author:
Deen, Presiding Judge. Beasley, Judge,
      Carley, Chief Judge,

text:
    77269.
    ROSS v. THE STATE.
    (380 SE2d 333)
   Deen, Presiding Judge.

The appellant, Rogers Ross, was tried before a jury and found guilty of two counts of selling cocaine. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds. He urges that his convictions are based solely on the uncorroborated testimony of his alleged accomplice, Robert Williams.

The evidence shows that a confidential informant introduced an undercover officer to Williams, the alleged accomplice, on October 30, 1986. The officer asked Williams if he knew a source of cocaine. Williams stated that he did and he agreed to arrange a sale. Williams and the officer drove to the neighborhood where appellant resided. Williams instructed the officer to park in close vicinity to appellant’s house. The officer gave Williams $135 for the purchase of cocaine. Although the officer testified that he saw Williams walk to appellant’s house, he did not actually see Williams enter appellant’s house. After approximately ten minutes, Williams returned to the officer’s vehicle with a bag which contained cocaine. The officer gave Williams $20 for his assistance.

The officer then contacted a local GBI agent and reported these events. The GBI agent and the officer made the decision to attempt to make another purchase of cocaine. On November 6, 1986, the officer contacted Williams and expressed a desire to purchase more cocaine. Williams and the officer again drove to a location in close vicinity to appellant’s house. The officer parked his vehicle and gave Williams $250 for the purchase of cocaine. As Williams proceeded on foot in the direction of appellant’s house, an automobile, which had been parked in front of appellant’s house, started towards Williams. Williams entered the automobile. The automobile proceeded down the street and returned approximately twenty minutes later. Williams exited the automobile and returned to the officer’s vehicle carrying a bag which contained cocaine. The officer gave Williams $20. With regard to the description of the automobile and its occupants, the officer testified that: “It was a dark-colored car, sir, was all I could tell you. It looked like two or three black males in it. I could not describe the people in it.” The GBI agent, who was conducting surveillance on appellant’s house during the sale, testified that he had seen an older black automobile in the area but could not identify any of its occupants. The GBI agent also testified that the automobile which appellant customarily drives, a silver Mercury Zephyr, had been parked in the yard of appellant’s house at the time of the sale. No evidence as to the ownership of the dark-colored car was introduced at trial.

Williams was himself charged with two counts of selling cocaine and he subsequently negotiated a plea of guilty to one count. At appellant’s trial, Williams testified that he had purchased cocaine from appellant at appellant’s residence on October 31, 1986. Williams also testified that appellant had been in the dark-colored automobile November 6, 1986 and that appellant had sold him cocaine on that occasion.

There is no dispute that the witness actually procured the cocaine for the undercover agent, and that this witness’ separate indictment for the offense of selling cocaine was warranted. The evidence authorized a finding that the supplier and the witness, in procuring the cocaine for the undercover agent for a fee, acted separately and with the intent of furthering only their own individual pecuniary interests. In other words, the evidence could support a finding that two criminal acts occurred, i.e., sale by the supplier to the “middle man” and sale by the “middle man” to the undercover agent, and that no principal/accomplice relationship existed between the supplier and the “middle man,” thus eliminating the requirement of corroboration of the “middle man’s” testimony.

In Milton v. State, 248 Ga. 192, 196 (282 SE2d 90) (1981), the Supreme Court noted that “[t]he fact that a witness was jointly indicted with the defendant on trial does not of itself render such witness an accomplice. [Cit.] In Almand v. State, 149 Ga. 182 (1b) (99 SE 795) (1919), the court held that it was not error to submit to the jury the question of whether a witness for the State was or was not an accomplice even where the witness had confessed to being an accomplice and had been jointly indicted with the defendant on trial. [Cit.]” Under the circumstances of the instant case, the question of whether or not the “middle man” was an accomplice was no less a matter for the jury, and not for this appellate court.

Viewing the evidence in the light most favorable to uphold the verdict, as this court is required to do, we conclude that a rational trier of fact could find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant’s remaining enumerations of error also are without merit.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. Carley, C. J. Birdsong and Sognier, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur in affirmance but on a different basis than registered by my brethren.

I agree with the dissent to the extent that there was evidence from which the jury could find that Williams was defendant’s accomplice. The majority opinion points out that it is a jury question, citing Almand v. State, 149 Ga. 182 (1b) (99 SE 795) (1919). While there may be circumstances from which the status of accomplice may arise as a matter of law, the court in this case left the question to the jury to determine as a matter of fact. It instructed: “Now, as to whether or not any witness in this case was an accomplice is a question for you to determine from the evidence in the case.”

Some of the evidence which would support such a finding was that Williams participated in the sale of cocaine by defendant to the undercover officer who initiated it, by taking him to his source and exchanging money supplied by the agent for cocaine, which Williams then directly delivered to him, receiving some monetary compensation for his service as a procurer.

Like defendant, he was indicted for the sale of cocaine on the two occasions, which obviously meant the sale to the officer and not the narrow part of the transaction wherein he exchanged government money for the cocaine the agent was buying from Williams’ source. The jury had that indictment as evidence. Although the State argued that defendant was charged with the sale of cocaine to Williams, the indictment does not allege to whom the sale was made, and the evidence focused on the sale to the officer. The undercover agent referred to Williams as the “mule,” “runner,” “in-between man.” Thus the jury was authorized to consider defendant’s guilt as it related to the sale of cocaine to the officer, in which context Williams was a party participating as a conduit between, as the agent testified, the “supplier” and the “buyer.” OCGA § 16-2-20.

If the jury found that Williams was an accomplice, it was obliged, as the court correctly instructed it, to acquit defendant unless Williams’ testimony connecting defendant with the crime of the sale of cocaine was corroborated. That is, Williams’ testimony and particularly his identification of defendant as the person with whom the exchange of the money for cocaine occurred could not be the sole evidence of defendant’s participation in the transaction. West v. State, 232 Ga. 861, 864 (2) (209 SE2d 195) (1974). As quoted by the dissent, there must be evidence of this fact “independent of the accomplice’s testimony.” Milton v. State, 248 Ga. 192, 196 (282 SE2d 90) (1981). This stems from OCGA § 24-4-8.

That corroborating evidence need only be slight, however, as the trial court accurately charged the jury. Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987). Of course, it must be more than such as merely casts on defendant a grave suspicion of guilt. Hill v. State, 236 Ga. 831, 834 (225 SE2d 281) (1976). The slight corroborating evidence of participation plus the accomplice’s testimony must then constitute, under the rule of, as required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

As to the corroborating evidence, “[t]he quantum of testimony and its sufficiency to corroborate the testimony of an accomplice before a jury is a matter addressed entirely to the jury itself.” Brown v. State, 163 Ga. 684, 691 (137 SE 31) (1927).

Here there was evidence that defendant had pled guilty to possession of cocaine found in his car just two years earlier and for which he was serving probation at the time of the offenses on trial. The earlier incident also involved an aborted sale through another person. Its particulars connected defendant with the current similar crimes by showing modus operandi as well as identity “so as to lead to an inference of guilt,” and thus differs from the fact pattern in Perryman v. State, 63 Ga. App. 825, 827 (12 SE2d 392) (1940).

On the two occasions on trial, the officer was taken to defendant’s residence for the sole purpose of purchasing cocaine, by an unsuspecting procurer, Williams. On the first trip, the house was pointed out by Williams. The agent saw Williams go up to it with the agent’s money and, although he did not see Williams actually enter, he saw him at the entrance and later come out. Williams came directly to the car, with cocaine. One officer knew this to be defendant’s residence from the offense two years earlier. On the second trip about a week later on November 6, a car known to be defendant’s from that prior offense was parked in the yard. A car was parked right in front of defendant’s house and the two occupants picked Williams up as he walked to the house. When he returned to the officer, he brought cocaine.

These facts “add to the testimony of the accomplice,” in the words of Childers v. State, 52 Ga. 106, 113 (1874). They, and the reasonable inferences which the jury was permitted to draw, OCGA § 24-4-9 and Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979), constitute at least that slight evidence which authorized the jury to consider it independently supportive of Williams’ direct testimony identifying defendant as the source of the cocaine sold, so that the evidence in its totality supports the jury’s verdict and the judgment of the court based thereon.

Carley, Chief Judge,

dissenting.

The majority finds no merit in the general grounds. In my opinion, the evidence would demand a finding that Robert Williams was appellant’s accomplice in the cocaine sales. It is also my opinion that the only evidence connecting appellant to the cocaine sales was the uncorroborated testimony of Williams. Accordingly, I believe that we are constrained to reverse appellant’s conviction on the general grounds. I must, therefore, respectfully dissent.

According to the majority, the jury was authorized to find that Williams was not appellant’s accomplice because, in each instance, two separate and independent sales were made, a sale from appellant to Williams and an independent subsequent sale from Williams to the officer. The evidence does not support this analysis. To the contrary, the evidence affirmatively shows that Williams did not make his own independent sales of cocaine but rather served as the middleman for the sales between appellant and the officer. Construing the evidence most favorable for the State, Williams simply passed the money that he had received from the officer to appellant and, in turn, he gave the officer the cocaine that he had received from appellant. For providing this service of exchanging the officer’s money for appellant’s cocaine, Williams was paid $20 by the officer at the conclusion of each of the transactions. “The definition of an accomplice is one who is present at the commission of a crime, aiding and abetting the perpetrator. [Cits.]” Herrin v. State, 138 Ga. App. 729, 734 (11) (227 SE2d 498) (1976), overruled on other grounds, Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977). “ ‘The test is whether [the witness] could . . . have been also indicted in the instant case, as participating in this particular crime, either as [a principal] or as [an accessory]. [Cits.]’ [Cit.]” (Emphasis supplied.) Payne v. State, 135 Ga. App. 245, 247 (217 SE2d 476) (1975). Williams not only could have been indicted as a party to the transactions, he was in fact indicted for his participation in them. Thus, Williams was clearly appellant’s accomplice.

