text:
    74718.
    THE STATE v. WHITEHEAD.
    (361 SE2d 41)
   Beasley, Judge.

Defendant was indicted and tried for selling marijuana, OCGA § 16-13-30. The first witness for the state was an undercover narcotics agent. She recounted that while negotiating with defendant during the incident on trial, he required them to smoke it to prove they were “cool.” In compliance the agents merely simulated smoking, and the witness explained how this could be done. She then described the reaction of defendant, that he said he knew the other agent was simulating smoking and was not inhaling it and that “he knew what simulation was because he had been busted previously.”

Defendant moved for a mistrial on the ground that his character had been put into evidence. See OCGA § 24-2-2. The prosecutor conceded he knew the witness would testify as she did but contended the evidence was admissible to show his state of mind, motive or intent, what transpired during the criminal transaction (res gestae), and to allay or reduce the effect of the anticipated defense of entrapment. Despite authority cited to show that the statement was admissible, the trial court granted defendant’s motion upon reasoning that the state knowingly elicited objectionable testimony.

Defendant then moved for acquittal based upon prosecutorial misconduct resulting in double jeopardy if he were tried again. He contended that the prosecutor intentionally placed his character in evidence and also did not notify , him that evidence of a prior crime would be introduced. The court found: “The testimony which was the basis for the grant of a mistrial was knowingly elicited by the State with foreknowledge of the content of the said testimony.” It ordered defendant discharged and further prosecution barred, and the state appealed.

Although neither the state nor federal constitutional double jeopardy clauses was specifically cited, the cases upon which defendant relied were those interpreting and applying federal constitutional law. Thus, our analysis is confined to whether the federal constitutional concept of double jeopardy was violated. See Hampton v. State, 179 Ga. App. 14 (345 SE2d 117) (1986).

Where a defendant moves for and obtains a mistrial, double jeopardy is not normally implicated except where the motion results from prosecutorial misconduct designed to avoid an acquittal. United States v. Tateo, 377 U. S. 463, 468 (84 SC 1587, 12 LE2d 448) (1964); United States v. Dinitz, 424 U. S. 600, 611 (96 SC 1075, 47 LE2d 267) (1976). Our lodestar here is Oregon v. Kennedy, 456 U. S. 667, 674 (102 SC 2083, 72 LE2d 416) (1982), which reasoned that “bad faith conduct” or “harassment” are not decisive factors to prevent retrial even though they might warrant a declaration of mistrial and that “overreaching” is too broad a test.

The Court concluded that: “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676. Thus the standard is the intent of the prosecutor in connection with the misconduct. In the words of the holding, “conduct . . . intended to provoke the defendant into moving for a mistrial” is what will bar retrial on the federal constitutional double jeopardy ground. Id. at 679. See Benford v. State, 164 Ga. App. 733, 734 (298 SE2d 39) (1982). Accord Hampton v. State, supra. Intent is a question of fact for the court to resolve. As recognized in Fugitt v. State, 253 Ga. 311, 315 (319 SE2d 829) (1984), the facts must warrant the conclusion that there was such an instigative intention.

The state dwells on the impropriety of the grant of defendant’s motion for mistrial, arguing that its conduct was not objectionable in the first place. It cites several cases which are persuasive towards the state’s view. See, e.g., Barnes v. State, 245 Ga. 609, 610 (2) (266 SE2d 212) (1980); Riseden v. State, 181 Ga. App. 453 (1) (352 SE2d 634) (1987); Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86) (1983); Ross v. State, 255 Ga. 1, 3 (2) (334 SE2d 300) (1985). However, whether the mistrial was properly granted is relevant here only insofar as it reveals that the state’s intention or motive was not to prevent an acquittal or to provoke defendant’s mistrial request.

The trial court found that the state’s attorney intended to introduce the evidence of defendant’s bad character. This does not establish that the state intended to subvert the protections afforded by the double jeopardy clause. Defendant points out also that the state violated USCR 31.1 and 31.3 by failing to notify him that evidence of similar transactions would be introduced. Although peripherally raised, this question was not addressed below. Even if it had been established that the state intended to circumvent those rules, such would not necessarily establish an intention thereby to avoid acquittal or prompt defendant’s seeking of a mistrial.

