author: Eldridge, Judge.

text:
    A98A1592.
    LIVERY v. THE STATE.
    (503 SE2d 914)
   Eldridge, Judge.

Defendant-appellant William Lee Livery was convicted of attempted child molestation on November 13,1997, following an incident in which he attempted to remove the ten-year-old victim’s underpants. He appeals his conviction, and we affirm.

“On appeal[,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the evidence in this case showed that the victim was a ten-year-old girl who lived with her hearing-impaired mother in a Clayton County apartment. Livery dated the mother for several months in 1996 and often spent the night with the mother at the apartment. The victim testified that she sometimes slept downstairs on the living room couch while her mother, Livery, and the victim’s sister slept upstairs.

In June 1996, the victim was sleeping on the couch in a t-shirt and underpants when she was awakened by the sound of someone coming down the stairs. Thinking it was her mother, she went back to sleep, but soon felt someone tugging at her underpants and touching her stomach. She looked up to see Livery standing over her, dressed only in his underwear. He was pulling her underpants down. She quickly sat up, pulling the blanket up to cover herself. Livery stepped away and asked her what was wrong. She replied that she was cold. He replied that it was not cold in the apartment, but then retreated upstairs. The victim reported the incident to her mother after Livery left for work. According to the victim, the mother told her that Livery was “probably just trying to wake you up or tickle you.” The victim also told “Marsha,” a friend of her mother, about the incident. When her mother was incarcerated on an unrelated charge, the victim began staying with Marsha.

In October 1996, the victim’s father picked her up for visitation and Marsha told him of the couch incident; the father testified that the victim was crying. The father took the victim to the Morrow Police Department, where police interviewed the victim. The victim repeated her allegations about the couch incident to an investigating officer, who testified at trial. She also told the officer about a similar incident in 1995. See Division 1, infra. The officer testified that, during the interview, the victim was “distraught,” “nervous [and] embarrassed” and referred her to counseling. After two failed attempts to contact Livery, the investigating office secured a warrant for his arrest.

Livery was arrested and indicted on a charge of criminal attempt — child molestation. He filed a general demurrer to the indictment which was denied. Following the conviction, Livery was sentenced as a recidivist to ten years imprisonment. His motion for new trial was denied, and he appeals. Held:

1. In his first enumeration of error, Livery contends that the trial court erred in admitting similar transaction evidence without providing the required procedural safeguards. We disagree.

Prior to trial, the State gave notice of its intent to introduce two similar transactions in order to show Livery’s “motive, intent, [and] lack of mistake.” These transactions included a previous incident involving the victim in this case (the “van incident”) and a 1986 guilty plea to child molestation involving a separate eight-year-old victim.

Regarding the first incident, the victim testified that she was riding with Livery at night in his van in December 1995; it is unclear exactly which county they were in. Livery suddenly reached over, took the victim’s hand, and placed it on his penis. The victim testified that she was uncertain whether Livery’s jeans were unzipped, but said that the material felt “different” than the jean , fabric. Livery then reached down and touched the victim’s genital area. The victim immediately jerked her hand away, stood up, and moved to the back of the van. Livery asked if she was mad at him and she replied “no.” She testified that she responded this way because she was nervous. She told her mother the next day, but her mother said “she didn’t know who to believe and . . . then told [the victim] not to tell anybody.”

The second similar transaction was Livery’s 1986 guilty plea for child molestation of an eight-year-old girl. In that case, Livery admitted pulling the child’s underpants down, inserting his fingers into her genital area, lying on top of her, and attempting to insert his penis into her vagina. He was unable to complete the act because his wife walked into the room and discovered the molestation. Livery was sentenced to five years probation following his guilty plea.

(a) “Before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Ride 31.3 (B). At that hearing, the [S]tate must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the [S]tate seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. (Footnote omitted.) Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991) [(‘Williams’)]. Furthermore, the sexual molestation of young children, regardless of sex or type of act, is of sufficient similarity to make the evidence admissible. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” (Citations and punctuation omitted.) Farmer v. State, 231 Ga. App. 78, 79 (1) (498 SE2d 559) (1998); see also Peppers v. State, 261 Ga. 338, 339-340 (2) (404 SE2d 788) (1991). In this case, the State fulfilled the Williams requirements, and the trial court did not abuse its discretion in determining that the similar transactions were admissible to show Livery’s motive, intent, and lack of mistake.

However, Livery contends that such evidence is inadmissible when, as in this case, the defendant asserts only an alibi defense, because the issues of mistake, accident, etc. were not raised. Aside from the fact that the cases cited by the defense in its brief do not support this contention, we reject this assertion on its merits. The similar transaction evidence in this case provided proof of the State’s prima facie case of attempted child molestation. The fact that Livery presented only an alibi defense does not make this evidence inadmissible for other permissible purposes.

(b) Further, Livery’s “contention that the probative value of the similar transaction evidence was outweighed by its prejudicial impact is without merit. . . . Assuming arguendo that some degree of prejudice to [Livery] would flow from the admission of this evidence, such prejudice was outweighed by its probative value or its relevancy to the issues on trial.” Farmer v. State, supra at 79.

Although appellate counsel cites to Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995), in support of her claim that a trial court should be required to make an express finding regarding its balancing determination, Farley v. State actually stands for the opposite proposition. “Such an express determination would be entirely superfluous, since evidence which is otherwise relevant does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence. . . . [A] trial court’s finding that ‘other transactions’ evidence is relevant necessarily constitutes an implicit finding that the probative value of that evidence outweighs its prejudicial impact. Such evidence should be admitted and the prejudicial impact of that otherwise relevant evidence is a matter for jury instruction, and is not a factor in its admissibility vel non.” (Citations and punctuation omitted; emphasis supplied.) Farley v. State, supra at 625.

(c) Livery also contends that the trial court erred when, prior to the victim’s testimony about the van incident, the court instructed the jury that they could consider the testimony as evidence of Livery’s state of mind, motive, or intent at the time of the subsequent couch incident. Livery challenges the instruction because it listed “state of mind” as a permissible purpose of the evidence, even though the State had not identified such purpose during the USCR 31.3 (B) hearing.

However, Livery’s contention fails in light of this Court’s holding in Jordan v. State, 230 Ga. App. 560, 561 (497 SE2d 48) (1998). In Jordan v. State, supra at 561, we noted that the essential purpose of the Williams analysis during the USCR 31.3 (B) hearing is “to ensure that there exists a legitimate, probative purpose in introducing an independent criminal act and that there exists sufficient similarity to make the probativeness outweigh any prejudice as a consequence to injecting character into the case. Where the purposes set forth in the court’s charge are legitimate, the fact that they vary somewhat from the purposes mentioned in the USCR 31.3 (B) hearing does not necessarily render the charge erroneous.” (Citations and punctuation omitted.) See also Gardner v. State, 263 Ga. 197, 198 (3) (429 SE2d 657) (1993); McTaggart v. State, 225 Ga. App. 359, 364 (2) (483 SE2d 898) (1997); McClain v. State, 220 Ga. App. 474, 477 (5) (469 SE2d 756) (1996).

In this case, utilizing the evidence to prove Livery’s “state of mind” was a permissible purpose relevant to the State’s prima facie case. “As the evidence was properly admissible for each of the purposes stated by the court, the court did not err in its jury charge.” Jordan v. State, supra at 562.

2. In his second enumeration of error, Livery challenges the trial court’s denial of his general demurrer to the indictment. Livery contends that the indictment failed to allege the specific intent of child molestation under OCGA § 16-6-4 (a), i.e., to arouse or satisfy the sexual desires of either the child or the defendant. As Livery was not charged with child molestation but with criminal attempt — child molestation under OCGA § 16-4-1, there is no merit to this contention.

“Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct” to withstand a general demurrer. OCGA § 17-7-54 (a); Dye v. State, 177 Ga. App. 813 (341 SE2d 469) (1986) (possession of cocaine), overruled on other grounds, Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990); Miller v. State, 155 Ga. App. 54 (1) (270 SE2d 466) (1980) (attempted armed robbery); Smith v. State, 130 Ga. App. 390, 391-392 (203 SE2d 375) (1973) (burglary). Further, “[a]s long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against prosecution for the same offense, the indictment is sufficient. Hopper v. Hampton, 244 Ga. 361, 362 (260 SE2d 73) (1979).” (Punctuation omitted.) Carter v. State, 155 Ga. App. 49, 50 (270 SE2d 233) (1980); see also Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1934); Byers v. State, 236 Ga. 599, 600 (225 SE2d 26) (1976); Jordan v. State, 220 Ga. App. 627, 629 (2) (470 SE2d 242) (1996).

Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” (Emphasis supplied.) In this case, the indictment charged Livery with “criminal attempt — child molestation for that [Livery] with intent to commit the crime of child molestation, did perform an act constituting a substantial step toward the commission of that crime, to-wit: by attempting to pull down the underwear of [the victim] while she was sleeping[.]” (Emphasis supplied.) Accordingly, as the indictment mirrored the language of the criminal attempt statute, it was technically sufficient.

Further, the issue of the victim’s age is an element of child molestation, not criminal attempt, and can be addressed during trial. If the facts as alleged in the indictment, when taken as true, lead to a legal conclusion of guilt, the indictment is good. Chelsey v. State, 121 Ga. 340, 342 (49 SE 258) (1904). In this case, the indictment alleged that Livery pulled down the underwear of the sleeping victim with the intent to commit child molestation. The indictment clearly stated facts which, if true, constituted a crime in Georgia. There was no error in the trial court’s denial of Livery’s general demurrer.

