text:
    A92A2284.
    STATE OF GEORGIA v. WILBANKS.
    (430 SE2d 668)
   Andrews, Judge.

A purchase of 1.4 grams of cocaine was made by a confidential informant acting at the direction of the North Georgia Narcotics Enforcement Team (NET) from the appellee James Bradford Wilbanks at his mobile home residence located on 4.37 acres of real property. NET executed a search warrant on the real property and seized from the mobile home 6.6 grams of cocaine found in a cookie jar in the kitchen, 12.8 grams of marijuana on top of a TV set in the living room, a .367 Smith & Wesson pistol found on a table in the master bedroom, a .22 Caliber rifle and a Browning 12-gauge shotgun found in the master bedroom closet, a set of Ohaus scales found in the master bath, and a programmable scanner found on the kitchen counter.

After Wilbanks pled guilty to possession of more than one ounce of marijuana and possession with intent to distribute cocaine, the State, acting by and through the District Attorney of Murray County, filed a complaint for forfeiture of the real property, weapons and personalty pursuant to OCGA § 16-13-49. Following a bench trial, the court declared the weapons, scales and scanner to be contraband and subject to forfeiture.

Wilbanks also owned the mobile home and a 4/6 interest in the real property. The court determined that his interest in both the mobile home and the real property within the curtilage was “directly or indirectly, used and intended for use to facilitate the possession of cocaine and marijuana in violation of OCGA § 16-13-30” and was therefore subject to forfeiture pursuant to OCGA § 16-13-49 (d) (2). Nevertheless, the court détermined that: “only the mobile home and curtilage thereto, rather than the entire 4.37 acres of land, is forfeited to the State pursuant to § 16-13-49 (d) (2).”

1. In its sole enumeration of error, the State contends that the court erroneously interpreted the language and legislative intent of the . statute by limiting the real property forfeiture to the curtilage, instead of determining that the entire 4.37 acres was subject to forfeiture. The State argues that OCGA § 16-13-49 (d) (2) mandates that upon a finding that any portion of the real property was used to facilitate a drug transaction, the entire tract of land must be forfeited to the State. We do not agree.

OCGA § 16-13-49 (d) (2) provides that “ [a] 11 property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of [the Georgia Controlled Substances Act] or any proceeds derived or realized therefrom” is declared to be contraband in which no person has a property right. “Property” includes any interest in real property and any fixtures thereon. OCGA § 16-13-49 (a) (9).

By its explicit language, OCGA § 16-13-49 (d) (2) contemplates that a trial court make a factual determination of what property was “directly or indirectly, used or intended for use” in conjunction with drug violations. Had the legislature intended that all of the property on which a drug violation occurred was subject to forfeiture, it could have used language to so indicate.

Unlike OCGA § 16-13-49 (d) (2), 21 USC § 881 (a) (7), the federal statute regarding forfeitures for drug violations, clearly denotes that all property which is used in “any manner or part” to facilitate such illegal act is subject to forfeiture. More specifically, the federal statute states that a violation under that act will result in a forfeiture of “all real property, including any right, title and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of [a drug offense]. . . .”

Because of the difference between the Georgia arid federal statutes, the federal cases construing 21 USC § 881 (a) (7), which the State cites in support of its position here, are inapposite. Similarly, the State’s reliance on In the Matter of a Parcel of Real Property Known as 1632 N. Santa Rita, Tucson, 801 P2d 432 (Ct. App. Ariz. 1990) is misplaced since the Arizona Statute (ARS § 13-2314) at issue in that case is similar to the federal one. Thus, unlike the result here, the Arizona court rationally could conclude: “all property used to facilitate the commission of the offense is subject to forfeiture.” Id. at 437.

Although the trial court’s interpretation of OCGA § 16-13-49 (d) (2) was proper, it is unclear from the trial court’s order the portion of land to which the trial court’s term “curtilage” applies. Accordingly, the case is remanded to the trial court for a legal description of the property termed the “real property within the curtilage of the mobile home.”

2. Wilbanks argues in his brief that the trial court made no finding that the mobile home had a permanent foundation or was affixed to the land so as to become a part of the real property, rather than only being temporarily parked thereon, in order to authorize the forfeiture of the land. However, Wilbanks did not file an appeal as to the forfeiture of the land within the curtilage and did not enumerate this as error. Moreover, it does not appear from the record that this issue was raised in the proceedings below, and it will not be considered for the first time on appeal. Carruth v. Brown, 202 Ga. App. 656, 657 (415 SE2d 470) (1992).

Judgment affirmed with direction.

McMurray, P. J., Cooper, Johnson and Blackburn, JJ., concur. Pope, C. J., Birdsong, P. J., and Beasley, P. J., dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent.

Wilbanks argues that the State’s reliance upon federal cases holding to the contrary is misplaced because the Georgia statute does not explicitly state, as does 21 USC § 881 (a) (7), that a violation of that act will result in a forfeiture of “[a] 11 real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of [a drug offense]. ...” The federal forfeiture statute originated in 1970. Pub. L. 91-513, Title II, § 511. Among its amendments since then is subsection (a) (7), which was added with certain other subsections in 1984. Pub. L. 98-473, 306 (a). The Georgia statute originated in 1974. Ga. L. 1974, p. 221, § 1. Section 16-13-49 was rewritten in 1991, effective before the seizure in this case. Ga. L. 1991, p. 886, § 1. Prior to rewriting, it did not include real property.

A cardinal rule of statutory construction is that “the court must first ascertain the legislative intent in enacting the law and then construe the law to implement that intent. [Cit.]” State of Ga. v. Jackson, 197 Ga. App. 619, 620 (1) (399 SE2d 88) (1990). The legislature used broadly inclusive language in OCGA § 16-13-49 (d) (2): “all property,” and “directly or indirectly,” and “used or intended for use in any manner to facilitate.” This clearly signifies the intent of the legislature that the entirety of any property, including real estate, be forfeited. Although it did not explain these plain words by describing their fullness in detail, as did the federal statute, it did not limit these all-inclusive words either.

We have recognized that the State’s interest in a forfeiture proceeding “is only to prevent a guilty party from further misusing the property,” and is thus remedial in nature. State of Ga. v. Sewell, 155 Ga. App. 734, 735 (2) (272 SE2d 514) (1980). The legislature explicitly expressed its intent by directing in subsection (z) that “[t]his Code section must be liberally construed to effectuate its remedial purposes.” The federal forfeiture statute contains no such clear legislative directive. Neither did the Georgia statute before the amendment, when it was strictly construed. See State of Ga. v. Jackson, supra.

To permit the forfeiture of only an internal portion of a tract of land, not even including the access by which the drugs were brought in, as the trial court did here, according to the State’s undisputed description below, thwarts the legislative intent and in addition results in many problems of practical usage and conveyance, which the legislature may have recognized. One of the principles of statutory construction applicable here is quoted in Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981): “‘[T]he language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ ”

Decided March 19, 1993 —

Reconsideration denied April 2, 1993

Jack O. Partain III, District Attorney, Gary D. Bergman, Special Assistant District Attorney, for appellant.

William W. Keith III, Karen E. Luffman, for appellee.

In In the Matter of a Parcel of Real Property Known as 1632 N. Santa Rita, Tucson, 801 P2d 432 (Ct. App. Ariz. 1990), the Arizona Court of Appeals considered the same issue, under ARS § 13-2314 (F). It allows state forfeiture in racketeering cases, which covers possession of marijuana for sale. One of the categories subject to forfeiture, in subsection (3), is “all. . . property . . . used or intended to be used in any manner or part to facilitate the commission of the offense.” That court ascertained that this subsection “serves two purposes. It deprives the defendant of the means to commit further offenses, and it also helps the state defray the expenses of the investigation and prosecution. Based on the first purpose alone, the statute can be fairly characterized as remedial.” Id. at 436 (1). It further determined that, “like the federal statute, A.R.S. § 13-2314 (F) states that all property used to facilitate the commission of the offense is subject to forfeiture.” (Emphasis in original.) Id. at 437 (5). The Arizona statute does not contain the detail found in the federal statute. Nevertheless, the operative words were “all property.” Those same all-inclusive words are used in the Georgia statute. See also In re Land Located in Effingham, New Hampshire, 561 A2d 1061 (NH 1989) (entire 84-acre tract forfeited although marijuana found growing on only a portion of it; issue was whether the owner was aware of the drug violation).

The trial court incorrectly ruled that under the statute only real property within the curtilage of the mobile home is forfeited. No such carving out is contemplated by the statute. Of course, the innocent owners’ interests are protected. OCGA § 16-13-49 (e).

I am authorized to state that Chief Judge Pope and Presiding Judge Birdsong join in this dissent.

       The remaining two-sixth interest in the real property is owned by Wilbanks’ stepchildren. The State does not contest that their interest in the real property was exempt from forfeiture pursuant to OCGA § 16-13-49 (e). See generally State of Ga. v. Jackson, 197 Ga. App. 619 (1) (399 SE2d 88) (1990).

       OCGA § 16-13-49 (d) (3) extends this definition to “all property located in this state which was, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or of the laws of the United States or any of the several states relating to controlled substances which is punishable by imprisonment for more than one year or any proceeds derived or realized therefrom. . . .”

