text:
    A96A2233.
    DUCKWORTH v. THE STATE.
    (477 SE2d 336)
   Eldridge, Judge.

On July 25, 1995, at approximately 10:00 p.m., Deputy Sheriff John Daniel of the Worth County Sheriff’s Department was on his way to serve a warrant and was driving on Pope Street, approaching the intersection with Westberry Street, when he saw a white car run the stop sign at a high rate of speed. Daniel put on the blue light and the siren, but the driver failed to stop. The deputy chased the car south on Westberry for two blocks before the car made a left turn onto Railroad Street and then turned into a driveway. Before the vehicle came to a stop, the driver had the door open, was exiting, and Daniel believed that the driver was about to flee. Appellant staggered as he approached Daniel and had a wild-eyed look. At this point in time, no one else was present when Daniel first asked appellant to produce his driver’s license. When asked if he had a license, appellant answered, “No.” About this time, appellant’s brother, Brian, and his grandmother appeared. Daniel asked appellant if the license was in suspension, and appellant answered, “No.” Daniel heard one of the relatives say that the license was in suspension. Appellant’s speech was slurred, he had a strong odor of alcohol on his breath, and his eyes appeared bloodshot and glassy. Deputy Daniel instructed appellant to turn around and place his hands on the hood of the patrol car; appellant started to comply by turning and putting his hands on the car, but immediately turned back facing the deputy and leaned back against the car with his hands supporting himself. Appellant then asked Deputy Daniel if the deputy was going to take appellant home; the deputy replied that he was arresting appellant and instructed appellant to turn around, face the car, and put his hands on the car. The. relatives were standing behind Daniel, who was between them and appellant; the relatives said that Daniel shoved appellant off balance onto the car’s.hood before attempting to handcuff appellant. When Daniel reached for appellant’s left hand to cuff him, appellant spun around and slammed the deputy against the hood of the car, bending him over it, and began hitting the deputy. Appellant’s brother came to the deputy’s rescue and attempted to pull appellant off; a struggle ensued, and the deputy got out his metal flashlight and was able to strike appellant with two blows on the head, stunning appellant so that he and his brother fell to the ground. From the blows to his face, Daniel’s glasses were broken and knocked off. Although the brother believed that he had control of appellant, he had been unable to pull appellant off the deputy. Because of appellant’s wild and dangerous conduct, the deputy had to strike appellant twice on the head to subdue him, and one of the blows broke the brother’s finger when he put his hand up to ward off the blow. While appellant sat on the ground in a daze, Daniel handcuffed him and called for backup. After the backup arrived and appellant was placed in a police vehicle, appellant said, “Yeh, y’all got me, but look how many motherfuckers it took.” Appellant, after being given his implied consent warnings, refused to take any test for alcohol. Appellant was bleeding from a gash in his head from the blows and was taken to the hospital for treatment. Upon arrival, appellant refused to allow anyone either to examine or to treat him for the bleeding and had to sign a hospital waiver and release. Appellant never at any time produced a driver’s license. After appellant was under arrest, no field sobriety test was attempted.

Appellant was indicted for felony obstruction of a peace officer, driving under the influence, failure to stop at a stop sign, and driving without a license. Jury trial began on February 29, 1996, and on March 1 a verdict was returned, finding him guilty of the lesser included offense of misdemeanor obstruction, and guilty as charged on all other counts. On June 4, 1996, appellant was sentenced. On June 11, appellant filed his notice of direct appeal.

1. Appellant’s enumerations of error 1 through 3 are that the trial court erroneously granted objections to his cross-examination of Deputy Daniel, regarding any interest or bias that Daniel may have had in the outcome of the trial, because, if his use of force was excessive, then he could be subject to prosecution, suit, and dismissal so that such considerations would constitute civil and penal interests. However, the record reveals that appellant did, in fact, cross-examine Daniel regarding such issues, so that denial of specific questions on the subject did not bar any and all inquiry into the subject; Daniel’s basic response was that he was just doing his job and that he had no interest. Daniel was cross-examined regarding such interest in the outcome of the prosecution. The trial court did not abuse its discretion in precluding specific questions, while allowing a general cross-examination of the subject, that included the specific area sought to be touched upon by the prohibited questions.

OCGA § 24-9-64 reads: “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him. If several parties to the same case have distinct interests, each may exercise this right.” See Lunday v. Thomas, 26 Ga. 537, 544 (1) (1858).

The Supreme Court has held that it is the duty of the trial court “to allow a searching and skillful test of [the witness’s] intelligence, memory, accuracy and veracity. As a general rule, it is better that cross-examination should be too free than too much restricted. This is a matter that necessarily belongs to and abides in the discretion of the court. . . . There must be allowed some degree of skill, if not sharpness, in conducting cross-examinations, because a witness, however fair and honest and truthful, may not be careful enough, and it is to the interest of justice to expose the blundering of a witness, as well as his willful departures from veracity. A jury ought to be made to know what character of mind they have before them on the witness-stand, whether they have a careful, cautious witness, or one who is disposed to take things on trust. That is quite essential. But the court is there, watching the proceedings, and acquainted with all the surroundings; it is proper to leave such a question to the discretion of the court. . . .” Harris v. Central Railroad, 78 Ga. 525, 534 (3 SE 355) (1887); see also Ledford v. State, 89 Ga. App. 683, 684-685 (1) (80 SE2d 828) (1954); Carroll v. Hill, 80 Ga. App. 576, 580 (3) (56 SE2d 821) (1949); Loomis v. State, 78 Ga. App. 153, 157-158 (3) (51 SE2d 13) (1948).

“ ‘Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions in memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. ... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” [Cit.] We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U. S. 474, 496 (1959).’ (Footnote omitted.) Davis v. Alaska, 415 U. S. 308, [316, 317 (94 SC 1105, 39 LE2d 347) (1974)].” Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982).

“The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. (Cits.)” Alford v. United States, 282 U. S. 687, 694 (511 SC 218, 75 LE2d 624) (1931).

“Although the appellant is entitled to a thorough and sifting cross-examination of a witness, the scope of such cross-examination is within the sound discretion of the trial court.” White v. State, 253 Ga. 106, 110 (4) (317 SE2d 196) (1984); accord Stone v. State, 250 Ga. 718, 719 (300 SE2d 500) (1983); Hines v. State, supra at 260; Scott v. State, 178 Ga. App. 222, 224 (3) (343 SE2d 117) (1986).

“Defendant ‘had the right to a thorough and sifting cross-examination of any witness called against him. [Cit.] However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. [Cits.]’ (Cit.) Under the circumstances of the case sub judice, we find no manifest abuse of discretion in the trial court’s limitation of defense counsel’s cross-examination of the State’s [witness].” Fletcher v. State, 197 Ga. App. 112 (1), 113 (397 SE2d 605) (1990); Stevens v. State, 213 Ga. App. 293, 294 (2) (444 SE2d 840) (1994).

The extent of limitation on the scope of cross-examination “ ‘ “necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretionary authority is abused. (Cits.) The extent of cross-examination can be curtailed if the inquiry is not relevant nor material. (Cits.)” (Cit.)’ Harris v. State, 168 Ga. App. 159, 160 (2) (308 SE2d 406) [(1983)].” Williamson v. State, 186 Ga. App. 589, 590 (2) (367 SE2d 863) (1988); Samuels v. State, 174 Ga. App. 684, 685 (2) (331 SE2d 62) (1985); Fitzgerald v. State, 166 Ga. App. 307, 310 (7) (304 SE2d 114) (1983).

This Court finds no manifest abuse of discretion.

2. The fourth enumeration of error contends that the trial court erred in limiting the cross-examination of the State’s witness by not allowing the use of an alleged prior inconsistent statement, which appellant refused to tender into evidence. Appellant sought to read a portion of the police report to the jury without first admitting the entire report into evidence, alleging that the report contained a prior inconsistent statement. Since appellant would not tender the report into evidence, the prosecutor objected to the reading of such alleged statement and cross-examination regarding it; the trial court prohibited cross-examination regarding the statement absent admission of the entire report into evidence, with a proper foundation having first been laid.

OCGA § 24-9-83 reads in part: “[a] witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, . . . the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing. To lay this foundation, the witness may be recalled at any time.” (Emphasis supplied.)

To lay a foundation for impeachment, the alleged prior inconsistent statement must be proved to have been made, or if in writing, then tendered into evidence, it is admissible as relevant and material evidence for such purpose. Andrews v. State, 118 Ga. 1 (43 SE 852) (1903); Tommie v. State, 158 Ga. App. 216 (279 SE2d 510) (1981). Evidence, otherwise inadmissible, becomes admissible to prove the existence of a prior inconsistent statement. Francis v. State, 266 Ga. 69 (463 SE2d 859) (1995); Charlton v. State, 217 Ga. App. 842 (459 SE2d 455) (1995). If a proper foundation has been laid for the admission of a prior inconsistent statement, then such evidence becomes substantive evidence for all other probative evidentiary purposes. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). A witness cannot be impeached by a contradictory statement without first laying the required foundation and placing the statement into evidence. Morris v. State, 228 Ga. 39 (184 SE2d 82) (1971); Williams v. Turner, 7 Ga. 348 (1849). If the appellant fails to place the prior inconsistent statement into evidence, then it is not error to limit cross-examination on such subject. Truitt v. State, 168 Ga. App. 616, 618 (309 SE2d 895) (1983).

The trial court did not err in limiting cross-examination under the circumstances in the case sub judice.