Decided July 9, 1998.

Patricia F. Angelí, for appellant.

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

3. There is no merit to Livery’s third enumeration regarding an alleged error in the jury instructions, as it is based upon appellate counsel’s apparent confusion regarding the differences between the elements of criminal attempt under OCGA § 16-4-1, for which Livery was convicted, and the elements of the attempted crime, in this case, child molestation. See Division 2, supra.

Even without this confusion, the challenge to the jury instructions fails under Wiley v. State, 150 Ga. App. 607, 609 (258 SE2d 286) (1979) (regarding jury instructions based on statutes which are framed in the disjunctive, i.e., utilizing the conjunction “or”). Further, “[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.] . . . We have reviewed the court’s charge as a whole and find that it was a full and fair charge covering all issues to be resolved by the jury[.]” Williams v. State, 249 Ga. 822, 825-826 (3) (295 SE2d 293) (1982). There was no error.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A1628.
    PORTER v. THE STATE.
    (503 SE2d 912)
   Eldridge, Judge.

The defendant, Antonio Porter, was convicted by a jury for the offenses of: (1) Count 1, entering an automobile and (2) Count 3, obstruction of a law enforcement officer by refusing to cooperate in being fingerprinted. In his sole enumeration of error, the defendant challenges the sufficiency of the evidence.

Viewing the evidence in the light most favorable to the jury’s verdict, the following was shown: On January 21, 1997, at approximately midnight, Tashun Howard was sitting in her parked car in the parking lot of the Subway store in Bainbridge, Decatur County. Howard observed the defendant ride a bicycle by her car, continue to the other side of the Subway store, and walk back toward her car without his bicycle. Howard testified that as the defendant approached her car, she locked the car doors. When she locked the car doors, the defendant made a “U-turn” and went inside the Subway store.

After a short period of time, the defendant exited the Subway store and walked back around to the other side of the store out of Howard’s sight. While the defendant was on the other side of the Subway store, Joyce Buckhalter parked her car beside Howard and, leaving her car doors unlocked, went inside Subway. Howard recognized Buckhalter because they had gone to high school together. While Buckhalter was in Subway, the defendant entered her car, took some lawn chairs and other items out, and hid the items near the trash can behind the Subway store.

When Howard’s boyfriend came out of the Subway store, they left and reported the incident to Officer Matt Cloud of the Bainbridge Public Safety Department. After requesting assistance from Officer Ryan Wimberly over the radio, Officer Cloud proceeded to the Subway store. Howard and her boyfriend followed him there. On the way back, Howard saw Buckhalter at a nearby Amoco Station. When they reached the Subway store, Officer Wimberly went to the Amoco Station to attempt to intercept Buckhalter.

When Officer Wimberly reached the Amoco Station, Buckhalter was exiting the parking lot. Officer Wimberly pulled Buckhalter’s car over and requested that she pull into the parking lot of the Subway store. At the officers’ request, Buckhalter opened the trunk of her car to ascertain if her lawn chairs had been removed. The defendant was hiding in the trunk. Buckhalter’s car had a rear seat which folded down to provide access to the trunk area. Defendant admitted that he entered the trunk of the car by folding the back of the rear seat down. The back of the rear seat had been repositioned so that the defendant was not visible from the interior of the car.

The officers drew their guns and ordered the defendant to get out of Buckhalter’s car. The defendant refused to obey the officers’ orders to lie on the ground. The officers had to “wrestle” him to the ground and forcibly handcuff him. The defendant refused to give his name, address and social security number and refused to let the officers fingerprint him.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). The defendant testified that he and Buckhalter were romantically involved and that he had hidden in the trunk of Buckhalter’s car with her permission so that her boyfriend would not see them together. However, Buckhalter denied the defendant’s allegations and stated that she had never seen the defendant previously and had never given him permission to be in her car. Both officers testified that, when Buckhalter opened her trunk and found the defendant, Buckhalter screamed in fright. Further, the defendant called Buckhalter by an incorrect name.

Decided July 9, 1998.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

“[I]t is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). The jury chose to believe the victim. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of entering an automobile and obstruction of a law enforcement officer by refusing to cooperate in being fingerprinted. Jackson v. Virginia, supra.

Judgment affirmed.

McMurray, P. J., and Blackburn, J, concur.

       The defendant was found not guilty of Count 2, obstruction of a law enforcement officer by refusing to provide his name, address, and social security number to the arresting officer.


text:
    A98A1647.
    ATWATER v. THE STATE.
    (503 SE2d 919)
   Eldridge, Judge.

A Ware County jury found Jonathan Atwater guilty of two counts of robbery by sudden snatching. He appeals. We affirm.

At approximately 7:00 a.m. on August 7, 1997, a taxi cab picked up Atwater in downtown Waycross. At Atwater’s direction, the cab driver pulled over so that Atwater could speak to friends. As the driver pulled over to the curb, Atwater reached into the driver’s shirt pocket, removed $26, jumped out of the cab, and ran. An acquaintance of Atwater’s witnessed the robbery and provided Atwater’s identification to the police.

Three hours later, Atwater entered the Super 10 store in Way-cross and approached the cashier, ostensibly to purchase a box of Chiclets. When the cashier opened the cash drawer for the purchase, Atwater reached into the drawer, grabbed $360, and ran from the store. Atwater made his escape on a black Beach Cruiser bicycle, which was found five minutes after the robbery outside of a residence located at 1006 H. J. Echols. The owner of the residence consented to a search of the premises, and Atwater was found hiding in a back bedroom that the owner rented to a woman named Sonya Brooks. Atwater was sweating profusely as if he had been running. During the search of his person incident to arrest, Atwater stated ‘What are you looking for? The money? It’s over there in the laundry basket.” Seventy-five dollars was recovered from the laundry basket. Thereafter, Atwater gave a statement to the police in which he admitted to the commission of both robberies. Held:

1. The evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that Atwater was guilty of two counts of robbery by sudden snatching. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Based upon the “fruit of the poisonous tree” doctrine, Atwater challenges the trial court’s denial of his motion to suppress his statements and other evidence gained following his arrest. Atwater contends that the owner of the residence located at 1006 H. J. Echols was not authorized to consent to a search of the back bedroom in which Atwater was found, since the owner rented the room to Sonya Brooks. Atwater claims that he was Sonya Brooks’ “overnight guest” at the residence and frequent “social guest”; thus, Atwater contends that he had an expectation of privacy therein, and the officers’ warrantless entry into the residence allegedly violated his Fourth Amendment rights. We do not agree.

“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U. S. 128, 134 (99 SC 421, 58 LE2d 387) (1978). The burden is on the one claiming a violation of Fourth Amendment rights to demonstrate that he has standing tó contest such violation, i.e., that he has a legitimate expectation of privacy in the premises searched. Rakas v. Illinois, supra at 148-149; Keishian v. State, 202 Ga. App. 718 (415 SE2d 324) (1992).

Here, Atwater failed in his burden to show that he has standing to challenge the officers’ entry into the room of Sonya Brooks. While Atwater claims that he was an “overnight guest” and frequent “social visitor” in Brooks’ room, Sonya Brooks did not testify on Atwater’s behalf at the motion to suppress, Atwater did not testify at the motion to suppress, and the only evidence produced in support of Atwater’s contentions came in the form of inadmissible hearsay, as will be discussed in Division 3, infra. Without evidence of Atwater’s standing to challenge the search of Brooks’ room, the trial court’s denial of Atwater’s motion to suppress is not error. Ferron v. State, 216 Ga. App. 456 (454 SE2d 637) (1995). This enumeration of error is without merit.

3. Next, Atwater contends that the trial court committed reversible error by refusing to permit the introduction of the out-of-court statements of Sonya Brooks. Atwater claims that such out-of-court statements were admissible under the “necessity exception” to the hearsay rule and would have demonstrated his standing to contest the warrantless entry into Brooks’ room in support of his motion to suppress. We disagree.

During the motion to suppress, the defense called Sonya Brooks to the stand. After the call, it was determined that Brooks did not honor her subpoena and appear. The defense attorney then called to the stand a legal assistant with the public defender’s office; the assistant had been present during the defense attorney’s interview with Brooks “about two o’clock yesterday afternoon.” After the State made a hearsay objection, the defense argued that Brooks’ statement was admissible under the necessity exception to the hearsay rule. The trial court sustained the State’s objection, but allowed the defense to proffer the statement for appellate purposes. The legal assistant then testified that Brooks told her that Atwater had permission to come into her room; that he had come into the room oil “five or six occasions” prior to the incident; and that he had stayed in the room on the incident date “from approximately one a.m. in the morning until eight a.m.”

OCGA § 24-3-1 (b) provides that hearsay evidence is admissible in specified cases from necessity. There are two prerequisites for admission of hearsay because of necessity: 1) necessity, i.e., unavailability; and 2) particularized guarantees of trustworthiness. Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991); McBee v. State, 228 Ga. App. 16 (491 SE2d 97) (1997).