Decided September 10, 1987.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Assis-

tant District Attorney, for appellant. Albert C. Palmour, Jr., for appellee.

The trial court’s decision was clearly not based upon the proper standard, there is no evidence of a fatal intention, and the judgment barring further prosecution on the ground of double jeopardy was error.

Judgment reversed.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74767.
    In the Interest of F. L. P.
    (361 SE2d 43)
   Birdsong, Chief Judge.

F. L. P., a child of 16 years, was tried for malice murder by the Juvenile Court and upon a finding of guilt of voluntary manslaughter, the juvenile court adjudicated F. L. P. a delinquent and at the disposition hearing the court placed F. L. P. in the custody of the Division of Youth Services for five years with confinement to a Youth Development Center for the first 18 months. His appointed attorney has filed this appeal on behalf of F. L. P., raising three asserted trial errors. Held:

1. In the first two enumerations of error, F. L. P. contends that the evidence was insufficient to withstand a motion for grant of directed verdict of acquittal at the conclusion of the State’s evidence. The evidence when viewed in the light most favorable to the verdict of the factfinder (the trial court, there being no jury trial) shows the following: F. L. P. had moved in and was living with a woman several years his senior. His paramour’s ex-boyfriend who had lived with the woman for approximately eight years prior to her cohabitation with F. L. P. apparently made numerous and continuing efforts to dislodge F. L. P. including threats, appearances with a shotgun and threats against the woman. On the day of the homicide, F. L. P. and the woman were in bed together watching TV. The victim broke into the room and demanded that F. L. P. pay for a car windshield that he contended had been broken by F. L. P. Both the woman and F. L. P. demanded that the victim leave. The victim picked up a .410 shotgun that F. L. P. had placed in the room as protection against just such an eventuality. When the victim refused to leave, F. L. P. got up out of bed and dressed. He or the woman or both requested the victim to surrender the shotgun. The victim handed the shotgun to F. L. P. Both the woman and F. L. P. contended that immediately after surrendering possession of the shotgun to F. L. P. the victim inextricably took a small pocket knife from his pocket and sought to cut F. L. P. No knife as described by F. L. P. was found and the only knife was in the victim’s pocket with the blade closed. An eyewitness (looking through a crack in the door) did not see a knife in the victim’s hand but saw the victim walk toward F. L. P. with his hands up as if to fight. F. L. P. shot the victim in the middle of the chest from several feet. The victim fell immediately, moved only spasmodically, and died within moments.

The evidence offered by the State substantially established the above scenario. The defense’s evidence amplified the evidence of previous threats and the knowledge of the victim’s propensities and actions by F. L. P. F. L. P. did not dispute that he had shot the victim but defended solely on the ground that his actions were justified as being in defense of his person or his paramour. The trial court clearly stated its awareness of the justification theory as well as the application under the evidence of the lesser included offense of voluntary manslaughter.

We will not speculate as what evidence the trier of fact chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). However, we are satisfied that the trial court could find beyond reasonable doubt that there was sufficient evidence at the conclusion of the evidence by the State to establish, if not malice murder, at least the crime of voluntary manslaughter. See Hearn v. State, 145 Ga. App. 469, 470 (243 SE2d 728). The additional evidence offered by the defense went solely to establish the affirmative defense of justification in self-defense. While there was certainly overwhelming evidence to establish apprehension on the part of F. L. P. that same evidence was more than sufficient to support a finding that the firing of the shotgun was done in the heat of passion. The law does not permit one to use deadly force to repel a lesser degree of force that one can only believe reasonably may cause some bodily harm less than serious bodily injury or death. Brown v. State, 139 Ga. App. 466, 467 (3) (228 SE2d 602). It is apparent the trial court rejected evidence of the use of a knife by the victim, not only from comments at the hearing but manifestly so by virtue of the judgment of guilt. A motion for directed verdict of acquittal must be granted only where the evidence is not in conflict and that evidence demands the finding of not guilty. Merino v. State, 230 Ga. 604 (198 SE2d 311). As hereinbefore observed, the evidence before the juvenile court was sufficient to convince any rational trier of fact beyond reasonable doubt of the guilt of F. L. P. of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. In his last enumeration of error, F. L. P. contends the trial court erred in allowing a police officer to read into the record the transcript of a tape recorded statement made by F. L. P. to the witness, even though the tape was not before the court nor was it broadcast by the court. The trial court’s stated reason for allowing the transcript to be read was to expedite the trial. The prosecutor in identifying the transcript established that the officer recorded the statement made by F. L. P. and thereafter caused the transcript to be made therefrom and checked it.