Since Williams was, as a matter of law, appellant’s accomplice, the issue becomes whether there was sufficient independent evidence corroborative of appellant’s participation in both sales of cocaine. “ ‘The law is settled in Georgia that the corroborating facts or circumstances. must connect the defendant to [the] crime or lead to the inference that he is guilty, and that such corroboration must be independent of the accomplice’s testimony. [Cits.]. . . . Under [OCGA § 24-4-8], testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice. One who is guilty of a crime in which he participated will always be able to relate to facts of the case and if the corroboration goes only to the truth of that history, without identifying the person accused, it is really no corroboration at all.’ [Cit.]” (Emphasis in original.) Milton v. State, 248 Ga. 192, 196 (282 SE2d 90) (1981). [W]here the defendant is charged with the commission of several offenses, there must be corroborating evidence for each offense charged. [Cit.]” Davis v. State, 154 Ga. App. 803, 804 (1) (269 SE2d 874) (1980). Accordingly, the evidence of record must be examined to determine whether the State carried its burden with respect to both counts of the indictment.

As to Count 1, wherein appellant was charged with the October sale of cocaine, the officer’s testimony that Williams walked to appellant’s house and returned a short time later with the cocaine was not sufficient, independent corroboration of appellant’s participation in the sale of cocaine. The officer never saw Williams enter appellant’s home. Moreover, even assuming that the officer’s testimony did independently corroborate Williams’ testimony that he had actually gone into appellant’s house, this would merely corroborate that appellant’s house was the scene of the sale of the cocaine. It would not corroborate Williams’ testimony that appellant was the individual who had actually made that sale. “It is not sufficient that the accomplice is corroborated as to time, place and circumstances of the transaction if there is nothing to show any connection of the defendant therewith except the statement of the accomplice. [Cit.]” Haygood v. State, 172 Ga. App. 271, 273 (1) (322 SE2d 513) (1984). The State offered no evidence to show that the residence, which was identified only as “appellant’s house,” was rented or owned by appellant, that he did not share the premises with anyone else, or that he was even in the house on October 30, 1986. Although, after the second sale, the officers obtained a warrant to search the premises, they chose not to execute it. Accordingly, other than the accomplice’s testimony, there is absolutely no evidence which connects appellant and drugs at the location identified as “appellant’s house.” “The rule is well settled in this state that to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crimes or lead to the inference that he is guilty, and which are more than sufficient to merely cast on the defendant a grave suspicion of guilt. [Cits.]” Reaves v. State, 242 Ga. 542-543 (1) (250 SE2d 376) (1978). “Such corroboration evidence may be direct or circumstantial [(cits.)], but if it is entirely circumstantial and is as consistent with the accused’s innocence as his guilt, it is insufficient to sustain a verdict of guilty by corroborating the accomplice’s testimony. [Cits.]” Haygood v. State, supra at 273 (1). The circumstantial evidence of record as to the October 30, 1986 sale does not meet this standard. See generally Reed v. State, 127 Ga. App. 458 (1) (194 SE2d 121) (1972).

As to the November 6, 1986 sale, the corroboration is even less sufficient. The State’s other witnesses could not independently corroborate the accomplice’s testimony that appellant was an occupant of the dark-colored vehicle and none of them could even identify that vehicle as belonging to appellant. Compare Hardaway v. State, 188 Ga. App. 310 (1) (372 SE2d 845) (1988); Bennett v. State, 156 Ga. App. 617 (275 SE2d 701) (1980). Accordingly, the most that can be said is that there was independent corroboration of the accomplice’s testimony that a sale of cocaine took place in a dark-colored vehicle which was parked in front of appellant’s house. That the dark-colored car was parked in front of the house identified as appellant’s is certainly not evidence which sufficiently corroborates appellant’s identity as an occupant of the dark-colored car where the cocaine sale transpired. A holding that the location of the dark-colored car in front of appellant’s house is sufficient to corroborate Williams’ identification of appellant as the perpetrator of an offense which occurred in the dark-colored car would authorize the conviction of anyone who was accused by an accomplice and happened to live in close proximity to a crime scene. Evidence that appellant’s own car was parked in his yard at the time of the sale likewise does not provide sufficient corroboration that appellant was an occupant of the dark-colored car where the cocaine sale transpired. The relevant inquiry is whether there was corroboration as to appellant’s presence in the dark-colored car, and whether appellant’s own car was parked in his yard is meaningless. It is as consistent with his exculpatory presence in his house as with his inculpatory presence in the dark-colored car. There was simply no independent corroboration that the November sale was made by appellant.

Evidence of appellant’s 1984 prior conviction for possession of cocaine does not constitute independent corroboration of appellant’s involvement in the two 1986 sales. The instant case is factually indistinguishable from Perryman v. State, 63 Ga. App. 825 (12 SE2d 392) (1940). In Perryman, the defendant was charged with sodomy and prior instances of the defendant’s commission of acts of sodomy were admitted into evidence. Here, appellant was charged with two counts of selling cocaine and a prior instance of appellant’s possession of cocaine was admitted into evidence. Here, as in Perryman, there is no factual connection whatsoever between appellant’s prior crime and the presently charged offenses. Accordingly, the evidence of appellant’s prior similar act “connects not in the slightest, the defendant with the crime charged in the instant case. The necessity that testimony or circumstances must connect, to corroborate, is absolute; they must directly connect the defendant with the crime independently of the testimony of the accomplice, or connect him indirectly or circumstantially, so as to lead to an inference of his guilt. [Cits.]. . . . ‘[T]he [1984 crime of possession was] clearly [not] interwoven and linked [connected] with the facts of the [two 1986] crime[s] charged. . . .” (Emphasis in original.) Perryman, supra at 827. Since the 1984 occurrence was clearly a separate incident and not interwoven in the facts of the crime charged, it does not constitute independent evidence corroborating Williams’ testimony as to appellant’s participation in the alleged 1986 crimes. Compare Jackson v. State, 178 Ga. App. 378 (343 SE2d 122) (1986); Brown v. State, 163 Ga. App. 661 (1) (295 SE2d 581) (1982); Rakestraw v. State, 155 Ga. App. 563, 564 (2) (271 SE2d 696) (1980).

Decided March 13, 1989.

Short & Fowler, Larkin M. Fowler, Jr., Thomas S. Bishop, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

“ ‘The question of the sufficiency of corroboration is a jury question, yet an appellate court has the duty of determining as a matter of law whether there is any corroborating testimony of an accomplice. [Cit.] Here, there was no corroboration; the verdict of guilty . . . cannot stand.’ [Cit.]” Shumake v. State, 159 Ga. App. 141, 142 (1) (282 SE2d 756) (1981). See also Black v. State, 155 Ga. App. 798 (272 SE2d 762) (1980).

Accordingly, I must dissent to the majority’s affirmance of appellant’s conviction.

I am authorized to state that Judge Birdsong and Judge Sognier join in this dissent.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77704.
    RODERIQUEZ v. SAYLOR.
    (380 SE2d 339)
   Pope, Judge.

Appellee Charlie Ray Saylor brought a petition pursuant to OCGA § 19-7-40 et seq. to determine the paternity of a minor child born to appellant during her marriage to another man, whom she had since divorced. The petition was served on the former husband by publication, as his whereabouts were unknown. Appellant answered and denied that the appellee was the father of the child. The trial court, pursuant to appellee’s motion, ordered the parties to submit to HLA blood tests as provided by OCGA § 19-7-45.

On March 22, 1988 appellant was held in contempt for refusing to comply with the court’s order regarding blood tests. The court ordered appellant confined for ten days but suspended enforcement of the order provided the appellant submitted to blood tests within 30 days of the date of the order. The appellant, however, persisted in her refusal to submit to the blood test, and pursuant to the court’s earlier order, was incarcerated for ten days. The court also entered a new order requiring the appellant to submit to an HLA blood test.

On May 6, 1988 the court conducted a hearing on appellee’s motion to hold appellant in contempt for her refusal to comply with the court’s latest order to submit to a blood test. Appellee also filed a motion seeking an order pursuant to OCGA § 9-11-35 requiring the appellant to submit to a physical examination (blood test) and for the imposition of sanctions pursuant to OCGA § 9-11-37 (b).

The appellant reiterated her refusal to obey any order that required her to submit to a blood test and expressly waived any additional hearings or notice to which she might have been entitled pursuant to OCGA §§ 9-11-35 and 9-11-37. The court then found “that [appellant] has willfully and without any legal justification refused to obey this [c]ourt’s order that she submit to a blood test” and found her in contempt. Instead of imposing additional sanctions for contempt, however, the court ordered appellant’s answer stricken in the case and a default judgment entered against her and her former husband. See OCGA § 9-11-37 (b) (2) (C).