Pretermitting the validity of the defense attorney’s claim of “unavailability” as to a witness he had interviewed only the day before, we conclude that the second prong for the introduction of evidence under the necessity exception to the hearsay rule was not satisfied; the record does not show the presence of particularized indicia of reliability and trustworthiness so as to make Brooks’ out-of-court statement admissible. Atwater, as a frequent overnight guest in Ms. Brooks’ room, was obviously (at a minimum) a close friend, thereby making Brooks’ statement subject to partiality. See Mallory v. State, supra. Such close relationship presents an “insufficient [ ] basis for demonstrating the reliability necessary to authorize the admission of hearsay testimony under the necessity exception.” Carr v. State, 267 Ga. 701, 705 (482 SE2d 314) (1997).

In addition, Brooks’ statement lacks any spontaneity or timeliness; the statement was clearly made in preparation for trial, since it was given the day before trial when the incident occurred some five months previously. Compare Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979).

Finally, Brooks’ statement is not corroborated in any fashion; in fact, her statement that Atwater was present in her room at 8:00 a.m. on the day of the incident is belied by the testimony of the cab driver who picked Atwater up in Waycross at 7:00 a.m., as well as by Atwater’s own confession to the robbery of the cab driver during that same 7:00 a.m. time period.

Absent the requisite indicia of reliability and guarantees of trustworthiness, the trial court did not err in refusing to permit the introduction of Brooks’ out-of-court statement under the “necessity exception” to the hearsay rule.

4. Atwater contends that the statement he gave to the police was involuntary because “[interrogating a suspect who is under the influence of crack cocaine or withdrawal symptoms and inflicting sleep deprivation constitutes an interrogation method of torture and duress.” In addition, Atwater claims that the interviewing officer’s explanation of the difference between concurrent and consecutive sentences “coerced” his confession. Thus, Atwater contends that the trial court erred in admitting his custodial statement.

We have reviewed the record of the Jackson/Denno hearing conducted in this case in relation to Atwater’s contentions and find no evidence of torture, duress, or coercion. The interviewing officer testified that he advised Atwater of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); that Atwater indicated he understood those rights; that Atwater was not subjected to anything which induced him to give up his rights; and that Atwater voluntarily executed a form waiving his rights under Miranda v. Arizona, supra. Further, the record shows that the interviewing officer’s explanation of the difference between consecutive and concurrent sentences was not offered as an incentive to make the contested statement; the officer’s explanation was given during the videotaped interview which was conducted after Atwater had made his initial confession to the two robberies.

Also, while the record shows that Atwater seemed tired, he did not ask for the questioning to stop, although the officer advised him that he could do so; the questioning only lasted for 15 or 20 minutes, during which time the officer testified that Atwater did not appear to be under the influence of drugs and appeared to comprehend the questions asked. Further, the record indicates that any drug use would have occurred after the first, 7:00 a.m. robbery, some four hours prior to the interview. “If [Atwater] had been exhibiting symptoms of drug withdrawal, that fact does not render his statements involuntary.” Bright v. State, 265 Ga. 265 (5) (b) (455 SE2d 37) (1995).

“In deciding the admissibility of a statement during a JacksonDenno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.” (Citations and punctuation omitted.) State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992). The evidence here supports the trial court’s finding that Atwater’s statement was voluntary. No error has been shown. Accordingly, we find no error in the trial court’s ruling. Williams v. State, 214 Ga. App. 423 (447 SE2d 716) (1994); Baird v. State, 198 Ga. App. 791 (402 SE2d 802) (1991).

5. It was not error for the trial court to deny Atwater’s motion for continuance, made in the middle of trial, in order to secure the testimony of Sonya Brooks. During trial, Atwater argued that his inability to locate Brooks reached the extent that the trial court should consider her legally “unavailable,” and admit her out-of-court statement under the necessity exception to the hearsay rule. See Division 3, supra. When that argument did not meet with success, Atwater requested a continuance in order to secure Brooks’ attendance. However, Atwater failed to demonstrate any of the prerequisites for the proper granting of such continuance, including that Atwater would actually be able to procure the testimony of such an “unavailable” witness. OCGA § 17-8-25. “Because the record shows that [Atwater] failed to satisfy each of the requirements of OCGA § 17-8-25 in seeking the continuance, we cannot say the trial court abused its discretion.” Denny v. State, 226 Ga. App. 432 (2) (486 SE2d 417) (1997).

6. Next, Atwater claims that the trial court erred in denying his extraordinary motion for new trial based on “newly discovered evidence,” i.e., the affidavit of Sonya Brooks stating essentially the same information as the defense proffered during trial when attempting to tender Brooks’ out-of-court statement pursuant to the necessity exception to the hearsay rule. Obviously, then, the information contained in the affidavit was not “newly discovered.” Atwater cannot get in through the back door that which he was unable to use during trial. Accordingly, for the reasons discussed in Divisions 3 and 5, supra, the trial court did not err in denying Atwater’s extraordinary motion for new trial.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

Decided July 9, 1998.

Edward E Smith, for appellant.

Richard E. Currie, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).


author: Ruffin, Judge.

text:
    A98A0153.
    HEAD et al. v. SEARS ROEBUCK & COMPANY et al.
    (503 SE2d 354)
   Ruffin, Judge.

Inez Head sued Sears Roebuck & Company and a “John Doe” Sears employee (collectively “Sears”) for injuries she allegedly sustained when she fell in one of Sears’ retail stores. Inez’s husband, Albert Head, also sued Sears for loss of consortium. The trial court granted summary judgment to Sears, and the Heads appealed. For reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to the Heads, the evidence of record shows that on the day of the incident they went to Sears to purchase a dress. After entering the store, Albert proceeded directly to the dress racks while Inez waited for a friend who was at the information booth. Albert soon found a dress and when he called Inez to come see it, she started walking toward him. As Inez approached the area where Albert was standing, she encountered a vase of flowers on a pedestal. Adjacent to the pedestal was a moveable clothing rack that store employees used to transport stock throughout the store. As Inez was walking past the pedestal, an unidentified woman pulled on the moveable clothing rack and the flower vase simultaneously fell to the floor immediately in front of Inez. Inez, who was 72 years old at the time, was in midstride and tripped over the vase of flowers injuring herself.

Although both Albert and Inez Head gave extensive deposition testimony concerning the incident, neither plaintiff was able to specifically identify who or what caused the vase of flowers to fall. According to Albert, the pedestal was not in Inez’s way when she walked toward him. As for the clothing rack, Albert stated: “Whoever was moving [it] I don’t know. It was a lady, she moved the rack and I saw the rack move and I tried to run to catch her.” In his deposition, Albert further stated that he never saw the moveable clothing rack touch the pedestal, but he speculated that the rack may have either bumped the pedestal or that it “[h]ad something to do with the vibration that made them fall there [sic] that particular time.”

Similarly, in her deposition Inez Head testified that she did not know what caused the flower vase to fall. Like Albert, Inez stated that she had a “clear path” to where Albert was standing. However, with regard to the cause of the accident, Inez testified: “Maybe I just don’t know how it happened, but I know one thing; the flower fell out on me, [sic] I fell and hurt myself.” All she could say with certainty was that “the flower fell. It fell. And I stumbled over it. . . . Whatever it was they fell out in front of me, I stumbled over it.” Unlike Albert, Inez Head did not remember anyone moving the clothing rack.

In their complaint, the Heads alleged that Sears negligently created a dangerous condition in its store when “Defendant, John Doe, Employee pushed a display over onto the path of Plaintiff, causing Plaintiff to slip and fall as a result of same.” In granting summary judgment to Sears, the trial judge found that, inter alia, “[e]ven under the deposition testimony of the Plaintiffs, Plaintiffs cannot by anything more than speculation establish any negligence by Defendant which proximately caused any of Plaintiffs’ alleged injuries or damages.” We agree with the trial court.

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to [grant summary judgment] for the defendant.” (Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994). Likewise, “ ‘[i]t is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. [Cit.]’ [Cit.]” Wilkerson v. Alexander, 208 Ga. App. 83, 85 (1) (429 SE2d 685) (1993).

Decided June 26, 1998

Reconsideration dismissed July 10, 1998.

Joseph M. Todd, for appellants.

Gray & Hedrick, L. Bruce Hedrick, Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Michael C. Cherof, for appellees.

In this case, the Heads merely established the occurrence of an unfortunate event and failed to meet their burden of pointing to specific evidence showing that Sears caused their alleged injuries. See Lau’s Corp., supra; Nelson, supra. Pretermitting whether there was any evidence giving rise to a reasonable inference that the moveable rack caused the vase to fall, we find that the Heads cited no evidence showing that a Sears employee moved the rack. To the contrary, Albert Head stated that he did not know who moved the rack and Inez Head did not even recall the rack moving. Under these circumstances, the Heads’ allegation that a Sears’ employee negligently moved the rack into the flower vase causing it to fall is nothing more than speculation. Inasmuch as the Heads failed to point to any evidence establishing the essential element of causation, the trial court properly granted summary judgment to Sears. See id.; Lau’s Corp., supra.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A0299.
    In the Interest of D. S. P., a child.
    (504 SE2d 211)
   McMurray, Presiding Judge.

This is an appeal by the biological father of D. S. P. from an order denying his petition to legitimate and terminating his parental rights in the child. The child was conceived in the fall of 1995 when the unwed parents engaged in sexual intercourse during their first or second date. By early December, the mother realized that she was pregnant and had told appellant that he was the father. During December, the couple spent substantial time together in an attempt to “work things out,” but by the end of that month it was apparent to both that they were essentially incompatible.