At trial, counsel for F. L. P. objected to the reading of the transcript on the ground the statement did not amount to a confession and thus was merely hearsay. Secondly, he contended the tape was the “best” evidence and the transcript was inadmissible as not being the “best” evidence of the recorded statement. On appeal, F. L. P. now for the first time raises the issue that no sufficient foundation was laid for the accuracy of the tape recorded statement or the accuracy of the transcript when compared against the tape.

As recently observed by this court, the “best” evidence rule has only limited application and may be used only in the context of a writing. We are not prepared to hold that the electronic recording of sound waves upon a magnetic tape is the equivalent of a writing. See OCGA § 24-5-5; Willingham v. State, 134 Ga. App. 603, 606 (3) (215 SE2d 521). Thus we again hold that the best evidence rule does not apply to a tape recorded statement. See Bostic v. State, 183 Ga. App. 430 (359 SE2d 201). The rule more nearly applicable deals with primary and secondary evidence. The tape constituted the primary evidence of the statement and the transcription of that tape the secondary version of the statement. As determined by the trial court, a reasonable necessity existed for the reading of the transcript rather than experiencing a delay caused by the additional effort of playing the tape before the court. OCGA § 24-5-3 authorizes in cases of manifest convenience, resting on principles of reason and justice, the use of secondary evidence in lieu of primary evidence. The trial court expressly found grounds of manifest convenience and we can discern no reason to disagree nor find an abuse of the court’s exercise of discretion in making that finding. If counsel for F. L. P. desired to inquire further, the witness was present for cross-examination on that point. Particularly do we note that no objection based upon an inadequate foundation was made. We will not entertain for the first time an objection made on appeal. Mosley v. State, 157 Ga. App. 578 (2) (278 SE2d 154.) “Furthermore, a distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid. Hearsay testimony has no probative force whatsoever [cit.], and its only effect is to prejudice the party against whom it is offered. Evidence of a secondary nature, the only objection to which is that it was received without the preliminary foundation for its introduction being first laid, stands upon an altogether different footing; and if admitted without objection, it is to be treated as altogether competent, and the court may [fully consider it in its] relevancy and legal weight and effect.” Patton v. Bank of LaFayette, 124 Ga. 965, 974 (7) (53 SE 664); see also Harrison v. State, 83 Ga. App. 367, 371 (64 SE2d 83). In this case the juvenile court found as a matter of law that the statement constituted a confession or at least an admission against interest. Clearly then we are not dealing with hearsay. It follows there was no error in the admission of the transcript of the tape nor in the consideration of it by the court.

Decided September 10, 1987.

Michael D. Hill, for appellant.

John M. Ott, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    74771.
    ELDER v. ELDER.
    (361 SE2d 46)
   Beasley, Judge.

We granted an application for discretionary appeal from a superior court to review a change of the custody of the two young sons of the parties from the mother to the father. According to the record which was subsequently sent up, the order changing custody on October 15, 1986, was not superseded as could have been done upon payment of costs. OCGA §§ 5-6-35 (h) and 5-6-46 (a). Simpson v. Simpson, 233 Ga. 17, 21 (209 SE2d 611) (1974). See also Brandon v. Brandon, 154 Ga. 661, 669 (7) (115 SE 115) (1922). Thus it appears that the boys have been with the father since then. One boy turned fourteen on February 12, 1987, and the younger brother will be fourteen on November 19, 1988.

Decided September 10, 1987.

Samuel H. Harrison, G. Hughel Harrison, for appellant.