3. Appellant enumerates error in denying the motion for a directed verdict on driving without a valid driver’s license and on obstructing an officer, as well as a direct appeal that “a rational trier of fact would not have found Defendant guilty.” These enumerations of error are considered together, because they are controlled by the same standard.

“A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ When a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find the appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)], it cannot possibly be said the evidence demanded a verdict of acquittal.” (Citation and punctuation omitted.) Kirkland v. State, 211 Ga. App. 805, 807 (1) (440 SE2d 542) (1994); Buchanan v. State, 215 Ga. App. 143, 144-145 (449 SE2d 660) (1994); Clark v. State, 207 Ga. App. 50, 51 (1) (427 SE2d 43) (1993); see also Taylor v. State, 252 Ga. 125, 126 (1) (312 SE2d 311) (1984).

“A trial court must grant a motion for directed verdict unless, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reásonable doubt. [Cit.]” Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981); see also Miller v. State, 201 Ga. App. 108, 109 (1) (410 SE2d 328) (1991); Jones v. State, 201 Ga. App. 102, 103-104 (2) (410 SE2d 199) (1991); Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) (1987).

“The obligation to weigh the evidence and to determine witness credibility rests with the jury. This court considers only the sufficiency of the evidence.” (Citation and punctuation omitted.) Conner v. State, 205 Ga. App. 564, 568 (5) (422 SE2d 872) (1992); Walsh v. State, 220 Ga. App. 514, 515-516 (3) (469 SE2d 526) (1996).

“On appeal of a criminal conviction, the appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does, not weigh the evidence or determine witness credibility.” (Citation and punctuation omitted.) Buchanan v. State, supra at 144.

Viewing the evidence in the light most favorable to the jury’s verdict, there exists ample evidence on each charge from which a rational trier of fact could determine the guilt of appellant pursuant to Jackson v. Virginia, supra, beyond a reasonable doubt.

4. Appellant’s ninth enumeration of error is that the trial court erred in charging on “driving without a license on the person” when the charge was “driving without a valid license.”

The trial court gave a full charge on OCGA § 40-5-20, the offense set forth in the indictment. The court went on to charge “[a]nd when operating a motor vehicle, every person shall have his driver’s license in immediate possession at all times.” This was not given as either an additional charge or as an included charge, but as a clarification of the charge already given and in conformity with OCGA § 40-5-29. Such a charge was a rational explanation of the duty of an operator of a motor vehicle not only to have a valid driver’s license, but also to have it with the person while operating the motor vehicle and to produce it upon demand. Appellant’s failure to produce the license upon demand gave rise to a rebuttable,. reasonable inference that he did not have a valid license.

This Court, in Gibson v. State, 187 Ga. App. 769, 771 (4) (371 SE2d 413) (1988), held under identical facts that a charge to the jury on OCGA § 40-5-29 was proper when the defendant was being tried under OCGA § 40-5-20, as such charge was a correct statement of the law, adjusted to the evidence, and did not constitute error.

There was no error in the charge of the trial court.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Decided October 10, 1996

Reconsideration denied October 17, 1996

James N Finkelstein, for appellant.

C. Paul Bowden, District Attorney, for appellee.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A96A1330.
    SHLEIFER et al. v. BRIDGESTONE-FIRESTONE, INC.
    (477 SE2d 405)
   Beasley, Chief Judge.

The Shleifers appeal from the dismissal of their amended third-party complaint against Bridgestone-Firestone (“Firestone”).

Detwiler sued the Shleifers for injuries caused by a collision in which David Shleifer was driving. A Firestone service store had performed brake work on the Shleifers’ car, and David had retrieved it shortly before the incident. The Shleifers alleged that brake failure was the cause due to Firestone’s negligence, in a third-party complaint against Firestone seeking indemnity and contribution. By amendment they included a claim against Firestone for physical damage to their own car.

The amended third-party complaint was dismissed on Firestone’s motion for failure to state a claim upon which relief can be granted. See OCGA § 9-11-12 (b) (6). Firestone contends the Shleifers cannot join the claim that does not affect Detwiler (damage to the Shleifers’ car) in an action in which Firestone has been made a party because of its actions that did affect Detwiler (i.e., alleged negligent brake work). It does not dispute that initial impleader was proper under theories of indemnity and contribution. See OCGA § 9-11-14 (a). Having been brought into the suit, the plain language of the statute concerning joinder of claims indicates that the claim may be added: “A party asserting a claim to relief as . . . [a] third-party claim may join, [as independent claims], as many claims, legal or equitable, as he has against an opposing party.” OCGA § 9-11-18 (a).

Despite this language, Firestone urges the Shleifers can present only those claims which would be a proper basis for impleader under OCGA § 9-11-14 (a). That a third-party claimant can join independent claims is “a general rule.” Huff v. Valentine, 217 Ga. App. 310, 311-312 (2) (457 SE2d 249) (1995). “However, ‘a claim properly joined as a matter of pleading need not be tried together with other claims, “if fairness or conveniencejustifi.es separate treatment.” ’ [Cit.]” Id. at 312 (2). See OCGA § 9-11-42 (b). Whether a joined claim is tried with other claims does not affect the propriety of pleading.

Firestone cites Michaels v. Kessler, 191 Ga. App. 103 (381 SE2d 103) (1989), as authority for the position that the “decision of the trial court” must be affirmed if the court did not abuse its discretion. First, Michaels upheld the court’s broad discretion to sever trial of claims under OCGA § 9-11-42 (b). Id. at 103 (1). It did not state the court had discretion to dismiss proper claims in the first instance, or to reject joinder of claims under OCGA § 9-11-18 (a). It did not address joinder at all, finding that the cross-complaint presented no claim of secondary liability, and impleader under OCGA § 9-11-14 (a) was not proper in any instance. Id. at 103-104. This case presents a different picture. Firestone does not dispute that relief is being sought on secondary liability. Compare Lupton v. The Landings Co., 204 Ga. App. 651, 652 (420 SE2d 346) (1992); Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 449-450 (398 SE2d 725) (1990). Firestone cites no authority for the proposition that joinder under OCGA § 9-11-18 (a) is discretionary, and we find none.

Nor is this a question of whether the court can, in its discretion, deny leave to implead more than ten days after a defendant makes his answer. See OCGA § 9-11-14 (a). Compare Cherokee Nat. Life Ins. Co. v. Coastal Bank of Ga., 239 Ga. 800, 801-802 (1) (238 SE2d 866) (1977), which Firestone cites.

Second, our review of “the decision of the trial court” concerns whether the amended complaint states a claim upon which relief can be granted. The motion under OCGA § 9-11-12 (b) (6) “ ‘is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. (Cits.)’ [Cit.]” Ga. North Contracting v. Haney & Haney Constr. &c., 204 Ga. App. 366, 368 (1) (b) (419 SE2d 348) (1992).

If the Shleifers’ direct claims against Firestone cannot properly be joined under OCGA § 9-11-18 (a), dismissal under OCGA § 9-11-12 (b) (6) would be appropriate. But not only do OCGA § 9-11-18 (a) and Huff, supra, state joinder is appropriate, other case law agrees. In Cohen v. McLaughlin, 250 Ga. 661 (301 SE2d 37) (1983), the third-party complaint under OCGA § 9-11-14 (a) alleged both direct and secondary claims. The underlying suit was then settled and dismissed, and the trial court dismissed the third-party complaint which then had only direct claims remaining. The Supreme Court reversed, recognizing that when impleader is proper under OCGA § 9-11-14 (a), joinder under OCGA § 9-11-18 (a) permits the direct claims. They are properly before the court, and jurisdiction of them is not dependent upon continuation of the original suit. The court noted that OCGA § 9-11-18 (a) clearly provides for such joinder and joinder of the additional claims did not necessarily mean all claims need be tried together. Cohen, supra at 662-663 (2); accord Huff, supra; see OCGA § 9-11-42 (b).

The court may sever trial of the direct claims from the secondary claims, if appropriate. See Cohen, supra; Huff, supra. It may not dismiss the amended complaint merely because it contains properly joined issues that the court would prefer severed. The procedure is to recognize that the third-party defendant has been properly impleaded and the direct claims properly joined, and then determine whether severance under OCGA § 9-11-42 (b) is appropriate. The third-party plaintiff is not required to file a completely new suit and secure service of process anew when the law clearly allows it to join the direct claims.

Munday v. State Farm Fire &c. Co., 172 Ga. App. 382, 383 (1) (323 SE2d 193) (1984), does not require dismissal. There direct and secondary claims were asserted in the original third-party complaint. In discussing its dismissal under OCGA § 9-11-14 (a), the court did not address the joinder provisions of OCGA § 9-11-18 (a), and there is no indication the operation of that Code section was raised in either the trial court or this Court. Consideration of OCGA § 9-11-18 (a) is necessary to decidé this case. Since it is absent from Munday, that case does not control. “[Qjuestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent.” Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152) (1994). The same is true of Thigpen v. Koch, 126 Ga. App. 182, 185 (1) (190 SE2d 117) (1972), and deHaas v. Empire Petroleum Co., 286 FSupp. 809, 815 (Colo. 1968) (addressing Fed. R. Civ. P. 14 but not 18).

Firestone contends Munday does stand for the proposition that no direct cause of action can ever be included in a third-party practice case, and that it presents the general rule and Cohen provides an exception to the rule, applicable only when the underlying suit is settled. To the contrary, as noted above, Munday did not address OCGA § 9-11-18, but Cohen did, finding it properly applied to the direct claims. Firestone argues in support of its “exception” contention that Cohen’s specific facts removed any danger of prejudice and inconvenience to the parties, but those are matters to be considered in determining the wisdom of severance under OCGA § 9-11-42 (b). Further, by recognizing the continuation of a direct claim brought through an OCGA § 9-11-14 (a) interpleader with an OCGA § 9-11-18 (a) joinder despite settlement of the underlying case, Cohen necessarily recognized that the joinder was proper in the first place. We could not, in Munday or otherwise, pronounce a rule that would render Cohen incorrect in that regard.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

Decided October 17, 1996.

