from a close distance in a well-lighted store for six or seven seconds before the perpetrator put on a mask. The victim identified Daniels from an array of six photographs, all of males of similar age and appearance. The identification was made without hesitation, and while the victim indicated that he was less than 100 percent certain, he stated he was more than 90 percent certain of his identification of Daniels.

Furthermore, the detective’s instructions to the victim prior to the photographic lineup not to pay attention to hairstyles, backgrounds, clothing, or facial hair did not unduly emphasize the length of defendant’s hair. In any event, the victim testified that the perpetrator wore a wool cap over his hair so that hair played no part in the identification.

Considering the totality of the circumstances, we conclude that any suggestiveness in the pretrial identification procedures did not rise to a substantial likelihood of mistaken identification. Therefore, the trial court did not err in refusing to suppress the victim’s identification testimony at trial or evidence of the victim’s pretrial identification of Daniels. Sanders v. State, 204 Ga. App. 37, 39 (5) (419 SE2d 24) (1992); Jones v. State, 251 Ga. 361, 362 (1) (306 SE2d 265) (1983).

2. Contrary to Daniels’ assertion, there was sufficient proof that the barrel of the shotgun found in his possession was less than 18 inches long, as required for a conviction under OCGA § 16-11-122. Officer Ramsey testified that: “It had to be shorter than, I believe, 18 inches for us to make the charge. I don’t recall right off the top of my head exactly how much we measured. But in order for us to make the charge, that’s what we measured and charged him with.” Officer Clay stated: “I believe the barrel was about 14 inches on it.” A photograph of the shotgun found in Daniels’ possession was shown to the victim who testified that it looked like the shotgun used in the robbery and that the shotgun used in the robbery was “maybe like one foot long.” Additionally, a photograph of the shotgun found in Daniels’ possession was admitted into evidence and thus was available to the jury in addressing the issue of the length of the barrel of the shotgun. If not separately, then in the aggregate, this evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that the shotgun found in Daniels’ possession had a barrel length of less than 18 inches. The evidence was sufficient to support the verdict of guilty of possession of a sawed-off shotgun under the standard announced in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Daniels argues that the trial court erred in denying his motion to suppress evidence found in an automobile in which he was a passenger. He contends that the reason the officer gave for stopping the car, that the driver made an improper turn by turning without signaling, was insufficient because there was no evidence that he was required to signal before turning. We disagree and affirm the trial court’s decision.

“When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Burnett, 220 Ga. App. 133, 134 (469 SE2d 324) (1996).

OCGA § 40-6-123 (a) provides, in relevant part, that no person shall turn a vehicle until such movement can be made with reasonable safety, and that he shall not so turn any vehicle without giving an appropriate signal.

The parties in this case have been unable to locate the transcript from the suppression hearing and have entered into a written stipulation in which they agree that the officers’ testimony at the suppression hearing was the same as their testimony at trial. The trial transcript shows that an eyewitness to the Gwinnett County armed robbery described the car used to flee the scene as a red Mustang GT with chrome-plated wheels. The officer relayed this information to a dispatcher so that a lookout could be broadcast to DeKalb County police, since the car was seen traveling south toward DeKalb. Atlanta Police Officer Wareham testified that while he and Officer Ramsey were on patrol, he observed a red Mustang with chrome wheels make an “improper” turn. Wareham later elaborated by stating that the driver turned without signaling. Daniels was in the passenger’s seat. Wareham added, though without elaborating on this point, that he was alerted by DeKalb County of the vehicle. Likewise, Officer Ramsey referred to the car as “the listed auto.” The record contains no other testimony from these officers concerning their basis for the stop. Considering the unrefuted testimony that the turn was improper, that the car was the subject of a police bulletin, and the deference to be given the trial court in its ruling on the motion to suppress, the trial court’s decision must be affirmed.

The dissent relies upon Clark v. State, 208 Ga. App. 896 (432 SE2d 220) (1993), and State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994), as authority for its position that the stop was not justified. Neither case requires a reversal here. In addition to the fact that Clark serves as physical precedent only, both cases are clearly distinguishable from the case before us.

In Clark, there was clear evidence that the stop was pretextual and that no traffic laws had been violated. The police officer in that case was assigned to a special drug unit and had contacted car rental agencies in the area concerning cars involved in drug stops. On the day of the stop, the officer was traveling 300 feet behind Clark on I-75 northbound. No other cars were within the officer’s eyesight. Clark merged onto an exit ramp without using his turn signal. When the officer noticed that Clark was driving a rental car, he decided to stop him, purportedly to investigate the lane change violation. Reasoning that OCGA § 40-6-123 (a) did not require the use of a turn signal for the lane change because there were no other vehicles in the area and the driver was making only a minor shift to the right to access the exit ramp, this Court found no clear violation of the statute and held that the officer was not justified in making the stop.

Similarly, in Jones there was some evidence that the stop was pretextual and that the defendant violated no traffic laws. A police car was parked on the street with its blue lights activated when Jones approached and then made a U-turn without signaling. The officer in that case testified that in his experience, many people for various reasons attempt to turn back when they see police vehicles or blue lights. This Court upheld the trial court’s grant of the motion to suppress, holding that “[b]ecause no other drivers were on the road, [Jones] was not required to signal his intention to turn.” Id. at 594.

Unlike in Clark and Jones, where it was clear from the record that no traffic laws were violated, we have no evidence before us refuting the officer’s testimony that the turn was improper. There being evidence to support the trial court’s judgment, we affirm it. See generally State v. Holcomb, 219 Ga. App. 231, 233 (464 SE2d 651) (1995).

We also note that while it is unclear from the record whether the officers heard the radio broadcast before or after making the stop, we need not reach the question of whether that information itself provided sufficient basis for the stop, because the unrefuted testimony that the turn was improper was sufficient standing alone.

4. Next, Daniels contends that the trial court erred in admitting as similar transaction evidence a copy of his conviction for armed robbery predicated on a guilty plea which he now contends was not freely and voluntarily given. This argument is essentially the same as that decided adversely to him in McCann v. State, 203 Ga. App. 880, 881 (2) (418 SE2d 144) (1992). We decline Daniels’ invitation to overrule that decision.

5. Three enumerations of error concern the adequacy of the evidentiary foundation for admission of a videotape. In each instance, Daniels argues that the State failed to satisfy the criteria set forth in State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994). We note that the Berky decision was vacated by the Supreme Court in Berky v. State, 266 Ga. 28, 30 (463 SE2d 891) (1995), albeit on other grounds. Assuming that the Berky criteria apply in this case (see Judge Smith’s special concurrence in Freeman v. State, 216 Ga. App. 319, 322 (1) (454 SE2d 196) (1995)), and further assuming that one or more of the criteria were not satisfied, we nevertheless find no harm in the court’s admission of the videotape in this case.

We note at the outset that the videotape at issue did not depict the crime for which Daniels was charged in this case, but showed a robbery of another convenience store by a man wielding a shotgun who escaped in a small red car, introduced by the State as evidence of a similar transaction. That robbery occurred the morning after the one with which Daniels was charged in this case. Daniels pled guilty to the armed robbery and possession of a sawed-off shotgun captured in the videotape. By pleading guilty, Daniels admitted having committed the offenses alleged in the indictment, which were remarkably similar to the crimes with which he was charged in this case. A certified copy of his conviction in that case was entered into evidence as a similar transaction.

Witnesses at trial presented overwhelming evidence of his guilt. The convenience store clerk in this case testified that the perpetrator wore a woolen cap or mask and carried a foot-long shotgun and a canvas bag. He identified Daniels in a pretrial photographic lineup and again at trial as the man who robbed him with a shotgun. A customer who arrived at the store just as the robber was leaving testified that the robber fled in a red Mustang with chrome wheels. When police later stopped the red Mustang with chrome wheels in which Daniels rode, they found a sawed-off shotgun, a blue ski mask and a cloth bag. In light of the overwhelming evidence of his guilt, admission of the videotape of a robbery to which he pled guilty was harmless error. See Stewart v. State, 184 Ga. App. 289 (361 SE2d 268) (1987); see generally Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73) (1991).

Judgment affirmed.

Birdsong, P. J, Pope, P. J., Andrews, Blackburn and Smith, JJ., concur. Beasley, C. J., concurs in judgment only. McMurray, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I believe the trial court erred in denying defendant’s motion to suppress evidence found in the automobile in which defendant was a passenger. The evidence in question, including a sawed-off shotgun, was found after a stop of the vehicle for making a turn without signaling. As construed in Clark v. State, 208 Ga. App. 896, 897 (1) (432 SE2d 220), OCGA § 40-6-123 requires a signal prior to turns or lane changes only if necessary for “reasonable safety.” The holding in Clark, while physical precedent only, was embraced by a full panel of this Court in State v. Jones, 214 Ga. App. 593 (448 SE2d 496).