       Although the State cites In re Land Located in Effingham, New Hampshire, 561 A2d 1061 (NH 1989), the issue in that case was whether the owner was aware of the drug violations taking place on his property. For a general overview of this area see Ana Kellia Ramares, Annotation, Real Property as Subject of Forfeiture Under Uniform Controlled Substances Act or Similar Statutes, 86 ALR4th 995 (1991).

       The federal criminal forfeiture statute does. See 21 USC § 853 (o); United States v. Littlefield, 821 F2d 1365 (9th Cir. 1987).


source: Caselaw Access Project

author: Beasley, Presiding Judge. Birdsong, Presiding Judge,

license: Public Domain

text:
    A92A1950.
    ROBERT HALF OF ATLANTA, INC. v. DIVERSITECH CORPORATION.
    (430 SE2d 800)
   Beasley, Presiding Judge.

Robert Half of Atlanta, Inc., a personnel agency, sued Diversitech Corporation for a fee pursuant to an agreement for placement of an employee. Both parties moved for summary judgment. Robert Half contends it fulfilled Diversitech’s requirements as to employee qualifications. Diversitech contends Robert Half failed to comply with an implied duty to provide a drug-free employee or breached an implied warranty of fitness. The court denied summary judgment to Robert Half, which is affirmed, and granted summary judgment to Diversitech, which is reversed.

It has not been established as a matter of law by movant Diversitech that under the terms of its contract with Robert Half, the latter’s fee would not be earned if the person placed tested positive for drug use.

There is in the record no written contract between the parties. However, it is undisputed that Diversitech contacted the personnel agency, seeking someone to be a manager of information systems and supervisor of data processing, with UNIX background, several years’ experience, a college degree, and experience with different accounting systems. From the record thus far developed, apparently nothing was said about drug testing or about conditional or probationary employment. Diversitech states, in response to interrogatory, that it did not inform the agency that a physical exam and drug test would be “conditions precedent” to employment. The evidence is in dispute with respect to the extent of the discussion of fees and whether the Fee Schedule was provided to Diversitech right after the phone conversation.

A few days later, Robert Half faxed a letter to Diversitech that it had found Ms. Walker, a person with the qualifications listed by Diversitech. There is evidence that Walker was thereafter interviewed twice by Diversitech, was offered a position, accepted it and reported to Diversitech. On the other hand, there is also evidence that the offer was only “contingent upon passing a pre-employment physical examination as it pertains to the requirements of the job,” as stated in the application form signed by Walker several days after she reported to Diversitech. There is no evidence that Robert Half was given a copy of this form or knew Diversitech’s procedure. Diversitech, according to its controller’s affidavit, “terminated her employment” and “fired” her about a month after she reported, after the drug test taken in the interim.

The agency’s Fee Schedule, sent with the invoice the day Walker was to report to Diversitech, states: “Unless otherwise previously agreed in writing signed by an officer of [the agency], the starting of employment of the employee referred by us to you shall constitute acceptance of terms set forth herein. Fees will be due us and the terms set forth herein will apply as to any applicant referred by us to you if you employ the applicant at any time within one year from the date of the referral.” It also states that fees are due “on or before ten (10) days from the date the Employee starts work,” and a pro rata guarantee is set out. As stated earlier, the Fee Schedule may also have been sent before Walker was presented.

Whether Walker became employed by Diversitech and started employment or not within the meaning of the placement contract is a question of fact, about which there is evidence both ways. There is evidence that Diversitech did not employ Walker, because she failed the drug test. There is also evidence that it did employ her, although on a probationary basis. The fact that Diversitech’s “normal procedure,” followed in this case, was to have office personnel drug-tested after they reported for work indicates that it did not expect or intend the agency to accomplish this.

The intent of the parties is foremost in the construction of contracts. OCGA § 13-2-3. “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). “Ambiguity in a contract may be defined as duplicity, indistinctness, and uncertainty of meaning or expression. [Cit.]” Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (6) (289 SE2d 792) (1982).

It has not been established what the parties agreed to with respect to when or under what conditions the fee would become earned. If the Fee Schedule was intended to set this, the meaning of “starting of employment” is ambiguous and cannot be resolved without resort to parol evidence, which is in dispute. Correspondence between parties is admissible if it clarifies or tends to explain intent, and meaning placed on a contract by one party may be acquiesced in by the other party who knows of it and remains silent. Salvatori Corp. v. Rubin, 159 Ga. App. 369, 373 (3) (283 SE2d 326) (1981).

The evidence in this case does not establish as a matter of law that Diversitech owes the placement fee. Neither does the evidence establish, in Robert Half’s favor, that Diversitech owes the fee. The question is whether the agency’s fee was contingent on the placed person’s passing the physical exam and drug test administered by the employer.

Judgment affirmed in part and reversed in part.

Pope, C. J., and Cooper, J., concur. Justice George H. Carley concurs. Blackburn, J., concurs in the judgment only. McMurray, P. J., Birdsong, P. J., Andrews and Johnson, JJ., dissent.

Birdsong, Presiding Judge,

dissenting.

I respectfully dissent. I would affirm the trial court’s grant of summary judgment to Diversitech Corporation in Robert Half of Atlanta, Inc.’s suit for a fee for services pursuant to the oral agreement for placement of a “qualified” employee.

Robert Half is seeking to be paid a fee for a service which it did not perform. Diversitech’s principal requirement was for an employee qualified to manage other employees, i.e., “of managerial quality,” and with certain computer education and expertise. On September 20, 1990, Robert Half proffered a Ms. Walker as being “right on the money.” Although the majority finds that the meaning of “starting of employment” (which fixed Robert Half’s right to a fee) is ambiguous and . that a question of fact exists as to whether Walker actually “started employment” with Diversitech, and as to whether the agency’s fee was contingent on the placed person’s passing the physical exam and drug test administered by Diversitech, it is undisputed that Diversitech’s standard procedure as testified to by Diversitech required the candidate to report to Diversitech on a probationary basis and undergo a physical examination including drug tests. It is not disputed that four days after Walker reported to Diversitech, she completed a “standard application for employment,” which stated: “I understand that any offer of employment is contingent upon passing a pre-employment physical examination as it pertains to the requirements of the job.” Less than a month later, a drug test which proved positive for cocaine and marijuana resulted in her being released from her probationary status.

Although Diversitech did not expressly state a requirement to Robert Half of Atlanta, Inc. that the candidate be screened for illicit drug use, it cannot be disputed that inasmuch as Walker used illicit drugs she was not “of managerial quality” and was not “right on the money.” Robert Half could not reasonably represent her as such unless it had made an inquiry as to possible drug use. It is prevalently known that use of illicit drugs is an overwhelming problem in society in general and is a blatant disqualification of those seeking positions to manage others in an employment setting. That such a problem might exist and the certainty that it would disqualify the person for employment in a managerial capacity are well known to any business which is in the business of placing “qualified” employees for others.

The fact that the parties did not “express” this condition as a qualification of employment is therefore not conclusive. An implied term in an agreement exists where it is reasonable and necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they deemed it unnecessary to state. Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308). Naturally, an employment agency cannot warrant that a person does not use illicit drugs; this is not a thing which can be guaranteed by anybody, since one who uses illicit drugs may conceal the fact and might contrive to pass a drug test given by the agency and then indulge her habit after being placed by the agency and accepted by an employer. This is obviously why Diversitech administered its own drug test while keeping the employee on a probationary status before actually hiring her. Therefore, the fact that Diversitech administered its own drug test does not relieve the agency of a preliminary duty to inquire; that Diversitech required the candidate to apply for work on a probationary status and then undergo a drug test confirms the importance Diversitech placed on the possibility of drug abuse as a disqualification to actual employment, and confirms by conduct Diversitech’s true contractual intent. See Head v. Scanlin, 258 Ga. 212, 214 (367 SE2d 546). It also evidences the importance which Robert Half, as a professional agency engaged in placing “qualified” employees, reasonably knew the employer placed on that possibility.

The impossibility of Robert Half’s guaranteeing that a candidate does not engage in illicit drug use does not mean it had no duty even to inquire as to a matter of such blatantly profound significance to its client, and to make a reasonable effort to discover such a blatant disqualifying factor before proposing a candidate as “qualified” and “right on the money” and putting Diversitech to the trouble of engaging her on a probationary status, and before exposing Diversitech to an implied necessity to pay the agency’s fee for an unqualified person. It cannot be disputed that Walker was not “qualified”; a reasonable effort by Robert Half to ascertain this fact, just as Diversitech successfully did soon after Walker’s probationary period began, would have spared Diversitech any necessity of paying a fee for an employee who was not “qualified.” Common sense and public policy demand the conclusion that such a blatant duty was so clearly contemplated by the parties in the circumstances of this case that they deemed it unnecessary to state. Thus, there was an implied duty on Robert Half to screen a job candidate reasonably for drug abuse before presenting a candidate as qualified, in particular, “of managerial quality.”

What constitutes a reasonable effort by the agency to ascertain a job candidate’s qualifications may be a question of fact in some cases, but in this case it is undisputed that although Robert Half had agreed to submit only qualified job candidates and presented Walker as “qualified,” it made no effort at all to determine this fact of profound disqualifying character. It made no inquiry as to the matter whatever, and did not even ask the candidate to submit to a drug screening test before representing her as “qualified” and “right on the money.” It cannot be suggested that Robert Half provided a service for which it should be paid, as it did not provide a “qualified” candidate, and made not the slightest effort to discover the blatant negative factor which disqualified Walker for actual employment. Robert Half is not a party to the employment relationship between Walker and Diversitech; as Walker signed an application acknowledging that she was only retained on probationary status and had to undergo a drug test before actually being hired, it is not for Robert Half to assert that Walker had “started employment.” To say this is a question of fact for the jury is to suggest that Robert Half can set its own conditions for employment of a candidate, and that by proposing as “qualified” a person who is never actually employed, it can entitle itself to a fee for a service which, undisputedly, it did not perform.