C. Alan Mullinax, for appellee.

The transcript of evidence was not included in the appeal. Consequently, we are unable to examine the evidence to ascertain the basis for the court’s findings of fact, and we must assume that they are supported. Johnson v. Johnson, 242 Ga. 339 (249 SE2d 22) (1978). Among the facts found was that “[t]he children would rather live with their father than move to South Carolina [with their mother].” As to the older boy, see OCGA § 19-9-3 (a).

Based on this and a number of other equally important facts and factors which the court took into account and which need no recitation here, as they are shown in its order, the court concluded that there was “a change of condition which substantially affects the welfare of the children” and that it would be in their best interest to change custody to their father. The court expressly recognized the prerequisite of these two elements. See Evans v. Stowe, 181 Ga. App. 489, 491 (4) (352 SE2d 811) (1987); Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985); Robinson v. Ashmore, 232 Ga. 498, 501-502 (II) (207 SE2d 484) (1974).

We cannot rule that the court failed to apply the proper test or that, based on the facts as found, the conclusions were not supported as a matter of law. See, in connection with the circumstances in this case, Parkerson v. Parkerson, 167 Ga. App. 265 (306 SE2d 97) (1983).

Judgment affirmed.

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

       The superior court would not have had discretion to grant or deny supersedeas, as a juvenile court dealing with the same subject matter would have authority to do pursuant to OCGA § 15-11-64. This is true even though in the latter instance the case emanated from a superior court. See Dixon v. Dixon, 183 Ga. App. 756 (360 SE2d 8) (1987).


author: McMurray, Presiding Judge.

text:
    74848.
    PIERCE v. THE STATE.
    (361 SE2d 47)
   McMurray, Presiding Judge.

Defendant was indicted for burglary and as the result of a plea bargain, entered a plea of guilty on March 2, 1987. At the conclusion of the guilty plea hearing, the trial judge orally sentenced defendant to confinement for a period of seven years (five to serve and two on probation). A written sentence was then entered in accordance with the trial judge’s oral pronouncement. Later that day, pursuant to the plea agreement, defendant was called by the State to testify in the trial of a co-defendant. Defendant took the stand and gave testimony incriminating himself. On cross-examination, defendant was asked about the parameters of the negotiated plea. He testified that the prosecutor recommended a seven-year sentence (five years to serve) and that this sentence was to run concurrently with another burglary sentence which defendant was then serving. The trial judge interrupted the testimony, asking who recommended that the sentence was to run concurrently with any other sentence. Defendant responded that the assistant district attorney who handled the case made the recommendation. Shortly thereafter, the trial judge had someone call defendant’s lawyer into the courtroom. In the presence of the assistant district attorney, defendant and defendant’s lawyer, the guilty plea hearing was reconvened.

At that time the trial judge stated that when he sentenced defendant earlier in the day he was unaware of the fact that defendant was serving another sentence; that it was always the court’s policy to run a new sentence consecutively to any sentence which an offender was serving; and that the sentence which was previously entered would be modified to reflect the court’s policy. The trial judge acknowledged that it was not misled by defense counsel regarding the existence of the other sentence. (The record shows that the trial judge sentenced defendant for the other offense a few months before the sentence in question was imposed. It also shows that the trial judge signed the order transferring defendant from the penitentiary to the county jail for trial. The trial judge did not recall these events at the guilty plea hearing.)

The trial judge added the words “[t]o run consecutively to any sentence the Defendant is currently serving.” Because defendant objected to the modification of his sentence, the trial judge offered defendant the opportunity to withdraw his guilty plea and stand trial. He stated that it was his intention to place defendant in the same position he was in at the time the guilty plea was entered. The trial judge would not state unequivocally, however, that defendant’s incriminating testimony could not be used against him if the guilty plea were withdrawn.