My reading of the trial transcript in the case sub judice reveals no evidence that reasonable safety required a signal to precede the turn made by the vehicle in which defendant was a passenger. I do not know what type of turn defendant made, the conditions during which the turn was made, whether reasonable safety required the use of a turn signal, or any other factors which would support the officers’ conclusory testimony that the vehicle in which defendant was riding turned improperly. Indeed, if reasonable safety was not involved, then á turn signal was not required pursuant to OCGA § 40-6-123. See State v. Goodman, 220 Ga. App. 169 (2) (469 SE2d 327) (1996). In addition, the record does not reveal any independent basis for stopping the vehicle other than the allegedly improper turn. Therefore, in my view, the stop of the automobile occupied by defendant cannot be justified, and the trial court should have granted defendant’s motion to suppress the evidence found in the automobile. State v. Jones, 214 Ga. App. 593, supra; Clark v. State, 208 Ga. App. 896, 897 (1), supra.

Contrary to the majority’s view of the evidence, I find nothing in Officer Wareham’s and Officer Ramsey’s trial testimony which in any way indicates that the officers had an independent basis for stopping the car due to a police radio broadcast concerning it. Indeed, it is my view that even a liberal reading of Officer Wareham’s and Officer Ramsey’s testimony does not authorize a finding that these officers were aware that a police alert had been dispatched on the suspect vehicle at the time of the stop. And to this extent, I am compelled to note that the majority’s statement — “Wareham added, though without elaborating the point, that he was alerted by DeKalb County of the vehicle” — leads readers into believing that Officer Wareham testified that he and Officer Ramsey stopped the suspect vehicle because a police lookout had been dispatched for the vehicle from DeKalb County. The fact is, Officer Wareham’s testimony supports no such inference. Indeed, the portion of Officer Wareham’s trial testimony upon which the majority relies amounts to nothing more than the officer’s unresponsive answer to a question concerning whether he had made further examination of the suspect vehicle after the stop. The entirety of Officer Wareham’s testimony regarding the reason he and Officer Ramsey stopped the suspect vehicle, as well as the portion of Officer Wareham’s testimony the majority references in support of the conclusion about the DeKalb County alert, provides as follows:

“[STATE’S ATTORNEY:] Were you involved in the arrests of the occupants of a red Mustang on that day? [APPELLANT:] Yes, ma’am, I was. Q. Please tell the jury how that occurred. A. Okay. On the date and time in question, myself and Officer Ramsey were patrolling around Eastlake Meadows — it’s a housing development in the City of Atlanta — when we observed the vehicle that the Accused was a passenger in. The vehicle was driven by a Rocky Turnquest. We observed the vehicle making an improper turn. At that time we blue-lighted the vehicle and began to approach the vehicle. At that time Officer Ramsey observed a shotgun sticking from underneath the passenger’s seat. At that time we removed the subjects from the vehicle and placed them under arrest. Q. Can you describe the car that they were driving? A. It was a red Mustang with chrome wheels. Q. I show you a photograph that has been marked as State’s Exhibit 5. Can you identify that photograph? A. Yes, ma’am. I took this picture. Q. And when did you take that picture? A. On the date of the incident. Q. And what is that a picture of? A. That’s a picture of the Mustang that the Accused was a passenger in. It’s on the flat bed. Q. When you say the Accused, who are you referring to? A. Mr. Daniels. Q. And is he the same person who was the passenger in that Mustang on November 23rd of 1993? A. Yes, ma’am. Q. Did you have occasion to make any further examination of the car yourself? A. Yes, ma’am. We were alerted by DeKalb County of the vehicle. Q. Did you remove — did you yourself remove any other items from the car? A. I removed a hood and a beige bag containing currency.”

Likewise, the majority’s statement — “Officer Ramsey referred to the car as ‘the listed auto’ ” — leads readers into believing that Officer Ramsey testified that he and Officer Wareham stopped the suspect vehicle because it was “listed” on a DeKalb County police alert for the vehicle. The fact is, Officer Ramsey’s use of the words “the listed auto” is not a reference to a DeKalb County police alert, but appears merely as jargon the officer employs in describing events. The entirety of Officer Ramsey’s testimony regarding the reason he and Officer Wareham stopped the suspect vehicle, as well as the portion of Officer Wareham’s testimony regarding “the listed auto,” provides as follows:

“[STATE’S ATTORNEY:] Were you on duty on November 23rd, 1993? [OFFICER RAMSEY:] Yes, I was. Q. On that date were you involved in the arrests of the occupants of a red Mustang? A. Yes, I was. Q. Tell the jury how that occurred. A. On the listed date, myself and Officer Wareham were on patrol in the Eastlake Meadows Housing Development. We were driving in the housing development when Officer Wareham saw the listed auto make a left turn without using a turn signal. Officer Wareham effected a stop on the vehicle, at which time Officer Wareham approached the driver’s side. I approached the passenger’s side.”

Since this Court’s responsibility in reviewing the trial court’s decision on a motion to suppress is “ ‘ “to ensure that there was a substantial basis for the decision, (cit.)” ’ ” (State v. Goodman, 220 Ga. App. 169, 170, supra), I am compelled to say that the trial court erred in failing to grant the motion to suppress in the case sub judice.

Decided June 28, 1996

David L. Whitman, for appellant.

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

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


source: Caselaw Access Project

author: Smith, Judge. Birdsong, Presiding Judge,

license: Public Domain

text:
    A96A0403.
    MOAK v. THE STATE.
    (473 SE2d 576)
   Smith, Judge.

Gary Alan Moak and co-defendant Charles Lucien Barker were indicted by a Cobb County grand jury on one count of arson in the first degree. OCGA § 16-7-60. The jury found Moak guilty, and he appeals from the judgment of conviction and sentence.

1. Moak asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that Moak and a man later identified as Barker arrived uninvited and intoxicated at a cookout outside the victim’s trailer. They refused when asked to leave, an altercation developed, and a friend of the victim came to blows with Barker. Moak and Barker then left, and the victim heard them both say, “[T]here is going to be a big bonfire tonight.” A neighbor was standing outside his trailer when Moak and Barker approached him “saying there is going to be a fire tonight.” Stating “we are going to get them back,” they asked the neighbor and a second neighbor to “go fight” with the victim. The neighbors refused because they knew the victim. The neighbors then saw Barker take a gasoline can from his car and empty it in front of one neighbor’s trailer. When they protested that he should not empty it there, both men stated that it was just water, “but we are going to go get some gas.” Barker then walked down the hill towards a local store with the can. As Barker left, the second neighbor’s wife asked Moak if his friend had run out of gas. According to yet another witness, Moak responded that “there was going to be a big fire tonight.” Moak also asked the second neighbor to “babysit his kids . . . while he took care of business.”

When Barker returned about a half-hour later, he and Moak left together, walking up the hill towards the victim’s trailer with the gas can. About 45 minutes later, Moak returned alone and spoke with the second neighbor, asking “Do you smell it?” He then pointed to smoke rising in the sky and said, “I got them . . . don’t tell no one.” The victim’s trailer was on fire; the trailer was destroyed, and the victim’s pets were killed or injured. A guest asleep inside the trailer managed to escape but at the time of trial was still suffering from the effects of smoke inhalation.

A Cobb County fire investigator testified the fire was intentionally set by ignition with a flammable liquid at two points of origin underneath the trailer. The fire investigator found the remains of a red plastic container resembling a gasoline can, with a sock adhering to the container, at one point of origin. The sock had a strong odor of gasoline and tested positive for gasoline residue. After the fire investigator advised him of his rights, Moak agreed to be interviewed. He acknowledged the argument at the victim’s trailer, and he admitted asking the neighbor to watch his children “because he felt like that there was going to be a fight or a problem with the people up the hill.” At first he denied any knowledge of a gasoline can, then acknowledged Barker had removed a gasoline can from his car trunk, then again denied remembering anything about a gasoline can. He offered no explanation for his whereabouts at the time of the fire. Moak did not testify at trial.

Asserting that he was a mere bystander and that the absent Barker was the true perpetrator, Moak contends the evidence is insufficient to show he was a party to the crime. We disagree. “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). To be concerned in the commission of a crime, a person may directly commit the crime, intentionally cause an incapacitated person to commit the crime, intentionally aid or abet in the commission of the crime, or intentionally advise, encourage, hire, counsel, or procure another to commit the crime. OCGA § 16-2-20 (b) (l)-(4).