Irwin M. Ellerin, Mia I. Frieder, John A. Roberts, for appellants.

Holland & Knight, Alfred B. Adams III, C. Andrew Head, Sullivan, Hall, Booth & Smith, Roger S. Sumrall, Popham, Haik, Schnobrich & Kaufman, R. Benjamine Reid, Franklin H. Davidson, for appellee.


author: Smith, Judge.

text:
    A96A1491.
    FLAGG ENERGY DEVELOPMENT CORPORATION et al. v. GENERAL MOTORS CORPORATION.
    (477 SE2d 402)
   Smith, Judge.

Appellants, Flagg Energy Development Corporation (“FEDCO”), CCF-1, Inc., Process Construction Supply, Inc. (“PCS”), and Kenetech Facilities Management (“KFM”), are four foreign corporations involved in a cogeneration power plant project in Hartford, Connecticut. Appellants brought suit in Fulton County State Court against General Motors Corporation (“GM”), alleging breach of a July 1990 settlement agreement regarding three turbine engines manufactured by GM and installed on the project in Connecticut.

The July 1990 settlement agreement sought to resolve disputes between Allison (a GM subsidiary), certain subcontractors on the Hartford project, FEDCO, and PCS regarding the performance of two engines described in purchase order C10006, also known as units 506 and 507, and a third engine described in purchase order 9000 as an Allison 571-KA gas turbine generator, also known as unit 508. The settlement agreement recites that the terms and conditions of the purchase of the third engine are to be governed by a “Purchase Agreement” attached to the settlement agreement as Exhibit “A”. That purchase agreement recites that the third engine shall be subject to the “Allison New Original Equipment Warranty and Disclaimer.”

Also in connection with the settlement agreement, FEDCO and PCS executed a “Mutual Irrevocable Release” on behalf of themselves, “their affiliates, . . . successors and assigns” of any and all claims other than “claims by FEDCO brought under the Purchase Agreement between Allison and FEDCO for Allison engine Model 571-KA, Series Number ASP508,” the third engine, and certain claims regarding the other engines purchased under purchase order C10006. The release provides that it “may not be changed orally.”

GM brought a motion to dismiss the complaint as to FEDCO, PCS, and CCF-1 (a subsidiary of FEDCO), pleading the existence of a prior pending action in the Superior Court for the Judicial District of New Haven at Meriden, Connecticut. OCGA § 9-2-5. As to plaintiff KFM, GM moved for summary judgment on two bases: first, that KFM was not a party to the July 1990 settlement agreement and therefore could not bring an action for its breach; and second, that the release executed by FEDCO barred any claims that KFM may have had. The trial court granted the motion on both grounds.

1. The trial court did not err in granting summary judgment as to KFM. The only claim made in the complaint was for breach of the July 1990 settlement agreement, and KFM’s claim appears to apply solely to the third engine. The only indication of KFM’s interest in the matter presently before this Court is KFM’s allegation in the complaint that FEDCO “transferred to KFM its ownership interest and all warranties concerning the Third Engine,” and a copy of a request for admission in the Connecticut litigation to that effect.

KFM’s allegations regarding transfer of the engine and its warranty, however, do not constitute either an allegation or proof that FEDCO also transferred or assigned to KFM its rights under the July 1990 settlement agreement, the only basis on which appellants’ complaint makes a claim against GM. Nor has KFM shown any modification of the mutual irrevocable release executed by FEDCO. By the plain language of the release itself, any modification of its terms was required to be in writing. As to the third engine, the release explicitly bars any and all claims by FEDCO, its successors, or assignees other than “claims by FEDCO brought under the Purchase Agreement.” (Emphasis supplied.)

The release stipulates that it “shall be governed by the laws of the State of New York.” Under New York law, the clear language of a release must be given effect. Metz v. Metz, 572 NYS2d 813 (A.D. 1991); see also Greenebaum v. Barthman, 620 NYS2d 954 (A.D. 1994). The same is true under Georgia law: “A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general. The cardinal rule of construction is to determine the intention of the parties. But no construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Darby v. Mathis, 212 Ga. App. 444-445 (1) (441 SE2d 905) (1994).

“In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” (Citations omitted.) Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47) (1991). KFM has not shown either an assignment of FEDCO’s rights under the July 1990 settlement agreement or a modification of the mutual irrevocable release executed by FEDCO barring any claims other than those made by FEDCO itself. On the record as presented to this Court, the trial court did not err in granting summary judgment on KFM’s claim.

2. Appellants assert that the trial court erred in dismissing this action as to FEDCO, CCF-1, and PCS on the basis of the prior pending action in Connecticut. GM contends the dismissal was justified under the plain language of OCGA § 9-2-5. GM’s position overlooks, however, the requirement that OCGA § 9-2-5 and the related abatement statute, OCGA § 9-2-44 (a), be construed together. Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995). Moreover, “[t]he pendency of a prior action in another state shall not abate an action between the same parties for the same cause in this state.” OCGA § 9-2-45. See also Ward v. Ward, 223 Ga. 868, 871-872 (2) (159 SE2d 81) (1968).

Dismissal of appellants’ claim on the basis of a prior pending action in the courts of another jurisdiction was inappropriate. Fludd v. Tiller, 184 Ga. App. 93 (360 SE2d 647) (1987). In Fludd, as in Huff, the prior pending action was pending in federal court, but both decisions were based on the recognition that federal and state courts “may be considered courts of separate jurisdictional sovereignties.” Huff, supra, 217 Ga. App. at 311 (1). The trial court, however, “certainly had the discretion to stay” a Georgia proceeding pending the disposition of a prior pending action in another jurisdiction. Fludd, supra, 184 Ga. App. at 94. See also Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 SE2d 144) (1973) (stay within scope of trial court’s inherent power to control its proceedings).

3. GM also asserts the doctrine of res judicata and the Georgia courts’ obligation to give full faith and credit to the judgment of a sister state. See generally OCGA § 9-12-40; Tandy Computer Leasing v. Bennett’s Svc. Co., 188 Ga. App. 594, 595 (373 SE2d 647) (1988). GM represents in its brief that a defense verdict has been returned in the Connecticut action, although not yet reduced to judgment. This statement is not supported by evidence and therefore cannot be considered on appeal. An assertion of fact made by a party in its brief and unsupported by evidence in the record cannot be considered by this Court. Behar v. Aero Med Intl, 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988). Moreover, OCGA § 9-12-40 provides for the conclusive effect of a “judgment of a court of competent jurisdiction.” (Emphasis supplied.) Assertions of res judicata based on a verdict not yet reduced to judgment in the Connecticut action are therefore premature.

Decided October 17, 1996.

George D. Wenick, for appellants.

Webb & Lindsey, Mark D. Oldenburg, for appellee.

We note the trial court’s observation that the presentation of claims already in litigation in the courts of another state is a waste of the resources of an extremely busy court. We also question whether Georgia’s sovereignty is affected in any significant way by the dismissal of this action. We are bound, however, by the clear holding that a stay, rather than dismissal, is the only action within the trial court’s discretion given the existence of pending litigation in another state.

Judgment affirmed in part and reversed in part.

Pope, P. J, and Andrews, J., concur.

       Appellants acknowledge that the subject matter of this litigation is situated in Connecticut, and their only connection with Georgia is the office of their attorney.

       We note that the warranty, however, is limited by its terms to the “first retail purchaser.”

       Under Georgia law, however, requests for admission may not be used in any other proceeding. OCGA § 9-11-36 (b).


author: Judge Harold R. Banke.

text:
    A96A1766.
    BATTEN v. J. H. HARVEY COMPANY.
    (477 SE2d 400)
   Judge Harold R. Banke.

After slipping and falling on a bag at a food show, Robert Batten sued J. H. Harvey Company (“Harvey”), a promoter and occupier of the premises where the fall occurred. The trial court granted Harvey’s motion for summary judgment, and Batten appeals, enumerating two errors.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the undisputed record shows the following. Batten decided to attend a karate exhibition at the food show. He saw people dropping things on the floor and noticed that trash was accumulating. He also knew that bright green and white bags identical to the one on which he slipped were being given to attendees because he had two himself. On the way to his seat at the karate exhibition, Batten observed debris up and down the bleacher steps and on the floor. After watching the exhibition for an hour, Batten left by the same route he used in entering. As he descended the first step, he looked down and noticed some trash. He then directed his attention to his children, trying to keep them from getting lost in the crowd, but admitted that he knew there was trash on the second step because it had been there when he arrived. Just before Batten fell on the bright green and white bag lying on the third step, his daughter, who had walked further down the bleachers, yelled a warning to him. Batten admitted nothing blocked his view or prevented him from looking down and, if he had, he would have seen the bag. He received emergency medical treatment and was released the same day. He testified that he had recovered from the fall. Held:

To avoid summary judgment, Batten had to present evidence that: (1) Harvey had actual or constructive knowledge of the bag and (2) he lacked knowledge of, or Harvey prevented him from discovering, the bag. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). The basis for Harvey’s liability would be its superior knowledge of the hazard. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). Evidence that Batten could have acquired knowledge of the hazard by exercising ordinary care for his own safety bars his recovery. Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Shansab Dev. Co., 205 Ga. App. at 450.