Towards the end of December or early January 1996, appellant suddenly changed his residence, possibly due to some disruption in his employment situation, and the couple briefly lost contact but did speak by telephone during January. The evidence is in conflict as to whether it was before appellant’s move or during the January telephone conversation that the mother informed appellant that there were three other possible fathers of the child. Appellant stated his desire to obtain a blood test to determine the paternity of the child but the mother was reluctant to cooperate. There was no further contact between the parents until approximately two months after the birth of the child when appellant initiated contact by appearing at the home of the mother’s parents.

Meanwhile, the mother had made arrangements to place the child for adoption through a licensed adoption agency, Hope For Children, Inc. Indeed, the child left the hospital following birth with the proposed adoptive parents and has been in their care.

Appellant renewed his insistence on a blood test to determine paternity and a test was conducted. Hope For Children, Inc. filed a petition for termination of appellant’s parental rights. Appellant filed a petition seeking to determine paternity and to legitimate the child. Subsequently, the results of a blood test showed that appellant is the biological father of the child. Held:

1. This case is properly before this Court on direct appeal. An order terminating parental rights is directly appealable. In re S. N. S., 182 Ga. App. 803 (357 SE2d 127); In the Interest of R. L. Y., 180 Ga. App. 559 (349 SE2d 800).

Appellee maintains that this is no more than an appeal from an order in a legitimation proceeding and thus subject to dismissal in the absence of compliance with the discretionary appeal procedure pursuant to OCGA § 5-6-35 (a) (2). See also Hill v. Adams, 182 Ga. App. 848 (357 SE2d 300); Brown v. Williams, 174 Ga. App. 604 (332 SE2d 48). However, appellee is incorrect. Even if the relief sought via this appeal has been expressed by appellant primarily in terms of overturning the denial of the petition to legitimate, that relief may not be granted without also reversing the termination of parental rights. See Alexander v. Guthrie, 216 Ga. App. 460 (454 SE2d 805).

2. “In In re Baby Girl Eason, 257 Ga. 292, 297 (358 SE2d 459) (1987), the Georgia Supreme Court held that unwed fathers possessed an opportunity interest to develop a relationship with their children which was protected by due process of law. ‘This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. . . . It is, then, an interest which can be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense. Absent abandonment of his interest, a state may not deny a biological father a reasonable opportunity to establish a relationship with his child.’ Id. at 296.

“The abandonment of an unwed father’s opportunity interest discussed by the Supreme Court in Eason, is not governed by the abandonment of the child contemplated in OCGA § 19-8-6 (a). ‘ “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.” (Cit.)’ Eason, supra at 296.” Turner v. Wright, 217 Ga. App. 368 (1) (457 SE2d 575).

The superior court determined that appellant had abandoned his opportunity interest in the child via his conduct during the pregnancy when he offered no prenatal assistance or support of any kind for the child. Appellant’s disregard of his opportunity interest during the mother’s pregnancy is as significant as such a disregard after the child is born. Turner v. Wright, 217 Ga. App. 368, 369 (1), supra. See also Alexander v. Guthrie, 216 Ga. App. 460, 461 (1), supra.

In his first enumeration of error, appellant contends that the superior court erred in denying his petition to legitimate. Appellant argues that he did not abandon his opportunity interest and points to the doubt as to the paternity of the child and to the mother’s actions in attempting to advance her goals for the child.

With regard to the doubtful paternity of the child, the superior court was able to consider appellant’s actions, or lack of action, in the period of time after appellant learned of the pregnancy and before the mother told him of the additional possible fathers. During this period of time appellant refused to attend crisis counseling or otherwise provide emotional support to the mother. The mother was hospitalized and appellant provided no financial support as a result even though appellant was financially able to provide such support. Despite some time spent together, appellant and the mother never reached any mutual accord concerning the future of the child before they had a falling out. Shortly thereafter, appellant moved and communications between appellant and the mother ceased.

Furthermore, the superior court was authorized to consider appellant’s conduct after he learned that paternity was in doubt. Assuming that this information warranted some circumspection on the part of appellant, a negative inference is nonetheless appropriate in view of the complete absence of communication with the mother from January until September 1996, and from appellant’s continued failure to provide any emotional or financial support for the mother. Despite knowing that the mother intended to have the child adopted and having voiced a desire for a blood test to determine paternity, appellant did nothing with regard to either of these issues until almost two months after the child’s birth.

We find no merit in appellant’s contention that the mother’s actions in seeking adoption for the child, rather than deferring to his objections to adoption, and in failing to keep him informed as to her preparations for adoption, somehow excused his inaction in assuming any responsibility for the child. Had appellant made an effort to communicate with the mother following the January telephone call, he might have been better informed as to her progress in arranging an adoption.

Under the evidence presented at trial, the superior court did not err in determining that appellant had abandoned his opportunity interest to develop a relationship with the child. In re Baby Girl Eason, 257 Ga. 292, 297, supra; Turner v. Wright, 217 Ga. App. 368 (1), 369, supra; Alexander v. Guthrie, 216 Ga. App. 460, supra. In reaching this holding, we specifically reject appellant’s argument that the Turner and Alexander cases, which were cited by the superior court in its order, may be distinguished on the facts. Contrary to appellant’s argument, the reasoning upon which these cases are predicated may not be limited to cases involving fathers incarcerated due to criminal activities. The fathers in Turner and Alexander unsuccessfully sought to use their incarceration as an excuse for failing to assume any responsibility for their children. The appellant in the case sub judice was not incarcerated, but merely chose to disregard his opportunity to assume responsibility for the child during the pregnancy and for a time after the birth of the child. In each case, the finding that the opportunity interest has been abandoned is ultimately based on a voluntary choice made by the father.

3. The superior court did not err in allowing the proposed adoptive parents to testify regarding their living conditions with the child, their employment, and the child’s state of mind. While appellant argues that such testimony is not relevant to the issue of whether appellant abandoned the child and suggests that the superior court used an improper standard of the best interest of the child in denying appellant’s motion to legitimate, the evidence was properly admitted under a procedure to which appellant’s counsel consented. Under the agreed procedure, appellee Hope For Children, Inc. was required to first present a prima facie case supporting the termination of appellant’s parental rights. In the presentation of a prima facie case for termination of parental rights, appellee was required to prove that termination is in the best interest of the child. In the Interest of H. L. W., 229 Ga. App. 264 (493 SE2d 637); In the Interest of K. A. C., 229 Ga. App. 254, 255 (3) (493 SE2d 645); In re J. E. E., 228 Ga. App. 831, 834-835 (2) (493 SE2d 34). The challenged evidence was relevant to the best interest of the child issue, but under the procedural agreement this was an issue properly before the superior court. “[0]ne cannot complain of a judgment, order, or ruling that [one’s] own procedure or conduct procured or aided in causing, nor can [one] be heard to complain of or question on appeal a judgment which [one] invokes.” Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (2) (486 SE2d 851). Additionally, there is nothing of record to support appellant’s argument that the superior court applied an incorrect standard of review in ruling on appellant’s petition to legitimate.

Decided June 22, 1998

Reconsideration denied July 10, 1998

Andrea R. Moldovan, for appellant.

Huff & Woods, Jeanne D. Woods, for appellee.

4. Also enumerated as error is the superior court’s “considering the testimony as to whether [appellant] had any contact with the adoptive parents inasmuch as their identity was confidential and in that his failure to communicate [with] the child was a result of state action through its adoption laws contrary to the In re Baby Girl Eason, 257 Ga. 292 (1987).” The argument in support of this enumeration of error is difficult to follow, but culminates in an assertion that the superior court erred in considering certain evidence on the issue of abandonment, and apparently this was further evidence to which appellant objected on the basis that it was irrelevant because directed to the best interest of the child issue rather than the issue of abandonment. As we have already determined in the preceding division of this opinion that the superior court did not err in admitting evidence relevant only to the issue of the best interest of the child, we further conclude that this enumeration of error lacks merit.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A0605.
    McMILLAN v. SIVER.
    (504 SE2d 208)
   Judge Harold R. Banke.

The underlying case arose from the vestiges of a business relationship between Donald McMillan and Mark W. Siver that deteriorated. Under the terms of a contract to purchase the Auto Hospital, an automobile repair business, McMillan and Siver were obligated to make monthly payments to Billy Ray Hatley and on Hatley’s bank note. About two months later, Siver sold his half interest in the business. When payments fell into arrears several months later, Hatley retook the business.

Feeling that he was entitled to half of the proceeds from Siver’s sale of his interest, McMillan swore out an arrest warrant against Siver, accusing his former business partner of theft by conversion. Siver sent a demand letter to McMillan’s attorney, Adrian F. Lanser III, threatening legal action if the affidavit of arrest was not withdrawn. After the criminal charge was dismissed for lack of probable cause, Siver sued McMillan for malicious arrest, malicious prosecution, and intentional infliction of emotional distress. McMillan filed a third party action against Lanser, and his law firm, Lanser, Levinson & Paul, P. C., in which he claimed that Lanser had misadvised him when Lanser drafted the warrant.

Prior to trial, as a discovery-related sanction, the court struck McMillan’s answer and counterclaims. The action proceeded to trial on the issue of damages in connection with Siver’s claims against McMillan and on McMillan’s third party claim against Lanser and his firm.