“While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the crimina] intent may be inferred.” (Citations and punctuation omitted.) Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994). It is true, as one witness acknowledged, that the evidence did not show “which one of them striked the match and threw the gas can, no, sir, I couldn’t tell you.” Testimony regarding Moak’s statements and conduct before and after the arson, however, coupled with his presence on the scene, was sufficient evidence to allow the jury to conclude that Moak at a minimum was concerned in the commission of the crime, whether by intentionally aiding and abetting or by advising and encouraging the arson. While Moak contends the witnesses were impeached or otherwise not credible, “the credibility of the witnesses was a matter for the jury; on appeal we consider the sufficiency of the evidence, viewing it in the light most favorable to support the jury’s verdict. [Cit.] The evidence was sufficient for the jury to conclude beyond a reasonable doubt that [Moak] was a party thereto and guilty of the offense of [arson].” Ellis v. State, 211 Ga. App. 605, 608 (1) (440 SE2d 235) (1994).

2. Moak next complains that the trial court improperly limited his inquiry on voir dire into the willingness of jurors to consider the presumption of innocence if Moak exercised his right not to testify. This issue was addressed by this Court under virtually identical circumstances in Henderson v. State, 173 Ga. App. 302, 303 (1) (326 SE2d 246) (1985). Henderson contended the trial court erred in excluding a voir dire question “which in effect inquired whether knowing that a defendant does not have to present evidence and should that right be exercised, any juror would hold that election against [appellant].” Id. at 302. This Court held, “We find no error in the refusal to allow such a question on voir dire. The purpose of voir dire is to make inquiry into and expose any prejudice or bias a prospective juror might have against an accused person, or any interest a juror might have in a cause. The question propounded was not designed to inquire into either of those areas but sought to elicit whether a juror could follow a judge’s charge that to impute guilt to an exercise of testimonial silence is improper. It has long been the law of most jurisdictions including Georgia that it is not within the purview of voir dire to inquire into technical legal questions, especially those ultimately involving the presumption of innocence, which are more properly the subject of a legal charge by the trial court.” (Citations and punctuation omitted.) Id. at 302-303. This enumeration of error is without merit.

3. Moak, who is white, contends the trial court erred in overruling his challenge to the State’s use of a peremptory challenge to strike an African-American member of the jury venire solely on the basis of race. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Moak’s challenge was made on the basis that the State struck one of the three African-Americans in the jury panel; Moak, however, struck the remaining two after they were accepted by the State.

The prosecutor offered a racially neutral explanation for this peremptory challenge before the trial court determined affirmatively on the record that a prima facie case had been made, and the trial court ruled on that basis. The preliminary issue of whether the defendant made a prima facie showing therefore became moot. Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994).

“In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Sorrells v. State, 218 Ga. App. 413, 414 (2) (461 SE2d 904) (1995).

The trial court found that the State had “articulated sufficient grounds . . . that were not related to the race of the individual to have stricken [the juror].” The prosecutor explained that this prospective juror was stricken because he seemed “angry,” “annoyed and just impatient with being here . . . just plain not happy to be here,” and was “very reluctant in his answers . . . short with his answers, brief.” The prosecutor claimed her “fear was that he might take [his] annoyance out on the State.” Perceived inattention, nonresponsiveness, and hostility have been found to be legitimate, racially neutral reasons for striking a prospective juror. See, e.g., Lingo v. State, 263 Ga. 664, 667 (1) (b) (5), (1) (b) (8) (437 SE2d 463) (1993) (perceived lack of desire to serve, lack of responsiveness and attention, and hostility); Berry v. State, 263 Ga. 493, 494 (435 SE2d 433) (1993) (prospective juror described as “hostile” and reluctant to talk); Sorrells, supra (prospective juror described as inattentive, unresponsive, and reluctant to serve); Evans v. State, 183 Ga. App. 436, 440 (3) (359 SE2d 174) (1987) (prospective jurors “did not appear to be particularly interested in or responsive to the selection process”).

Even without considering the requirement that we give great deference to the trial court’s findings, it is apparent from the record that the State’s peremptory challenge was not purposefully discriminatory. This enumeration of error is without merit.

4. Moak contends the trial court erred in its charge to the jury on the burden of proof. A portion of the court’s charge is reported as, “the State is not required to prove the guilt of the accused beyond all reasonable doubt.” This contention is controlled adversely to Moak by Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987), in which the Georgia Supreme Court refused to find this error harmful: “[Appellant] finally contends that the trial court erred in charging the jury that the state was not ‘required to prove the guilt of the defendant beyond all reasonable doubt, but (was) required to prove beyond a reasonable doubt.’ While this charge clearly constitutes error, we find that the charge as a whole properly informed the jury of the state’s burden of proof. We will not, accordingly, reverse this case on the basis of a slip of the court’s tongue. [Cit.]” Id. at 9.

The State has called attention to this Court’s decision in Chamberlain v. State, 216 Ga. App. 207 (453 SE2d 793) (1995), contra. Because Chamberlain is in direct conflict with Whitt, it must be overruled to avoid confusion. The charging error is not only “similar” to that in Whitt, as contended by the special concurrence; it is a virtually identical error in the same portion of the pattern charge on the presumption of innocence. Moreover, Chamberlain explicitly rejects the reasoning in Whitt that the error can be cured by some other portion of the charge: “[0]ther parts of the charge are merely inconsistent with this erroneous charge and do not explain or reconcile this erroneous charge with the full charge.” 216 Ga. App. at 208. Chamberlain goes on to assert that “this part of the charge has a different purpose from the parts of the charge on reasonable doubt that were correctly given,” and thus cannot be cured. Id. In Chamberlain; Whitt; Postell v. State, 200 Ga. App. 208, 210 (2) (407 SE2d 412) (1991), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831) (1992); and the present case, the asserted errors were verbal slips that apparently went undetected until review of the transcript. This means that under the reasoning of Chamberlain, there would be no opportunity for a trial court to cure such an error. Whitt, in contrast, stands for the opposite proposition: that the same verbal slip can be harmless in the context of full and otherwise correct instructions on the issue of reasonable doubt. Because the decision of the Supreme Court controls, Chamberlain must be overruled.

In Postell, supra, this Court relied on Whitt to affirm Postell’s conviction despite a similar verbal slip during jury instructions. We noted that “on three occasions prior to giving this erroneous charge, and on six occasions subsequent thereto, the court instructed the jury that the state must prove the defendant guilty beyond a reasonable doubt.” Id. Here, the trial court instructed the jury on this principle six times before its verbal slip and eleven times afterward, including detailed instructions immediately before and after the portion of the charge complained of. We note, moreover, that as in Banks v. State, 191 Ga. App. 344, 345 (3) (381 SE2d 548) (1989), neither the defense nor the prosecution called attention to this verbal slip at the time. Viewing the charge as a whole, we find beyond a reasonable doubt that the erroneous charge did not mislead or confuse the jury on the burden of proof or contribute to the verdict, and thus it was harmless error.

5. Moak contends the trial court erred in admitting, over objection, the testimony of the fire department investigator as to two witnesses’ reports of Moak’s incriminating statements and conduct at the time of the arson. While Moak contends this testimony amounts to double hearsay, his assertion is incorrect because neither Moak’s admissions nor the witnesses’ reports fall within the hearsay rule. First, Moak’s statements on the scene are not excluded as hearsay, because “[a] voluntary incriminating statement or confession by a criminal defendant is admissible as an exception to the hearsay rule.” (Citations and punctuation omitted.) Summerour v. State, 211 Ga. App. 65 (438 SE2d 176) (1993) (deputy properly testified to contents of missing letter written by defendant). Second, the witnesses’ statements, whether consistent or inconsistent, are admissible under the rules established in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), and Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). “Under Gibbons, ... a prior inconsistent statement made by a witness who takes the stand and is subject to cross-examination is not limited in value to impeachment, but is admissible as substantive evidence of the matter asserted. Under Cuzzort, supra, ‘where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible (as substantive evidence).’ [Cit.]” Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1994). See also Watson v. State, 214 Ga. App. 650, 651 (1) (448 SE2d 718) (1994).

The witnesses identified by the fire investigator testified at trial and were subjected to vigorous cross-examination by Moak. In particular, Moak’s counsel challenged the truth of their testimony at trial and attempted to impeach them with preliminary hearing testimony, prior criminal convictions, and other matters. Moak also suggested that the witnesses’ account of events had changed, and the testimony of the investigator was at least in part relevant to refute this contention by showing consistent statements under Cuzzort. Accordingly, both Moak’s admissions and the witnesses’ statements come within exceptions to the hearsay rule, and the trial court did not err in admitting the statements over Moak’s hearsay objection.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur. Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Blackburn and Ruffin, JJ., concur specially.

Birdsong, Presiding Judge,

concurring specially.