Decided April 2, 1993.

Bryant, Davis & Cowden, Jay G. Davis, James W. Hays, for appellant.

Kirwan, Goger, Chesin & Parks, John J. Goger, Larry Chesin, for appellee.

Whether Robert Half knew the exact nature of Walker’s probationary status with Diversitech is beside the point; the point is what the exact relation was between Diversitech and Walker, and that fact has been indisputably established. Since the burden of performance in producing a “qualified” employee was upon Robert Half, and since Robert Half is seeking a fee for placement of an unqualified employee, it ill suits Robert Half to assert that Walker “started employment” when the undisputed evidence of the employer/employee relationship shows she did not.

I would affirm the grant of summary judgment to Diversitech under the facts of this case. I am authorized to state that Presiding Judge McMurray, Judge Andrews and Judge Johnson join in this dissent.


author: Blackburn, Judge.

text:
    A92A2124.
    THE STATE v. RUSTIN.
    (430 SE2d 765)
   Blackburn, Judge.

Thomas Milton Rustin was charged with driving under the influence of alcohol. After his first conviction in the probate court was reversed in Rustin v. State, 192 Ga. App. 775 (386 SE2d 535) (1989), he requested a jury trial and the case was transferred to the superior court. Rustin then moved to dismiss on the ground that the prosecution was barred by the statute of limitation. The court granted this plea in bar, and the state appeals.

On September 30, 1988, Rustin was issued a uniform traffic citation and complaint charging him with having committed on the same date the offense of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). Rustin was convicted of DUI in the probate court in November 1988 and the conviction was affirmed in the superior court, but in Rustin, supra at 776-777 (2), this court reversed the conviction because the record contained no written waiver of Rustin’s right to have a jury trial. (That holding in Rustin was later disapproved by the Supreme Court in Nicholson v. State, 261 Ga. 197, 200 (6) (403 SE2d 42) (1991), in which it was held that in the absence of a timely objection to proceeding in the probate court, the right to jury trial is waived.) Upon remand, Rustin requested a jury trial, and the case was transferred from the probate court to the superior court.

Pursuant to OCGA § 40-13-3, Rustin’s case could not be tried in the superior court without a formal accusation, and for that reason, on November 19, 1991, the state filed an accusation against Rustin charging him with driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). However, the accusation also charged Rustin with a new offense, i.e., driving with an unlawful blood alcohol level (OCGA § 40-6-391 (a) (4)). Both counts were based upon the same September 30, 1988, events that were the basis of the uniform traffic citation on which he had been prosecuted in the probate court. Rustin moved to have the case dismissed, contending that the accusation had been filed more than two years after commission of the crimes and therefore was barred by the two-year statute of limitation for misdemeanors contained in OCGA § 17-3-1 (d). The superior court orally granted the plea in bar at a hearing on May 12, 1992. The state filed a notice of appeal on May 28, 1992, and on July 24, 1992, the superior court entered a written order granting the plea and dismissing the prosecution. The appeal was docketed in this court on July 28, 1992.

1. Rustin contends that this appeal must be dismissed because the state filed its notice of appeal before the judgment was entered. We disagree, as even thoügh the premature notice of appeal was “erroneous and not in accordance with statutory command,” we “reluctantly” will “review the case on its merits rather than dismiss it.” Sharp v. State, 183 Ga. App. 641 (1) (360 SE2d 50) (1987).

2. The state contends that the superior court erred in granting Rustin’s plea in bar. We agree with the state’s position with regard to the violation of OCGA § 40-6-391 (a) (1) which was originally charged on September 30, 1988, but not as to the violation of OCGA § 40-6-391 (a) (4) which was initially charged in the accusation filed on November 19, 1991.

OCGA § 17-3-1 (d) provides that prosecution for misdemeanors must be commenced within two years after commission of the crime. A prosecution is “commenced” when an accusation or indictment is filed, and continues until final disposition of the case on appeal. OCGA § 16-1-3 (14); Smith v. State, 190 Ga. App. 246 (378 SE2d 493) (Í989). A DUI charge may be prosecuted in a probate or state court on a uniform traffic citation, which constitutes the accusation. OCGA §§ 40-13-1; 40-13-3; Boss v. State, 152 Ga. App. 169 (262 SE2d 527) (1979). Thus, Rustin’s prosecution in the probate court for the DUI charge alleging a violation of OCGA § 40-6-391 (a) (1) was commenced when he was issued the uniform traffic citation and complaint on September 30, 1988. The filing of a formal accusation in any court with jurisdiction over such offenses, other than a superior court, would have been a superfluity. See Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985).

The trial court’s grant of Rustin’s plea in bar resulted out of consideration of the passage of time from the date of the alleged offenses and the date of the formal accusation filed on November 19, 1991, following this court’s remand of the case because of the absence of a written waiver of the right to a jury trial. In Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989), this court held that the limitation period was not tolled during the pendency of a prior appeal, and that prosecution of the defendant under a subsequent formal accusation (which added a charge of simple battery) filed after the expiration of the limitation period was barred. However, prosecution of the defendant under the uniform traffic citation was still allowed, although the prosecution was limited to the offenses originally charged in that traffic citation. The same principle is applicable in the instant case.

Upon remand of this case to the probate court, Rustin exercised his right to a jury trial, and the case was necessarily bound over to the superior court. Consequently, the state was then compelled to file a formal accusation because a uniform traffic citation and complaint cannot be made the basis for a trial in the superior court. OCGA § 40-13-3; Stone v. State, 151 Ga. App. 531 (260 SE2d 405) (1979). The prior appeal in this case did not result in a final disposition of the matter, and filing of the formal accusation in November 1991, as required by OCGA § 40-13-3 and as necessitated by Rustin’s demand for a jury trial, in no way constituted commencement of a new prosecution with regard to the alleged violation of OCGA § 40-6-391 (a) (1). Under the circumstances presented by this case, although the filing of the accusation in the superior court could not be considered a superfluity because of the requirements of OCGA § 40-13-3, it must be regarded as a continuation of the prosecution previously commenced. For that reason, the trial court erred in granting Rustin’s plea in bar with regard to the charged violation of OCGA § 40-6-391 (a) (1).

However, the accusation filed in November 1991 also included a new offense, i.e., an alleged violation of OCGA § 40-6-391 (a) (4), driving with an unlawful blood alcohol level. Because that accusation was filed beyond the applicable limitation period, prosecution of this new offense was barred, notwithstanding the fact that it may have stemmed from the same conduct as the original DUI charge. Accordingly, the trial court properly granted Rustin’s plea in bar with regard to the alleged violation of OCGA § 40-6-391 (a) (4). Duncan v. State, supra.

The state contends that inclusion of the alleged violation of OCGA § 40-6-391 (a) (4) in the November 1991 accusation was a permissible amendment, authorized by OCGA § 17-7-71 (f), of the original uniform traffic citation prepared pursuant to OCGA § 40-13-1 and the Rules of Department of Safety, Section 570-19-.01. See generally Freeman v. State, 194 Ga. App. 905 (8) (392 SE2d 330) (1990), wherein a second formal accusation prepared pursuant to OCGA § 17-7-71 (a), alleging simple assault, amended the original accusation which also alleged simple assault. The issue of amendment of uniform traffic citations by formal accusation under OCGA § 17-7-71 (f) was not raised or addressed in Duncan v. State, supra.

OCGA § 17-7-71 (f) provides that “[p]rior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.” For the reasons that follow, we find that this statute applies to and authorizes amendment of formal accusations, and not uniform traffic citations which may only be used to prosecute traffic offenses.

Finding that OCGA § 17-7-71 (f) relates to the preparation and amendment of formal accusations, and not uniform traffic citations, is supported by reference to the statutory and regulatory basis for the creation and implementation of the uniform traffic citation. OCGA § 40-13-1 and Section 570-19-.01 of the Rules of Department of Public Safety specifically provide that the uniform traffic citation was devised for use by law enforcement officers to enforce the traffic laws and ordinances of this state. The form for the uniform traffic citation prescribes the use of a single citation per offense charged, which is inconsistent with amendment to add other related charges as allowed by OCGA § 17-7-71 (f). Further, the uniform traffic citation requires only the signature of the police officer where it is used as the prosecuting vehicle.

The formal accusation contemplated under OCGA § 17-7-71 (a), however, must be signed by the prosecuting attorney of the court; has no detailed, prescribed form; can include multiple counts; and can be used for any misdemeanor prosecution. While OCGA § 17-7-71 (a) generally provides for trial of misdemeanor offenses upon an accusation, OCGA § 17-7-71 (b) makes specific provision for use of the uniform traffic citation to prosecute “all misdemeanor cases arising out of violations of the laws of this state, relating to . . . the operation and licensing of motor vehicles and operators. . . .”

Decided April 2, 1993.

W. Fletcher Sams, District Attorney, Tarey B. Schell, Assistant District Attorney, for appellant.

James M. Kimbrough III, for appellee.