“It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way.” (Citations and punctuation omitted.) McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 209 (464 SE2d 645) (1995). A bag on the steps, when Batten admitted he had observed such debris on the bleacher steps on his way to the karate exhibition, “is not so unusual an obstruction in the aisles that a[n]. . . [attendee] would be relieved of the ‘duty to maintain a lookout ahead for its presence in his path. [Cits.]’ [Cit.]” Id. The bag was a patently obvious condition that Batten would have seen had he exercised ordinary care.

Batten’s contention that summary judgment was error because Harvey presented no evidence óf its lack of actual or constructive knowledge of the hazard misses the mark. As plaintiff, Batten had the ultimate burden of proof, and Harvey, as movant, was not required to negate each element of Batten’s case. Lau’s Corp., 261 Ga. at 495 (4). Batten offered no evidence of Harvey’s actual or constructive knowledge of the bag. Compare Axom v. Wendy’s Intl., 219 Ga. App. 623, 624 (466 SE2d 613) (1995). However, Harvey presented undisputed evidence that Batten knew there was trash on the aisle, knew there was trash on the two steps he used prior to his fall, and would have seen the bag on the third step had he looked down. Harvey also offered undisputed proof that when he fell, Batten’s attention was on his children, rather than the steps, the exit, the exhibition, or any other diversion created by Harvey. See id. Under the facts of this case, this evidence was sufficient to establish that Batten could have acquired knowledge of the hazard through the exercise of ordinary care for his own safety. Even assuming Harvey was somehow negligent, Batten’s failure to watch where he walked forecloses his recovery. OCGA § 51-11-7; see Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 159-160 (2) (447 SE2d 122) (1994).

Decided October 17, 1996.

M. Kirby Wood, for appellant.

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Claudia E. DeVaughn, for appellee.

We reject Batten’s contention that the distraction theory precluded summary judgment. That theory has no application here because Harvey did not cause or contribute to Batten’s decision to focus his attention on his children rather than on the plainly visible bag on the steps. Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992) (self-induced distractions do not excuse lack of ordinary care).

Judgment affirmed.

Johnson, J., concurs. McMurray, P. J., concurs in the judgment only.


author: McMurray, Presiding Judge.

text:
    A96A1917.
    BLANKENSHIP v. THE STATE.
    (477 SE2d 397)
   McMurray, Presiding Judge.

Defendant John R. Blankenship was charged in an indictment with unlawful possession of a firearm (Count 1), two counts of theft by receiving stolen property (Counts 2 and 3), and one count of theft by taking (motor vehicle) (Count 4). The evidence adduced at his jury trial revealed that on July 21, 1992, Officer Tony Ranieri, an investigator with the Spalding County Sheriff’s Department, “became involved in the burglary at Mr. [Charles] Goodson’s residence during the investigation of [another burglary and double] homicide on Locust Grove Road.” On July 25, 1992, Officer Ranieri “received a phone call [from Officer Tommy Harris of the Griffin Police Department] which later led [investigators] to Michael McKoon, who . . . was one of the suspects involved in that.” “After statements that Michael McKoon provided to investigators with [the Spalding County Sheriff’s Department] and the Georgia Bureau of Investigation, it led [investigators] to [a] Michael Blankenship. [Michael McKoon] showed [investigators] where the residence was, told [them] of his involvement, and from there, [Officer Ranieri], along with G. B. I. agents and other investigators of the Sheriff’s Department went to that residence of the [defendant].”

“When [they] arrived, . . . Mrs. Blankenship and Mr. Blankenship [defendant] were there at the residence. [The officers] explained to them [the Blankenships] who [they] were, why [they] were there, and they [the Blankenships] led [investigators] down to a basement area . . . where Michael Blankenship’s room was.” Officer Ranieri identified State’s Exhibit 5 as “the sawed-off shotgun that was found in Michael Blankenship’s room.” “The barrel is twelve inches.” The total length of the weapon was “eighteen inches.” “After [investigators] located this weapon, [Officer Ranieri] had a conversation with Mr. Blankenship [defendant]. And the statement [defendant] provided . . . was that [State’s Exhibit 5] was a shotgun apparently given to Michael Blankenship by his grandmother. That Mr. Blankenship [defendant] assisted Michael Blankenship in sawing it off — both ends of the gun — to make it a sawed-off shotgun.”

Officer Ranieri took Michael Blankenship into custody at that time. He returned to defendant’s residence to execute a search warrant. After searching Michael Blankenship’s room, Officer Ranieri “requested to enter another locked room, an office area that Mr. Blankenship [defendant] stated . . . that was his office, his room, and he [defendant] was the only one who had a key to that room.” Investigators found no “pry marks or tool markings of any type on [this] door for which [defendant] had the only key. . . .” Officer Ranieri identified State’s Exhibit 6, a Winchester rifle, as being “found in the locked room or office,. . . belonging to Mr. Blankenship [defendant].” Officer Ranieri affirmed that “this was the weapon that was stolen during the burglary and murder of Timothy Stroud.” Also in this locked room, Officer Ranieri found a PSE camouflage crossbow, with arrows, which had been “stolen from Mr. Goodson’s residence on Highway 155.” Inside of defendant’s pickup truck was “a .22 caliber long rifle pistol. . . . This pistol was also identified as a pistol that was stolen out of the Goodson residence.” Also, “one of the military flashlights came out of [defendant’s] pickup truck.” One murder victim’s Mercedes, stolen during the burglary, was discovered “on Chuli Road, off of Locust Grove Road, which is on the eastern portion of Spalding County, . . . about a half a mile to a mile from the crime scene, and about the same distance to the Blankenship residence.”

Michael McKoon testified that, after he and Michael Blankenship burglarized the Stroud residence, Michael Blankenship drove the stolen Mercedes to the home of his father, defendant John R. Blankenship, where they “wiped the car down.” Michael Blankenship and Michael McKoon then drove off in the Mercedes, expecting defendant to follow them. They waited “at the stop sign until [defendant] pulled up behind [them].” After a brief discussion between defendant and his son, Michael Blankenship told Michael McKoon “that we were going to dump the car.” They drove the Mercedes to a dirt road, “with [defendant] following behind [them].” As they “pulled onto the road, both of [them] extinguished the headlights. . . .” After they “[w]iped down the handle from any stray fingerprints, [they] got into [defendant’s] truck.” Defendant asked them, “did we wipe the car down good, did we get rid of the fingerprints.” The next day, defendant asked Michael McKoon “such things as . . . what have I done with the weapon that was used during the murder. . . . [McKoon] told him [he] had destroyed it.”

At the close of the State’s evidence, the trial court directed a verdict of acquittal as to Count 4, theft by taking (motor vehicle) and an order of nolle prosequi was entered thereon. The jury found defendant guilty of unlawful possession of a firearm and the two counts of theft by receiving. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. In his fourth enumeration, defendant contends the trial court erred in admitting “certain evidence which if same had been properly excluded said accused would not have been convicted.” The entire argument in support of this enumeration is as follows: “The Appellant submits as his argument on this particular enumeration the same arguments as set forth in Enumerations of Error numbers 1, 2, and 3 and their relation to numbers 5, 6, 7 and 8.” This does not constitute reasoned argument in support of any contention that the trial court erred in ruling on any particular evidentiary point of law brought to its attention for decision. Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630); O’Kelley v. Hayes, 132 Ga, App. 134 (1) (b), 135 (207 SE2d 641). Consequently, this enumeration is deemed to have been abandoned within the meaning of Court of Appeals Rule 27 (c) (2). See Ezzard v. State, 229 Ga. 465 (1) (192 SE2d 374).

2. In his seven remaining enumerations, defendant challenges the sufficiency of the evidence.

(a) The 18-inch shotgun was discovered in a locked room, described as defendant’s office, and to which only defendant had a key. “Contrary to [his] assertions, this evidence [of exclusive possession] was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to authorize a rational trier of fact to find [defendant] guilty beyond a reasonable doubt of [possessing a sawed-off shotgun in violation of OCGA §§ 16-11-123 and 16-11-121 (5)].” Johnson v. State, 209 Ga. App. 632 (1), 633 (434 SE2d 169).

(b) “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).

Decided October 17, 1996.

Mullins & Whalen, Harold A. Sturdivant, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

There was evidence that defendant knew of the burglary and deaths within minutes of when Michael McKoon and Michael Blanks enship returned from their murderous spree, and that he assisted the youths in disposing of a car stolen from one of the murder victims. The jury was thus authorized to infer that defendant knew the crossbow (or compound bow), rifle, and military flashlight were stolen property when he exercised exclusive dominion or control by locking these items in his office. There was no fatal variance in the indictment’s description of one stolen item as a crossbow versus a compound bow, for defendant was not unfairly surprised or deprived of a valid defense thereby. Mitchell v. State, 218 Ga. App. 330, 331 (461 SE2d 292). “ After the fact knowledge’ would tend to show a guilty retention under the Code and will sustain a conviction. There was ample evidence of this in the case sub judice.” Johnson v. State, 135 Ga. App. 768, 769 (2) (219 SE2d 25). The enumeration of the general grounds is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    Motion Docket 237.
    KNAPP v. THE STATE.
    (477 SE2d 621)
   Order of Court.

In his emergency motion, Knapp claims error in the trial court’s failure, after a sentence of imprisonment had been imposed, to make a fresh determination of appellant’s custody pending a final decision on appeal of his conviction for driving under the influence in violation of OCGA § 40-6-391 (a) (5) pursuant to Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976). Knapp also enumerates as error the trial court’s refusal to grant him bond pending his appeal of his misdemeanor conviction.