Although I concur fully with all that is said in the other divisions of the opinion and in the result, I cannot concur with that part of Division 4 of the majority opinion that overrules Chamberlain v. State, 216 Ga. App. 207 (453 SE2d 793), because of a perceived direct conflict with Whitt v. State, 257 Ga. 8 (354 SE2d 116). Even though Whitt and Chamberlain reached different results on whether a similar charging error was harmful in light of the full charges given, no conflict exists between them. As nothing in Chamberlain or Whitt suggests that the full charges given were the same, the cases are distinguishable.

In Whitt, supra at 9 (3), the trial court charged “the state was not ‘required to prove the guilt of the defendant beyond all reasonable doubt, but (was) required to prove beyond a reasonable doubt,’ ” and in Chamberlain, supra at 208 (2), the trial court charged “ ‘the state is not required to prove the guilt of the accused beyond all reasonable doubt or to a mathematical certainty.’ ” (Emphasis omitted.) Though these charging errors both concerned charges on reasonable doubt, they are not identical, and, more significantly, Whitt does not hold that a slip of the tongue error in the reasonable doubt charge is always harmless.

Indeed, in Whitt the Court considered the full charge given and found that in the context of the full charge the slip of the tongue was harmless error. See Whitt, supra at 9. This result is consistent with the rule that mere verbal inaccuracies in a charge, resulting from a palpable slip of the tongue, which clearly could not have misled or confused the jury do not constitute reversible error. Gober v. State, 247 Ga. 652, 655 (278 SE2d 386); Siegel v. State, 206 Ga. 252 (2) (56 SE2d 512).

Thus, it is incorrect to focus merely on the similarity of the slip of the tongue in these cases. No case has held that this particular slip of the tongue is always harmless error, and to so hold would violate the principle that charging errors are presumed to be harmful unless the record shows that the error was actually harmless. Foskey v. Foskey, 257 Ga. 736, 737 (363 SE2d 547); Barton v. State, 79 Ga. App. 380, 387 (53 SE2d 707). Further, it is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge. Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177). Therefore, appellate courts must test the full charge to see if the slip of the tongue was harmful.

After applying this principle, Chamberlain held that, notwithstanding the full charge, the error was not harmless because there was a fair risk the slip of the tongue could have confused or misled the jury. We concluded that the part of the charge in which the slip of the tongue occurred had “a different purpose from the parts of the charge on reasonable doubt that were correctly given; when correctly given, it places a limit on the prosecution’s burden, i.e., not beyond all doubt or to a mathematical certainty. Consequently, while the other parts of the charge correctly instructed the jury that the prosecution was required to prove Chamberlain’s guilt beyond a reasonable doubt, this erroneous charge allowed the jury to convict Chamberlain while still retaining some reasonable doubt about his guilt.” Chamberlain, supra at 208. “A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict. Where an erroneous charge on a material issue is of such a nature as is calculated to confuse or mislead the jury, a new trial will be granted, notwithstanding the correct rule may have been announced in another portion of the charge.” (Citations and punctuation omitted.) Tietjen v. Meldrim, 169 Ga. 678, 696 (151 SE 349). As the charging error in Chamberlain was not rendered harmless by the full charge, reversal was required.

Decided June 28, 1996.

Nicholas Pagano, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Beth T Golub, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Therefore, as there is no legal conflict between Whitt and Chamberlain, overruling Chamberlain is not required. Moreover, as Chamberlain and Whitt both considered whether an error was rendered harmless by the full charge, that part of the majority opinion which states that Chamberlain somehow rejects the reasoning in Whitt that a slip of the tongue charging error can be corrected by the full charge is incorrect. Whitt does not hold that this error is always harmless; Chamberlain does not hold that the error is always harmful. The cases reached different results after testing the error for harm.

In this case, however, I do not find the slip of the tongue is reversible error. The full charge, and in particular the part of the charge that instructed the jury that the State was required to prove each and every essential element of the crimes charged beyond a reasonable doubt, was sufficient to render the error harmless.

Nevertheless, Chamberlain should not be overruled. Doing so would mean that a jury could be instructed that they could convict even though the jury had a reasonable doubt about the defendant’s guilt, and that result violates one of the fundamental precepts of our system of criminal justice. Accordingly as a majority of the Court has joined in this special concurrence, Chamberlain remains binding precedent. OCGA § 15-3-1 (d).

I am authorized to state that Chief Judge Beasley, Presiding Judge Pope, Judge Andrews, Judge Blackburn and Judge Ruffin join in this special concurrence.

       Co-defendant Barker was a fugitive at the time of trial.

       The State responded to Moak’s motion with a reverse Batson motion on the two prospective jurors struck by Moak. This motion was likewise denied.


author: Pope, Presiding Judge. Andrews, Judge,

text:
    A96A0642.
    INTERFACE GROUP-NEVADA, INC. v. FREEMAN DECORATING COMPANY.
    (473 SE2d 573)
   Pope, Presiding Judge.

Interface Group-Nevada, Inc. appeals the trial court’s grant of summary judgment to Freeman Decorating Company in this indemnification case. Concluding that the trial court erred, we reverse.

The evidence shows that Interface organized a computer trade show in Atlanta, Georgia, known as COMDEX. It entered into a licensing agreement with the Georgia World Congress Center (“GWCC”) to use its facilities for the show. Pursuant to an existing contract between Interface and Freeman, Freeman was responsible for setting up the show. To fulfill its obligations to Interface, Freeman contracted with its sister company, Sullivan Transfer Company, to provide drayage services. While working as Sullivan’s employee, Rebecca Ackridge was injured when she attempted to ride a motor scooter between traffic cones and barrels that GWCC had erected to prevent people from entering a construction area. Unbeknownst to Ackridge, GWCC employees had tied a rope between the barrels, which allegedly was not visible. The rope caught Ackridge across her neck and pulled her to the ground.

Ackridge sued GWCC and Interface for negligence. Before trial, however, she dismissed her claim against Interface. GWCC asserted a cross-claim against Interface seeking indemnification under the terms of the licensing agreement it had with Interface. GWCC then moved for summary judgment on its cross-claim based on the indemnity provision in the licensing agreement. The trial court granted summary judgment to GWCC, ruling that Interface’s indemnity obligation to GWCC extended to any claims for negligence on GWCC’s part, including claims premised on GWCC’s sole negligence. Interface does not challenge the validity of that ruling.

Following the ruling, Interface filed a third-party complaint against Freeman, wherein it sought indemnification under the contract Freeman and Interface had executed. That contract provides in pertinent part that: “Freeman and Interface shall each indemnify, defend and hold the other harmless from and against any and all liabilities, suits, and claims made against the other which arise from the misfeasance, malfeasance, or nonfeasance of the indemnifying party. Neither Freeman nor Interface shall, by reason of this [contract], assume any liability for the negligence or wilful acts of the other, nor shall either be deemed to have indemnified the other against the negligence or wilful acts of the other.” Both Freeman and Interface filed motions for summary judgment seeking a determination as to whether Freeman was obligated to indemnify Interface under the above-mentioned contractual provision. The trial court granted Freeman’s motion for summary judgment holding that as a matter of law Freeman had no such obligation. The trial court then dismissed Interface’s third-party complaint. Thereafter, Ackridge’s suit proceeded to trial, during which Ackridge agreed to settle the case for $200,000, which Interface paid to her.

1. Interface contends that the trial court erred in granting Freeman’s summary judgment motion because there are issues of material fact regarding whether Interface’s liability or the claim against it arose from any misfeasance, malfeasance or nonfeasance on Freeman’s part. We agree. The trial court ruled that Freeman was entitled to summary judgment because Interface’s liability to GWCC “[did] not rest on the negligence of Freeman.” In reaching its ruling, the trial court apparently concluded that to “arise from” means the same thing as being “proximately caused by.” Under such an interpretation, Interface would be entitled to indemnity from Freeman only if it was found vicariously liable for Freeman’s negligence; yet in this case, no such liability could exist because it is undisputed that both Freeman and Interface were Ackridge’s statutory employers at the time of her accident. See OCGA §§ 34-9-8 (a), 34-9-11; FowlerFlemister Concrete v. Sumner, 209 Ga. App. 312 (433 SE2d 329) (1993). This interpretation, however, is too restrictive and contrary to Georgia law.