The import of these statutory and regulatory provisions is that a uniform traffic citation and complaint may serve as an accusation only for traffic offenses, and may neither be used to prosecute non-traffic offenses nor amended to add such pursuant to OCGA § 17-7-71 (f). In view of that limitation upon the use of uniform traffic citations, OCGA § 17-7-71 (f) must envision amendments to formal accusations, and not uniform traffic , citations.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Cooper, J., concur.


author: Pope, Chief Judge.

text:
    A92A2190.
    DeKALB COUNTY BOARD OF TAX ASSESSORS v. LANIER WORLDWIDE, INC.
    (430 SE2d 595)
   Pope, Chief Judge.

This is an appeal by the DeKalb County Board of Tax Assessors (“BTA”) from the trial court’s denial of its motion for new trial.

The headquarters of Lanier Worldwide, Inc. (“Lanier”) and a large regional warehouse are located in DeKalb County. For many years Lanier applied for and received a freeport exemption from taxation on its inventory located in DeKalb County. In 1991, Lanier’s freeport exemption was denied because the application was deemed untimely by the BTA. Although the envelope in which it was mailed contained a meter strike dated April 1, 1991, the postmark date on the envelope was April 5, 1991.

Prior to 1991, Lanier had timely submitted its taxes and applications for freeport exemptions. In 1991, Lanier’s application for the freeport exemption was prepared by Corporate Tax Consultants (“CTC”). The CTC employee who prepared the application testified she mailed it by depositing the envelope containing the application in a United States post office on April 1, 1991.

1. The statute authorizing a freehold exemption in Georgia, OCGA § 48-5-48.1, provides in pertinent part: “Any person, firm, or corporation seeking an exemption from ad valorem taxation of certain tangible personal property inventory when such exemption has been authorized by the governing authority of any county or municipality after approval of the electors of such county or municipality pursuant to the authority of the Constitution of Georgia or Code Section 48-5-48.2 [Freeport Exemption] shall file a written application and schedule of property with the county board of tax assessors on forms furnished by such board. Such application shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes his books for the return of taxes.” (Emphasis supplied.) OCGA § 48-5-48.1 (a). That statute further provides: “The failure to file properly the application and schedule shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year.” (Emphasis supplied.) OCGA § 48-5-48.1 (c).

Thus, the term “filed” is not defined in that statute nor is the term defined in the chapter of the Code concerning ad valorem taxation of property. The two employees of the BTA who testified at trial stated that the BTA decides whether an application for a freeport exemption is timely filed by applying its internal policy, which requires the application must either be received on or before April 1 (the date on which the books are “closed” in DeKalb County) or the envelope in which the application is mailed must be postmarked by a United States post office with a date on or before April l. This internal policy is mentioned in the documentation mailed to taxpayers in a paragraph in the instruction sheet for filing returns for personal property and for freeport exemption. That paragraph provides: “Last day for filing without 10% penalty is April 1. The penalty will apply on any returns received or postmarked after April 1. Where metered mail is counter stamped by the Post Office, then the Post Office date is the only acceptable date. CAUTION! Check with the Post Office to be sure that the date of deposit and the postmark date are the same if mailing is close to the deadline. Freeport exemption must be applied for no later than April 1. Application for freeport exemption after April 1 will not be accepted. There is no legal basis for granting an extension of time or waiving the penalty. Please do not ask for either.”

Lanier presented no evidence that it complied with the internal policy established by the BTA to determine when applications for freeport exemptions are timely filed. Although the CTC employee who mailed the application testified she deposited the application at a United States post office on April 1, 1991, she did not check with post office personnel to ensure the postmark date would be the same as the date of mailing as the application instructions caution.

The only other evidence Lanier presented at trial to support its position that its application for the freeport exemption was timely filed was the testimony of the deputy chief appraiser who testified that on one occasion the BTA made an “exception” to its filing deadline policy when the taxpayer presented evidence that the United States post office postmark on the envelope containing the tax document was erroneous by presenting the taxpayer’s copy of the post office receipt verifying the tax document had been sent by either registered or certified mail on the postmark date, which was earlier than the postmark date on the envelope of the tax document and was within the time allowed for filing under the BTA’s internal policy. The appraiser did not remember if an application for a freeport exemption was filed by that taxpayer. Unlike the taxpayer who was able to prove his return was timely filed to the BTA’s satisfaction, Lanier presented no evidence from the postal service showing that its application for a freeport exemption was mailed on or before April 1, 1991; only the testimony of the CTC employee who mailed the return that she deposited the application on the due date. As the BTA requires evidence of a United States post office postmark date to prove an application for freeport exemption was mailed timely, the evidence presented by Lanier was insufficient to show compliance with the BTA’s internal policy. Accordingly, the trial court erred in denying the BTA’s motion for new trial.

2. The BTA also contends the trial court committed reversible error by failing to give the following charge: “One who selects the United States mail as its agency to transmit communications takes all the risks that are usually incident to the business in which those messengers are engaged.” “A requested charge need be given only when it embraces a correct and complete principle of law and is pertinent and adjusted to the facts of the case. [Cit.]” Sapp v. Johnson, 184 Ga. App. 603, 605 (362 SE2d 82) (1987).

We hold the trial court erred by refusing to give that charge under the facts of this case because the instruction sheet for the application for freeport exemption makes it clear that the taxpayer bears the responsibility for ensuring that the postmark date is the same as the mailing date. Accordingly, the charge was not irrelevant to this case as the trial court found; instead it was adjusted to the facts of this case and contained a correct proposition of law.

Judgment reversed.

Johnson, J., and Justice George H. Carley, concur.

Decided April 2, 1993.

Lisa F. Stuckey, Albert S. Johnson, for appellant.

King & Spalding, Steven J. Estep, Nolan C. Leake, for appellee.

       The BTA’s internal policy is consistent with how the term “filed” is defined by many jurisdictions in a taxation context. See, e.g., 26 USC § 7502 (a) (1); Fla. Stat. § 199.042 (1991); N. J. Stat. § 52:13D-22.2 (1992); ORC Ann. § 5703.053 (1992); and S. C. Code Ann. § 12-36-2570 (1991).


author: Cooper, Judge.

text:
    A91A0567.
    CSX TRANSPORTATION, INC. v. LEVANT.
    (431 SE2d 482)
    Decided April 5, 1993.

      Hunter, Maclean, Exley & Dunn, Arnold C. Young, Wade W. Herring II, Alston & Bird, Jack H. Senterfitt, for appellant.

      Agnew, Schlam & Bennett, Paul R. Bennett, Jones, Boykin & Associates, John W. Jones, Billy E. Moore, for appellee.
   Cooper, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, CSX Transp. v. Levant, 262 Ga. 313 (417 SE2d 320) (1992), our decision in CSX Transp. v. Levant, 200 Ga. App. 856 (410 SE2d 299) (1991), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


author: Beasley, Presiding Judge.

text:
    A93A0216.
    In the Interest of A. D., a child.
    (430 SE2d 809)
   Beasley, Presiding Judge.

Grandparents petitioned the juvenile court for custody of their daughter’s nearly nine-year-old illegitimate child in June 1992. They alleged that the child had resided with them for most of her life and was then residing with them; that she was without proper parental care or control necessary for her physical, mental or emotional health or morals; that the mother was living with a man to whom she was not married; and that the grandparents, but not the mother, were fit and proper persons to have custody. The mother responded, denying that she is an unfit parent.

Evidence at the hearing was that the mother was previously married to the man she was living with. Prior to their divorce, he sustained a work-related back injury requiring continuing medical care. He took large amounts of prescription drugs, drank heavily, had used crack cocaine on occasion, and physically abused the mother. She left him in August 1991 after he had pointed a gun at her head and threatened to kill her. She moved back to her parents’ home with the child and secured a divorce in November. She resumed living with him in January 1992. She has full-time employment at a grocery store, working six to eight hours a day five to six days a week. The man is partially disabled and does not have any regular employment. The mother leaves the child with him while she is working. She testified that at the time of the hearing in June, he was still drinking but no longer taking prescription drugs.

The court denied the grandparents’ petition, stating that there was no clear and convincing evidence of parental unfitness so as to authorize either a termination of parental rights or transfer of custody, temporary or permanent.

However, the court sua sponte convened another hearing which was held a week later. At that hearing, the court stated that it was concerned that the mother’s entrusting the care of the child to the man while she was working posed a threat to the child’s safety because he has had severe drinking problems, continues to drink uncontrollably, and might drive with the child while drunk. The child testified that after the first hearing, he had driven with her in the car while drinking and that this scared her. He denied this but admitted having had several beers that day.

The court found that the man has had in the past “a severe drinking problem and continues to have a drinking problem,” that under the proper circumstances, he would likely operate a vehicle with the child after having consumed alcoholic beverages, and that he did in fact consume not less than two to three beers with the child in his custody the day after the prior hearing. Based upon this, the court ordered temporary custody of the child placed with petitioners until further order, with visitation granted to the mother.

We granted the mother’s application for discretionary appeal. Only the grandfather has responded as appellee. The grandmother, who the parties agreed at oral argument is separated from the grandfather, did not file a brief or appear. The mother contends that the court erred in applying the “best interest of the child” standard and awarding custody to the grandparents, who are third parties, without a finding of unfitness of the mother, and that the court’s findings of fact are not supported by the evidence. The petition had asserted the “best interest of the child” standard.