The court further found appellee to be the father of the minor child and ordered him to pay support and awarded him certain visitation privileges. The court also ordered a new birth certificate be issued showing the appellee to be the father of the child. We granted appellant’s application for discretionary review. Held:

1. We must first determine whether the trial court erred in ordering appellant’s answer stricken (Enumeration of Error 8). Appellant argues that the trial court was limited to the remedies outlined in OCGA § 19-7-45 (contempt) and § 19-7-46 (introduction at trial of appellant’s refusal to submit to the blood test at trial). Under the circumstances here, we disagree. OCGA § 19-7-47 provides: “Any proceeding brought under this article is a civil action governed by the rules of civil procedure.” In the case at bar, in addition to requesting a blood test be performed pursuant to OCGA § 19-7-45, the appellee also requested a blood test under OCGA § 9-11-35. OCGA § 9-11-37 (b) (2) provides that “If a party . . . fails to obey an order to provide or permit discovery including an order made under . . . Code Section 9-11-35, the court in which the action is pending may make such orders in regard to the failure as are just and among others, the following: . . . (C) An order striking out pleadings or parts thereof, ... or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

Decided March 13, 1989.

J. W. Yarbrough, for appellant.

Dianne Cook, for appellee.

“As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal. The drastic sanctions of dismissal and default cannot be invoked under OCGA § 9-11-37 except in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order. However, a very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts. By OCGA § 9-11-37 (b) (2) (C) the courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties. . . . Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act. Under the circumstances here we find no abuse of discretion in striking appellant’s defensive pleadings and entering a default judgment in favor of appellee.” (Citations and punctuation omitted.) Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 707 (353 SE2d 548) (1987). Accord Rider v. Rider, 110 Ga. App. 382 (1) (138 SE2d 621) (1964); see also Georgia Communications Corp. v. Horne, 164 Ga. App. 227 (2) (294 SE2d 725) (1982). Consequently, appellee may now initiate proceedings to legitimate the child. Cf. Hill v. Adams, 182 Ga. App. 848 (357 SE2d 300) (1987).

2. Appellant’s remaining enumerations are rendered moot by the foregoing.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       Although notice and hearing are required prior to the granting of a motion to compel and the imposition of sanctions, the appellant here specifically waived these prerequisites, and reiterated her position that she would not comply with any order requiring her to submit to blood tests to determine the paternity of the child. Under these circumstances, we agree that the court was not required to hold separate hearings on appellee’s motions to compel and to impose sanctions.


author: Banke, Presiding Judge.

text:
    A89A0354.
    WILLIAMS v. CITY ICE COMPANY.
    (380 SE2d 341)
   Banke, Presiding Judge.

Williams brought this action to recover damages for personal injuries he sustained when his hand became caught in the blade of an ice crushing machine on the appellee’s premises. The complaint was based on theories of strict liability, negligent installation and maintenance of the equipment, failure to provide warnings, and intentional trespass. The trial court granted summary judgment to the appellee as to each claim, and the appellant filed this appeal.

Decided March 13, 1989.

Jack C. Bell, James M. Walters, for appellant.

Neely & Player, Ronald D. Reemsnyder, David C. Marshall, for appellee.

Williams and his foreman had been sent by their employer to the appellee’s place of business for the purpose of obtaining crushed ice, which they were to load into cardboard boxes and transport to their employer’s plant. The appellee’s ice machine delivered crushed ice through an overhead chute containing a screw auger mechanism. After his foreman demonstrated the operation of the machine, Williams filled two boxes without incident. He was injured in the process of filling the third box, when a shovel he was using to pack the ice became caught in the auger, drawing his hand into the machine. Williams conceded during his deposition that he had observed the operation of the auger mechanism prior to the accident and appreciated the potential hazard created by it. Held:

1. The trial court properly ruled that a strict liability claim lies only against the manufacturer and not against the mere owner of a product. See OCGA § 51-1-11 (b) (1); Ellis v. Rich’s, 233 Ga. 573 (212 SE2d 373) (1975); Hatcher v. Allied Prods. Corp., 256 Ga. 100 (3) (344 SE2d 418) (1986).

2. The appellee was also entitled to summary judgment on the negligence claims. If an invitee already has knowledge of a hazard, there is no duty on the part of the landowner to warn him; and by “voluntarily acting in view of his knowledge, [the invitee] assumes the risks and dangers incident to the known condition. [Cit.]” Amear v. Hall, 164 Ga. App. 163, 168 (296 SE2d 611) (1982). A fact issue is not created in this case by Williams’ invocation of the “distraction doctrine.” See generally Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 351 (349 SE2d 241) (1986); Magee v. Federated Dept. Stores, 187 Ga. App. 620 (371 SE2d 99) (1988). This theory of recovery was specifically negated by Williams’ admission during his deposition that nothing had occurred prior to the accident to divert his attention from the task at hand and that “everything was quiet” at the time. Finally, since there was no allegation or showing that the ice machine had malfunctioned, the trial court was authorized to reject the claim of negligent installation and maintenance.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0454.
    RAYNER v. THE STATE.
    (380 SE2d 342)
    Decided March 13, 1989.

      T. Michael Martin, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of child molestation, aggravated child molestation, and aggravated sodomy. The victim in each case was his 13-year-old daughter. His sole enumeration of error on appeal concerns the admission of certain testimony offered by his adult daughter concerning acts of molestation which he had committed against her when she was a child. The appellant does not contend that this testimony was inadmissible but maintains that it was incumbent upon the trial court to instruct the jury, without request, regarding the limited purposes for which such similar transaction evidence could be considered. Held:

It is axiomatic that where evidence has been admitted for a limited purpose “it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.” Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). See also Pyburn v. State, 175 Ga. App. 158 (2) (332 SE2d 899) (1985). As no request for such instructions was made in this case, it follows that no error has been established.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    77282.
    SOSEBEE v. THE STATE.
    (380 SE2d 464)
   Pope, Judge.

In 1986, defendant Geary Sosebee was a party to a divorce proceeding and custody dispute regarding his two children. The court, in the divorce proceeding, placed the two children in the custody of the Department of Family and Children Services pending a determination of custody. While the court was considering the custody issue, defendant’s mother-in-law reported to DFACS her suspicion that defendant had sexually abused one of the children. Following an investigation of the complaint, defendant was indicted for multiple counts of child molestation. Defendant appeals his convictions.

1. At trial, defendant raised the issue that others, including the child’s babysitters had had the opportunity to commit the acts complained of by the child. In closing argument, the prosecuting attorney stated: “I could have called every babysitter that’s ever been around that child, and what would they have said? If I asked every one of those babysitters, have you ever touched this child, what would they have said? No. Does that surprise you? Did I have to put them up here to prove that to you?” Defendant’s attorney objected on the ground the prosecutor was arguing matters not in evidence, but the objection was overruled. On appeal, defendant argues this portion of the state’s closing argument constitutes reversible error.

A prosecutor may not inject in his final argument matters which were not proven in evidence. Williams v. State, 254 Ga. 508 (3) (330 SE2d 353) (1985). However, even an improper statement, when taken in context, may not constitute reversible error. Smith v. State, 141 Ga. App. 529 (2) (233 SE2d 841) (1977). A review of the transcript shows the objectionable statement concerning the expected testimony of witnesses not actually called to testify was made in the context of explaining to the jury why such witnesses were not called. The prosecuting attorney went on to state: “I could have brought every man that has ever been around this child in here, and what would you expect them to say if they were asked [whether they had touched the child] . . . .” When considered in the context of the entire closing argument it is obvious that the prosecuting attorney was not stating as a fact what the unpresented testimony would have been but was posing a rhetorical question to the jury as to whether they would have expected any given witness to admit they had molested the child. We find no reversible error in this portion of the closing argument.

Defendant also argues the prosecuting attorney improperly questioned the defendant’s failure to call his wife as a witness. Defendant maintains such argument constitutes reversible error because the defendant could not compel his wife to testify. In fact, spousal immunity does not apply to proceedings in which one spouse is charged with a crime against a minor child. OCGA § 24-9-23 (b). Thus, defendant’s wife could have been compelled to testify and we find no reversible error in the state’s remarks on defendant’s failure to call her as a witness.

Defendant also argues the prosecuting attorney committed reversible error in appealing to the passions or prejudices of the jury by asking the jury to convict defendant in order to protect the victim from further harm. The prosecuting attorney may make a rhetorical argument about what acts the defendant could be expected to commit in the future so long as it is a reasonable deduction from the evidence. See Brand v. Wafford, 230 Ga. 750 (9) (199 SE2d 231) (1973); Davis v. State, 178 Ga. App. 357 (3) (343 SE2d 140) (1986). The record shows the prosecuting attorney repeatedly stated that if they did not believe the evidence against defendant, the jury should acquit him. However, if the jury believed the defendant was guilty, the attorney asked them not to “put [the victim] back into this trap . . . .” We find no error in the closing argument.

2. Prior to the trial of the case, defendant challenged the constitutionality of the Child Hearsay Statute, OCGA § 24-3-16. The Georgia Supreme Court granted interlocutory review of this issue and, in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), upheld the constitutionality of the statute by holding that where the statute is implemented it must be accompanied by the right of either party to examine or cross-examine the child-witness by requesting the court to call the child as a witness. On appeal of the guilty verdict, defendant again challenges the constitutionality of the statute, arguing that its constitutionality should be reconsidered in light of the more recent pronouncement of the United States Supreme Court in Coy v. Iowa, 487 U. S__(108 SC 2798, 101 LE2d 857) (1988). We find no merit to defendant’s argument and therefore are not required to transfer the appeal to the Supreme Court pursuant to Rule 21 (b) of the Rules of the Court of Appeals of Georgia.