“Arising from” does not mean the same thing as “proximately caused by.” See Abercrombie v. Ga. Farm Bureau &c., 216 Ga. App. 602, 604 (454 SE2d 813) (1995); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (1) (236 SE2d 550) (1977). Instead, this contractual term has been held to encompass “almost any causal connection or relationship. . . .” Id.; see Township of Springfield v. Ersek, 660 A2d 672 (Pa. 1995) (“arising out of” means causally connected with, not “proximately caused by”). Consequently, any claim against Interface or liability it incurred does not have to be the direct proximate result of Freeman’s misfeasance, malfeasance or nonfeasance in order to “arise from” it under the indemnity provision found in their contract. Nor, as the dissent contends, is Freeman’s indemnity obligation limited to circumstances in which Interface has been, or could be, held vicariously liable for Freeman’s acts or omissions. If a claim or loss is even partly attributable to the negligence of an indemnitor, the obligation to indemnify arises. See Myers v. Texaco Refining &c., 205 Ga. App. 292, 296-297 (2) (422 SE2d 216) (1992); Central of Ga. R. Co. v. Ga. Ports Auth., 190 Ga. App. 518, 520 (379 SE2d 540) (1989).

In light of the above, we conclude that there is a material issue of fact regarding whether the claim against Interface or the liability it incurred arose from Freeman’s misfeasance, malfeasance or nonfeasance. It is undisputed that Sullivan was Freeman’s agent at the COMDEX show. There is evidence in the record that Sullivan’s general manager had run into the same rope barricade on the night before Ackridge’s accident, yet failed to report the hazard to GWCC, Interface, Sullivan or anyone else. Failing to report the hazard constituted a violation of standard policy. There also is evidence that GWCC had repeatedly notified both Freeman and Sullivan that the area in which Ackridge was injured was off-limits to all persons. It was standard practice to disseminate such information to all employees during daily safety meetings; yet in this case, there is a question as to whether Ackridge was given the information. If proven, this failure to report a known hazard and inform Ackridge that the area in which she was injured was off-limits, would not only constitute a breach of duty owed to Ackridge, but also could constitute misfeasance, malfeasance or nonfeasance on Freeman’s part. Absent any such conduct, Ackridge might have avoided injury and, therefore, never filed suit against GWCC in the first place. Accordingly, summary judgment should not have been granted to Freeman. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Because there are issues of material fact to be resolved in this case, Interface’s contention that it is entitled to summary judgment is without merit.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Blackburn and Ruffin, JJ., concur. Beasley, C. J., Andrews, Johnson and Smith, JJ., dissent.

Andrews, Judge,

dissenting.

Because I believe the trial judge correctly decided in Freeman’s favor the issue of its obligation to indemnify Interface for its liability to GWCC, I must respectfully dissent.

As acknowledged by the majority, Ackridge has been paid workers’ compensation benefits on behalf of Freeman, her statutory employer, and there is no longer the possibility of any “liabilities, suits and claims” arising from this accident which could legally be attributable to Freeman’s negligence.

Additionally, Ackridge dismissed her claim against Interface, also her statutory employer, on November 23, 1994, and in the consolidated pretrial order filed with the court on December 30, 1994, and consented to by all parties, Ackridge’s claim is stated as: ££[w]hile in the course and scope of her employment, Plaintiff was travelling on a motorized-scooter across the Georgia World Congress Center F Marshalling yard area, when she was seriously injured. A rope, which had been secured across the roadway by employees of the Defendant [GWCC], caught her by the throat and threw her to the pavement. Unknown to the Plaintiff, employees of the Georgia World Congress Center had stretched a rope across the roadway in such a fashion that it was not visible to those using the roadway and without warning of the dangerous condition created.” (Emphasis supplied.)

On July 10, 1995, plaintiff Ackridge reiterated her position that “the only evidence of negligence in this case rests squarely with the Georgia World Congress Center.”

While the majority suggests a theoretical possibility that a question of fact exists as to whether Freeman knew about the rope and did not advise its employees, that possibility is negated by plaintiff Ackridge’s stated position in the litigation at hand which is an admission in judicio. O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 381 (2) (461 SE2d 311) (1995); Plunkett v. Ginsburg, 217 Ga. App. 20 (456 SE2d 595) (1995). Additionally, the only duty which Freeman had for any such warning was to its employee Ackridge, not to Interface or GWCC, and she has been compensated as far as Freeman and Interface are concerned by workers’ compensation.

Further, “£ ££[t]he scope of . . . indemnity provisions . . ., manifested in the form of written contracts, is a question of law for the court.” (Cit.)’ Westinghouse Elec. Corp. v. Williams, 183 Ga. App. 845, 846 (2) (360 SE2d 411) (1987).” Tokheim Corp. v. First American Bank &c., 206 Ga. App. 105, 107 (1) (424 SE2d 54) (1992). In so considering a contract of indemnification, the court construes it strictly against the indemnitee, here Interface. DeKalb County v. Lenowitz, 218 Ga. App. 884, 889 (4) (463 SE2d 539) (1995); Westinghouse Elec. Corp., supra at 847 (2).

The cases relied upon by the majority for its interpretation of “arising from the misfeasance, malfeasance, or nonfeasance of the indemnifying party” are also inapposite to an indemnity. Rather, both Abercrombie, supra, and Southeastern Fidelity, supra, are both cases involving interpretation of automobile insurance policies, which are construed in a broad, not strict, sense.

In the context of this case, at the time the order appealed was entered, there was no claim against Freeman for negligence, only one against GWCC. Interface’s liability for GWCC’s negligence was solely premised on the broad language of its indemnity agreement with GWCC, under which Interface would be responsible for GWCC’s own negligence.

Decided June 28, 1996

Johnson & Kane, Frederick A. Johnson, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Greene, Buckley, Jones & McQueen, Harold S. White, Jr., J. Russell Phillips, Howard K. Henson, for appellee.

Therefore, I conclude that the trial court properly interpreted the indemnity language and her ruling should be affirmed.

I am authorized to state that Chief Judge Beasley, Judge Johnson and Judge Smith join in this dissent.

       Although tort liability may be barred by the exclusive remedy provision of the Workers’ Compensation Act, that provision does not bar enforcement of a contractual indemnity provision. See Seaboard Coast Line R. Co. v. Maverick Materials, 167 Ga. App. 160 (305 SE2d 810) (1983); Arthur Pew Constr. Co. v. Bryan Constr. Co., 148 Ga. App. 114 (251 SE2d 105) (1978).

       In this case, we note that Freeman’s obligation to indemnify Interface is limited in that it does not extend to claims or liability arising from Interface’s own negligence. There is, however, no evidence of such negligence in the record.


author: Birdsong, Presiding Judge.

text:
    A96A0958.
    ZAYTZEFF et al. v. SAFETY-KLEEN CORPORATION.
    (473 SE2d 565)
   Birdsong, Presiding Judge.

This is an appeal by appellants Gregory M. Zaytzeff and Sue Yang Zaytzeff from an order of the state court granting summary judgment in favor of appellee Safety-Kleen Corporation.

Appellant Gregory Zaytzeff (appellant) brought suit for damages sustained from injuries he received arising out of and in the course of his employment with appellee; appellant Sue Zaytzeff (appellant wife) sued as a co-plaintiff for loss of consortium. Appellant alleges that he was injured while cleaning up a toxic chemical spill for appellee without being issued either a respirator or protective clothing, other than gloves. Two members of management who were not wearing protective clothing or respirators also were present; one of these managers was performing the same task of scooping chemical-soaked dirt into metal barrels that appellant was performing.

Appellant initially filed a workers’ compensation claim and the parties stipulated as to the jurisdiction of the State Board of Workers’ Compensation, venue, coverage, general employment, and appellant’s average wage; the primary issues of injury by accident arising out of and in the course of employment, notice, and disability were litigated before the ALJ. The ALJ conducted a hearing and found that appellant “has failed to show by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of his employment, or that he suffered an occupational disease as a result of his exposure to the perchloroethylene . . . the [appellant] has failed to sufficiently demonstrate that his various symptoms were caused by his exposure to the chemical.” The ALJ further held that “while I find the evidence establishes that [appellant’s] psychological problems are related to the exposure incident, I find that these psychological problems are not compensable because . . . [appellant] has failed to show a physical injury resulting from the exposure. . . . Further, psychological problems cannot stand alone as an occupational disease. OCGA § 34-9-280.” The ALJ entered an order denying all of appellant’s claims; this award was not appealed within 20 days.

Subsequently appellants filed a complaint in state court; the appellees moved for summary judgment asserting that suit was barred by the exclusive remedy provisions of OCGA § 34-9-11, and that the ruling of the ALJ was now res judicata as to all issues concerned in the employee’s claims against the employer. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Moreover, unsupported assertions of fact contained in the briefs of parties but not supported by evidence of record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). While the ALJ’s opinion is in the appellate record, only selected excerpts from the depositions of the appellants and no transcript of the hearing before the ALJ has been forwarded on appeal; neither are the medical reports of the various doctors in the appellate record. Failure to transmit to this Court a record containing all relevant evidence pertaining to an appeal is a dangerous appellate practice. See generally Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); Nodvin v. West, 197 Ga. App. 92, 97 (3) (c) (397 SE2d 581). The order granting summary judgment expressly reflects that the trial court considered inter alia “the pleadings, motion, testimony and all other matters of record” in determining to grant appellee’s motion for summary judgment. Thus, the material paucity of the appellate record before us alone could justify our affirmance of the trial court’s judgment. Malin, supra; Nodvin, supra.