The governing statute, OCGA § 17-6-1, which previously provided for bail in misdemeanor cases as a matter of right, was amended effective September 1, 1996, to provide that the grant or denial of an appeal bond in certain misdemeanor cases, including convictions under OCGA § 40-6-391, is in the discretion of the convicting court. OCGA § 17-6-1 (g). The effect of this statutory change is to treat the subject misdemeanor cases in the same manner as felony conviction bail cases are generally treated.

Defendant was convicted on October 16, 1996, of driving under the influence in violation of OCGA § 40-6-391 (a) (5). On October 17, 1996, defendant was sentenced to twelve months, with the first five days to be served in jail, and the balance to be probated and a $1,000 fine. On October 17, 1996, defendant filed a motion for new trial and a request for supersedeas bond which was denied without an evidentiary hearing by the trial court. On October 17, 1996, defendant’s counsel requested that the court immediately hold a bond hearing. As of the date of this order the court has not set an appeal bond or scheduled a bond hearing in this case. This case is subject to OCGA § 17-6-1, as amended.

The standards to be applied in determining whether bail pending appeal should be granted or denied are described in Birge, supra and Moore v. State, 151 Ga. App. 413 (260 SE2d 350) (1979).

“The procedure required by the law is that ‘ “(A)fter a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court.” (Emphasis supplied.) Birge v. State, 238 Ga. 88, 89, supra. In doing so, the court must give applicant notice of the hearing and a chance to appear and be heard.’ Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979), modifying the procedure outlined and overruling anything to the contrary in the order of court in White v. State, 146 Ga. App. 147, 148 (245 SE2d 870) (1978). See Edwards v. State, 166 Ga. App. 270, 271 (304 SE2d 438) (1983), which noted Moore’s refinement of the White procedure.” Ingle v. State, 216 Ga. App. 836, 838 (456 SE2d 281) (1995).

While the trial court is free to exercise its discretion consistent with Birge in determining whether or not to grant bond, it is not free to refuse to exercise its discretion or to provide defendant the opportunity to be heard on this issue in an evidentiary hearing. “The trial court’s refusal to consider [bond] constitutes a refusal to exercise . . . discretion.” Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993).

Under the clear language of the amended statute, the trial court is required to exercise discretion in determining whether to grant appeal bond. Pursuant to Moore, the trial court must hold an evidentiary hearing at which it may consider evidence presented during the trial of the case as well as additional oral or documentary evidence. The trial court must then answer four questions: 1) whether there is a substantial risk the defendant will flee; 2) whether there is a substantial risk the defendant will pose a danger to others in the community; 3) whether there is a substantial risk the defendant will intimidate witnesses or otherwise interfere with the administration of justice; and 4) whether it appears the appeal is frivolous or intended only for delay. An affirmative answer to any of these four questions will uphold denial of bond. Moore, supra at 414, n. 1. See also Ingle, supra.

The trial court is ordered to hold, immediately, an evidentiary hearing on the question of Knapp’s appeal bond so as to prevent the issues raised in this case from becoming moot. If the trial court is unable to hold this hearing instanter, the court shall release Knapp pending its holding of the hearing herein provided.

Knapp shall be entitled to appeal the ruling of the trial court on the bond hearing as provided by law and to address therein all other issues not herein addressed.


author: Blackburn, Judge.

text:
    A96A2029.
    In the Interest of J. E. L. et al., children.
    (477 SE2d 412)
   Blackburn, Judge.

The juvenile court terminated the parental rights of these children’s father, who is serving a prison sentence in excess of 100 years for sexually molesting them. Their mother is deceased. In this appeal, the father claims that the lower court’s ruling is not supported by the evidence and that custody of his children should have been granted to his parents rather than to the Department of Family & Children Services (Department). We reject both his arguments.

1. In determining whether a termination of parental rights is supported by sufficient evidence, we construe that evidence and all reasonable inferences from it in a light most favorable to the trial court’s ruling and ask whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. In the Interest of L. F., 203 Ga. App. 522, 523 (417 SE2d 344) (1992).

In support of his insufficiency claim, the father argues that the trial court should not have considered his criminal convictions as probative evidence because those convictions were not “final.” The father was convicted of molesting his children in 1991, and the juvenile court did not conduct its hearing until 1995. But the father claims he is in the process of seeking an appeal from his criminal conviction.

Pretermitting whether such an appeal would be viable, we find the trial court properly considered the convictions and incarceration. As the record shows, at least one of the children testified against the father in this criminal trial, and the court properly considered the conviction to have “a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). See In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1996) (sexual abuse of own children is aggravating circumstance which, combined with parent’s imprisonment, will justify termination of parental rights).

We see no reason to equate the “conviction” which may be used as evidence in termination proceedings with the final conviction necessary to increase criminal punishment. See Croker v. Smith, 225 Ga. 529, 532 (4) (169 SE2d 787) (1969) (conviction must be final before it can be used to indict a defendant as a recidivist); Dunn v. State, 208 Ga. App. 197, 198 (4) (430 SE2d 50) (1993) (life sentence imposed pursuant to OCGA § 16-13-30 (d) reversed because prior convictions were on appeal and, therefore, were not “final”). As OCGA § 15-11-81 (b) (4) (B) (iii) indicates, the court’s focus is not on the criminal conviction itself but on the effect the conviction has upon the parent-child relationship. In this case, the juvenile court found four years had passed between the conviction and the hearing, during which time the father had not obtained a transcript of the trial, had not filed an appeal with this Court or the Supreme Court and had not sought a ruling on his pending motion for new trial. During his time in jail, the father had little contact with his children. Because the father remains in prison, the impact of the conviction on his relationship with the children has been significant. We further note that in this case, any successful appeal could result in a retrial of the case, possibly requiring these children to testify against their father. Therefore, the court did not err in considering the detrimental effect of the father’s conviction and imprisonment on his relationship with the children, regardless of whether the conviction was “final.”

After reviewing the trial court’s factual findings, we determine they are supported by evidence, and this evidence supports the trial court’s termination of the father’s parental rights. See In the Interest of T. M. R., 208 Ga. App. 499, 500 (430 SE2d 865) (1993) (reviewing court defers to lower court’s factfinding power and affirms unless evidentiary standard not met).

2. The father also contends the juvenile court should have placed these children in the custody of his parents rather than the Department. See OCGA § 15-11-90 (a) (1). That court found that although this couple had expressed interest in the children, they firmly believed in their son’s innocence and expressed bitterness toward the Department. The record reflects that the children’s grandfather considered the charges “trumped up,” and their grandmother indicated that she believed authorities coerced one of the children to testify against his father. Considering the evidence of the children’s ongoing behavioral problems and the need for therapy related to their molestation, the juvenile court did not abuse its discretion in failing to remove the children from their foster homes and place them with this couple, who refused to believe the molestation occurred and may not be sympathetic to the children’s problems and special needs. See In the Interest of M. R., 213 Ga. App. 460, 467 (3) (444 SE2d 866) (1994) (no error in finding foster care more stable than relative’s home).

Decided October 21, 1996.

Robert M. Bearden, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, W. Ashley Hawkins, for appellee.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


text:
    A96A2125.
    PEINADO v. THE STATE.
    (477 SE2d 408)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of statutory rape, two counts of aggravated child molestation, two counts of child molestation, and two counts of aggravated sexual battery for acts directed against two female victims, “L. F.” and “C. F.” aged five and four, respectively, at the time the acts were committed. The evidence, including defendant’s custodial confession, revealed that defendant had touched the vagina of each victim with his penis. He penetrated each child with his finger. He had each child rub his penis. Physical examination of L. F. by Richard Wagner, M. D., revealed evidence of abnormal trauma, healing, and scarring of both the hymen and the anus. Although physical examinations of C. F. were completely normal, revealing no injuries, this was, in Dr. Wagner’s opinion, consistent with sexual penetration. In his custodial statement, defendant admitted to sexual penetration, “just a little bit inside . . .” of both girls.

The trial court directed a verdict of acquittal with respect to the charge of aggravated child molestation against C. F. (Count 3) and the jury found defendant guilty as charged on all remaining counts. His motion for new trial was denied and this appeal followed. Held-.

1. In two related enumerations, defendant complains of the admission into evidence of his custodial confession.

(a) Defendant contends in his second enumeration that the trial court erred in conducting its inquiry into the voluntariness of defendant’s statement in the presence of the jury, despite defendant’s objection. We agree that the trial court so erred but find the error to be harmless in this instance.

“It is now axiomatic that the defendant has the right to a hearing outside the presence of the jury on the question of the voluntariness of any in-custody statements or confessions that he has made. Jackson v. Denno, 378 U. S. 368 (1964); Schneider v. State, 130 Ga. App. 2 (202 SE2d 238) (1973).” Pierce v. State, 238 Ga. 126 (1), 128 (231 SE2d 744). The Supreme Court of the United States “has never ruled that all voluntariness hearings be held outside the presence of the jury, regardless of the circumstances.” Pinto v. Pierce, 389 U. S. 31, 32 (88 SC 192, 19 LE2d 31). But, “it would seem prudent to hold voluntariness hearings optside the presence of the jury.” Pinto v. Pierce, 389 U. S. 31, 32, supra. “When a preliminary examination is had as to the force, threats of violence, etc., used to procure a confession from the defendant, the better practice is, and impartial justice demands it, that the jury should retire whilst the admissibility of the evidence is considered by the court.” Hall v. State, 65 Ga. 36 (hn. 1).