“As between a natural parent and a third party (grandparent), the parent can be deprived of custody only if one of the conditions specified in [OCGA §§ 19-7-1 and 19-7-4], or one of the other legal grounds ([OCGA §§ 15-11-2 (8); 15-11-81]), is found to exist by clear and convincing evidence. [Cit.]” Brant v. Bazemore, 159 Ga. App. 659, 660 (284 SE2d 674) (1981).

The allegations of the petition were that the child is “deprived,” as defined in OCGA § 15-11-2 (8) (A), and that the mother was not fit to have custody.

“ ‘(W)here deprivation forms the predicate upon which the third party seeks a temporary transfer of the child’s legal custody, in order to support such disposition the child must first be adjudicated to be a deprived child. By statute, that finding of deprivation must be made by “clear and convincing evidence.” OCGA § 15-11-33 (b) (1). ... In cases brought by a third party against the natural parent and alleging deprivation, the “clear and convincing” standard of evidence applies with equal force to the petitions for temporary custody as well as to any permanent transfer of custody or termination of parental rights.’ [Cits.]” In the Interest of C. T. L., 182 Ga. App. 845 (357 SE2d 298) (1987).

OCGA § 15-11-81 (a) states that “[i]n considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section.” Subsection (4) (A) of OCGA § 15-11-81 (b) authorizes a court to terminate the parental rights of a parent with respect to the parent’s child if: The court determines parental misconduct or inability by finding that: “(i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” In pertinent part, OCGA § 15-11-2 (8) (A) defines a “deprived child” as meaning a child who: “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.”

The order appealed from does not show that the court made the findings required under OCGA § 15-11-81 (a) and (b) (4) (A) to support the custody award; it does not appear from the record that the court made the determination that the child was deprived and the mother was unfit. For this reason, the order must be reversed and the case remanded for further findings by the court. As the court recognized, they must be based on “clear and convincing” evidence. Blackburn v. Blackburn, 249 Ga. 689 (292 SE2d 821) (1982). See In the Interest of C. T. L., supra.

Judgment reversed and case remanded.

McMurray, P. J., and Cooper, J., concur.

Decided April 5, 1993.

Wendy J. Glasbrenner, Vicky 0. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, for appellant.

Davidson, Hopkins & Booth, Jack S. Davidson, Joseph H. Booth, for appellee.


text:
    A93A0239.
    TUCKER v. THE STATE.
    (430 SE2d 811)
   Beasley, Presiding Judge.

Tucker was indicted and convicted on four counts of child molestation (OCGA § 16-6-4 (a)), involving his cousins ages five and eight. It was alleged that he fondled the vaginal area of each child (two counts) and masturbated in their presence (two counts). His motion for new trial was denied.

In his sole enumeration of error, appellant contends that the trial court erred in admitting child hearsay statements into evidence pursuant to OCGA § 24-3-16, for the reason that the statements lacked, sufficient indicia of reliability when made.

OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

The statements in issue were made by the two girls to their, mother and to a DFACS caseworker trained in child molestation investigation, relating the incidents which were to form the basis of the indictment. The availability requirement was satisfied: both children testified at trial as witnesses of the court. A pre-trial hearing was conducted to determine whether the statements were sufficiently reliable to be admissible under the second prong of OCGA § 24-3-16.

The mother testified that she learned from another family member of an incident involving appellant and the five-year-old. She questioned the child about it while the two were alone, neither threatening nor promising her anything and reassuring her that she was not in any trouble. The mother testified that the child had been truthful in the past and that she believed her on this occasion. In their discussion, which lasted 15 to 20 minutes, the child “was pretty much open” and did not require prompting. The mother then telephoned her eight-year-old daughter, who resided at that time with her father and stepmother. Without relating what the younger child had told her or suggesting any details, the mother questioned her about “what was going on” regarding appellant. The child volunteered the information without hesitation. She said that the events took place on the back porch of the mother’s home during a time when both girls were living there with her. Both children were consistent in disclosing that appellant had improperly touched them and masturbated in their presence, and in identifying the location of these events. The mother stated that she had not coached her daughters but had told them to be truthful.

The DFACS caseworker testified that she interviewed the children individually on three separate occasions and received consistent responses. They both appeared truthful, uncoached, and generally relaxed. No promises or threats were made to the children. On cross-examination, she testified that the children related more than one incident occurring at different locations; however, the State acknowledged that the separate counts of the indictment were alleged to have occurred at different locations.

The trial court determined that the out-of-court statements made to the mother and the caseworker were supported by sufficient indicia of reliability to be heard in evidence under OCGA § 24-3-16.

“Indicia of reliability must spring from the circumstances of the statement. [Cits.] The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. [Cits.]” (Emphasis omitted.) Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991). The foregoing standard was approved by the Supreme Court in Weathersby v. State, 262 Ga. 126 (4) (b) (414 SE2d 200) (1992).

Appellant challenges the reliability of the children’s statements Op the basis that they required prompting, lacked consistency and were made in the presence of law enforcement officers. The factors set out in Gregg, supra, “are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” Id. at 241. As in Gregg, “the children were] present at trial, testified as . . . court witness [es], and [were] subject to examination and cross-examination by appellant and the State. Thus, appellant had every conceivable opportunity to examine and cross-examine the child [ren] in the presence of the jury, regarding the child [ren’s] memory of and the circumstances surrounding [their] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child [ren’s] demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.” Id. at 241. Compare Idaho v. Wright, 497 U. S. 805 (110 SC 3139, 111 LE2d 638) (1990) and Ohio v. Roberts, 448 U. S. 56 (100 SC 2531, 65 LE2d 597) (1980), where hearsay declarants were unavailable to testify, thus implicating the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Decided April 5, 1993.

Robert N. Susko, P. C., Charles E. Lake, Jr., for appellant.

George C. Turner, Jr., District Attorney, for appellee.

Viewing the totality of the circumstances surrounding the declarations of the children, there was a sufficient basis to conclude they were worthy of belief and that the requisite degree of reliability was established for their admissibility under OCGA § 24-3-16. Compare Rolader v. State, 202 Ga. App. 134 (413 SE2d 752) (1991) where the child did not testify at trial and prior videotaped statements which lacked spontaneity and consistent repetition were ruled inadmissible under a Confrontation Clause objection.

Judgments affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0251.
    MORRIS v. NATIONAL WESTERN LIFE INSURANCE COMPANY.
    (430 SE2d 813)
   Beasley, Presiding Judge.

National Western Life Insurance Company (“National”) instituted suit against Morris, a former general agent, to recover premium advances. Morris counterclaimed, alleging both contract and tort claims. At trial, the trial court directed a verdict for National on Morris’ tort counterclaim. The jury returned a verdict of $97,790 for National on the main claim, and in favor of National on Morris’ contract counterclaim.

1. In three enumerations of error, Morris challenges the trial court’s admission into evidence of computer-generated summaries.

(a) An exception to the hearsay rule is permitted by statute for records satisfying the requirements of OCGA § 24-3-14. Allen v. State, 248 Ga. 676, 680 (286 SE2d 3) (1982).

(b) Morris’ contention that the summaries were not available to him before trial is not considered because the record does not indicate that he sought them or any documents from National in discovery, or that National did not respond. Green v. Sun Trust Banks, 197 Ga. App. 804 (1) (399 SE2d 712) (1990).

(c) The claim that the summaries were generated for trial and not in the regular course of business is belied by the record. Moreover, although a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24-3-14, see generally Gateway Leasing Corp. v. Heath, 168 Ga. App. 858, 860 (310 SE2d 549) (1983), summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties. Tyner v. Sheriff, 164 Ga. App. 360 (2) (297 SE2d 114) (1982).

Richardson, an assistant vice president of National, was the custodian of the contract files and commission records. She detailed National’s record-keeping practices and showed that all information for the summaries was entered into the computer contemporaneously with the events it recorded, in the regular course of business. Although no reports may actually have been printed contemporaneously, the summaries were “available” because the information was continuously stored in the computer and summaries could have been printed at any time. Thus, a proper foundation was laid. See WGNX, Inc. v. Gorham, 185 Ga. App. 489, 490 (3) (364 SE2d 621) (1988); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 363-365 (3) (223 SE2d 757) (1976).

2. Morris contends that the court erred in granting National’s motion for a directed verdict on his tort counterclaim. The court’s reason for doing so was that Morris’ evidence at trial was on a cause of action, conversion, he did not plead, include in his statement of the issues to be determined at trial in the pretrial order, or move to add to the pretrial order.

The counterclaim originally consisted of four counts, two in contract, one for tortious interference with contractual relations, and one for libel and slander. The latter count was withdrawn prior to trial. In the section of the pretrial order listing issues for jury determination, the only tort issue identified by Morris was tortious interference with contract. No claim for conversion was alleged either in the counterclaim or in the pretrial order. At trial, the only evidence adduced by Morris supporting his tort claim was directed at showing that National had wrongfully withheld his commissions and converted them to its own use.

Decided April 5, 1993.

Richard Phillips, for appellant.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, Stuart F. Clayton, Jr., for appellee.