2. OCGA § 34-9-11 (a) provides that, although the rights and remedies granted to an employee under the Workers’ Compensation Act shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death, the employee is not deprived of his right to bring an action against a third-party tortfeasor; however, the Act makes it clear that an employee cannot bring an action against a third-party tortfeasor who is an employee of the same employer. OCGA § 34-9-11 (a); see Weller v. Brown, 266 Ga. 130 (464 SE2d 805). “The exclusion includes all rights and remedies of the employee on account of the injury, even including those for which the Act does not provide, such as pain and suffering or disfigurement.” Hiers and Potter, Ga. Workers’ Compensation — Law and Practice (2nd ed.), § 8-2.

The record reveals that appellant initially filed a workers’ compensation claim for physical injuries arising out of and in the course of employment and for certain psychological injuries arising from the physical injuries sustained while cleaning up the toxic chemicals. “Workers’ compensation is the exclusive remedy for injuries arising out of and in the course of employment. OCGA § 34-9-11.” Kennedy v. Pineland State Bank, 211 Ga. App. 375 (439 SE2d 106). However, “[although a claim comes within the coverage of the Act, it does not follow that it is always compensable.” Synalloy Corp. v. Newton, 254 Ga. 174, 175 (326 SE2d 470) (occupational disease claim was within coverage of the Act, and thus the Act was the exclusive remedy even though the claim was not compensable thereunder). That an injury is not compensable under the Act does not necessarily mean it is not within the purview of the Act for purposes of the exclusivity provisions. Johnson v. Hames Contracting, 208 Ga. App. 664, 668 (4) (c) (431 SE2d 455). Thus, merely because the ALJ concluded that appellant had failed to show by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of his employment, or that he suffered an occupational disease as a result of his exposure to perchloroethylene, does not provide any exception to the exclusive remedy provisions of the Act.

Examination of the record also reveals that no genuine issue of material fact exists regarding any fraud committed by appellee upon appellant. Griggs v. All-Steel Bldgs., 209 Ga. App. 253 (433 SE2d 89), involving the intentional tort of fraud, is distinguishable from this case and is not controlling. Nevertheless, appellant asserts that his claims of intentional tort are not barred by the Act. Although not directly in point, we find the precedent of Wall v. Phillips, 210 Ga. App. 490 (436 SE2d 517), under the circumstances here attendant, to be both persuasive and controlling. This Court held in Wall that “[u]nder OCGA § 34-9-11 (a), ‘the Georgia Workers’ Compensation Act is now the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker.’ [Cit.] This bar also applies to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business.” Id. at 491; OCGA § 34-9-1 (4); compare Johnson, supra at 667-668 (4) (a) and (c). Examination of the record reveals there exists no genuine issue of material fact that appellee and its managing employees committed any tortious act whatsoever against appellant for personal reasons unrelated to the conduct of appellee’s business. To the contrary, the only viable evidence before us on appeal is that the conduct of appellee’s agent in directing appellant to assist management in cleaning up the spill without a respirator or protective clothing (other than gloves) being issued to him, directly related to appellee’s business. Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528), where the supervisor caused a wilful act for personal reasons (sexually molesting and abusing the employee), is distinguishable from this case and not controlling.

In McCormick v. Mark Heard Fuel Co., 183 Ga. App. 488 (2) (359 SE2d 171), this Court applied the well-established rule that “even if an employer’s wilful failure to furnish a safe workplace for his employees results in an injury to those employees, their only recourse is under the Workers’ Compensation Act.” There exists no legal basis compelling us to depart from this sage general rule in view of the posture of the record before us on appeal.

Appellant contends, however, that his averred claims for psychological injuries are not within the exclusivity provisions of the Act. The ALJ considered appellant’s claims for compensation due to “psychological problems” and, citing W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106), concluded that while these problems are related to the exposure incident, they are not compensable under the Act because appellant had failed to show a physical injury resulting from the exposure.

The partial deposition testimony of appellant reflects that appellant was unaware, due to his recent arrival on the job and being in trainee status at the time, that there was any danger associated with the cleanup. It was a week to a week and a half after the incident before appellant realized that the physical symptoms he was experiencing were not related to the flu. Any evidence offered, without reasonable explanation, by appellant to contradict this testimony would be subject to the rule regarding contradictory evidence in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). No genuine evidence of material fact exists that at the time of the cleanup incident appellant was directly subjected to any psychological trauma either with or without an accompanying physical injury or other impact. Rather any psychological trauma suffered by appellant, as a matter of law in view of the posture of the record before us, would have to result from his recognition of his subsequent symptoms of physical injury.

George v. Southwire Co., 217 Ga. App. 586 (458 SE2d 362), aff’d, Southwire Co. v. George, 266 Ga. 739 (470 SE2d 865), and Oliver v. Wal-Mart Stores, 209 Ga. App. 703 (434 SE2d 500) are distinguishable factually from this case and are not controlling.

Even assuming without deciding that the strict guidelines of Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) could be applied to this claim, the Act would remain the exclusive means of relief for appellant. Compare Howard v. Superior Contractors, 180 Ga. App. 68 (348 SE2d 563) (post-traumatic stress syndrome resulting from a 225-foot fall from a tower at Three Mile Island). In any event, the claim for psychological injuries in this case is “inextricably linked” to appellant’s workers’ compensation claim for physical injury or occupational disease. Bryant v. Wal-Mart Stores, 203 Ga. App. 770, 775 (417 SE2d 688) (Pope, J., concurring specially). Merely because the ALJ concluded appellant’s claims for “psychological problems” were not compensable does not insulate such claims from exclusivity provisions of the act. Synalloy Corp., supra at 175; Johnson, supra at 668.

Decided June 28, 1996.

Stefano A. Didio, for appellants.

Bovis, Kyle & Burch, Charles M. Medlin, for appellee.

3. As the exclusivity provisions of the Workers’ Compensation Act barred all of appellant’s averred claims, likewise appellant wife’s consortium claim was barred. “Here, [appellant] husband has no tort claim against his employer because he is covered by the Act, and [appellant] wife has no claim for loss of consortium, which is derivative from his right. Her property right could only vest if his cause of action be vested, which, of course, it is not.” Henderson v. Hercules, Inc., 253 Ga. 685, 686 (324 SE2d 453); Mann v. Workman, 181 Ga. App. 211, 213 (3) (351 SE2d 680).

In view of the above holdings, we need not address appellant’s assertion that “the trial court erred in finding that the decision of the State Board of Workers’ Compensation was res judicata as to all issues presented in this case.”

Judgment affirmed.

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


text:
    A96A1112.
    HARRIS v. THE STATE.
    (473 SE2d 232)
   Birdsong, Presiding Judge.

Donald Harris was convicted of armed robbery, possession of a firearm during commission of a felony crime, and possession of a firearm by a convicted felon. He appeals from the denial of his amended new trial motion and his armed robbery conviction. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant has combined his argument and citation of authority as to the first and second enumerations of error, asserting the trial court erred in admitting in evidence testimony about his prior armed robbery conviction in 1984. Appellant contends that the three affirmative showings required by Williams v. State, 261 Ga. 640 (409 SE2d 649), and progeny, were not made; in particular, he claims that there was no showing of sufficient connection or similarity of the prior crime to support its admission as similar transaction evidence.

The facts of this case are substantially as follows: In February 1994, three employees of a Hardee’s fast-food restaurant, located in Richmond County, started to leave the store after closing when they were confronted by a masked black male who was armed with a pistol. His mask was made from a woman’s stocking. He ordered the employees back into the store and made them lie down with their faces pressed against the surface of the floor while he ransacked the premises. The robber then ordered one employee who was lying on the floor to open the store safe. He departed the premises after taking money from both the safe and a change fund cabinet. Two employees testified that they immediately knew the robber’s identity, because he had worked at the store until one week to a month before the robbery. One of the employees had worked with appellant in the store approximately three or four times a week for about six months prior to the robbery; both men were cooks. The employees recognized appellant’s voice, some of the clothing appellant was wearing, and also identified appellant’s general features (e.g., his broken nose) through the stocking mask. Appellant previously had worn the identified articles of clothing to work and on one occasion had worn the woman’s stocking (rolled up on top of his head) to work. When the police arrived, the two employees identified appellant by name as the robber. The employees made an in-court identification of appellant. Appellant pled not guilty and presented an alibi defense; thus, identity was an issue for jury resolution.