3. Defendant argues his constitutional rights pursuant to the Sixth Amendment Confrontation Clause were violated by the court’s denial of his motion to compel access to the witness and examination of the child’s medical records. The state may not deny defendant access to a witness material to the defense, but a witness cannot be compelled to submit to a pre-trial interview. See Rutledge v. State, 245 Ga. 768 (2) (267 SE2d 199) (1980); Emmett v. State, 232 Ga. 110 (2a) (205 SE2d 231) (1974). The child-witness in this case was in the custody of the state acting through DFACS. In an effort to eliminate the conflict of interest between the state as prosecutor and the state’s role in supervising the child, the court appointed a guardian ad litem to represent the legal interests of the child. The guardian refused to make the child available to defendant and refused to consent to the release of confidential medical records. “A witness may refuse to be interviewed prior to trail [cit.]; and when the witness is a child, the child’s guardian may make this decision.” Dover v. State, 250 Ga. 209, 211-212 (296 SE2d 710) (1982), cert. denied, 459 U. S. 1221 (1983).

Defendant’s constitutional argument has been decided adversely to him by the United States Supreme Court. In Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987), the criminal defendant, charged with sexual child abuse, similarly argued that by denying him access to information necessary to prepare his defense, the trial court interfered with his right of “effective” cross-examination of witnesses. The United States Supreme Court rejected this argument. “If we were to accept this broad interpretation . . . the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right. ... In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [citing Delaware v. Fensterer, 474 U. S. 15, 20 (106 SC 292, 88 LE2d 15) (1985)].” Pennsylvania v. Ritchie, supra at 52-53. According to Pennsylvania v. Ritchie, the defendant is entitled to an in-camera inspection by the trial judge to determine what, if any, material information should be released as useful to the defense. The record of the case now before us shows the court conducted such an inspection in response to defendant’s request.

Defendant also maintains he was denied the right of effective cross-examination by the court’s denial of his motion for an independent psychiatric evaluation of the child to determine her competence at the time her out-of-court statements were made. The statutory test for determining the competency of a child to testify as a witness in a judicial proceeding is that he understand the nature of an oath. OCGA § 24-9-5. See generally Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981). Therefore, the concept of “competency” at the time an out-of-court statement was made is meaningless and irrelevant. OCGA § 24-9-7 contemplates only that a small child be found competent to testify at trial; the code section has no applicability to out-of-court statements and does not require that the court determine the child’s competency at the time the out-of-court statements were made. Newberry v. State, 184 Ga. App. 356 (4) (361 SE2d 499) (1987). Thus, defendant had no right, at the competency hearing, to present evidence concerning the child’s competency at the time the out-of-court statements were made.

Defendant also argues he was denied a sufficient opportunity to contest the indicia of reliability as to the out-of-court statements of the child. The record shows defendant conducted extensive cross-examination of the witness who testified concerning the out-of-court statements during a hearing on reliability outside the presence of the jury. Under the circumstances of this case, we find no requirement for expert testimony to establish the reliability of the child’s out-of-court statements. Cf. Godfrey v. State, 258 Ga. 28 (365 SE2d 93) (1988) (in which the out-of-court statements consisted of “sleep talk,” which the court held to be a phenomenon requiring expert testimony to establish its reliability).

4. Defendant had no constitutional right to examine all materials in the file maintained on this case by DFACS. The record reflects that the trial court inspected the DFACS file on several occasions in response to defendant’s motion to examine the records. Thus, defendant’s right to obtain material information from the state’s files was protected. See Pennsylvania v. Ritchie, supra.

5. Defendant argues the trial court erred in failing to require the state to produce “all” scientific reports gathered in the case. The state is not required to disclose all reports but, upon a proper written request, the state is required to disclose those scientific reports which will be used as evidence at trial. OCGA § 17-7-211. Defendant does not identify which reports were improperly admitted pursuant to said code section and our review of the record reveals no improperly admitted scientific evidence.

6. An investigator employed by the Fayette County Juvenile Court testified that she observed the child-victim in a waiting room of the DFACS offices saying to her father, who was visiting her there, “I won’t tell [the DFACS officer] our special secret.” Defendant objected to the statement as inadmissible hearsay. “A witness may testify as to what he saw and heard in the defendant’s presence.” Moore v. State, 240 Ga. 210, 212 (240 SE2d 68) (1977); accord Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 833) (1977). Defendant argues the overheard statement would not be admissible as an exception to hearsay because the witness stated she was not in the room with the child and defendant but observed them and heard the statement through an open doorway. The necessary element for this exception is that the out-of-court statement was made in defendant’s presence. See Green v. State, 175 Ga. App. 849 (335 SE2d 4) (1985). The witness need only be in a position to hear what was said in defendant’s presence.

7. Defendant argues he was entitled to a continuance in order to secure the attendance of a former DFACS caseworker who was out-of-state at the time defendant attempted to serve her with a subpoena to appear at trial. A defendant is not entitled to a continuance to secure the attendance of a witness when it was within his power to subpoena the witness but he failed to do so. OCGA § 17-7-192; see Parrish v. State, 125 Ga. App. 97 (186 SE2d 541) (1971). Defendant admits he was aware of the caseworker’s involvement in the case at least as early as November 1986. Trial commenced in September 1987. It appears from colloquy on the record that no effort was made to subpoena the caseworker until after trial had commenced. Where defendant could have served a subpoena on a witness at an earlier date but failed to do so, the court does not err in denying a continuance because at the time of trial the witness was outside the subpoena power of the court. Coker v. State, 87 Ga. App. 411 (1) (74 SE2d 12) (1953).

8. Defendant argues the court erred in excluding the testimony of a witness that she had been told by a friend of the child’s mother, at the child custody hearing prior to the report of child molestation, “It’s not over yet, we’ve got our bag of tricks.” Hearsay evidence is admitted only from necessity. OCGA § 24-3-1 (b). In ruling to exclude the testimony, the trial court noted that the declarant of the out-of-court statement had been present at trial and was obviously available to testify. We agree that the statement was not admissible to impeach an earlier witness who had denied hearing the statement because the witness offering the hearsay testimony admitted she did not know if the other witness had heard the statement. We find no error in excluding the hearsay testimony.

Decided February 2, 1989

Rehearing denied March 14, 1989

Cook & Palmour, Bobby Lee Cook, Jake Arbes, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

9. Prior to trial, the prosecuting attorney revealed, in response to defendant’s Brady motion, that the child-witness had recanted her earlier statements against defendant. Defendant argues the court improperly denied his motion to disqualify the prosecuting attorney because he would be called as a witness at trial. First, the prosecuting attorney’s testimony was not necessary to establish that the child had recanted her statements since the attorney identified two other persons who witnessed the recantation. Secondly, although the prosecuting attorney was subpoenaed as a witness, he was never called to testify. Thus, the court was not required, nor was it necessary, to disqualify the prosecuting attorney.

10. Finally, a review of the record shows sufficient evidence was presented to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes charged.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    77314.
    SAIN v. K-MART CORPORATION.
    (380 SE2d 299)
   Carley, Chief Judge.

Appellant-plaintiff slipped and fell after stepping on several empty plastic shopping bags which were lying on the floor of appelleedefendant’s store. Appellant brought suit against appellee, seeking damages for the personal injuries that she sustained in her fall. Appellant appeals from the trial court’s order granting summary judgment in favor of appellee.

“ ‘ “The true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. . . .” [Cit.]’ ” Miolen v. Edd Kirby Chevrolet, 189 Ga. App. 282, 283 (375 SE2d 266) (1988). “ ‘Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive.’ [Cit.]” Shiver v. Singletary, 186 Ga. App. 746, 747 (2) (368 SE2d 523) (1988). Under the undisputed evidence of record, appellee has negated its actual knowledge of the presence of the shopping bags on the floor. Therefore, the only issue that is presented for resolution is whether a genuine issue of material fact remains as to appellee’s constructive knowledge. “ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under [this] approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]’ [Cit.]” (Emphasis omitted.) Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988).

The evidence is uncontroverted that, not more than 10 to 15 minutes before appellant fell, one of appellee’s employees made a visual inspection of the condition of the floor in accordance with her regular practice. At that time, the employee observed no visible foreign substances on the floor. “Where it appears a foreign object [has] ‘not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.’ [Cit.]” Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987). Accordingly, the issue of appellee’s constructive knowledge based upon its failure to exercise reasonable care in inspecting the premises has been eliminated.