OCGA § 9-11-16 (b) provides, in pertinent part, that a pretrial order, “when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” The preclusion of issues by the pretrial order is within the discretion of the trial court. Echols v. Bridges, 239 Ga. 25, 27 (235 SE2d 535) (1977). “The Supreme Court addressed this situation in construing former Code Ann. § 81-1014 (which was later adopted almost verbatim as the last paragraph of [former] Code Ann. § 81A-116 [now OCGA § 9-11-16]): ‘. . . (W)e think that it should be held to be the general rule in this State that if a litigant desires a modification of a pretrial order, application should be made to the trial judge either before or during the trial for such modification. While the trial judge might, under the particular facts of some case, modify the pretrial order without request to prevent manifest injustice, it is difficult to imagine any case where it could be held that the trial judge abused his discretion in failing to modify a pretrial order where there had been no motion for such modification before or. during the trial.’ [Cits.] Since appellant did not request any modification of the pre-trial order, we find no error in the trial court’s adherence thereto.” Gilbert v. Meason, 145 Ga. App. 662, 663 (1) (244 SE2d 601) (1978). The same applies here.

Even if Morris had obtained leave to amend the counterclaim to include conversion, such an action lies only for the withholding of “certain bills or coins” and does not lie on account of a mere failure to pay money due under a contract. Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764 (1) (426 SE2d 601) (1992); Hodgskin v. Markatron, 185 Ga. App. 750, 751 (1) (365 SE2d 494) (1988); Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898). Morris claimed only the latter, which cannot constitute conversion. Since his only proof of a tort was in support of his “conversion” claim, a directed verdict was proper.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A93A0368.
    BURKE v. THE STATE.
    (430 SE2d 816)
   Andrews, Judge.

Bennie Lorenzo Burke was convicted by a jury of two counts of child molestation, one count of aggravated child molestation, and one count of aggravated sexual battery for acts committed against C. B. and P. B., sisters, ages seven and five. He appeals his conviction for aggravated sexual battery against C. B., and his conviction for one count of child molestation against P. B.

1. Burke was indicted for the offense of aggravated sexual battery charging that he intentionally penetrated the sexual organ of C. B. with a foreign object, to wit: his finger. Under OCGA § 16-6-22.2 (b), “[a] person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” Subsection (a) of the statute provides: “For the purposes of this Code section, the term ‘foreign object’ means any article or instrument other than the sexual organ of a person.” There was evidence that Burke penetrated the sexual organ of C. B. with his finger. Nevertheless, Burke claims the trial court should have granted his motion for a directed verdict of acquittal on the charge of aggravated sexual battery because a finger is not a “foreign object” within the meaning of OCGA § 16-6-22.2.

Although the statute does not specifically define a finger as a “foreign object,” we conclude the Legislature clearly intended to include penetration by a finger in the conduct proscribed by the statute. “Penal laws should be construed strictly, but they should not be so construed as to defeat the obvious intention of the General Assembly.” (Citations and punctuation omitted.) Stubbs v. State, 193 Ga. App. 342, 343 (387 SE2d 619) (1989). In adding the offenses of sexual battery (OCGA § 16-6-22.1), and aggravated sexual battery (OCGA § 16-6-22.2) in 1990, the Legislature obviously intended to impose specific enhanced penalties on a class of sexual offenses which were previously treated only as simple battery. To limit the definition of “foreign object” to inanimate articles or instruments, and exclude therefrom a human appendage such as a finger, as urged by appellant, would apply the statute illogically in a manner which fails to address the very type of sexual offense the Legislature intended to include. Moreover, it would fail to consider the meaning of the term “foreign object” in reference to other words associated with it in the statute, which provides that, “ ‘foreign object’ means any article or instrument other than the sexual organ of a person.” (Emphasis supplied.) OCGA § 16-6-22.2 (a). Under the maxim, noscitur a sociis, the meaning of words or phrases in a statute may be ascertained “ ‘from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used.’ Mott v. Central R., 70 Ga. 680, 683 (1883).” Saleem v. Board of Trustees &c., 180 Ga. App. 790, 791 (351 SE2d 93) (1986). When read in conjunction with the phrase “any article or instrument other than the sexual organ of a person,” it is clear the term “foreign object” includes not only inanimate articles or instruments, but also a person’s body part, other than a sexual organ, such as a finger. The trial court did not err in denying appellant’s motion.

Decided April 5, 1993.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, J. Wade Padgett, Assistant District Attorney, for appellee.

2. Burke claims the evidence was insufficient to support his conviction on the charge that he molested P. B. by placing his penis in contact with her vagina. OCGA § 16-6-4 (a). Evidence showed that both P. B. and C. B., who lived together with their mother, contracted the sexually transmitted diseases gonorrhea and chlamydia at about the same time. Burke lived with the children’s mother during a period of time immediately prior to the discovery that the children had contracted the diseases. C. B., age seven, identified Burke as her abuser, but, despite her contraction of the diseases, P. B., age five, never testified or otherwise told anyone that Burke or any other person had sexually abused her. Other testimony revealed that Burke gave a statement to police in response to being questioned if he ever penetrated P. B. with his penis, or touched her vagina with his penis. He responded that when P. B. sat in his lap, when he had no clothes on, it was possible, but unlikely, that his penis penetrated her, and it was possible his penis touched her vagina. The direct and circumstantial evidence was sufficient for a rational trier of fact to find Burke guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A93A0385.
    SELF v. THE STATE.
    (431 SE2d 126)
   Andrews, Judge.

Steve Self appeals his conviction by a jury on the charge of sexually molesting his 13-year-old daughter by fondling the child’s breasts and buttocks. OCGA § 16-6-4 (a).

At trial, Self denied the allegations, and the child testified that she fabricated the allegations to retaliate against her father for refusing to allow her to see her 19-year-old boyfriend. A Department of Family & Children Services caseworker testified that the child told her on two occasions that Self had committed the alleged acts of molestation, and described the acts in detail. The caseworker further testified, based on her experience and training, that the child’s behavior, and subsequent denial that the molestation had occurred, was consistent with elements of the child abuse accommodation syndrome, including the characteristic behavior of succumbing to various pressures to recant the allegations. See Rolader v. State, 202 Ga. App. 134, 141-142 (413 SE2d 752) (1991); Hall v. State, 196 Ga. App. 523, 524-526 (396 SE2d 271.) (1990); Kelly v. State, 197 Ga. App. 811, 814-815 (399 SE2d 568) (1990). As similar transaction evidence, the State also introduced testimony showing Self had previously fondled the breasts and vagina of a 14-year-old victim, and forced her to have intercourse, and fondled the breasts of a 13-year-old victim.

1. Self’s sole argument on appeal with respect to introduction of the similar transaction evidence is that the prior occurrences were not sufficiently similar so that they tended to prove the charged offense. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). First, Self failed to raise this objection in the trial court, so there is no basis for considering it on appeal. Annison v. State, 206 Ga. App. 861 (427 SE2d 5) (1993). Secondly, this objection would have had no merit even if it had been raised below. The evidence showed Self had on prior occasions similarly abused victims of the same sex and approximate age. “In a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Rash v. State, 207 Ga. App. 585, 586 (428 SE2d 799) (1993).

2. Since the prior acts were sufficiently similar, the trial court ruled correctly to admit this evidence, and to deny Self’s motion for a new trial claiming he was denied effective assistance when his trial counsel failed to object that the prior acts were dissimilar. Abreu v. State, 206 Ga. App. 361, 362-363 (425 SE2d 331) (1992); Brinson v. State, 191 Ga. App. 151, 155 (381 SE2d 292) (1989).

3. “Although the evidence was in conflict and depends largely on . . . [an assessment of the victim’s credibility and other testimony re-' garding the child abuse accommodation syndrome], the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citations and punctuation omitted.) Hall v. State, 201 Ga. App. 626 (411 SE2d 777) (1991); Daniel v. State, 200 Ga. App. 79, 80 (406 SE2d 806) (1991). The evidence was sufficient for a rational trier of fact to find Self guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 5, 1993.

Kenneth D. Kondritzer, for appellant.

C. David Turk III, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A93A0503.
    KILLMASTER v. KILLMASTER.
    (430 SE2d 817)
   Beasley, Presiding Judge.

We granted appellant-former husband’s application for discretionary appeal of an order of the superior court finding him in wilful contempt for failure to pay his support obligations under the parties’ divorce decree and awarding attorney fees to appellee-former wife.

The parties were divorced in 1989. In pertinent part, their divorce decree, which incorporates an agreement of the parties, requires appellant to pay $542.28 per week in child support, $1,570 per month in alimony, $1,529.70 per month toward the mortgage on the marital residence, and medical expenses for the children not covered by insurance which appellant is also required to maintain.

Appellee instituted the present contempt proceeding in November 1991, alleging that appellant was in wilful contempt of the foregoing provisions of the divorce decree. Appellant answered, admitting some arrearage but stating that his nonpayment was not wilful because he no longer had the ability to make the required payments. The hearing on the contempt petition was deferred pending final disposition of an action filed by appellant for downward modification of his support obligations. The jury in the modification action denied his requests for relief.

The contempt hearing was held on July 15, 1992. Appellee testified that appellant was then in arrears in alimony, child support, and house payments in the total amount of $22,936.36. Appellant testified that his company, Mortgage Lenders, Inc., went out of business in the latter part of June, and he was no longer able to draw a salary since the company’s bank account had been frozen. However, the evidence shows that during the first six months of 1992, appellant received $19,536.75 in net salary, withdrew $35,000 in cash accumulated in an IRA, retained $5,000 in proceeds from the sale of his residence (distributing $8,657.60 of the proceeds to appellee and her attorney), and received $2,500 from the sale of a lot, totalling $62,036.75. Yet, documentary evidence submitted by him shows during this period he paid appellee no more than $11,396.40 (the sum stated by her), in addition to $8,657.60.