The facts of appellant’s armed robbery offense in August 1984 are as follows. Store witnesses gave the police a general physical description of the perpetrator, and appellant was arrested shortly thereafter approximately a block and a half from the crime scene. The perpetrator was described by witnesses as a black male who was armed with a handgun and wearing a woman’s stocking or pantyhose mask. The perpetrator told the persons in the store to lie on the floor and then demanded money; he placed the money into a bag. Witnesses from the store subsequently came to the location where appellant was detained and identified him as the perpetrator of the crime. Appellant thereafter admitted that he was the perpetrator of the groeery store robbery.

(a) There are two conditions for admissibility of similar transaction evidence: (1) there must be some evidence establishing that the independent crime was committed by the defendant, and (2) there must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter. Chastain v. State, 260 Ga. 789, 790-791 (3) (400 SE2d 329). Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130). Further, mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455).

The foundation for admission of similar transaction conduct can be established, as in this case, through the testimony of a witness. See generally Rash v. State, 207 Ga. App. 585, 586 (2) (428 SE2d 799). The State need not prove that the conduct resulted in a conviction or criminal charge; “ ‘[although a prosecution may fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of another offense if the State shows the defendant was the perpetrator of the conduct and the conduct or transaction is similar to or has a logical connection to the offense being tried.’ [Cit.]” Brown v. State, 201 Ga. App. 473, 474 (2) (411 SE2d 360).

The record affirmatively reflects that the similar transaction evidence was admitted by the trial judge for its relevance in proving identity. Unlike the admission of similar transaction evidence to prove lascivious motivation or bent of mind (see, e.g., Oller, supra at 821 (2)), admission of such evidence to prove identity appears to require a showing of a greater degree of similarity to meet the test for admissibility (see Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (dicta)). Even under this more stringent test, we find the State carried its burden of showing a sufficient degree of similarity for admission of this particular similar transaction evidence. In determining admissibility of similar transaction evidence, the correct focus is upon the nature of the similarities, if any, between the extrinsic evidence and the crime charged, rather than incorrectly focusing upon any differences that may exist. Farley v. State, 265 Ga. 622, 624 (2) (458 SE2d 643). Although the crimes here are not identical, there exists a high degree of similarity between the extrinsic crime and the crime charged, lapse of time notwithstanding.

(b) Appellant’s contentions that the trial court committed reversible error by failing to comply with the procedural prerequisites of Williams v. State, supra at 642 (2) (b), also are without merit. Before evidence of the 1984 armed robbery was admitted and presented to the jury, a similar transaction hearing was held as required by Williams, supra. Previously, appellant had objected to the admission of the evidence, and the trial court had indicated on the record its knowledge that to be admissible the extrinsic evidence must have facts which are similar. The trial court also noted that mere admission of the certified copies of appellant’s prior conviction would be insufficient to obtain evidence admissibility. At the conclusion of the similar transaction hearing, the trial court admitted the similar transaction evidence without making all the affirmative procedural findings required by Williams, supra. The trial court, however, did affirmatively state on the record that the only reason the evidence could be admitted was “for the purpose of identification.” Thereafter, the trial court gave the jury a tailored limiting instruction, in pertinent part as follows: “The law provides that evidence of other offenses of this defendant that are similar in terms of common design, scheme, plan, course of conduct, or other factors connected to the offense for which the defendant is on trial may be admissible, and may be considered by you for the limited purpose of showing, if it does, the identity of the perpetrator in the crime charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose, except that of the identity.” Thereafter, the State affirmatively confirmed on the record that it was introducing the similar transaction evidence for the specific purpose of proving identity and course of conduct for purposes of identification. This tailored limiting instruction was repeated in the final charge to the jury.

While the court failed to comply with all the procedural runes contained within the four corners of Williams, supra, both the State and the trial court fully complied with the most important procedural aspect of Williams, to wit: affirmatively identifying on the record the legitimate purpose for which such evidence was being introduced. Moreover, the trial court with outstanding clarity thereafter repeatedly instructed the jury as to the legitimate limited purpose for which such evidence could be considered. Pretermitting, however, whether there was adequate compliance at trial with the procedural requirements of Williams, supra (considering that the trial court in virtually all other situations is presumed to know and apply the correct law unless the contra be shown) is whether the trial court substantially complied with Williams, supra, by revisiting the issue while considering the motion for new trial and issuing a nunc pro tunc order which met the Williams requirements for affirmative findings. We hold that the procedural requirements of Williams can be substantially complied with by issuance of a timely post-trial nunc pro tunc order. This is the only result consistent with the prior rulings of the Supreme Court and this Court directing that a case on appeal be remanded for the trial court to enter findings pursuant to Maxwell v. State, 262 Ga. 73 (2) (b) (414 SE2d 470) and Williams, supra, or affirming judgment where the trial court entered Maxwell findings after the hearing on the new trial motion. Williams v. State, 218 Ga. App. 785, 787 (2) (463 SE2d 372); see, e.g., Stewart v. State, 263 Ga. 843, 844 (1) (440 SE2d 452); White v. State, 213 Ga. App. 429 (1) (445 SE2d 309). The trial court at most failed to make a complete affirmative determination on the record as to the admissibility of similar transaction evidence; such failure, if any, was cured by a post-trial nunc pro tunc order procedure. We caution, however, that a post-trial procedure is not to be employed as a matter of routine in lieu of a required Williams, supra, 261 Ga. 640, hearing; otherwise, we will be compelled by existing Supreme Court precedent to revisit this issue.

Decided June 28, 1996.

Stanley C. House, for appellant.

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

(c) Assuming arguendo the trial court committed trial error as asserted in either of appellant’s enumerations of error, nevertheless based on the overwhelming evidence of appellant’s guilt and coupled with the tailored limiting instruction given the jury to consider similar transaction evidence only as to the issue of identity, we find beyond a reasonable doubt that such error, if any, was harmless. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A1441.
    HARRIS v. THE STATE.
    (473 SE2d 229)
   Birdsong, Presiding Judge.

Appellant Leroy Harris appeals his judgment of conviction of burglary and criminal trespass. He enumerates two errors. Held:

1. Appellant asserts in his first enumeration of error that the only intent evidence that could have supported the “unlawful purpose” element of criminal trespass was the intent to commit a theft and that this intent was rejected by the jury when they did not convict him of burglarizing the Sigma Alpha Epsilon fraternity house. However, the record reveals precisely the opposite view taken by appellant’s counsel during trial. Vigorously arguing for the inclusion of a criminal trespass charge, counsel for the appellant stated, “There are any number of unlawful intents he could have had whether or not he admitted he had them based on the evidence here. ... It may have been an intent to deface property, to scare people, to interfere or to commit some offense other than theft.”

Even if appellant’s sole intent in entering the SAE house was to commit theft, this is sufficient to constitute an unlawful purpose. Entry for the purpose of stealing is comprehended by OCGA § 16-7-21 in that it is an entry on premises without authorization for an unlawful purpose. Williamson v. State, 134 Ga. App. 583 (215 SE2d 518). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant entered the SAE house without authority in order to commit a theft. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Around 3:00 a.m., appellant was found walking up the stairs toward the same bedrooms which had been ransacked and burglarized a few hours earlier. Testimony revealed that many items remained in the upstairs rooms. A rational trier of fact could have found that appellant was returning to the SAE house to further burglarize the upstairs rooms.

Further, reviewing the charges in totality, as we are required to do, reveals that appellant’s additional contention (in an attempt to support this enumeration) that the jury was charged with the elements of criminal trespass as separate offenses is without merit. Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). The trial court properly charged the jury with criminal trespass as a lesser included offense of burglary in both counts.

2. In his second enumeration, appellant alleges that the evidence was insufficient as a matter of constitutional due process to prove appellant’s guilt of burglary of the Emmanuel Episcopal Church because the State failed to provide sufficient evidence of appellant’s lack of authority and intent to commit theft. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Applying this standard, appellant’s insufficiency arguments must fail.

Appellant first argues that he came into the church secretary’s office with the presumption of authority. This assertion is not supported by the record. Appellant was not found simply wandering through the corridors of the church or within the sanctuary. Rather, appellant was found in a private office’s closet with the lights out and a check from the cash box in his hand. The office, particularly the closet, is a room for the exclusive use of a limited number of authorized persons and is wholly enclosed. Dixon v. State, 165 Ga. App. 133, 135 (299 SE2d 608). Despite the semi-public nature of a church, a rational trier of fact could have found beyond a reasonable doubt that appellant did not have authority to enter a closed closet inside a private office.