The burden was also on appellee, as the movant for summary judgment, to show that no genuine issue of material fact remained as to whether its constructive knowledge could be inferable from the presence, in the immediate vicinity, of an employee who could easily have seen and removed the plastic bags prior to appellant’s fall. See generally Food Giant v. Cooke, supra at 254 (1). The evidence shows that there were two employees in the immediate area of the fall. There is nothing in the testimony of the two employees themselves which would show that, from the perspective that each had of the scene, they could not easily have seen and removed the plastic bags. Construing the testimony of the two employees most strongly against appellee, they acknowledged that they did have a clear view of the area during the entire 10 to 15 minute period prior to appellant’s fall. Compare Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120 (369 SE2d 262) (1988) (evidence affirmatively showed that employee had only 5 seconds to observe and remove hazard); Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) (evidence affirmatively showed that employee was only “a half-step” ahead of plaintiff); Rush v. Food Giant, 183 Ga. App. 388 (358 SE2d 919) (1987) (employee testified that her view of the area was obscured and her attention drawn away from area during the relevant time period). Appellee urges, however, that it is appellant’s own testimony which shows that neither of its employees could easily have seen and removed the plastic bags prior to her fall. In her affidavit, appellant stated that she “was looking where [she] was going but did not see anything on the floor before [she] fell.” According to appellee, since appellant herself had failed to see the plastic bags, it must follow that its two employees likewise could not easily have seen and removed the bags. However, simply because the plastic bags may have presented an optical illusion from appellant’s perspective, it does not necessarily follow that neither of appellee’s employees, each of whom had an entirely different perspective of the scene, could easily have seen and removed the plastic bags.

Decided February 28, 1989

Rehearing denied March 14, 1989

Vernon L. Chambless, for appellant.

At trial, the burden will be on appellant to show that appellee’s employees could easily have seen and removed the plastic bags prior to her fall. See Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985). On summary judgment, however, it was appellee’s burden to show that its employees did not have an opportunity to discover the plastic bags and remove them. Construing the evidence most strongly against appellee, it has shown only that the bags presented an optical illusion to appellant and that the bags lay on the floor for possibly as long as a 10-to-15-minute period, throughout which period it had employees in the area who had an unobstructed view of the floor where appellant fell. On this evidence, a genuine issue of material fact remains as to whether appellee’s employees had an opportunity to discover and remove the plastic bags. The trial court erred in granting appellee’s motion for summary judgment.

Judgment reversed.

Sognier, J., concurs. Deen, P. J., concurs in judgment only.

Alexander & Vann, William C. Sanders, for appellee.


text:
    77315.
    77316.
    H & H TRUCKING COMPANY v. DAVIS. CREECH BROTHERS, INC. et al. v. DAVIS.
    (380 SE2d 301)
   Pope, Judge.

Appellee Richard Davis was employed as a truck driver by appellant H & H Trucking Company. He filed a claim for workers’ com-pensation benefits. At the time his injuries occurred, the truck Davis was driving was leased by appellant Creech Brothers, Inc. Creech Brothers was found to be the statutory employer of the claimant and both Creech Brothers and H & H are thus liable for any workers’ compensation benefits that are due him.

The record shows the claimant has suffered from diabetes since 1969 but failed to disclose this fact to his employer in order to get the job. The claimant knew that federal regulations prohibited him, as a diabetic, from driving a tractor-trailer rig on the public highways. On January 6, 1986, the claimant was carrying a load for Creech Brothers. He stopped in Kentucky for his evening meal around 10:30 p.m. He resumed driving south on 1-75 at approximately midnight. The claimant testified that about one hour later he experienced dizziness and nausea and pulled off the road. He remembers nothing else regarding the incident. Approximately seven hours later, Kentucky highway officials found the claimant passed out, face down in a ditch approximately five hundred yards from the truck which was parked on the side of the highway. The claimant was found in a diabetic coma from an insulin imbalance. When he arrived at the hospital his blood alcohol level was .013 and the record reflects he had the smell of alcohol on his breath. The claimant denied consuming any alcohol on the evening in question. He was treated for damage to his kidneys and other injuries caused by exposure to the cold weather while he was outside the truck and he continues to suffer from complications arising out of exposure. The ALJ denied benefits to the claimant on the ground that his injuries were the result of his pre-existing diabetic condition and did not arise out of his employment. On appeal, the full board reversed the ALJ and found the injuries to be compensable. The decision of the full board was upheld by the superior court. The two employers brought separate appeals in which they argue essentially the same two enumerations of error. We have consolidated the two appeals for appellate review.

I. The employers first argue the superior court erred in affirming the board’s finding that the injury arose out of the claimant’s employment. If the evidence were unequivocal that the injury was a result of the claimant’s pre-existing diabetic condition, then the occurrence which precipitated the injury would not be an “accident” under the Workers’ Compensation Act. See Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982). However, the medical testimony in this case established that the claimant’s injuries were the result of exposure to cold, and not the result of his diabetic coma. Only if the claimant’s diabetic condition started the chain of events which lead to his passing out in a ditch could it be said that his injuries from exposure were proximately caused by his pre-existing diabetic condition. The evidence was sufficient to support the conclusion that the claimant had vomited before he passed out and that the diabetic coma in which he was found could have been caused by loss of nutrients after vomiting. The medical testimony established that the claimant’s symptom of nausea immediately preceding his loss of consciousness was not consistent with an insulin reaction. Therefore, the medical testimony did not demand a finding either for or against the claimant, but presented an issue of fact as to whether his injuries were proximately caused by his pre-existing condition or by some other cause. “The process is one of weighing the facts, and even if the facts could support a conclusion either way, the duty of the reviewing court is not to reweigh the facts, but to search the record for any evidence to support the conclusion reached below.” Carter v. Kan. Fire &c. Ins. Co., 138 Ga. App. 601, 604 (226 SE2d 755) (1976). The record contains sufficient evidence to support the board’s finding that the injuries arose out of the claimant’s employment and not out of his pre-existing condition.

2. The employers next argue that the board erred in failing to find that the claim was barred, pursuant to OCGA § 34-9-17, by the claimant’s wilful misconduct in failing to disclose that he suffered from diabetes, a condition which would legally bar him from operating the truck. “In Georgia, for the ‘willful misconduct’ of an employee to constitute a bar to workers’ compensation, that conduct must have been the proximate cause of the injury. ... To the extent that [the claimant’s] misrepresentation may have resulted in [his] securing of employment, it was a factor in the chain of events leading up to [his] injury. However a prior and remote cause cannot be the immediate and proximate cause of an injury if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.” (Citations and punctuation omitted.) Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 655 (350 SE2d 299) (1986). As more fully discussed in Division 1, above, sufficient evidence exists in the record to support the conclusion that claimant’s diabetic condition was not the proximate cause of his injury. Therefore, even if his failure to disclose his diabetic condition constitutes “willful misconduct,” this conduct would not bar his recovery for his injuries.

Decided February 28, 1989

Rehearings denied March 14, 1989

J. Thomas Vance, Robert H. Sullivan, for appellant (case no. 77315) .

James G. Jackson, Michael D. Usry, for appellant (case no. 77316) .

Ralph L. Van Pelt, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77371.
    HEARD v. NEIGHBOR NEWSPAPERS, INC. et al.
    (380 SE2d 279)
   Pope, Judge.

Plaintiff Jeanette Heard brought this libel action against defendant Neighbor Newspapers, Inc., and C. Randall Doster in regard to an article which appeared on the front page of the newspaper’s October 21, 1982 edition. The article reported that according to Doster, an investigator with the Georgia Department of Human Resources Office of Fraud and Abuse, plaintiff Heard had pled guilty to an indictment for welfare fraud and had paid $10,939 to the clerk of the Paulding County Superior Court as restitution. In fact, plaintiff pled not guilty but agreed to make restitution of the stated amount and, upon motion of the district attorney, the court entered an order of nolle prosequi. Defendant newspaper brought a motion for summary judgment on the ground that the statement in question was a privileged communication pursuant to OCGA § 51-5-7 (7) because it was a truthful report of information received from the investigator and was made without malice. Summary judgment was granted to defendant newspaper and plaintiff appeals. Although plaintiff asserted nine enumerations of error, plaintiff’s argument is essentially two-fold: (1) that an issue of fact remains as to whether the statement was privileged and (2) even if it was a privileged statement, an issue of fact remains as to whether the statement was made with “private malice,” so as to negate the privilege pursuant to OCGA § 51-5-9.

1. a. The first element of the privilege granted by OCGA § 51-5-7 (7) is that the report is a “truthful report” of the statement given by the officer. The reporter to whom the statements were made attested by affidavit that the article she wrote was a truthful report of information received from defendant Doster. The unverified answer of defendant Doster, now deceased, denied the allegation, contained within plaintiff’s original complaint, that he made the false statement. (We note that in response to defendant’s motion for summary judgment, plaintiff amended her complaint to withdraw her allegation that the false statement was made and to allege, instead, that Doster “allegedly” made the false statement; therefore, defendant does not argue that the issue is governed by the doctrine of admission in judicio.) However, pursuant to OCGA § 9-11-56 (e), when a motion for summary judgment is supported by evidence, the adverse party may not rest upon the mere allegation or denial of the pleadings. Plaintiff presented no evidence to contradict the reporter’s sworn statement. The mere reargument of a party’s case or the denial of an opponent’s allegations will be disregarded in considering a motion for summary judgment where no competent evidence has been submitted to raise a material issue of fact. See Morton v. Stewart, 153 Ga. App. 636 (2b) (266 SE2d 230) (1980). Consequently, the undisputed evidence shows the article in question was a “truthful report” of what Doster told the reporter.

b. The second element of the privilege granted by OCGA § 51-5-7 (7) is that the information in question was “received from any arresting officer or police authorities.” Plaintiff argues that defendant’s motion must fail because defendant has not shown that Doster was an officer or a “police authority] ” pursuant to the terms of the statute.