By McMillan’s own admission, the warrant should never have been issued. McMillan admitted that he was aware at the time that he swore out the warrant that Siver had not sold anything not belonging to him and that the affidavit for arrest was untrue and inaccurate. He acknowledged that he never really believed that Siver had committed a crime and admitted that he swore out the warrant as a means of recouping part of the money he had lost.

When McMillan sought to have his wife, Kelly McMillan, testify as a rebuttal witness, Lanser objected. Lanser claimed that she was a surprise witness being offered in violation of a verbal agreement with McMillan’s counsel that in the event that she was to testify, counsel would be afforded an advance opportunity to depose her. The trial court then conducted a hearing on the matter. Two lawyers representing Lanser affirmatively stated that notwithstanding the fact that the witness had been listed in the pretrial order as a “may call” witness, it was understood that she would not be called without Lanser being afforded an opportunity to depose her. McMillan’s attorney did not contradict their assertions but only maintained that he had no recollection of any such agreement. Based on these statements, the trial court determined that an agreement existed and ruled “as a matter of professionalism that she [Kelly McMillan] cannot testify.” After the court’s ruling, McMillan posed no objection to the exclusion of the testimony.

The jury returned a verdict in favor of Siver for $52,750 plus attorney fees of $35,000. The jury found in favor of Lanser on McMillan’s third party claim. Held:

In his sole enumeration of error, McMillan contends that the trial court erred in refusing to allow his wife to testify because she had been named in the pretrial order and her testimony was relevant and material to disputed issues. He asserts that it is highly probable that the excluded testimony, if believed by the jury, would have altered the verdict in terms of the punitive damages and attorney fees.

Notwithstanding McMillan’s claim to the contrary, the trial court did not simply refuse to allow a witness who had been listed on a pretrial order to testify. Compare Ga. Building Svcs. v. Perry, 193 Ga. App. 288, 289-290 (1) (387 SE2d 898) (1989). Instead, the trial court made it abundantly clear that it based its ruling on counsels’ uncontroverted statements made in open court. Where a trial court, as here, makes a factual finding, the court’s determination will be affirmed unless it is clearly erroneous. Smith v. Smith, 248 Ga. 268 (1) (282 SE2d 324) (1981). Whether to permit a witness to testify lies within the sound discretion of the trial court and the court’s decision will not be disturbed absent abuse. Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 588 (6) (227 SE2d 77) (1976). Here, no abuse of that discretion has been shown.

Even assuming arguendo, that the alleged error was not waived by McMillan’s failure to object after the court’s ruling, McMillan did not show the requisite harm for reversal. Lewis v. Uselton, 224 Ga. App. 428, 430 (4) (480 SE2d 856) (1997). McMillan made no detailed proffer of the excluded testimony. Instead, counsel merely asserted that Kelly McMillan had overheard the discussion between McMillan and Lanser concerning the warrant, and would state that on more than one occasion her husband had said, “I don’t want to do this. This is not the way I want to pursue this, which Mr. Lanser has bent and denied.”

To afford a proper basis for review of an asserted error, it must be shown that pertinent questions would be asked and what the answers would be, and that such testimony was material and would have benefited the complaining party. Zohhe v. First Nat. Bank, 162 Ga. App. 604, 605 (2) (292 SE2d 444) (1982). In this case, only two issues remained for resolution: McMillan’s damages to Siver and Lanser’s liability, if any, to Siver, since McMillan was precluded from contesting his liability to Siver. McMillan’s terse summary of the projected testimony failed to establish how the excluded testimony would have been material to the issue of damages or how it would have been beneficial to his claims against Lanser. Zohbe, 162 Ga. App. at 605 (2). Having examined the skeletal outline proffered below, we cannot say that McMillan established the requisite harm. Money v. Daniel, 188 Ga. App. 215, 217 (3) (372 SE2d 305) (1988).

Decided June 17, 1998

Reconsideration denied July 10, 1998

John R. Gaughen, for appellant.

Kitchens, Kelley & Gaynes, Stephen V. Kern, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Jonathan E. White, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       In fact, McMillan’s counsel twice stated that he would “rather forego her testimony than have you believe that I would do that [misrepresent the terms of an agreement between counsel].”

       In any event, the excluded testimony about McMillan’s purported reluctance might have exacerbated the jury’s award of damages to Siver, if the jury believed that McMillan was hesitant because he knew that he was acting improperly in swearing out the warrant.


author: Pope, Presiding Judge.

text:
    A98A0936.
    DARDEN v. THE STATE.
    (504 SE2d 256)
   Pope, Presiding Judge.

Appellant Elaine Darden was convicted of one count of aggravated assault. The trial court denied Darden’s motion for new trial and this appeal followed.

On October 20, 1995, the victim, Marion White, was in a bar with his wife, Gail, and David Darden, Elaine Darden’s husband. David Darden received a call saying that there had been a disturbance at the Darden house and that Elaine Darden had been shot. David Darden left for home, and the Whites followed in their own car.

David Darden arrived home first and discovered that Elaine Darden was unhurt. At the house with Elaine Darden were James (Buck) Watson and her nephew, Lee Kelly. The Whites arrived a short time later, and Marion White began an argument with Watson, which escalated into a fight. Elaine Darden stopped the fight by firing her gun once, either into the ceiling or out the door, and then asked the Whites to leave her home.

After the Whites left the house, three shots were fired into the front door. As the shots were fired, the Whites began heading for their car. Elaine Darden then came out of the house and began shooting, injuring Marion White. The Whites testified that Jason Brown, Elaine Darden’s son, had fired the three shots into his mother’s house shortly after he arrived there.

1. Elaine Darden (“Darden”) first asserts that the trial court erred by not charging the jury on the defense of habitation under OCGA § 16-3-23. Darden’s trial counsel never requested this or any other charge. Nevertheless, Darden argues that the charge was required as it was her sole defense. Wells v. State, 200 Ga. App. 104, 105 (407 SE2d 86) (1991).

We find that the evidence does not support a charge under OCGA § 16-3-23. The use of force “which is intended or likely to cause death or great bodily harm” is justified under OCGA § 16-3-23 only if the person so injured is entering a habitation “in a violent and tumultuous manner.” The defendant also must reasonably believe that the entry is attempted or made “for the purpose of assaulting or offering personal violence” to someone in the house and that such force is necessary to prevent the assault or personal violence. Alternatively, the defendant must reasonably believe the entry is made for the purpose of committing a felony and that the force is necessary to prevent the felony. OCGA § 16-3-23.

The record in this case shows that although Darden may have believed that Marion White previously had been shooting into her house, White was not attempting to enter her house at the time Darden stepped outside and shot him. To the contrary, White was walking away from the house to his car. Darden acknowledged in her statement to police the night of the shooting that White was standing at the corner of her house, not at her door, when she fired. Therefore, OCGA § 16-3-23 is not applicable to the facts of this case. See Terrell v. Hester, 182 Ga. App. 160 (3) (355 SE2d 97) (1987) (defense of habitation not available where no evidence that plaintiff was attempting to enter or attack house when he was struck).

2. Darden next asserts that the trial court erred in allowing the appointment undér Superior Court Rule 29.8 of inexperienced counsel because she claims this case was complicated and confusing. However, as nothing in the record indicates the extent of Darden’s trial counsel’s experience, we cannot address this issue.

Darden first raised the issue of her trial counsel’s performance in an amended motion for new trial, after she obtained new counsel. The amended motion and counsel’s argument at the hearing addressed trial counsel’s failure to call witnesses in Darden’s defense. Darden’s new counsel, however, did not request an evidentiary hearing on the issue.

“In the absence of testimony to the contrary, counsel’s actions [including the decision not to call any witnesses] are presumed strategic[,]” Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188) (1992), and we find no error in the trial court’s ruling on this issue. Edwards v. State, 220 Ga. App. 74, 75 (467 SE2d 379) (1996) (“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.))

“It was [Darden’s] burden to establish that [her] trial defense counsel’s performance was deficient and that the deficient performance prejudiced [her] defense because there was a reasonable probability that the result of [her] trial would have been different but for [her] defense counsel’s unprofessional deficiencies. Further, [Darden] was required to overcome the strong presumption that the representation was effective.” (Citations omitted.) Clair v. State, 216 Ga. App. 414 (454 SE2d 556) (1995).

Darden also objects to numerous aspects of her trial counsel’s performance that were not raised at the amended motion for new trial. These claims are “procedurally barred.” Rucker v. State, 268 Ga. 406, 408 (489 SE2d 844) (1997); Glover v. State, 266 Ga. 183, 184 (465 SE2d 659) (1996).

3. Darden’s next two enumerations of error were raised for the first time on appeal. In her third enumeration, Darden objects to the trial court’s failure to hold an evidentiary hearing on her pre-trial motions. No objection was raised at trial or in the amended new trial motion on this issue. Darden’s fourth enumeration asserts that the trial court erred in failing to produce a witness on its own initiative to appear in Darden’s defense. Although Darden alleges that the trial court “vowed” to make that witness available, Darden’s counsel never attempted to subpoena the witness and, in fact, called no witnesses in Darden’s defense. Further, Darden raised no objection either at the trial or in the amended motion for new trial to the court’s “failure” to produce this witness.

Because the record shows no objection preserving these issues, we cannot decide them. Dukes v. State, 224 Ga. App. 305, 308 (480 SE2d 340) (1997); Radford v. State, 205 Ga. App. 379, 380 (422 SE2d 72) (1992).