Defendant did not withdraw his guilty plea. He chose, instead, to appeal the modification of his sentence. Held:

“[0]nce a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy. [Cits.]” Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413). Accord Brown v. Moody, 243 Ga. 473 (254 SE2d 853); Jones v. State, 155 Ga. App. 382 (271 SE2d 30); Castillo v. State, 178 Ga. App. 312, 314 (5) (342 SE2d 782); Rutland v. State, 14 Ga. App. 746 (82 SE 293). It is apparent from the record that defendant began serving his sentence after it was entered in accordance with the guilty plea. In point of fact, defendant testified in the trial of a co-defendant following the negotiated plea and the sentence entered pursuant thereto. Compare Castillo v. State, 178 Ga. App. 312, 314 (5), supra. Thus, the trial court was without power to increase the sentence after it was pronounced and entered in writing.

Relying upon Schamber v. State, 152 Ga. App. 196, 197 (3) (262 SE2d 533), the State contends the modification of the sentence did not constitute an increase in punishment. In Schamber, a jury found defendant guilty of kidnapping and various other offenses. In imposing sentence, the trial court stated that the sentences for the other offenses would run concurrently with the kidnapping sentence; but it failed to indicate whether the kidnapping sentence was to be concurrent or consecutive with a life sentence which defendant was then serving. Thereafter, during the same term of court, the trial court amended the kidnapping sentence to state clearly that it was to be consecutive to the life sentence. On appeal, this court held that there was no increase in punishment: “By its subsequent act in the same term, the trial court merely clarified the relation of its sentence to one previously imposed by a different court for an unrelated offense, something the court should have done but inadvertently omitted to do when sentencing defendant.”

We think the holding in Schamber v. State, 152 Ga. App. 196, supra, is a sound one. We decline, however, to apply it to the case sub judice as it is distinguishable. Why? Because the defendant in the case sub judice entered into a plea agreement, pleaded guilty and gave incriminating testimony in a co-defendant’s trial following the imposition of a sentence which (by its failure to specify otherwise) made it clear that the sentence was to run concurrently with another sentence which defendant was serving. See OCGA § 17-10-10 (b). If the original sentence had not been entered in accordance with the plea agreement, defendant would have had the opportunity to withdraw his plea before he would have been called upon to give incriminating testimony in his co-defendant’s trial. Defendant gave the incriminating testimony, however, relying upon the plea agreement and the originally imposed sentence. Thus, unlike the defendant in Schamber v. State, supra, defendant Pierce relied on the original sentence (which the court imposed in accordance with the plea agreement) to his detriment. Under these circumstances, it cannot be said that the modification of the original sentence did not “increase” defendant’s “punishment.”

Decided September 10, 1987.

W. Benjamin Ballenger, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

The modification of defendant’s sentence violated his Fifth Amendment rights. See Inman v. State, 124 Ga. App. 190, supra. Accordingly, the modified sentence must be vacated and the original sentence reinstated.

Judgment affirmed as to conviction; judgment vacated as to modified sentence and case remanded with direction that original sentence be reinstated.

Sognier and Beasley, JJ., concur.


author: Benham, Judge.

text:
    74862.
    WARD v. THE STATE.
    (360 SE2d 919)
    Decided September 10, 1987.
   Benham, Judge.

Appellant was convicted of possession of marijuana with intent to distribute. He enumerates as error the trial court’s failure to grant his motion for mistrial and subsequent motion for new trial. The basis for appellant’s motions was the testimony elicited from a State’s rebuttal witness that he knew appellant by the name “Hoochie Man.” At trial, appellant objected on the ground that the question and answer were irrelevant, and the trial court sustained the objection. Appellant moved for a mistrial, arguing that since “hooch” is a slang expression for marijuana, the use of the name in connection with appellant was highly prejudicial. Acting in accordance with OCGA § 17-8-75, the trial court held that it would not grant the mistrial motion because it doubted that the jury would attach any significance to the nickname, but said that it would instruct the jury not to consider the nickname. Appellant asked the court not to instruct the jury, but “just leave it lie,” and the court complied with his request.

The trial court did not abuse its discretion in denying appellant’s motions for mistrial and for new trial, particularly in light of appellant’s waiver of his objection by requesting that no curative instruction be given and by failing to specify some other form of relief. See Vernon v. State, 152 Ga. App. 616 (2) (263 SE2d 503) (1979).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    74922.
    MILLER v. BRUNSWICK PULP & PAPER COMPANY et al.
    (360 SE2d 754)
   Banke, Presiding Judge.