Clearly, Doster was not an arresting officer or a policeman. The issue is whether Doster was an agent of a “police authority]” as that term is used in the statute. Apparently, the appellate courts of this state have never before construed the meaning of “police authority]” in applying the statute. However, the courts have construed the meaning of “proceeding of legislative or judicial bodies” in applying the statutory privilege granted in subsection (4) of OCGA § 51-5-7. We have applied a functional analysis in determining whether the proceeding in question was judicial or legislative in nature. “[I]t is the nature of the act to be performed rather than the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or quasi-judicial function. [Cit.]” (Punctuation omitted.) Morton v. Stewart, supra at 639. Thus, a conditionally privileged status has been granted to the proceedings of the Composite State Board of Medical Examiners (Morton, id.) and to the proceedings of a County Commission on Roads and Revenues (Pearce v. Brower, 72 Ga. 243 (1881)).

The record shows that defendant Doster was employed as an investigator by the Georgia Department of Human Resources Office of Fraud and Abuse and that he assisted the district attorney in investigating the criminal charge of welfare fraud brought against plaintiff. OCGA § 49-4-15 defines welfare fraud and grants the Department of Human Resources the duty and authority to make and enforce regulations concerning welfare fraud and to recoup overpayment of welfare benefits from the recipient. Thus, in regard to the charges brought against plaintiff, the Department of Human Resources had police-like authority to investigate and prosecute. While the Department of Human Resources is certainly not a police department, in the context of the charge brought against plaintiff it had quasi-police authority.

Plaintiff argues that the privilege should not attach unless the information given by the “police authority]” was made within the context of an official proceeding. Here, the information received by defendant newspaper from defendant Doster did, in fact, relate to the official proceeding against plaintiff. Therefore, no issue of fact remains as to whether the communication in question is privileged.

2. “[W]hen a defendant moves for summary judgment [in a case involving a statutorily privileged statement], it must negate a plaintiff’s claim of actual malice by establishing that it lacked knowledge that the defamatory matter was false or did not publish it with reckless disregard as to whether it was false or not.” (Citations and punctuation omitted.) Clayton v. Macon Telegraph Pub. Co., 173 Ga. App. 466, 467 (326 SE2d 789) (1985). Defendant in this case submitted the affidavit of the reporter who wrote the article in question and the associate editor who received and approved the article for publication. Both individuals attested they never harbored any ill will or animosity toward plaintiff Heard and attested that they do not personally know her. The reporter described the facts and circumstances surrounding defendant Doster’s visit to her office and the information she received from him. She attested that she thought and believed the information received from Doster was true. When a defendant submits sworn evidence disclaiming a malicious motive, “the plaintiff cannot rest upon his allegations or denials, but his response must set forth specific facts showing that there is a genuine issue for trial.” Morton v. Gardner, 155 Ga. App. 600, 605 (271 SE2d 733) (1980). “[W]here there is uncontradicted testimony by a party as to a certain fact (here, [that defendant] acted without malice) then the opposing party must produce ‘some other fact’ to the contrary (here, that [defendant] acted maliciously). If the ‘other fact’ is shown directly, that is sufficient for the case to go to a jury, but if it is circumstantial then it must be evidence sufficient to support a verdict. The circumstantial evidence must be inconsistent with the direct testimony [footnote omitted] and must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.” Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986). Plaintiff submitted the affidavit of an individual who purported to be an expert in news reporting and who attested that, in his opinion the article in question was published without adequate investigation and verification of its contents and that its publication did not meet acceptable industry standards. At best, the expert’s affidavit created an issue of fact as to the reporter’s negligence. It did not, however, create an issue of fact as to the defendant’s malice. In order to prove malice sufficient to forfeit the statutory privilege, it must be shown that the defendant acted wilfully, corruptly, or maliciously. See id. at 849. A showing of mere negligence is insufficient to create an issue as to defendant’s malice.

Decided February 15, 1989

Rehearing denied March 14, 1989

Jack F. Witcher, John E. Gilchrist, Stephen E. Garner, for appellant.

Long, Aldridge & Norman, Albert G. Norman, Jr., F. T. Davis, Jr. Barnes & Browning, Roy E. Barnes, Alston & Bird, Jay D. Bennett, for appellees.

Because no issue of fact remains as to the defendant’s lack of malice, plaintiff may not recover general or punitive damages and the court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge. Deen, Presiding Judge,

text:
    77404.
    JIMMERSON v. THE STATE.
    (380 SE2d 65)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the offenses of rape, aggravated sodomy, and child molestation. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. The State called an expert witness who, on direct examination, was questioned as to the “indicators” of the child abuse syndrome and whether the victim had exhibited certain of those indicators. This witness testified that “one thing you look for is what we call pseudo-maturity, a child [who] has knowledge beyond her years of sexual activity, sexual language, words for body parts, acts more like an adult than a child on the surface, now, underneath, they have the same emotional age, and maybe even younger than a child of their age.” According to the witness, it was necessary “to differentiate between sexual abuse that occurs in a family and sexual abuse that occurs like this” and the pseudo-maturity that she had observed in the victim was among “the most critical things . . . that [she] saw in terms of” sexual abuse committed by appellant.

On cross-examination, appellant established that the witness had, in the course of her investigation, not only assessed the victim for child abuse “indicators” but had also made an evaluation of the victim’s family. The witness testified that “we did find some sexual freedom in this family, and that is why we had the family evaluated by the psychologist, just to be double sure.” When appellant attempted to pursue this topic, however, the State objected on the ground that “whatever indicators [its witness] may have found about this family has nothing to do with this case, because [appellant is] not a member of that family unit. . . .” The trial court sustained the State’s objection, concluding that the line of questioning concerning the witness’ evaluation of the victim’s family was irrelevant.

The trial court did, however, grant appellant’s request to cross-examine the witness on this topic outside of the presence of the jury. During this proffer, the witness testified that her evaluation had determined that all of the children in the family, with the exception of the victim, had been involved in sexual activity with their former stepfather. In addition, the victim had been taken to a nudist colony by her mother and her current stepfather. The witness was then asked whether the victim’s pseudo-maturity might “possibly be attributable to the sexual freedom of her family and the past sexual experiences of her siblings, as opposed to a recent attack?” The witness acknowledged that she had “no doubt” the victim’s “indicators could have come from [her family] background” but she had concluded that this was not the case because the victim had given “graphic descriptions of what happened between her and [appellant].” Nevertheless, the witness did ultimately concede that those “indicators” of the child sexual abuse syndrome upon which her direct testimony had been premised “could have come, not from [an] attack [by appellant], but from previous events that [the jury has] been barred from [hearing].”

After this proffer, appellant again urged that cross-examination of the witness concerning her evaluation of the victim’s family was relevant and should be heard by the jury. The trial court, however, reiterated its ruling that the line of questioning was irrelevant. Appellant enumerates this ruling as error.

In Chastain v. State, 180 Ga. App. 312-313 (2) (349 SE2d 6) (1986), this court held that “[t]he past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial. [Cit.]” The Supreme Court affirmed, noting that the “conviction rests upon the testimony of the parties and does not involve expert testimony or the child abuse syndrome.” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987). The present case, however, differs from Chastain. Here, unlike in Chastain, appellant’s conviction does rest upon expert testimony regarding the child abuse syndrome as well as upon the testimony of the victim herself, and the restricted cross-examination relates not to the credibility of the victim’s testimony, but to the credibility of the expert’s child abuse syndrome testimony. Thus, here, as in Villafranco v. State, 252 Ga. 188, 194 (2) (313 SE2d 469) (1984), appellant was precluded from pursuing a topic which had been introduced into the case by one of the State’s principal witnesses. In Villafranco, supra at 195 (2), the Supreme Court held that the Rape Shield Law “ ‘should not be perverted into a license to use questionable or possibly perjurious testimony free from the risk of adverse confrontation. When we condone conduct that erodes the right of impeachment, regardless of who takes the witness stand, we judicially create a weak link in our established purpose of discovering the truth — the object of all legal investigations.’ . . . [T]he opposite construction [of the statute] would deprive the [defendant] of [his] constitutional right to confront, cross-examine and impeach the witnesses against [him]. [Cit.]”

The State’s expert witness based her direct testimony on certain “indicators” exhibited by the victim which, in the witness’ opinion, were indicative of the child sexual abuse syndrome. Thus, the victim’s “indicators” were clearly relevant and, on cross-examination, appellant was clearly entitled to pursue that topic and to inquire as to the factual basis for the witness’ opinion that the victim had exhibited those “indicators” “in terms of [appellant].” A party “who relies upon the benefit of a [witness’] opinion may not withhold from the jury the facts on which such opinion is based. . . .” Barton v. State 81 Ga. App. 810, 812 (1) (60 SE2d 173) (1950). According to the excluded cross-examination of the witness, there was an explanation for the victim’s pseudo-maturity “indicator” which was non-inculpatory of child abuse by appellant. Although the witness herself discounted this non-inculpatory explanation, it was for the jury to determine whether the pseudo-maturity “indicator” exhibited by the victim was inculpatory or exculpatory of appellant and, based upon that determination, to evaluate the credibility of the witness’ opinion that the victim had exhibited that “indicator” in terms of [appellant].” Without the benefit of the cross-examination, the jury was left with the erroneous impression that there was no other explanation for the victim’s “indicators” and the witness’ opinion based thereon except the acts attributed to appellant. Under these circumstances, appellant was erroneously denied his statutory right to a thorough and sifting cross-examination and his constitutional right to confront the expert witness who was called against him. See Villafranco, supra. Because we cannot say that the error was harmless, a new trial must be held.