The evidence also showed that the IRA from which he withdrew the $35,000 is composed of home mortgages for which appellant is the mortgagee. The unpaid principal balances of these mortgages total approximately $120,000, but their fair market valuation is approximately 50 cents on the dollar. Appellant testified that these mortgages are not marketable and that he tried without success to sell them. He later admitted that he could “pull out [of the IRA account] today to satisfy support obligations,” although “there would be hardly anything left” after he paid a ten percent penalty and taxes. He also testified that he has approximately $10,000 to $15,000 equity in properties he is trying to sell, as well as interests of undetermined value in various real estate projects.

On August 10, the trial court entered an order finding that appellant’s failure to pay the sums testified to by appellee constituted wilful contempt.

The court “ORDERED that the Defendant shall be allowed to purge himself of his contempt by payment to the Plaintiff of the sum of $22,936.36 to the Plaintiff within sixty (60) days from the date of this Order. Said sum shall be in addition to the regular child support and alimony payments ordered by this Court, and any payments made by the Defendant to the Plaintiff shall first be applied to child support and alimony payable subsequent to July 15, 1992.

“In the event Defendant fails to comply with the direction of this Order, and fails to purge himself by payment of $22,936.36, plus alimony and child support accruing up to the time of such payment, as herein provided, the Court shall issue its Order directing the incarceration of the Defendant upon the Plaintiff’s application accompanied by her Affidavit that the Defendant has failed to comply with the provisions of this Order.”

1. Appellant contends that the trial court erred in holding him in contempt when the evidence showed that he had lost his job and had no employment prospects or readily marketable assets with which to satisfy his obligations.

This contention is without merit. The evidence authorized the court to find that appellant had the ability to pay the arrearage when due; and that he has the ability, at least through the sale of property, to pay the arrearage as well as sums coming due within the 60-day period after entry of the contempt order.

2. In reliance upon Mitchell v. Koopu, 242 Ga. 506 (249 SE2d 210) (1978); Roehl v. O’Keefe, 243 Ga. 696 (3) (256 SE2d 375) (1979); and Hawkes v. Hawkes, 248 Ga. 772 (285 SE2d 728) (1982), appellant contends that the trial court erred in the part of its order directing his incarceration upon appellee’s application accompanied by her affidavit that he has failed to comply with the provisions of the order. In reliance upon Davis v. Davis, 138 Ga. 8 (74 SE 830) (1912), he contends that the trial court erred in ordering his incarceration without notice or hearing for nonpayment of future child support and alimony. In reliance upon Floyd v. Floyd, 247 Ga. 551 (277 SE2d 658) (1981), he argues that he is entitled to a hearing as to whether he violates the contempt order.

(a) In Davis, the trial court held the husband in contempt for failure to pay temporary alimony and ordered his incarceration if he failed to make prompt payment of future sums. The Supreme Court held that the trial court erred in holding the husband in contempt, in that it was uncontradicted that he was unable to raise money to make the alimony payments by loan, sale of property, or otherwise; he tendered to the sheriff sufficient property to pay the required sum; and it was sold for that purpose. The Court also held that it was error for the trial court to order the husband incarcerated for failure to make future payments before holding a contempt hearing. 138 Ga. at 8 (Id).

In Swanson v. Douglas, 150 Ga. 650 (105 SE 161) (1920), after the defendant failed to respond to a rule nisi, the superior court held him in contempt for failure to comply with a decree of specific performance of a contract for the sale of land and directed that he be arrested by the sheriff if he did not comply with the decree within ten days. The Supreme Court held that “even if the failure to comply with the order and decree of the court is a contempt subjecting the defendant to imprisonment in the common jail, the court itself should have definitely fixed its requirements and the time within which the order of the court must be performed, and, at the expiration of that time, have passed an order adjudging whether or not the defendant was actually in contempt, and should not have left the determination of those questions to the sheriff of the county.” 150 Ga. at 650 (3).

In Foster v. Foster, 178 Ga. 791, 792 (5) (174 SE 532) (1934), at a temporary alimony hearing, the superior court ordered the husband to make payments instanter or be placed in jail for contempt. The Supreme Court reversed, citing Davis and Swanson.

In Mitchell v. Koopu, supra, a child support judgment contained a self-effectuating contempt order, as in Foster. The order contained the additional provision that the former husband would be incarcerated upon affidavit of the wife that he had failed to make the required payments. The Supreme Court reversed the superior court’s denial of the former husband’s motion to set it aside. Citing Foster, the Court held that “[t]his language provides for the incarceration of the appellant without any notice or hearing and is unconstitutional.” 242 Ga. at 506 (1).

In Roehl v. O’Keefe, supra, the superior court held the former wife in contempt for failing to comply with child visitation rights awarded her former husband. The contempt order also provided that if the former wife did not permit the former husband to visit his son, upon affidavit of the former husband approved by the court the sheriff would be directed to incarcerate her. Citing Mitchell and Foster, the Supreme Court held that provision unconstitutional because it violated due process and struck it from the judgment.

In Floyd v. Floyd, supra, the superior court held the father in contempt for failure to pay alimony, child support, and attorney fees previously awarded to the mother. The court ordered him committed to jail provided that he could purge himself of contempt by paying the required sums to the sheriff on or before a specified date and time, which was three days after entry of the contempt order; upon his failure to do this, the court directed the sheriff to incarcerate him.

The Supreme Court affirmed. The court distinguished Mitchell as involving an order that “placed the keys to the jail in the opposing party’s hand in that there was no mechanism provided whereby an officer of the court would possess objective information as to whether the order at issue had been complied with. See Roehl v. O’Keefe, [supra]. The order in Swanson v. Douglas, supra, 150 Ga. 650, was subject to the same defect.

“Here we have quite a distinct situation: The order complained of did not relate to future payments; it related to payments adjudicated as being owed. The order did not put the keys to the jail in the opposing party’s hand; whether payment was made or not made was to be determined by the sheriff by payment or nonpayment to hitó. The father had a hearing and was adjudged in contempt. Few litigants claiming inability to pay are likely to appear in court with sufficient funds in hand to enable them to pay contempt orders instanter. And many litigants would be unable to satisfy contempt orders if they were incarcerated immediately following the hearing; in order to purge oneself, property may have to be sold or pledged, or payday awaited. For practical reasons, the trial court gave the defendant three days to purge himself on the contempt by making the payment to the sheriff of sums adjudicated due. We hold that this procedure does not deny the father due process.” 247 Ga. at 553-554.

In Hawkes v. Hawkes, supra, the Supreme Court, quoting Floyd and citing Roehl and Mitchell, agreed with the husband that a contempt order authorizing his incarceration if he did not pay the required sums to his wife deprived him of due process of law by divesting the court of supervision over whether he had purged himself of contempt. “This omission may be cured by amendment to the trial court’s order.” Id. at 773.

(b) The present case is distinguishable from Davis in that there has been a contempt hearing after which the trial court determined that appellant has the ability to pay the arrearage and sums coming due by the time he purges himself of contempt within 60 days of entry of the contempt order. Neither Davis nor the other cases prohibit such an order.

Decided April 5, 1993.

Land, McKnight, Newlin & Cohen, Barbara E. Keon, for appellant.

Wood, Odom & Edge, Gus L. Wood III, for appellee.

However, the provision in the order permitting appellant’s incarceration based solely upon appellee’s application accompanied by her affidavit is unauthorized under Mitchell and Roehl, as well as Swanson. This is particularly so under the present record, which indicates that appellant will have to sell or assign his interests in real or intangible property in order to meet his support obligations. If after making diligent effort he is unable to accomplish that within the required period, he may well have to transfer his property interests to appellee rather than pay her cash in order to purge himself of contempt.

3. Appellant contends that the trial court erred in awarding $687.50 in attorney fees to appellee.

This contention is without merit. We find no abuse of discretion. See OCGA § 19-6-2 (a) (1); McDonogh v. O’Connor, 260 Ga. 849 (400 SE2d 310) (1991); compare Waller v. Waller, 237 Ga. 336, 337 (2) (227 SE2d 374) (1976). The divorce decree also authorized such an award.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0625.
    JOHNSON v. THE STATE.
    (430 SE2d 821)
   McMurray, Presiding Judge.

Defendant Johnson appeals his conviction of the offenses of rape and kidnapping. Held:

1. The evidence construed in the light most favorable to the verdict shows that the victim was walking home from a friend’s house at approximately 2:30 a.m. when the defendant sneaked up behind her, grabbed her, and pulled her over to the grounds of a nearby school. At the school grounds, defendant threw the victim down, tore off her clothes, and forcibly had sexual intercourse with the victim. This evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of rape and kidnapping. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Battles v. State, 205 Ga. App. 510 (422 SE2d 672).

2. Before and at trial, defendant expressed his concern as to whether, in view of the nature of the crimes with which he was charged, he would receive a fair trial in a courtroom where the judge, prosecuting attorney, and defense attorney were all women. Defendant sought the recusal of the trial judge and district attorney, as well as the appointment of male defense counsel.