Appellant further contends the State failed to present evidence showing intent to commit a theft. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of burglary. Jackson v. Virginia, supra. Whether appellant entered the church with intent to commit theft was a matter for the factfinder to decide based on the facts and circumstances proven at trial. Addis v. State, 203 Ga. App. 270 (416 SE2d 837). The presence of valuables inside the premises can support an inference of intent to steal, particularly when no other motive is apparent. McNair v. State, 190 Ga. App. 412, 413 (1) (379 SE2d 424). Here, that appellant was found actually holding the only valuable in the closet makes the jury’s finding of an intent to commit theft all the more reasonable. That appellant did not accomplish his apparent purpose of stealing the check does not render a finding of burglary improper. His intention to steal the check is sufficient to find him guilty of burglary. Poole v. State, 130 Ga. App. 603, 605 (2) (203 SE2d 886).

Finally, appellant contends circumstantial evidence of appellant’s mental infirmities offered a reasonable alternate explanation of appellant’s actual intent in entering both the SAE house and the Emmanuel Episcopal Church. However, to support the verdict, circumstantial evidence must exclude only reasonable hypotheses, and the question of reasonableness of any hypothesis when evidence is circumstantial is a question for the jury. Harris v. State, 236 Ga. 242, 244 (1) (223 SE2d 643); Gazaway v. State, 207 Ga. App. 641, 643 (428 SE2d 659). The circumstantial evidence need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). A rational trier of fact could have found that appellant’s alleged mental infirmities either did not exist or did not provide a reasonable alternate explanation of appellant’s behavior. Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt in both convictions.

Decided June 28, 1996.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


author: Andrews, Judge.

text:
    A96A0201.
    NILES v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (473 SE2d 173)
   Andrews, Judge.

Julian Niles, a doctoral student at Georgia Tech, suffered severe injuries in a laboratory accident. Chemicals he mixed inside a metal canister reacted violently, causing an explosion which sent fragments of the metal into his leg and lower abdomen. He sued Georgia Tech and the Board of Regents, claiming his professor and the University’s administration should have provided him with laboratory safety training and should have warned him of the dangers of mixing acetone, ethanol, and nitric acid inside a metal container. Niles presented his case to a jury, but at the close of his liability evidence the trial court directed a verdict in the University’s favor. After carefully reviewing the evidence, including the evidence Niles claims was improperly excluded, we affirm the trial court’s judgment.

A trial court may direct a verdict in a party’s favor only “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). We view that evidence in a light most favorable to Niles, Sorrells Constr. Co. v. Chandler &c., P.C., 214 Ga. App. 193, n. 1 (447 SE2d 101) (1994), and consider only those grounds raised in the University’s motion for directed verdict. Nelson v. Polk County Historical Society, 216 Ga. App. 756 (1) (456 SE2d 93) (1995).

In pursuit of a doctorate in physics, Niles was enrolled in a class called “special problems” under Dr. Erbil and was experimenting with methods of producing superconducting crystals. Doctoral students such as Niles have supervision but also spend much time working independently on experiments. This explosion occurred when Niles was cleaning out a metal canister involved in the experiment, using a procedure outlined for him by a former Ph.D. student who had, the previous quarter, been his “mentor” in the lab. The experts who testified believed the explosion was caused by the combination of acetone and ethanol, which are “organic” chemicals, with inorganic nitric acid, inside a metal canister containing residue of titanium isopropoxide.

Before entering this laboratory course, Niles had graduated summa cum laude from the University of the Virgin Islands with a degree in chemistry. He had also obtained a masters’ degree in physics from Clark Atlanta University, maintaining a 4.0 grade point average there. He passed his oral comprehensive examinations approximately ten months before the accident. During his scholastic career, Niles had spent “hundreds” of hours in laboratories. He had previously worked with acetone, ethanol, and nitric acid and knew many of the properties of these chemicals.

Niles’ studies had also taught him to use reference materials. He was aware there are “a million” organic compounds, and he had learned to look up the nature of any compounds he did not understand. He had previously used a Merck’s index to discover the properties of various chemicals, but he did not use that book — or any other reference — to investigate these chemicals before combining them. Neither did Niles ask any questions of Dr. Erbil, although he was familiar with the professor’s “open door” policy. Instead, Niles relied on the process described to him by the former student.

1. Neither Georgia Tech nor Dr. Erbil was required to warn Niles of the dangers of mixing these chemicals. “Whether a duty to warn exists depends upon foreseeability of the [danger], the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” (Citations and punctuation omitted.) Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993) (discussing duty to warn in products liability context). Although a university student is an invitee to whom the university owes a duty of reasonable care, see Rawlings v. Angelo State Univ., 648 SW2d 430, 432 (Tex. App. 1983), college administrators do not stand in loco parentis to adult college students. Bradshaw v. Rawlings, 612 F2d 135 (3rd Cir. 1979). See Walker v. Daniels, 200 Ga. App. 150, 154-155 (407 SE2d 70) (1991).

Dr. Erbil had the right to assume that a physics doctoral student, who had graduated with highest honors in chemistry, would either know the dangers of mixing these chemicals or would perform the research necessary to determine those dangers and take the necessary precautions. Niles’ own expert, a chemist, testified acetone, ethanol, and nitric acid are “common” chemicals in labs and that “in all probability,” mixing them would produce a reaction like the one resulting in Niles’ injury. “Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession.” (Citations and punctuation omitted.) Brown v. Apollo Indus., 199 Ga. App. 260, 263 (2) (b) (404 SE2d 447) (1991); Eyster v. Borg-Warner Corp., 131 Ga. App. 702, 705 (2) (206 SE2d 668) (1974). Under these circumstances, neither Dr. Erbil nor Georgia Tech had any duty to warn a student with a degree in chemistry of the dangers of mixing these common chemicals.

2. Even if Georgia Tech and Dr. Erbil had a duty to warn Niles of this danger by hand-delivering him copies of “material safety data sheets,” by reducing the cleaning procedure to writing, or by giving him a laboratory safety course, as he suggests, no evidence supports a reasonable inference that this action would have prevented the accident. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citation and punctuation omitted.) Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990). “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citations and punctuation omitted.) Nelson, supra at 757 (2).

With the “million” organic compounds and untold numbers of inorganic compounds which might be combined, nothing in the record supports an inference that any laboratory safety course would have covered the mixing of these chemicals. Niles himself testified he simply relied on his former colleague’s oral “outline” of the cleaning procedure and did not read any safety materials which might have warned him of danger because he did not think it worth his time to investigate. Unless we were to hold Georgia Tech responsible for standing at Niles’ shoulder and overseeing every action this doctoral student takes in the lab, which we will not do, any claim that his injury was proximately caused by the University’s failure to provide him with detailed safety information is too speculative as a matter of law.

3. The court also properly directed a verdict in favor of Georgia Tech and the Board of Regents because Niles is deemed, as a matter of law, to have equal knowledge of the dangers of mixing these chemicals. As in Evans v. Johns Hopkins Univ., 167 A2d 591, 593 (Md. App. 1961), this doctoral student was “far from being newly initiated in laboratory work,” was familiar with the chemicals he mixed, knew ethanol was flammable and that acid on metal would produce hydrogen gas, and had access to information which would tell him more about these chemicals. The bottle of nitric acid he used contained a label encouraging him to read a material safety data sheet about the chemical before using it, but Niles did not read the label. Instead, he “preferred convenience to safety and knowingly took the chance.” Evans, supra at 594.

Decided June 7, 1996

Reconsideration denied July 2, 1996

Greene, Buckley, Jones & McQueen, Harold S. White, Jr., J. Russell Phillips, Victoria L. McLaughlin, for appellant.

Michael J. Bowers, Attorney General, Bentley, Karesh & Seacrest, Gary L. Seacrest, Karsten Bicknese, Charles H. Van Horn, for appellee.

“ ‘[E]ven assuming [Dr. Erbil] had knowledge of the peril, it was [Niles’] burden to come forward with specific evidence that [Erbil’s] knowledge of the peril was superior, for that is the true ground of the proprietor’s liability.’ [Cit.]” Cook v. Home Depot, 214 Ga. App. 133, 135 (1) (447 SE2d 35) (1994). The evidence shows without dispute, however, that the danger of mixing these chemicals should have been as obvious to Niles as the danger of a rapidly moving stream is to the average citizen. See Harmon v. City of College Park, 218 Ga. App. 136, 137-138 (460 SE2d 554) (1995); Brown, supra at 263.

4. Because the evidentiary errors which Niles enumerates do not change our decision, we need not consider those enumerations. See MNM 5, Inc. v. Anderson/6438 Northeast Partners, 215 Ga. App. 407, 410 (3) (451 SE2d 788) (1994).

Judgment affirmed.

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