Decided July 10, 1998.

Richard T. Bridges, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

4. Darden asserts as her last enumeration that the trial court erred when it ordered her to pay restitution of $200 per month without holding a hearing or making findings on the record as required by OCGA § 17-14-10. We agree. Accordingly, the sentence must be vacated and the case remanded with direction. ‘We find that OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” (Citations and punctuation omitted.) Pruitt v. State, 230 Ga. App. 334 (2) (496 SE2d 334) (1998); Helmeci v. State, 230 Ga. App. 866, 870 (498 SE2d 326) (1997). “If the trial court again imposes restitution as a condition of probation on remand, it (and the State) should ensure that a hearing is held, the necessary factors are considered, and the necessary findings are made — on the record.” Jones v. State, 224 Ga. App. 340, 341 (2) (480 SE2d 618) (1997).

Judgment of conviction affirmed; sentence vacated and case remanded with direction.

Beasley and Ruffin, JJ, concur.

       White is also Darden’s ex-husband.

       Brown was indicted for the offense of reckless conduct in connection with this incident and was tried together with Elaine Darden. He was found guilty, but his conviction is not challenged in this appeal.

       Darden’s failure to request an evidentiary hearing waives her right to such a hearing. Dawson v. State, 258 Ga. 380 (2) (369 SE2d 897) (1988).

       Darden attaches a number of affidavits to her appellate brief from witnesses she claims her trial counsel should have called. We cannot consider these affidavits, however, because exhibits to a brief on appeal are not part of the record. Jones v. State, 224 Ga. App. 340, 341 (480 SE2d 618) (1997); State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996).


author: Beasley, Judge.

text:
    A98A0959.
    INGRAM v. THE STATE.
    (504 SE2d 254)
   Beasley, Judge.

Ingram was convicted of robbery by force (OCGA § 16-8-40 (a) (1)), entering an automobile with the intent to commit theft (OCGA § 16-8-18), and simple battery (OCGA § 16-5-23). By consent order, he was allowed to file this out-of-time appeal from the denial of his motion for new trial.

The victims were Harriett Fisher and her aunt Emma Williams. Ingram filed a motion to suppress evidence of a pretrial identification of him by Williams, who died before trial. The State filed a motion seeking to admit evidence of a written statement given by Williams to Detective Lowry when she made the identification. In his two enumerations of error, Ingram complains of the court’s rulings adverse to him on both motions and of the admission in evidence of Williams’ pretrial identification and statement to police.

Williams’ pretrial statement and Fisher’s trial testimony showed that on June 30, 1994, Williams’ car broke down on the highway. At approximately 6:50 p.m. the following day, Fisher drove Williams to the car to meet a tow truck. They found Ingram on the scene and initially assumed he was from the tow company, but it quickly became apparent he was not. When he entered Fisher’s car without permission, both women got into the car and attempted to remove the keys from the ignition. After battering and threatening to kill both women, Ingram sped away.

Detective Lowry entered the case on July 6, when Ingram was arrested driving Fisher’s car. Lowry incorporated a picture of Ingram into a photographic array, which he displayed to Williams on August 4. Williams positively identified Ingram as the assailant within seconds after viewing the array. After she made the identification, Lowry informed her that Ingram had been arrested in Fisher’s car.

In his motion to suppress, Ingram challenged the photographic lineup as being unduly suggestive. At the pretrial hearing on the motion, the court rejected the challenge and ruled that the evidence of identification of him by the deceased witness could be admitted under the necessity exception to the hearsay rule. OCGA § 24-3-1 (b). At a subsequent pretrial hearing, the court ruled that a written statement given by Williams when she made the photographic identification was likewise admissible under the same exception.

This practical approach to proof exception may be utilized if two prerequisites are established: “(1) that a necessity for the exception exists; and (2) that there is a ‘circumstantial guaranty of trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.’ [Cit.]”

1. Williams’ pretrial identification.

Both the Supreme Court of Georgia and this Court have held that a law enforcement officer is permitted to testify, as was done here, to “a vocal fact of identification” witnessed by himself without its being subject to a hearsay objection.

2. Williams’ pretrial statement.

Ingram acknowledges that the declarant’s pretrial death meets the necessity prong. As to the second prong, the court was authorized to find circumstantial guarantees of trustworthiness based on the following facts: the statement was voluntarily made to a police officer in the course of an official investigation immediately after the declarant was contacted by police; the statement was consistent with the statement given by the declarant immediately after the incident; the statement was never recanted by the declarant; the statement was signed by the declarant; and the statement was corroborated by the testimony given by the other victim.

Decided July 10, 1998.

Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        White v. State, 268 Ga. 28, 29 (2) (486 SE2d 338) (1997).

        Haralson v. State, 234 Ga. 406, 408 (4) (216 SE2d 304) (1975); Woodard v. State, 175 Ga. App. 449, 450 (3) (333 SE2d 645) (1985). But see Wade v. State, 208 Ga. App. 700 (1) (431 SE2d 398) (1993) (physical precedent only), and Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994), which both criticize the rule in Haralson and Woodard. Apparently the allowance is based on a characterization of what the officer observes as an oral act and not merely a verbal statement.

       E.g., White, supra at 30.

         E.g., White, supra; McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993).

       E.g., White, supra; Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839) (1991).

       E.g., White, supra; Nelson v. State, 262 Ga. 763, 765 (3) (426 SE2d 357) (1993).

        White, supra.

       E.g., White, supra; Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (1989).


text:
    A98A1019.
    WRIGHT v. THE STATE.
    (504 SE2d 261)
   Beasley, Judge.

Judgment was entered against Gene Arthur Wright on three counts of rape (OCGA § 16-6-1), three counts of statutory rape (OCGA § 16-6-3), and one count of aggravated child molestation (OCGA § 16-6-4 (c)). The victims were three sisters, aged five, eight and nine. Error is claimed as to four rulings of the trial court: (a) refusal to admit an expert’s testimony regarding whether the victims’ videotaped statements were coached; (b) denial of new trial on the ground that during voir dire a juror mistakenly denied knowing one of the victims; (c) refusal of funds to hire an expert; and (d) the failure to merge rape and statutory rape convictions as factually duplicative.

1. Wright asked the court, unsuccessfully, for funds to hire a psychiatrist or psychologist to either interview the child victims or watch a videotape of their interviews with DFACS caseworkers “to determine the psychiatry or psychosis of these children, so that [the expert] can determine whether these children are, in fact, telling the truth or whether they’ve been counseled to say what they are saying.”

Wright persuaded a psychologist to review the videotape pro bono and proffered his testimony at trial. The psychologist testified the interviews were “very professional” but that he would have conducted them somewhat differently (e.g., a forty-one minute interview of a six-year-old was too long, the lead interviewer should have been an African-American female, and the interviewers should have used a white male doll and made the children more comfortable with the dolls). He also testified that the three children followed the same pattern in describing the sexual encounters and one child used the language of the interviewer in responding to questions, which factors, while not indicative of coaching, led him to believe there was a possibility of coaching. The court refused to admit the expert’s testimony. Wright contends he simply wanted to expose the jury to interviewing techniques and possible signs of coaching.

“The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible. . . ,” “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. However, it is equally clear that the scope of what is admissible as expert opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his case as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others. Furthermore, because the admission of such evidence, including a trial court’s ruling on a motion in limine, is a matter resting within the sound discretion of the trial court, we will not disturb the trial court’s ruling absent evidence of abuse.”

Judging credibility of a witness does not require the aid of experts in the science of psychology. In law, an expert witness “may not testify as to his opinion of the victim’s truthfulness.”

Barlow v. State is on point. Without avail, Barlow sought to introduce a psychologist’s testimony that the detective’s method of interviewing the child molestation victim was so flawed that it elicited statements that were not credible. This Court affirmed, reasoning that the enterprise of “[questioning children to ascertain truth is commonplace. Ordinary women and men can detect the suggestibility of leading questions even if they do not know the legal term for such answer-guiding queries. Ordinary women and men can determine the effect of surroundings and circumstances on a person’s statements, which is precisely why the United States Supreme Court reversed the conviction in Crane v. Kentucky, 476 U. S. 683 (106 SC 2142, 90 LE2d 636) (1986). . . . [What is at issue is] whether the child’s responses were truthful, considering her demeanor, behavior, manner of wording her responses, content of her responses, surroundings, and all other circumstances of her jury-observed out-of-court statements.”

Wright’s jury not only saw the videotaped interviews for themselves but also heard and observed the three victims’ direct and cross-examination as witnesses. The information thereby garnered sufficiently enabled the jurors to perform the task of assessing the truth of the testimony.

The court did not abuse its discretion in refusing to admit the psychologist’s proffered testimony.

2. During voir dire the juror who was later elected to be foreman did not respond when asked if he knew one of the victims named. He did not recognize her as someone he knew until she appeared at trial, when he realized she was one of the more than 600 students attending the elementary school where he was vice-principal. He did not so inform the court.

Wright learned of the juror’s knowledge after trial, moved for a new trial, and presented as his only evidence the juror’s oral testimony. The juror testified that his recognition of the victim did not influence his decision or his evaluation of her testimony. The court denied the motion, which ruling is subject to review for abuse of discretion.