According to longstanding Georgia procedure, then, an accused has the right to challenge the voluntariness of his custodial statement or confession, outside the presence of the jury. Consequently, the trial court in the case sub judice erred in receiving the State’s preliminary foundation as to voluntariness in the presence of the jury, over defendant’s objection.

(b) The question becomes whether this error was harmful, requiring a new trial. We treat this issue in conjunction with defendant’s related fourth enumeration, challenging the trial court’s ruling that defendant’s confession was voluntary.

“[I]f at the conclusion of. . .an evidentiary hearing in the state court on the coercion issue, it is determined that [defendant’s] confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for [defendant] has already been tried by a jury with the confession placed before it and has been found guilty.” Jackson v. Denno, 378 U. S. 368, 391 (IV), 394 (84 SC 1774, 12 LE2d 908).

In our view, such procedural error as here committed is harmless unless the confession is ultimately found to be involuntary as in Hall v. State, 65 Ga. 36 (hn. 2), supra, or else defendant shows that he was refused an opportunity to present evidence of coercion. See Pinto v. Pierce, 389 U. S. 31, 32, fn. 2, supra. Consequently, if defendant’s confession were voluntary, then there is no harm in the trial court’s erroneous refusal to conduct the voluntariness hearing outside the presence of the jury.

(c) In the case sub judice, defendant’s confession was determined to be freely and voluntarily given, after defendant had been cautioned of his rights and signed a waiver form. Defendant testified in Spanish, through an interpreter, that he is illiterate in both Spanish and English; that he was questioned without an interpreter; that he denied committing any of the crimes alleged; and that at the insistence of Officer Kiki Campbell, formerly of the Cedartown Police, he agreed to “put an X on certain papersf, . . .] but [he] did not know what they were for.” Defendant contends his confession was inadmissible under OCGA § 24-3-50 because it was induced to an impermissible hope of benefit.

The State bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence and the trial court’s findings of fact and credibility after a Jackson v. Denno hearing are to be accepted by a reviewing court unless clearly erroneous. Bright v. State, 265 Ga. 265, 278, 280 (5) (c) (455 SE2d 37). The evidence, although conflicting, supports the conclusion that defendant comprehended spoken English and that he understood his rights when he agreed to talk to the investigating officers. Any promise by the officer to assist defendant in getting “help” through counseling does not constitute an impermissible hope of benefit under OCGA § 24-3-50. Burton v. State, 212 Ga. App. 100, 101 (2), 102 (441 SE2d 470). “A reward of lighter punishment is generally the ‘hope of benefit’ to which Code Ann. § 38-411 [now OCGA § 24-3-50] refers. [Cit.] ‘For an officer to advise an accused that it is always best to tell the truth will not, without more, render a subsequent confession inadmissible under [this] Code [section].’ [Cits.]” Caffo v. State, 247 Ga. 751, 755 (3), 757 (279 SE2d 678). Accord White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277). But see Robinson v. State, 229 Ga. 14 (1), 15 (189 SE2d 53) (Investigating officer’s statement “ ‘everybody asks how cooperative has a suspect been, was this voluntary or did you have to get out and prove it’ cannot be said not to hold out a hope of reward by special consideration if the suspect cooperates. . . .”) In the case sub judice, the trial court did not err in admitting defendant’s custodial confession over his objection as to voluntariness. Consequently, the error in receiving preliminary evidence on voluntariness in the presence of the jury was clearly harmless in this instance. Pinto v. Pierce, 389 U. S. 31, 32, supra.

Decided October 21, 1996

York, McRae & York, Michael H. York, Robert T. Monroe, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

2. Defendant’s third enumeration contends the trial court erred in granting the state’s motion in limine to exclude evidence that L. F. and C. F. had been molested by individuals other than defendant. He argues this evidence is relevant to show that someone other than defendant committed the acts alleged and also to impeach the credibility of the victims.

The trial court erred in granting the State’s motion in limine, so as to exclude evidence of molestations against the same victims committed within the statute of limitation for the crimes on trial. Evidence of prior molestations is admissible to show that someone other than defendant committed the crimes alleged, and is also relevant to the credibility of the victims in identifying the accused. Wilson v. State, 210 Ga. App. 705, 706 (1), 707 (436 SE2d 732), citing Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536). In the case sub judice, however, the substance of this evidence was placed before the jury by the testimony of Dr. Wagner, who testified without objection that C. F. identified the actor as “Doggie,” at least Dr. Wagner “thought it was Doggie. And [he] spelled it in [his] records as D-O-G-G-I-E. . . .” This victim also differentiated between Papa, i.e., defendant, and Poocha or Poochie.

Moreover, we conclude that the erroneous exclusion of evidence of molestations committed by someone other than defendant was rendered harmless beyond a reasonable doubt by defendant’s own confession. “ ‘The defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of (any incriminating) information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.’ (Citations and punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 407 (1), 408 (457 SE2d 685).” McKinney v. State, 218 Ga. App. 633, 635 (3) (463 SE2d 136).

Judgment affirmed.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.

       We are aware of equally venerable authority for the proposition that the trial court has a discretion to allow the jury to remain in the courtroom and hear preliminary evidence as to whether a claimed confession of the accused was freely and voluntarily made. Holsenbake v. State, 45 Ga. 43 (hn. 2), applied most recently in Stanford v. State, 201 Ga. 173, 186 (3) (38 SE2d 823). But this is the precise procedure and rationale that was found inadequate in Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593), reversing Sims v. State, 221 Ga. 190,199 (5) (c) (144 SE2d 103), and remanding for a hearing as provided in Jackson v. Denno, 378 U. S. 368 (84 SC 1774,12 LE2d 908). See also Anno., Propriety and Prejudicial Effect of Presence of Jury During Court’s Inquiry into Voluntariness of Accused’s Confession — Federal Cases, 19 LE2d 1313, 1316 § 3 [a]. Accordingly, there is considerable doubt whether a trial court retains the discretion to conduct the voluntariness hearing in the presence of the jury deciding guilt or innocence, over a defendant’s contemporaneous objection.


author: Eldridge, Judge.

text:
    A96A2141.
    SAMUELS v. THE STATE.
    (477 SE2d 414)
   Eldridge, Judge.

Appellant, Jermaine Samuels, appeals his conviction for the offenses of armed robbery, kidnapping, aggravated assault, and burglary, arising from an incident which occurred in the early morning hours of December 31, 1993, in Macon, Bibb County, Georgia.

Appellant was tried with a co-defendant. The evidence presented at trial showed that the co-defendants and three other males forced entry into an apartment occupied by Carolyn Moore, her two children, her niece, and her niece’s two children. The men covered their noses and mouths in an effort to hide their identities, and at least three assailants carried guns. They ransacked the apartment, tied up Ms. Moore and her niece, and removed jewelry from Ms. Moore. Ms. Moore’s boyfriend, Cedric Johnson (“Johnson”), found the women and children a short time later. Johnson took the victims to the home he shared with his mother, and then left to search for the appellant. Later that day, appellant heard that Johnson was looking for him, and went to Johnson’s home to tell him that he (appellant) did not participate in the break-in. While appellant was at Johnson’s home, Ms. Moore confronted appellant, and noticed that he was wearing the same clothes that he wore during the break-in.

1. In the first and fourth enumerations of error, appellant challenges the sufficiency of the evidence presented at trial; he asserts that the trial court erred in denying appellant’s motion for a directed verdict at the close of the state’s case and appellant’s subsequent amended motion for a new trial. Appellant claims that the identification of the appellant by Ms. Moore was “incredible,” and was insufficient to support the jury’s verdict.

The standard of review for the sufficiency of evidence, in reviewing either a motion for a directed verdict or a motion for new trial, is “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. [Cits.]” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984); see also Rigenstrup v. State, 197 Ga. App. 176, 181 (398 SE2d 25) (1990).

Under OCGA § 24-4-8, the testimony of a single witness is generally sufficient to establish a fact. This includes the uncorroborated identification of an assailant by the victim. Thompson v. State, 203 Ga. App. 339 (416 SE2d 755) (1992); Gay v. State, 143 Ga. App. 857 (240 SE2d 226) (1977).

In the case sub judice, Ms. Moore testified that appellant was among the men who assaulted her family; that she had seen him previously in the area; that she had confronted him about the incident hours after the assault; and that appellant was, at the time of the confrontation, wearing the same clothes that he had worn during the assault. Ms. Moore later picked appellant from a photographic lineup.

Appellant points to the failure of Ms. Moore’s niece, another victim, to identify him as one of the assailants as an indication that Ms. Moore’s identification is unreliable. That is irrelevant to this Court, since an uncorroborated identification is sufficient evidence on its own; the lack of corroboration only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury. Edwards v. State, 209 Ga. App. 304, 305 (433 SE2d 619) (1993); Thompson, supra; Rigenstrup, supra. Therefore, viewing the testimony in the light most favorable to the prosecution, the victim’s testimony, without more, is sufficient to identify appellant as one of the assailants.

However, corroborating evidence was presented regarding statements allegedly made by appellant before and after the incident, as well as showing that, earlier in the evening, appellant was with other men who were also charged in the break-in. The evidence in this case was sufficient to support the denial of both a directed verdict and a motion for a new trial.

2. Appellant also asserts that the trial court erred in allowing the State, over appellant’s objection, to elicit Johnson’s testimony describing a conversation between the witness and appellant, during which appellant offered to sell Johnson “a little machine gun.”