Defendant enumerates as error the denial of his request that appointed counsel be relieved and other counsel be appointed, and argues that he “was prevented from fully participating in his defense because he was denied Counsel of his preference.” However, defendant has a “right to the effective assistance of counsel, not the right to the assistance of counsel satisfactory to the defendant.” Bailey v. State, 240 Ga. 112, 113 (1), 114 (239 SE2d 521). See also Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493). There is no showing that defendant was not provided with reasonably effective assistance of counsel, therefore we find no error in the denial of defendant’s motion requesting a change of defense counsel.

Defendant also enumerates as error the denial of his request that his case be transferred to the courtroom of a specific male superior court judge. The crux of this issue is whether the trial court properly denied defendant’s motion to recuse. “OCGA § 15-1-8 sets forth the particular circumstances in which a judge shall be recused. . . . The grounds for recusal in § 15-1-8 are exclusive and exhaustive, and courts may not add other grounds of disqualification to those stated in the statute. Daniel v. Yow, 226 Ga. 544 (176 SE2d 67); Blakeman v. Harwell, 198 Ga. 165 (31 SE2d 50); Elliot v. Hipp, 134 Ga. 844 (68 SE 736).” Mapp v. State, 204 Ga. App. 647, 649 (4) (420 SE2d 615). None of these circumstances applies in this case, therefore the trial judge did not err in denying defendant’s motion to recuse.

3. Next, defendant contends that the trial court erred in admitting evidence of his 1982 conviction of rape based on a plea of guilty. However, no objection to this evidence was presented at trial. This issue cannot be raised for the first time on appeal. Weaver v. State, 200 Ga. App. 82 (1) (406 SE2d 574).

4. Defendant’s remaining enumeration of error contends that the trial court erred in refusing to grant a continuance in order to permit defendant to adequately prepare for trial. However, our review of the transcript and record fails to reveal anything which could reasonably be construed as a request to the trial court for a continuance. “An issue not raised during the trial in any form calling for a ruling will not be considered by this court. Ocilla Truck &c. Co. v. Nolan, 124 Ga. App. 417 (184 SE2d 48).” Sanders v. State, 134 Ga. App. 825, 826 (1) (216 SE2d 371). This enumeration of error is without merit.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided April 5, 1993.

Imogene L. Walker, for appellant.

Lewis R. Slaton, District Attorney, Carla E. Young, Vivian D. Hoard, Assistant District Attorneys, for appellee.


author: Beasley, Judge.

text:
    A93A0646.
    DATZ v. BRINSON et al.
    (430 SE2d 823)
   Beasley, Judge.

Datz sued certain correction officers and officials at Hays Correctional Institute, where he was incarcerated in August 1991, alleging that their negligence allowed other inmates to steal items of personal property from his locker. The court granted defendants’ motion to dismiss for failure to state a claim,, for the reason that OCGA §§ 50-21-21 and 50-21-25 rendered defendants immune from suit, even if they were negligent.

Those statutes, part of the Georgia Tort Claims Act (“the Act”), OCGA § 50-21-20 et seq., provide that “[a] state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” OCGA § 50-21-25 (a). Such immunity forms a complete defense to appellant’s cause of action. See generally Martinez v. California, 444 U. S. 277, 287 (100 SC 553, 62 LE2d 481) (1980).

1. In several enumerations of error Datz contends the court erroneously dismissed his complaint.

Datz maintains that the Act may not be applied to his action because it had not been enacted at the time his cause of action accrued, and the United States Constitution prohibits ex post facto laws. In the first place, the ex post facto provision in the federal constitution applies only to penal statutes. Collins v. Youngblood, 497 U. S. 37, 41, n. 2 (110 SC 2715, 111 LE2d 30) (1990).

Secondly, Art. I, Sec. II, Par. IX of the State Constitution, which formerly provided for waiver of sovereign immunity to the extent that liability insurance was provided, was amended in 1990 and approved by the voters in November 1990, prior to the incident in question. The amended constitutional provision deleted the “insurance waiver” clause and enabled passage of a Tort Claims Act. Curtis v. Bd. of Regents, 262 Ga. 226, 228 (416 SE2d 510) (1992). Under the authority of this amended constitutional provision, the legislature in 1992 passed the Act. Although it became effective July 1, 1992, OCGA § 50-21-27 (a) provides, in pertinent part: “It is the specific intent of the General Assembly that this article shall operate retroactively so as to apply to tort claims or causes of action which accrued on or after January 1, 1991.” See Collier v. Whitworth, 205 Ga. App. 758 (423 SE2d 440) (1992). Clearly, Datz’s cause of action, which accrued in August 1991, is encompassed.

Decided April 5, 1993.

Richard Datz, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

Finally, contrary to Datz’s contention, the Act does not require that acts of state officials or employees be made in “good faith” in order to trigger the Act’s protection. If the alleged negligence occurred within thé scope of the officials’ or employees’ employment, they are immune from suit.

2. We are unable to address Datz’s contention that the court erred by denying his motion for the recusal of the judge. The order reflects that the motion was properly considered and ruled on by a different judge, see Houston v. Cavanagh, 199 Ga. App. 387, 388 (405 SE2d 105) (1991), who found that no evidence existed to support recusal. The hearing was not transcribed. We must assume that the evidence supported the ruling. Smallwood v. Mulkey, 198 Ga. App. 496 (402 SE2d 99) (1991).

3. The burden of showing harmful error is on the appellant, and this must be done by the record. Huff v. E. L. Davis Contracting Co., 195 Ga. App. 691, 692 (394 SE2d 615) (1990). The order dismissing Datz’s complaint for failure to state a claim explains the court’s application of the law to the allegations in the complaint and its conclusion that the complaint fails to state a claim. OCGA § 9-11-12 (b) (6). Nothing in the record supports Datz’s contention that the court did not fulfill it duty in deciding the question.

4. Uniform Superior Court Rule 6.3 authorized the trial court to decide the motion to dismiss without oral hearing, and no abuse of discretion appears.

5. Datz’s remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       Datz sued only the officials in their official capacity. He did not sue the State, and thus OCGA § 50-21-23 (waiving the State’s sovereign immunity) is not drawn into question.


text:
    A93A0735.
    HIBBARD v. THE STATE.
    (430 SE2d 824)
   McMurray, Presiding Judge.

Defendant Hibbard appeals his conviction of the offense of reckless driving. Held:

Defendant’s sole enumeration of error complains that the trial court denied a motion for continuance based upon his trial counsel’s statement that he had inadequate and insufficient time for preparation for trial. On July 1, 1991, counsel was appointed to represent defendant. Appointed counsel represented defendant up until September 16, 1991, the date of the beginning of defendant’s trial, when appointed counsel was allowed to withdraw because defendant had retained counsel over the preceding weekend. Retained counsel moved for a continuance on the morning of the trial date and offered evidence that the defendant’s displeasure with appointed counsel had arisen from a disagreement with him two days previously, that it had been appointed counsel who had suggested his withdrawal, and that appointed counsel had not been “fired” by defendant.

“ ‘A motion for a continuance predicated on the basis that counsel has not had sufficient time to prepare for trial addresses itself to the sound discretion of the trial judge, and a ruling denying such a motion will not be interfered with unless the judge has abused his discretion in denying the motion. (Cit.) “The conduct of the party is obviously relevant and is a proper consideration for the judge in the exercise of his discretion. (Cit.) The reason for this is to prevent a party from using . . . employment of counsel as a dilatory tactic.” (Cit.) In the instant case we find no abuse of the trial court’s discretion in denying the motion for continuance.’ Cantrell v. State, 154 Ga. App. 725-726 (2) (270 SE2d 12) (1980). ‘ “The (appellant), not the State, is chargeable with the delay in such a situation, absent a showing of why the late employment of counsel occurred.” (Cit.)’ Cantrell v. State, supra at 726 (2).” Bates v. State, 202 Ga. App. 460 (1), 461 (414 SE2d 691). See also Wehunt v. State, 168 Ga. App. 353, 355 (3) (309 SE2d 143); Hightower v. State, 166 Ga. App. 744 (2) (305 SE2d 372) (reversed on other grounds in State v. Hightower, 252 Ga. 220 (312 SE2d 610)); Cantrell v. State, 154 Ga. App. 725 (2), supra. As defendant failed to show the nature of his disagreement with appointed counsel or why that disagreement necessitated the employment of retained counsel, the trial court was authorized to conclude that defendant was attempting to use the change of counsel as a dilatory tactic. We find no abuse of discretion in the trial court’s denial of defendant’s motion for continuance.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided April 5, 1993.

T. Michael Martin, for appellant.

Keith C. Martin, Solicitor, for appellee.


text:
    A93A0602.
    RUTH v. THE STATE.
    (431 SE2d 127)
    Decided April 6, 1993.

      Mark B. Beberman, for appellant.

      Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of robbery and sentenced to 20 years in confinement. Following the denial of his motion for a new trial, he appeals. Held:

In his sole enumeration of error, defendant contends his constitutional rights were violated when he was cross-examined for impeachment purposes about his silence (to police) after being advised of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). “If such had erroneously been allowed despite timely and proper objection, the case would have to be reversed unless the state could show that the error was harmless beyond a reasonable doubt. [Cits.] However, . . . defendant . . . did not object... to the introduction of evidence of silence. . . . Thus, the trial court was not put on notice about the defendant’s objections, or given an opportunity to respond to the objections in a timely manner. [Cit.] . . . Here, any possible claim of error was procedurally defaulted. [Cit.]” Black v. State, 261 Ga. 791, 793 (1a) (410 SE2d 740).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.