“In order to obtain a new trial, defendant ] must show that the juror failed to answer honestly a material question and that the correct response would have provided a valid basis for a challenge for cause. [Cits.]” Wright’s plea, that we should ignore this two-step test of the Supreme Court of Georgia and rely on older Court of Appeals’ authority, is rejected.

Wright did not pass the test. First, he failed to produce any probative evidence, which is essential. “As a matter of public policy, a juror can not be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” This applies to both oral and written testimony and obtains even if there is no objection to the testimony. Where, as here, the only evidence presented at the motion for new trial is the testimony of the juror who incorrectly answered the voir dire questions, the defendant has failed to provide any probative evidence of the disqualification or bias and is not entitled to a new trial.

The only two exceptions to this rule against a juror submitting testimony are “where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations.” Familiarity with witnesses is not covered in either of these exceptions.

Second, even if the juror’s testimony were admissible, Wright did not show that if the juror had answered correctly, the juror would have been excused for cause. Knowing a witness does not disqualify a juror unless it creates a fixed and definite bias in the juror’s mind. Where the juror disclaims any bias or testifies he can lay aside his impression or opinion, the court is not required to dismiss the juror. Stiles v. State, involving a juror who knew the witness, a deputy sheriff, illustrates instances where it was not error to deny a new trial.

Decided July 10, 1998.

Bennett Law Firm, John D. Holt, for appellant.

J. David Miller, District Attorney, for appellee.

3. The next question presented is whether the court erred in refusing to authorize funds for Wright to hire an expert witness to evaluate the children’s testimony. No harm results where, as here, an expert provided the services free of charge.

4. The final issue, whether the rape and statutory rape charges should have merged as a matter of fact, is procedurally defective. Wright “did not object in the trial court to the sentences imposed nor contend that the . . . offenses merged. Thus, the matter was not preserved for appellate review. [Cit.]”

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 24-9-67.

       (Citations and punctuation omitted.) Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (a) (489 SE2d 99) (1997).

       (Citations and punctuation omitted.) Jennette v. State, 197 Ga. App. 580, 582 (3) (398 SE2d 734) (1990); see OCGA § 24-9-80 (“The credibility of a witness is a matter to be determined by the jury”).

       229 Ga. App. 745 (494 SE2d 588) (1997).

       Id. at 747-748 (2); see Campbell v. State, 221 Ga. App. 135, 137 (470 SE2d 524) (1996) (court correctly refused to admit testimony of caseworker that earlier allegations were false based on the “possibility that the victim had been coached because of her use of [certain] phrases”).

       See Carlock, supra, 227 Ga. App. at 361 (3) (b) (standard of review is abuse of discretion).

        Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 SE2d 786) (1993).

        Gardiner v. State, 264 Ga. 329, 333 (3) (444 SE2d 300) (1994); see Royal v. State, 266 Ga. 165, 166 (2) (465 SE2d 662) (1996).

       See McCann v. Kelley, 209 Ga. App. 179, 181 (433 SE2d 130) (1993) (Beasley, P. J., concurring specially) (“we are bound by the Supreme Court’s decision in . .. Hummel”).

        Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (1) (390 SE2d 55) (1989).

       (Citations omitted.) Bowden v. State, 126 Ga. 578 (1) (55 SE 499) (1906).

       OCGA § 9-10-9 (“The affidavits of jurors may be taken to sustain but not to impeach their verdict”); PIE Nationwide v. Prickett, 189 Ga. App. 77 (374 SE2d 837) (1988) (physical precedent only) (“This prohibition against the impeachment by a juror of his verdict extends to oral testimony offered at a hearing”).

        Reece v. State, 208 Ga. 690, 691 (1) (69 SE2d 92) (1952).

        Pinkston v. Hagin, 157 Ga. App. 2 (1) (276 SE2d 67) (1981); Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 580 (2) (276 SE2d 248) (1980), overruled on other grounds, Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989); Moore v. Keller, 153 Ga. App. 651 (266 SE2d 325) (1980); see generally Peagler v. Huey, 183 Ga. 677 (3) (188 SE 906) (1936) (“The only evidence as to the alleged disqualification of a juror was an affidavit of the juror himself; and it is well settled that a juror will not be heard to impeach his verdict by showing his own incompetency or disqualification”).

       (Citations omitted.) Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990); see Sears v. State, 268 Ga. 759, 768 (493 SE2d 180) (1997) (Carley, J., concurring in part and dissenting in part) (“This court has recognized constitutional limitations to the rule [against juror testimony] only in rare circumstances, where members of the jury intentionally gather extrajudicial and prejudicial evidence and communicate such information to the other jurors, or where non-jurors have interfered with the jury’s deliberations”) (citations omitted); see generally Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976) (creating exception to rule because two jurors went to scene of crime, measured distances, and reported findings to full jury).

        Joachim v. State, 263 Ga. 816, 817-818 (3) (440 SE2d 15) (1994).

       See OCGA §§ 15-12-163; 15-12-164; Carter v. State, 224 Ga. App. 217 (2) (480 SE2d 266) (1997) (knowing witness is not basis for challenge for cause unless juror has fixed and definite bias); Sapp v. State, 222 Ga. App. 415, 417-418 (3) (474 SE2d 233) (1996) (same).

        Davis v. State, 229 Ga. App. 787, 788 (1) (a) (494 SE2d 702) (1997).

       (Citation omitted.) 264 Ga. 446, 448-449 (3) (448 SE2d 172) (1994); see Munn v. State, 208 Ga. App. 674 (1) (431 SE2d 447) (1993) (during voir dire juror did not know victim’s name but recognized her when she entered courtroom during trial; no basis for new trial).

       See Stephens v. State, 224 Ga. App. 184 (1) (480 SE2d 235) (1997) (whether to allow funds to hire an expert witness is discretionary with the trial court).

       See McBee v. State, 228 Ga. App. 16, 21 (2) (491 SE2d 97) (1997) (“For a conviction to be reversed, appellant must show both error and harm”).

        Harwell v. State, 231 Ga. App. 154, 158 (497 SE2d 672) (1998). Cf. Wells v. State, 222 Ga. App. 587, 588 (3) (474 SE2d 764) (1996) (physical precedent only) (court exercised its discretion to address merger question, even though waived by failure to object).


text:
    A98A1036.
    JONES v. THE STATE.
    (504 SE2d 259)
   Beasley, Judge.

Christopher Jones was convicted of one count of giving a false name to a law enforcement officer (OCGA § 16-10-25) and four counts of armed robbery (OCGA § 16-8-41). He challenges the trial court’s refusal to give his requests to charge the jury on robbery by intimidation and theft by taking, as lesser included offenses of armed robbery.

In May 1997, Jones and his accomplice entered an auto parts store and began browsing and asking about merchandise. Present in the store were manager-in-training Marks, cashier Carter, and one other customer. After the customer left, the accomplice pointed a gun at Marks’ head, informed him the store was being robbed, and ordered him to open the safe in the rear of the store. While walking toward the safe, the accomplice told Jones to remain with Carter while she opened the cash registers in the front. As she did so, Jones instructed her to put the money in a bag.

A month later, Jones and his accomplice entered another auto parts store and again began browsing and asking about merchandise. Employees Viar and Page were on duty, and no customers were present. The accomplice threatened Viar with a gun and ordered him to open the cash registers. Page opened the registers instead as she had the keys. After she did so, the accomplice instructed both employees to accompany him to the rear of the store so Page could open the safe. The accomplice took money from the safe and forced Viar to surrender his wallet, while Jones took money from the cash registers and various store merchandise. The police arrested both men in their getaway car shortly thereafter.

Jones argues that he was entitled to a jury charge on the lesser included offenses because the evidence did not show he was in possession of the weapon. Regardless, the evidence does show without dispute that the robberies were perpetrated by the use of a weapon in the possession of Jones’ accomplice.

When a party has committed armed robbery, one who is concerned in the commission of the crime under OCGA § 16-2-20 is likewise guilty of armed robbery, notwithstanding the fact that the associate did not have actual possession of the firearm. A person who participates in a criminal enterprise is responsible for the means by which it is accomplished.

The Supreme Court of Georgia held in Edwards v. State that “ ‘[a] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.’ [Cit.]” But the Court in Martin v. State recognized that “ ‘[w]here . . . the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.’ [Cits.]”

“[T]he accused ‘is not entitled to a charge on a lesser included offense where the evidence establishes without dispute the commission of the greater offense charged. (Cits.)’ [Cit.]” Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation. Since Jones does not deny that his accomplice was armed, he was not entitled to a charge on the lesser included offenses. “Taken to its logical conclusion, [Jones]’ position would require a charge on the[se] lesser included offense[s] ... in every armed robbery prosecution. . . . [T]he law contains no such requirement.”

Decided July 10, 1998.

Alterman & Associates, Cathy M. Alterman, Jeffrey P. Manciagli, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991); see Hopkins v. State, 227 Ga. App. 567 (1) (489 SE2d 368) (1997); see also Martin v. State, 213 Ga. App. 146 (444 SE2d 103) (1994).

       264 Ga. 131, 132 (442 SE2d 444) (1994).

       268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

       Accord, e.g., Strickland v. State, 223 Ga. App. 772, 777 (1) (479 SE2d 125) (1996).

        Thomas v. State, 226 Ga. App. 441, 444 (8) (487 SE2d 75) (1997).

        Widner v. State, 203 Ga. App. 823, 825 (4) (418 SE2d 105) (1992) (theft by taking); Millis v. State, 196 Ga. App. 799, 800 (3) (397 SE2d 71) (1990) (robbery by intimidation).