A “witness may testify as to what he saw and heard in the defendant’s presence.” Moore v. State, 240 Ga. 210, 212 (240 SE2d 68) (1977); see also Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). Further, the conversation between appellant and Johnson, an offer to sell a machine gun just hours before one engages in an armed assault involving a machine gun, and where appellant was seen with a “big gun,” was a relevant admission against interest, and is admissible. See Satterfield v. State, 256 Ga. 593, 600 (351 SE2d 625) (1987); Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995).

Appellant argues on appeal that, even if the testimony was admissible, it was highly prejudicial and insufficiently probative to justify its admission. At trial, appellant argued that the evidence was irrelevant, but did not mention any possible prejudicial impact on the jury. The decision to admit relevant, but prejudicial, evidence is within the sound exercise of discretion of the trial court; we find no abuse of discretion. Bell v. State, 203 Ga. App. 109, 111 (416 SE2d 344) (1992).

Decided October 21, 1996.

Thomas M. Jackson, for appellant.

Charles H. Weston, District Attorney, Elizabeth K. Bobbitt, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Appellant also asserts that, in order to rebut the testimony of Johnson regarding the proposed sale of the gun, he would have to give up his constitutional right to remain silent. This argument is without merit, since evidence is routinely (and appropriately) admitted at trial that cannot be rebutted without the defendant’s testimony; the choice of whether or not to take the stand to rebut potentially damaging evidence remains with the defendant.

Finally, appellant asserts that evidence of prior negotiations about the sale of a machine gun impermissibly places appellant’s character in issue. See OCGA § 24-9-20. However, “ ‘we find that if it placed (defendant’s) character in issue it did so only incidentally. . . .’ [Cit.]” Toledo, supra at 482.

Therefore, testimony regarding the appellant’s proposed sale of a machine gun is admissible, and the trial court committed no error in refusing to sustain appellant’s objection to the testimony.

3. Finally, appellant asserts that the trial court erred in denying appellant’s motion to suppress the display of a photographic lineup of appellant and other prisoners on the basis that it was highly prejudicial. Appellant argues that the photographs of him were unnecessarily cumulative, given Ms. Moore’s previous in-court identification. This argument is without merit, particularly because the appellant previously argued that Ms. Moore’s identification of appellant, without more, was insufficient to support the verdict. Further, as noted above, the decision regarding whether or not to admit relevant but potentially prejudicial evidence is within the trial court’s discretion, and will not be disturbed absent abuse of discretion. See Bell, supra.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J, concur.

       After appellant’s original appeal to this Court was dismissed, a habeas corpus court granted an out-of-time appeal, based on a claim of ineffective assistance of appellate counsel in the original appeal.


text:
    A96A2301.
    JONES v. HEILIG MEYERS.
    (477 SE2d 411)
   McMurray, Presiding Judge.

This is an appeal by defendant Jones from the grant of a writ of possession of personal property in favor of plaintiff Heilig Meyers. On March 20, 1996, an order was entered denying the writ of possession. A week later, on March 27, 1996, the order was in effect vacated when the municipal court amended the earlier order to state that “the COURT HEREBY denies the Writ of Possession, pending a hearing on said writ.” The sole enumeration of error is that the municipal court erred in entering an order subsequent to an order finalizing a case. Held:

Decided October 21, 1996.

Brace W. Luquire, for appellant.

Andrew E. Austin, Henry Jackson, pro se, for appellee.

“Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was .improvidently or inadvertently entered.. . . The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts.” (Citations omitted.) Whitlock v. Wilson, 79 Ga. App. 747, 748 (54 SE2d 474). See also Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (2) (366 SE2d 394). The Municipal Court of Columbus, Georgia is a court of record with monthly terms of court which begin on the second Monday of each month. Ga. L. 1983, pp. 4443, 4451, 4452. It follows that the municipal court retained plenary control over the order entered on March 20, 1996, when that order was vacated on March 27, 1996. While defendant Jones had ample opportunity to question this exercise of the municipal court’s discretion, nothing in this regard was developed on the record to rebut the presumption of regularity in the proceedings below. No error being shown on the record, we must affirm the judgment of the municipal court.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


author: Andrews, Judge. POPE, Presiding Judge,

text:
    A96A1014.
    MULLEN v. NEZHAT et al.
    (477 SE2d 417)
   Andrews, Judge.

Mary S. Mullen appeals from the grant of partial summary judgment to Dr. C. Nezhat, Dr. E Nezhat, and Atlanta Center for Endocrinology, Inc. on her RICO claims arising from her surgery on December 16, 1991, at Northside Hospital.

Mullen’s complaint, as amended, also named Dr. Earl Pennington, and Northside Hospital, Inc. as defendants. Numerous causes of action were alleged against the doctors and hospital, including malpractice, battery, fraud, and the RICO claim.

1. Viewing the evidence presented under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it was that C. and F. Nezhat were obstetricians/gynecologists who performed laparoscopic surgery for endometriosis and other problems. Mullen had been suffering from severe pelvic pain and was referred to Drs. Nezhat by her gynecologist in California, where she resided. In December 1988, she underwent surgery by video laseroscopy by Dr. C. Nezhat for treatment of endometriosis, as well as rectal and colon adhesions and ovarian cysts. This surgery was successfully completed.

Due to recurring problems, however, Mullen returned to Drs. Nezhat for further treatment in December 1991. She was admitted to Northside Hospital on December 17 for her surgery on December 18, 1991. This surgery is the basis for the present litigation.

As part of the admission process, Mullen signed a Consent To Surgical Or Diagnostic Procedures And Waiver Of Right To Receive Information In Connection Therewith. The procedures to be performed or possibly performed were listed therein as “video laseroscopy, hysteroscopy, and any other procedure deemed necessary, possible bowel resection, possible laparotomy, possible colostomy.” (Emphasis supplied.) Subsection B of that document stated that “I acknowledge and understand and duly evidence in writing by executing this form that under Georgia law I am entitled to receive the following information relative to the procedure(s) described in paragraph (A): 1. A diagnosis of the condition requiring the procedure(s): 2. The nature and purpose of the procedure(s): 3. The material risks of the procedure(s): 4. The likelihood of success of the procedure(s): 5. The practical alternatives to such procedure(s): and 6. The prognosis if the procedure(s) is (are) rejected.”

The final paragraph stated that the form had been explained to Mullen, that she understood it, consented to the surgery, and “I fully and completely waive the right to be informed of the information specified in paragraph (B) and request that such information not be disclosed.”

Mullen was operated on under general anesthesia on December 18, 1991, from 7:30 a.m. to 11:00 a.m. As part of the surgery, her bowel was mobilized and prolapsed through her rectum for examination for endometriosis and a portion of tissue removed. The rest of the bowel was then sutured and reinserted. Mullen’s recovery was normal until approximately 7:00 p.m. when she went to the bathroom and a portion of the rectum prolapsed. Dr. Pennington reinserted the bowel, and Mullen was discharged on December 23, 1991, no further problems with prolapse having been observed or reported. While this surgery is the basis for this litigation, Mullen underwent an additional surgery by Dr. C. Nezhat in July 1992. She contends that, while she was told the 1991 bowel resection was necessary because of endometrioma, or cancer, and that it would be done only if the endometrioma was deep in the bowel wall, in fact, very few endometriosis cells were found by the pathologist, and there was no evidence of deeply invasive endometrioma.

2. The complaint was originally filed in December 1993 and repeatedly amended, both before and after the defendants filed the motion for partial summary judgment at issue here and the hearing was held. Mullen’s second amended complaint was filed on July 22, 1994, and contained as Count 8 allegations of violation of OCGA § 16-14-4, RICO, against Dr. C. and Dr. F. Nezhat. The predicate acts are alleged as failure to obtain informed consent, supplying false data to medical journals, and excessive and improper billing sent to insurance companies or patients for the allegedly “experimental surgery.”

On March 6, 1995, plaintiff’s third amendment was filed, alleging Count 9 to the complaint, another RICO charge against both Nezhats and Dr. Pennington. This count alleged that the doctors failed to obtain “valid informed consent. . ., by fraudulently misrepresenting the true nature of their experimental surgery, [and] by repetitively performing non-indicated, unnecessary surgery . . .” on Mullen and other patients, thereby “deliberately and maliciously causing bodily harm” amounting to aggravated battery. On March 20, 1995, Mullen filed her fourth amendment, adding to Count 9 the allegations that the Nezhats had engaged in experimental and non-consensual medical treatment by implanting Estradiol pellets into “hundreds if not thousands of women without their knowledge that this hormonal implant was not approved.” It was again alleged that this experimental treatment was improperly billed to insurance companies as other treatment, constituting mail and wire fraud as predicates under OCGA § 16-14-3.

OCGA § 16-14-4 prohibits any person, through a pattern of racketeering activity, from acquiring or maintaining any enterprise, real or personal property, including money. “ ‘Racketeering activity’ means to commit, to attempt to commit, . . . any crime which is chargeable by indictment . . as listed in numerous specified statutes, including OCGA § 16-5-24, aggravated battery. OCGA § 16-14-3 (9) (A).

As sot out above, the two required predicate acts initially alleged by Mullen were aggravated battery committed against her and unnamed “other patients.” OCGA § 16-5-24 (a) provides that a person commits aggravated battery “when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”

In essence, Mullen contends that the scienter (knowledge which can be proven by showing consent to the touching was obtained by fraud) which is needed to prove a civil tort claim based on battery, Smith v. Wilfong, 218 Ga. App. 503, 507 (2) (462 SE2d 163) (1995), is equivalent to the mens rea (general criminal intent) needed to prove a criminal charge under OCGA § 16-5-24. That statute, however, requires malicious intent to cause bodily harm, see Mullen v. State, 51 Ga. App. 385, 387 (180 SE 521) (1935), not fraudulently misrepresenting the type of surgery to be done, the conditions under which it would be done, or the fact that such surgery is experimental. As alleged, the complaint does not indicate the doctors’ malicious intent to commit bodily harm, but intent to profit financially from conducting experimental medical treatment. As alleged in the complaint, it was to the benefit of the doctors that such surgery be seen as “successful,” thereby negating malicious intent to injure the patients.