2. The trial court sustained the State’s objection to appellant’s attempt to cross-examine the victim concerning an alleged sexual incident with another man. This ruling is enumerated as error.

In this regard, the holding in Chastain, supra, is controlling. The restricted cross-examination was an unauthorized attempt to attack the credibility of the victim’s allegations against appellant rather than an authorized attempt to attack the credibility of the expert’s child abuse syndrome opinion testimony. The trial court did not err in sustaining the State’s objection to the cross-examination of the victim as to the irrelevant topic of her prior sexual experiences with others.

3. Appellant enumerates as error the trial court’s jury instruction on the offense of forcible rape, contending that it was an inaccurate statement of the law and confusing to the jurors. A review of the transcript shows, however, that the trial court’s instruction was a clear and legally accurate statement of the applicable law. See Drake v. State, 239 Ga. 232 (1) (236 SE2d 748) (1977). Accordingly, appellant’s enumeration is without merit.

4. Appellant enumerates as error the entry of a judgment of conviction as to the offense of child molestation, urging a merger of that offense into the offense of rape.

“ ‘In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of [OCGA § 16-1-6], [cits.], (we) “look to the actual evidence introduced at trial . . . (I)f the [S]tate uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under [OCGA § 16-1-6].” [Cit.]’ [Cit.]” Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686) (1986). A review of the evidence adduced at trial shows that the jury was authorized to find that appellant fondled the victim and, in an entirely separate incident later that evening, raped her. “ ‘[E]ach of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. [Cit.] Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act. [Cit.]’ [Cit.]” Cardoza v. State, 183 Ga. App. 170, 171 (1) (358 SE2d 315) (1987).

5. Remaining enumerations of error need not be addressed as they relate to issues that are unlikely to recur at retrial.

Judgments reversed.

Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur. Deen, P. J., and McMurray, P. J., dissent.

Decided February 22, 1989

Rehearing denied March 14, 1989

Newton & Howell, Griffin E. Howell III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent, because I believe that the trial court properly disallowed the proffered cross-examination testimony of the expert witness.

The appellant sought to cross-examine the expert witness on the sexual mores of the victim’s family. As found by the trial court, such evidence of sexual mores contrary to the community standards is prohibited by OCGA § 24-2-3, unless (1) the evidence showed that the past behavior directly involved the defendant or (2) the evidence supported an inference that the defendant could reasonably have believed that the victim consented to the conduct complained of in the prosecution. The evidence of the sexual mores of the victim’s family here did not directly involve the appellant, and the victim, who was 11 years old, could in no event consent to the sexual attack complained of in the prosecution. Under these circumstances the trial court correctly concluded that the proferred evidence was inadmissible. Nothing in Chastain v. State, 257 Ga. 54 (354 SE2d 421) (1987), is contrary to that conclusion.

Furthermore, even if the proferred evidence should have been admitted, the error was harmless, as the evidence of the acts of rape, sodomy, and child molestation was overwhelming. The appellant’s convictions should be affirmed.

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


text:
    77604.
    SULLIVAN v. CHESHIRE.
    (380 SE2d 294)
   Pope, Judge.

Appellee-plaintiff purchased a tract of land, consisting of approximately eleven acres, from appellant-defendant. At closing the parties added the following stipulations to the sales contract: “1. The two ponds located on said property shall fill to normal pool level within 18 months of September 3, 1980 with normal rainfall. 2. Docks on said ponds shall be constructed and ponds stocked within 18 months of September 4, 1980. In the event these provisions are not met, the full purchase price shall be refunded to Buyers.” A promissory note for the balance due on the property, a deed to secure debt securing the note and a warranty deed conveying the property were also executed at closing.

The ponds did not fill within the stipulated time, and appellee asked that his purchase price be returned. Appellant testified that he did offer to return the money but that instead the parties agreed to try and resolve the problem by installing wells and pumps, the former to be paid for by the appellant and the latter by the appellee. The ponds, however, still did not fill to normal levels.

Appellee became delinquent in his payments due under the note and appellant instituted foreclosure proceedings. The appellee filed suit against the appellant seeking to have the foreclosure temporarily enjoined and also seeking reimbursement of the amounts paid towards purchase of the property, based on the unfulfilled stipulations contained in the sales contract. The trial court granted the TRO upon the condition, inter alia, that appellee post a bond of $3,000. Appellee failed to post the bond and the trial court issued an order dissolving the TRO. Appellant entered the highest bid at the foreclosure sale and subsequently resold the property to another buyer.

The parties proceeded to trial on appellee’s breach of contract claims. The jury returned a verdict for appellee, awarding him $13,726 ($8,000 down payment, plus $5,726 representing the payments made during the first eighteen months under the note). On appeal, appellant challenges the denial of his motions for summary judgment, directed verdict, new trial and judgment n.o.v., as well as the judgment entered on the jury’s verdict. We affirm.

1. Although appellant does not dispute that the parties agreed to the stipulation contained in the sales contract, he contends that, as a matter of law, the doctrine of merger bars enforcement of the agreement. “However, it is well settled that where a collateral agreement not mentioned in the deed is shown to exist and the facts of the transaction show the parties intend for the agreement to survive the execution and delivery of the deed, merger does not occur. [Cits.]” C & G Candler, Inc. v. Ga. Power Co., 138 Ga. App. 279, 280 (226 SE2d 87) (1976). See also Holmes v. Worthey, 159 Ga. App. 262 (I) (282 SE2d 919) (1981), aff’d 249 Ga. 104 (1) (287 SE2d 9) (1982); Carroll-Leslie Bldrs. v. Serwitz, 136 Ga. App. 721 (222 SE2d 178) (1975). “Intention of the parties is the controlling element in such cases, and . . . this is a question for the jury.” (Citations and punctuation omitted.) Rader v. H. Boyer &c. Assoc., 142 Ga. App. 97, 98 (235 SE2d 690) (1977).

The record in the case at bar shows that the stipulations were inserted into the sales contract at closing on the advice of the closing attorney that the stipulations be inserted in the contract instead of the warranty deed. There is no dispute that the parties intended for the stipulations to survive the closing and the execution of the deed. Consequently, this enumeration is without merit.

Decided February 27, 1989

Rehearing denied March 14, 1989

Bush, Wallace & Craig, Daniel J. Craig, for appellant.

Vincent Davison, for appellee.

2. We have examined appellant’s remaining enumerations and find them to be without merit.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77613.
    JACKSON et al. v. INTERNATIONAL HARVESTER COMPANY et al.
    (380 SE2d 306)
   Pope, Judge.

Appellant Jackson brought this product liability action against appellees International Harvester Company (I.H.C.) and Tri-State Tractor Company (Tri-State) for injuries he received when he jumped out of a front-end loader that tipped over. The machine was manufactured by I.H.C. and sold by Tri-State. The trial court directed a verdict in favor of Tri-State at the close of appellant’s case and the jury then returned a verdict in favor of appellee I.H.C.

1. Appellant argues that the trial court erred in bifurcating the trial'to try the issue of liability first. Severance of issues for trial pursuant to OCGA § 9-11-42 (b) is generally within the discretion of the trial judge and will not be reversed on appeal absent clear and manifest abuse of that discretion. Parks v. Consolidated Freightways, 187 Ga. App. 576 (1) (370 SE2d 827) (1988). Appellant has shown no harm from the bifurcation, and we see none appearing in the record. There is no error.

2. Appellant argues that the trial court erred in directing a verdict in favor of appellee Tri-State. Tri-State sold the front-end loader involved in the accident. Appellant’s theory against Tri-State was negligence. The evidence at trial established that Tri-State had sold the front-end loader to Williams Brothers, appellant’s employer. Appellant had been hired as a truck driver, but occasionally would operate the front-end loader to load his truck or to clean up sand. At the time of the accident, appellant was dumping a load of sand into a sandpile. However, as he drove the front-end loader onto the sand-pile, the loader tipped over. Appellant alleged that the machine was defective in that it was inherently unstable.

The only evidence adduced at trial connecting Tri-State to the machine was that it sold it and the opinion of appellant’s expert that a distributor should know the uses customers will have for a product. No evidence was presented that Tri-State knew or should have known of the alleged “inherent instability” of the loader.

“It is the general rule that a vendor or dealer who is not a manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.” King Hardware Co. v. Ennis, 39 Ga. App. 355, 360 (147 SE 119) (1929). See also General Motors Corp. v. Davis, 141 Ga. App. 495 (6) (233 SE2d 825) (1977). The trial court did not err in directing a verdict for Tri-State. Lakeview Memory Gardens v. Nat. Bank &c. Co. of Columbus, 155 Ga. App. 478 (3) (271 SE2d 219) (1980).

3. Appellant argues that the trial court erred in not allowing him to introduce evidence to the jury explaining why appellant’s employer was not joined as a party to the suit. He contends this was necessary to counter the inference left with the jury by an exchange initiated by I.H.C.’s counsel in which he got the safety director of William Brothers to state that Williams Brothers had never been a party to the lawsuit. At the time the question was asked, there was no objection. When appellant’s counsel tried to get the witness to explain that the workers’ compensation bar was the reason Williams Brothers was not joined, the court sustained I.H.C.’s objection. The record shows that the trial court offered to instruct the jury to disregard the previous testimony and further solicited advice from appellant’s counsel about what to do short of allowing counsel to go into the workers’ compensation issue. However, counsel decided the cure was worse than the disease and dropped the matter. Thus, there is no ruling by the trial court and therefore nothing for this court to review. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980).