        Lightfoot v. State, 227 Ga. App. 605, 607 (490 SE2d 177) (1997).


author: McMureay, Presiding Judge.

text:
    A98A0062.
    THOMPSON v. THE STATE.
    (504 SE2d 234)
   McMureay, Presiding Judge.

Defendant Thompson appeals his conviction of two counts of aggravated child molestation, statutory rape, and incest. Held:

1. Over defendant’s objection that such testimony invaded the province of the jury, the State’s expert witness, Dr. Susan Campbell Hopkins, was allowed to relate her conclusion that the victim’s allegations of sexual abuse were credible and that the victim’s actual descriptions of sexual activities including those with defendant were not discounted as inaccurate. “The general rule concerning admissibility of expert testimony as to the ultimate issue is this: ‘(A)n expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. (Cit.)’ Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987).” Hilliard v. State, 226 Ga. App. 478 (1) (487 SE2d 81). Here, the State’s expert was permitted to offer her conclusion based on analysis of an interview conducted with the victim, an interview which was videotaped and entered into evidence. We see no reason the jurors could not understand this evidence and form their own opinion as to the inference which should be drawn from it. The State’s expert witness did not testify as to scientific or psychological matters the jury would need assistance in understanding, but merely related an opinion as to the credibility of the victim. The admission of testimony from the expert witness that she “considered this to be a founded case of abuse” and that she did not consider the victim’s disclosure of sexual activity to be inaccurate was error. See also Harris v. State, 261 Ga. 386 (405 SE2d 482); Sims v. State, 260 Ga. 782, 783 (4), 784 (399 SE2d 924).

Nonetheless, the circumstances of the case sub judice are unusual in that whether sexual abuse occurred is not at issue. The nine-year-old victim gave a videotaped statement and testified at trial that she had sex repeatedly with at least four different males in addition to defendant. A physical examination of the victim showed that she had experienced sexual intercourse to an extent that her birth canal was consistent with what one sees in a married woman. The defendant does not dispute that his daughter is the victim of sexual abuse by others, only that he did not participate in it.

Accordingly, the child abuse expert’s testimony, going to the issue of whether sexual abuse occurred, did not bolster the credibility of the victim since no one disagrees with the fact that the victim had been sexually abused. Neither did the expert’s testimony make less credible the defendant’s claim that while sexual abuse did occur, he did not participate in the abuse.

The better practice on the part of the State would have been to avoid introducing the child abuse expert’s opinion that child abuse had occurred. Nonetheless, under the particular circumstances of the case sub judice, in which it is uncontroverted that the victim had been the subject of sexual abuse and that several males other than defendant could have been responsible, it appears highly probable that the expert’s testimony that sexual abuse had occurred did not contribute to the verdict of the jury. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Goss v. State, 228 Ga. App. 411, 413 (3) (491 SE2d 859); Carroll v. State, 185 Ga. App. 857, 858 (1) (366 SE2d 232). Accordingly, this enumeration of error has no merit.

2. Defendant contends that the trial court erred in admitting into evidence the videotape interview of the victim by Dr. Hopkins because the statement lacked a sufficient indicia of reliability. See Rolader v. State, 202 Ga. App. 134, 140 (413 SE2d 752).

“The factors considered in determining whether sufficient indicia of reliability exist include: (1) the conditions under which the statement was made; (2) the statement’s spontaneity; (3) the age of the child; (4) the child’s demeanor; (5) the child’s physical and mental condition; (6) the presence or absence of any threats or promises of benefit; (7) any involvement of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or others either before or during the giving of the statement; and (10) the consistency between repeated out-of-court statements. Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).” Heard v. State, 221 Ga. App. 166, 167 (2) (471 SE2d 22). Pretermitting any questions as to whether defendant properly preserved an issue as to indicia of reliability of the videotaped interview of the victim, we find that requisite indicia are sufficiently present on the record. The interview was conducted at Harbor House, a child advocacy center, which provided a child friendly environment for the interview. The victim spontaneously described or demonstrated with dolls various sexual acts or conduct. The victim was interviewed shortly after disclosing the accusations against defendant, and was not coached or previously interviewed, other than some initial inquiries by her mother, prior to or during the videotaped interview. Minor inconsistencies in the victim’s statement were not substantive in nature. Nor was the process rendered unreliable because the interview process sought to elicit information needed by law enforcement officials and social services agencies for the protection of the child.

Decided June 29, 1998

Reconsideration denied July 13, 1998.

Burkhalter & Stephens, Albert F. Burkhalter, Jr., for appellant.

3. Through her testimony at trial and evidence of her statements admissible pursuant to OCGA § 24-3-16, the victim provided evidence of defendant’s guilt of all of the crimes of which he was convicted. Questions as to the credibility of the nine-year-old victim were for resolution by the jury. Blackwell v. State, 229 Ga. App. 452, 454 (3) (494 SE2d 269); Goss v. State, 228 Ga. App. 411, 412 (1) (491 SE2d 859); Kapua v. State, 228 Ga. App. 193 (1) (491 SE2d 387). The evidence presented at trial was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Blackwell v. State, 229 Ga. App. 452, 454 (3), supra.

Judgment affirmed.

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

Tambra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.


author: McMukray, Presiding Judge.

text:
    A98A0207.
    WHALEN v. ISAACS.
    (504 SE2d 214)
   McMukray, Presiding Judge.

Plaintiff Whalen filed this action for damages arising from intentional infliction of emotional distress against defendant Isaacs. The complaint alleges that plaintiff returned from an out-of-town trip to discover a message on his home telephone answering machine which stated that his dog had been found roaming free and been given a poisonous chemical, and that unless medical treatment was administered immediately, the dog would die within 24 hours; that plaintiff transported the dog to a veterinarian for diagnosis and treatment; and that at the veterinarian’s it was eventually determined that in all probability a poison had not been administered to the dog.

Defendant explained that he had made the telephone call after being approached in front of his house by a man on a bicycle who informed him that he had given the dog a poisonous chemical. Defendant deposed that his intent in telephoning plaintiff was to save the life of the dog, and that he did not know the bicyclist, who rode away after lecturing him on the responsibilities of taking care of the dog.

Plaintiff presented evidence of conduct on the part of defendant both preceding and subsequent to the incident in question which amounted to displays of hostility towards the dog being permitted to escape and run free onto defendant’s property. There was also evidence that defendant had not identified himself when he left the message for plaintiff.

The parties filed opposing motions for summary judgment. Defendant’s motion for summary judgment was granted and plaintiff appeals. Held:

1. According to defendant’s deposition testimony, when he was approached by the unknown bicyclist, his friend Friedman was present. Defendant filed an affidavit from Friedman which briefly corroborated portions of his deposition testimony concerning the existence of and the statements of the bicyclist. Plaintiff’s motion to strike the affidavit of Friedman as untimely filed was denied. Plaintiff’s first enumeration of error maintains that the state court erred in considering Friedman’s affidavit. However, any such error was harmless since Friedman only corroborated the properly considered evidence contained in defendant’s deposition and added nothing. Upon review of a grant of summary judgment, we are not concerned with the weight of the evidence since this issue is reserved for a trier of fact. Washington v. Georgia Baptist Medical Center, 223 Ga. App. 762, 767 (3) (478 SE2d 892) (rev’d in part on other grounds, Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665)). See also Jones v. Rodzewicz, 165 Ga. App. 635, 637 (4), 638 (302 SE2d 402).

2. “Four elements must be present to support a claim of intentional infliction of emotional distress: “(1) (t)he conduct must be intentional or reckless; (2) (t)he conduct must be extreme and outrageous; (3) (t)here must be a causal connection between the wrongful conduct and the (plaintiff’s) emotional distress; (and) (4) (t)he emotional distress must be severe.’ (Citations and punctuation omitted.) Clark v. Arras, 212 Ga. App. 695, 696 (2) (443 SE2d 277) (1994). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.’ Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991).” Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 846 (3), 847 (479 SE2d 180).

The crux of plaintiff’s claim rests upon the supposition that the initial message left by defendant was a hoax rather than an act of a good Samaritan intended to aid the dog. However, plaintiff provides no probative evidence in support of his supposition. The circumstantial evidence upon which plaintiff relies is entirely consistent with defendant’s explanation that he was merely relating the statements of the unidentified bicyclist. “‘ “(C)ircumstantial evidence has no probative value in establishing a fact when such evidence is consistent with direct and unimpeached evidence showing the non-existence of such a fact.’ (Citation and punctuation omitted.) Red Top Cab Co. v. Hyder, 130 Ga. App. 870, 871 (204 SE2d 814) (1974).” Carter v. Spells, 229 Ga. App. 441, 443 (494 SE2d 279). See also Lane v. Spragg, 224 Ga. App. 606, 607-608 (481 SE2d 592); MARTA v. Mehretab, 224 Ga. App. 263, 265-266 (1) (480 SE2d 310); Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 892 (1) (473 SE2d 213).

Defendant, being able to demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of plaintiff’s case, was entitled to the grant of summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). This is true without any consideration of the Friedman affidavit discussed in Division 1 of this opinion.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided June 23, 1998

Reconsideration denied July 13, 1998

Nicholas G. Dumich, for appellant.

Chambers, Mabry, McClelland & Brooks, Ian R. Rapaport, for appellee.