Here, Mullen does not dispute that she signed the consent form, although she apparently did not read it fully and did not mean to waive her right to information about the surgery. The consent form specifies that a bowel resection was one of the contemplated procedures.

These circumstances do not amount to aggravated battery because they do not allege acts indictable under the criminal statute. Cobb County v. Jones Group P.L.C., 218 Ga. App. 149, 155 (8) (460 SE2d 516) (1995); Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 603 (1) (448 SE2d 737) (1994); see State v. Burrell, 189 Ga. App. 812, 813 (377 SE2d 898) (1989).

Therefore, the grant of summary judgment to appellees on the RICO allegations premised on aggravated battery as predicate acts was proper.

3. As to the mail or wire fraud allegations, the doctors argue that violations of the federal mail and wire fraud statutes cannot be predicate acts under Georgia’s RICO statute. This is not the case. Brown v. Freedman, 222 Ga. App. 213 (474 SE2d 73) (1996); Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga. App. 259, 264 (5) (447 SE2d 617) (1994); Dover v. State, 192 Ga. App. 429 (385 SE2d 417) (1989); see State of Ga. v. Dairymen, Inc., 813 FSupp. 1580, 1585 (10) (S.D. Ga. 1991).

These statutes require that a person, “having devised . . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . .” use the mails or wire communication for the purpose of executing the scheme. 18 USC §§ 1341, 1343; Interagency v. Danco Financial Corp., 203 Ga. App. 418, 426 (3) (417 SE2d 46) (1992).

The trial court’s order found that Mullen’s allegations of fraud were inadequately pled and, since the defendants had pierced Mullen’s pleadings in this regard on their motion for summary judgment, this defect could not be corrected by a motion for more definite statement. We agree. Having reviewed the record, we find that the doctors have pierced Mullen’s allegations of mail and wire fraud, making it incumbent upon her to come forward with evidence of two predicate acts. Lau’s Corp., supra; Brown v. Freedman, supra. In response, Mullen relied below and continues to rely here solely on the allegations of her complaint.

Even considering these bare allegations, they fail for other reasons. Although Mullen alleges that the doctors submitted fraudulent billing statements to insurers and patients, the only patient specified is herself and no specific insurers are named. That Mullen may suspect that these acts were perpetrated against others is not sufficient to create a factual issue at this juncture on the required two predicate acts. Moore v. Barge, 210 Ga. App. 552, 553 (1) (436 SE2d 746) (1993); Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741 (2) (382 SE2d 697) (1989); see Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678) (1993).

To the extent that Mullen seeks to rely upon her allegations of “medical journal fraud,” i.e., publishing false data on their experimental surgery in medical journals in order to entice patients and referrals from other doctors, as predicate acts, this also fails. First, these allegations were stricken from the complaint below on September 6, before filing of the notice of appeal on September 22, and that order is not addressed by this appeal. Additionally, Mullen does not allege that she was induced to undergo surgery by what she read in a medical journal, but that other patients might have been or doctors might have been induced to make referrals. Therefore, as to these acts, she has no standing to raise this issue. See Sedima v. Imrex Co., 473 U. S. 479, 496 (105 SC 3275, 87 LE2d 346) (1985); Morast v. Lance, 631 FSupp. 474, 480-482 (8), (9), (10) (N.D. Ga. 1986), aff’d, 807 F2d 926; Maddox v. Southern Engineering Co., 216 Ga. App. 6, 7 (1) (453 SE2d 70) (1994).

Finally, failure to obtain informed consent, assuming that occurred here, could not be a “predicate act” for purposes of the civil RICO claim. Such a violation, according to the plain language of the statute, “shall not constitute a separate cause of action but may give rise to an action for medical malpractice as defined in Code Section 9-3-70.” OCGA § 31-9-6.1 (d). Therefore, such a failure is not the type of conduct intended to be deterred by the civil RICO provisions. See Sevcech v. Ingles Markets, 222 Ga. App: 221 (474 SE2d 4) (1996).

4. Mullen also enumerates as error the trial court’s denial of her motion to vacate all prior orders issued by the magistrate judge, sitting by designation pursuant to OCGA § 15-1-9.1 for the superior court judge, after he recused himself from the case.

We do not have jurisdiction to consider this issue. The notice of appeal from the grant of partial summary judgment to the doctors was filed September 22, 1995. At a hearing conducted on September 15, 1995, the magistrate announced that he was recusing himself because a former client who had been sued by the doctors’ professional corporation over a bill had just recontacted him. Mullen then filed her motion to vacate all prior orders entered by the magistrate, which was denied by order entered September 26, 1995. On October 16, a “Supplement” to the notice of appeal was filed to include this order in the appeal, pursuant to Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980).

That case, however, deals only with orders entered prior to filing the notice of appeal, not subsequent thereto. Such subsequent orders are not properly before the appellate court and cannot be added by amending the notice of appeal. Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991); Gilbert v. Edmondson, 193 Ga. App. 593, 594 (3) (388 SE2d 713) (1989).

Judgment affirmed.

Smith, J., concurs. Pope, P. J., concurs specially.

POPE, Presiding Judge,

concurring specially.

I concur specially with Divisions 2 and 3. Although I agree that summary judgment was properly granted on Mullen’s RICO claim, I differ from the majority’s analysis in reaching that conclusion.

The superior court granted summary judgment on Mullen’s RICO claim, finding that it lacked the requisite predicate acts for a RICO claim. OCGA § 16-14-3 (8) defines “pattern of racketeering activity” for purposes of a RICO claim: as “engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. . . .” See generally Brown v. Freedman, 222 Ga. App. 213 (474 SE2d 73) (1996). The superior court found mail fraud, wire fraud and battery were the predicate acts for Mullen’s complaint, and that each of these claims failed.

The court concluded that Mullen’s claims for mail and wire fraud failed because she did not present evidence to support her allegations. The court stated: “Plaintiff is required to show some evidence to support her allegations. Nonetheless, in the course of many months of litigation and upon oral hearing on her motion for summary judgment, Plaintiff has failed to come forward with any letters that would support her claims of mail fraud, any telephone bills showing long distance calls, any dates on which these letters and calls were received, or anything else that would support a genuine issue of material fact as to whether Defendants Farr and Camran engaged in the mail fraud or wire fraud as alleged.” I agree with the court’s conclusion in this regard. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Thus, if Mullen’s RICO claim was to survive the motion for summary judgment, it must do so based on her claims of battery for the predicate acts. I conclude that the battery claim — and thus the RICO claim fails — because there was no evidence of two predicate acts of battery. Assuming arguendo that the December 18, 1991 surgery serves as one predicate act, the pleadings do not clearly allege a separate battery against Mullen. Although the pleadings do allege that batteries were committed against numerous other patients, Mullen presented no evidence regarding these vague allegations, and the claim must fail under OCGA § 16-14-3 (8).

Despite my conclusion that summary judgment was proper, I disagree with the majority’s conclusion that the battery allegations failed because the complaint failed to properly allege the doctors’ malicious intent to commit bodily harm, as necessary for an aggravated battery claim under RICO. The majority concludes that Mullen’s claim could not survive because she essentially alleged the sci-enter necessary to a civil tort claim, not the general criminal intent necessary to prove a criminal charge under OCGA § 16-5-24. To the extent that the majority precludes all civil battery from serving as predicate acts for RICO, I disagree.

Although sometimes the intent which forms the basis for a civil suit may not rise to the level necessary to prove a criminal charge, see Avery v. Chrysler Motors Corp., 214 Ga. App. 602 (448 SE2d 737) (1994), in some instances of civil battery the intent may rise to the requisite level of criminality. OCGA § 16-5-24 provides that “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another. . . .” In a civil action for battery, the intent to cause actual physical harm to another is not absolutely essential to the viability of a civil action for battery. See OCGA § 51-1-13; Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264 (1) (387 SE2d 593) (1989). Nevertheless, when a civil defendant commits a battery under sufficiently egregious circumstances, the act may rise to the level of an aggravated battery. As in batteries in which punitive damages may be sought: “if in addition to intending to make contact of either a harmful or an insulting or provoking nature . . . [the defendant] also acted wantonly, wilfully or maliciously,” Hendricks, 193 Ga. App. at 266, a criminal action may lie. In other words, although a civil battery will not always rise to the level of an aggravated battery, in some instances such an act may rise to the requisite level of criminality.

Decided October 22, 1996.

Dickinson, Noel & Mixson, Michael K. Mixson, for appellant.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Walbert & Mathis, David F. Walbert, for appellees.

       Although appellees argue that this Court should not consider the amendments filed after the hearing on their motion for summary judgment, since there is no pretrial order filed in the case, these amendments should be considered. Modern Roofing &c. v. Owen, 174 Ga. App. 875, 876 (332 SE2d 14) (1985); Haskins v. Jones, 142 Ga. App. 153, 154 (3) (235 SE2d 630) (1977); Rushing v. Ellis, 124 Ga. App. 621, 623 (1) (184 SE2d 667) (1971); see Spafford v. Maseroni, 186 Ga. App. 290 (367 SE2d 102) (1988).