4. There is no merit to appellant’s argument that the trial court erred in allowing I.H.C. to adduce evidence that there were no similar problems with the same model front-end loader. Such evidence was relevant to rebut appellant’s theory that I.H.C. knew or should have known of a design defect in the machine. Skil Corp. v. Lugsdin, 168 Ga. App. 754 (1) (309 SE2d 921) (1983); Gunthorpe v. Daniels, 150 Ga. App. 113 (1, 2) (257 SE2d 199) (1979).

Decided March 2, 1989

Rehearing denied March 14, 1989.

Robert L. Herman, David A. Sleppy, John D. Jones, Steven J. Misner, for appellants.

Hugh F. Newberry, Neely & Player, Edgar A. Neely III, Randall Davis, for appellees.

5. There is no merit to appellant’s argument that the court erred in allowing evidence that the design of the I.H.C. machine was substantially similar to that of others in the industry. While we agree with appellant that evidence of compliance with the custom and practice of a particular industry is not a conclusive defense to negligence, it is a factor that may be considered by the jury in determining whether the standard of care of the ordinarily prudent person has been met. Moody v. Southland Investment Corp., 126 Ga. App. 225, 233 (190 SE2d 578) (1972).

6. For the reasons set out in Divisions 4 and 5, the trial court did not err in allowing into evidence an I.H.C. product bulletin. Nor did the trial court err in allowing into evidence a wooden model of the machine. Each side used the model for demonstrative purposes and the court gave proper cautionary instructions to the jury about what the model did and did not represent.

7. The trial court’s direction of a verdict in favor of I.H.C. on the issue of punitive damages is a moot issue in light of the defense verdict. Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153 (1) (342 SE2d 352) (1986).

8. We have carefully reviewed the trial court’s charge to the jury and appellant’s arguments regarding it and find no reversible error. Taken as a whole, the charge covers the issues presented fairly and accurately. Rosenthal v. Hudson, 183 Ga. App. 712 (5) (360 SE2d 15) (1987).

9. We find no merit in the remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77756, 77757.
    FRANCHISE ENTERPRISES, INC. et al. v. SULLIVAN; and vice versa.
    (380 SE2d 68)
   Pope, Judge.

Claimant-employee, Kathy Sullivan, sustained a compensable work-related injury and was paid benefits by her employer, Franchise Enterprises, Inc. Originally, she was treated by Dr. Perry L. Cohn. On June 30, 1987, an Administrative Law Judge (ALJ) granted the employer’s request for a change of physicians to Dr. Peter 0. Holliday which was brought on the grounds that the employee was not improving under Dr. Cohn’s care and that Dr. Cohn recommended an experimental and questionable method of treatment. On November 11, 1987, the employee requested a change of physicians, asking that she be placed back under the care of Dr. Cohn. The request was denied by the ALJ on December 29, 1987. The employee appealed to the full board and moved that the board remand the case to an ALJ for the purpose of receiving additional evidence, pursuant to OCGA § 34-9-103 (a) and Board Rule 103 (c). In support of its motion to remand, the employee claimed that additional evidence would show that Dr. Holliday and Dr. Stephanis, to whom Dr. Holliday referred the employee, were not willing to accept responsibility for her treatment. The employee claimed that Dr. Holliday cancelled, without rescheduling, the employee’s January 6 appointment and that Dr. Stephanis, to whom the employee was referred for emergency treatment prior to Dr. Holliday’s first available appointment, declined to accept the referral. The board affirmed the ALJ’s denial of the employee’s request for change of physicians, as follows: “Upon consideration of the record, including objections received by the Board, the award of Judge Murray dated December 29, 1987, is made the award of the Board.”

On appeal, the superior court found the board’s award to be deficient and remanded “for the purpose of compiling a record complete with the findings of fact, conclusions of law and rulings on motions pending.” The employer appeals the order of the superior court on the ground that the order was not deficient on its face; the employee also appeals, arguing that the superior court erred by failing to reverse the board’s award.

Case No. 77756

1. “ ‘The provisions of [OCGA § 34-9-102], insofar as they require that awards of the board must be accompanied by findings of fact, relate only to such awards as grant or deny compensation, or change the amount of compensation to be paid the employee.’ ” Employers Mut. &c. Ins. Co. v. Hood, 137 Ga. App. 555, 556 (224 SE2d 460) (1976), quoting Bryant v. Fidelity & Cas. Co., 114 Ga. App. 853, 855 (5) (152 SE2d 759) (1966). See also West Point Pepperell v. Luallen, 147 Ga. App. 135 (2) (248 SE2d 287) (1978). Here, the board did not award, deny or change the amount of benefits to be paid the claimant but merely affirmed the ALJ’s denial of a request for change of physicians pursuant to the discretion granted the board by OCGA § 34-9-200 (b). “[T]he . . . decision of the full board on a request for a change of physicians is discretionary.” Columbus Foundries v. Moore, 175 Ga. App. 387, 388 (333 SE2d 212) (1985). Consequently, the proper standard of review for such a decision is whether the board acted arbitrarily or in excess of its powers. Id. The board’s ruling recites that it was made upon a review of the record. The superior court thus erred in remanding the case to the board for issuing findings of fact and conclusions of law. We remand the case to the superior court with direction to rule on the appeal from the board’s order in accordance with the standard of review set forth in Columbus Foundries: i.e., to determine whether the board acted arbitrarily or in excess of its discretionary powers.

2. The employer also argues the court erred in finding the board did not rule on the employee’s motion to remand to the ALJ for receipt of additional evidence and in remanding the case to the board with instructions to issue a ruling on the motion. In support of this enumeration of error, the employer relies upon Hartford Accident &c. Co. v. Snyder, 126 Ga. App. 31 (189 SE2d 919) (1972), in which this court held that the board did not err in failing to make an express ruling on a motion to consider newly discovered evidence because, where the order shows the board considered the “entire record,” it is to be presumed that the board did consider the evidence. Id. at 34. However, the assumption that the board did consider additional evidence is no longer applicable because, as a result of a revision to Board Rule 103 (c), effective July 1, 1985, the board may no longer receive additional evidence on appellate review but may remand to an ALJ for that purpose.

In deciding whether to remand a case to the ALJ to receive newly discovered evidence, the board is directed to apply the law of Georgia regarding the nature and character of newly discovered evidence required for the granting of a new trial. Rule 103 (d) of the Rules of the State Board of Workers’ Compensation. See also Hartford Accident &c. Co., supra at (3). Evidence is not newly discovered if it was known to a party at the time of the original hearing. Id. at (2). By unsworn and unauthenticated copies of correspondence between the employee’s attorney and the two doctors in question, the employee attempted to show, in support of her motion, that Dr. Holliday refused to refer her to another physician for treatment prior to the date of his first available appointment. However, the correspondence shows that Dr. Holliday did make a referral to Dr. Stephanis, but Dr. Stephanis declined to see the patient because she had already been treated by a neurosurgeon. Moreover, the facts surrounding the employee’s request for referral were known to the employee prior to the date the ALJ denied her request, so that it was not newly discovered evidence. The employee never submitted any evidence to support her claim that Dr. Holliday cancelled her January 1988 appointment without rescheduling.

Decided February 24, 1989

Rehearing denied March 14, 1989.

Cone & Shivers, Donald M. Shivers, for appellants.

The employer objected to the employee’s motion to remand on the ground the evidence submitted in support of the motion was inadmissable hearsay. Disregarding the hearsay issue, the correspondence submitted by the employee in support of her motion shows on its face that the employee was not entitled to have the case remanded because it failed to meet the standards required for the granting of a “new trial.” Although the board should expressly rule on motions pending on cases on appeal, see VMW, Inc. v. Foster, 185 Ga. App. 405 (364 SE2d 301) (1987), the board’s failure to deny the motion expressly was, in this case, harmless error since the record shows the evidence relied on by the employee was, as a matter of law, not “newly discovered” evidence. Cf. id. at 405 (where the evidence on which the claimant relied in the motion to remand was found as a matter of law to be “newly discovered” evidence).

Case No. 77757

3. The employee argues the superior court erred in failing to reverse the board’s denial of her request for a change of physicians. As noted in Division 1 of Case No. 77756, above, the proper standard of review for the board’s decision on a request for a change of physicians is whether the board acted arbitrarily or in excess of its powers. “[A]buse [of the board’s discretion] will rarely be found unless the award is so far outside the evidence as to be defective under [OCGA] § 34-9-105 (c).” Carrollton Coca-Cola Bottling Co. v. Brown, 185 Ga. App. 588, 590 (365 SE2d 143) (1988). The superior court remanded the case to the board for further proceedings without ruling on the board’s order. However, we have reviewed the evidence in the record and find no error in the court’s failure to reverse the board’s order because it cannot be said as a matter of law that the board’s denial of the request for a change of physicians was made arbitrarily.

4. For the reasons set forth in Division 2 of Case No. 77756, above, the court did not err in failing to order the board to grant the employee’s motion to remand for the purpose of receiving newly discovered evidence.

Judgment affirmed in part; reversed in part and case remanded with directions.

McMurray, P. J., and Benham, J, concur.

Gilbert & Montlick, Stanley W. Herman, for appellee.