The appellant was severely burned in an industrial accident. Upon his return to work following an extended period of temporary total disability, a dispute arose concerning the amount of permanent partial disability benefits to which he was entitled. In response to a letter sent to the board by the appellant’s attorney requesting a hearing on the matter, an administrative law judge issued an order requiring him to submit medical evidence supporting his claim. The appellant complied with this order; and, without holding a hearing, the ALJ subsequently issued an order denying his claim for additional permanent partial disability benefits. He appealed unsuccessfully to the full board and the superior court, contending that the ALJ was not authorized to decide the claim without holding a hearing and that to do so had denied him the right to present his own testimony in support of thé claim, as well as the testimony of other lay witnesses. We granted his subsequent application for an interlocutory appeal to this court. Held:

OCGA § 34-9-100 (c) specifies that when a claim for compensation is filed, “[t]he board shall . . . upon its own motion or application of any interested party, order a hearing thereon and assign the claim to an administrative law judge for this purpose.” (Emphasis supplied.) Additionally, this court has held that the constitutional guarantee of due process requires “that every party to ... a workers’ compensation proceeding ... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. (Cits.)” Hart v. Owens-Ill., 165 Ga. App. 681, 682 (302 SE2d 701) (1983). Based on these authorities, we hold that the appellant was indeed entitled to a hearing on his claim.

We reject the contention of the appellee employer that the appellant waived his right to a hearing in this case by complying, “without protest,” with the ALJ’s directive requiring him to submit his medical evidence. The ALJ’s directive contained no suggestion that compliance therewith would be construed as a waiver of the request for a hearing. Moreover, in a letter transmitting a portion of the medical evidence to the ALJ, the appellant reiterated his desire for a hearing and asked to be notified of the hearing date. Under the facts as revealed by the record before us, we find no basis whatever for a determination that the appellant waived his right to a hearing; nor, in view of his contention that he would have offered his own testimony and that of other key witnesses on the issue of the extent of his disability, can we conclude as a matter of law that the denial of his right to a hearing was harmless. The decision of the superior court affirming the denial of the claim is consequently vacated, and the case is remanded for further proceedings consistent with this opinion.

Decided September 10, 1987.

Edward E. Boshears, for appellant.

James E. Graham, for appellees.

Judgment vacated and case remanded with direction.

Carley and Benham, JJ., concur.


text:
    74942.
    75186.
    OLDWINE v. THE STATE. HUMMONS v. THE STATE.
    (360 SE2d 915)
   Beasley, Judge.

A jury convicted Oldwine and Hummons of violation of the Georgia Controlled Substances Act by selling thirty-one pounds of marijuana, OCGA § 16-13-30 (j) (1). Each defendant appeals his conviction and sentence and Hummons also appeals the denial of his motion for new trial.

1. Both appellants claim that the evidence was insufficient as a matter of law to uphold the convictions so that the court should have directed verdicts of acquittal as to the sale.

The evidence construed so as to uphold the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), showed the following. Undercover agents of the Clayton County Narcotics Unit made two buys of marijuana, one pound and then two pounds, from Horne, who is Oldwine’s brother, and one Avrett. Oldwine and Hummons were arrested along with Horne and Avrett after a third sale, this time thirty-one pounds of marijuana, several days later.

Avrett met with the agents at a service station to make the sale. He wanted the transaction to occur at his apartment approximately two miles away, but one of the agents convinced Avrett to return to the service station with the marijuana. Avrett left and returned to the station in his car with Horne and the marijuana. Once the agent was sure the drugs were present, the agent signaled for other officers and Avrett and Horne were arrested. Under surveillance during this time were Avrett’s apartment and Horne’s van, which had been used in the two prior drug sales and was now parked outside the apartment. After Horne’s and Avrett’s arrest, the officers, with Avrett’s consent and accompanied by Horne and Avrett, searched the apartment. There they found Hummons. No contraband was found on him or in the apartment.

They came upon Oldwine in the van, where he had been sleeping. A white plastic grocery bag containing one pound of marijuana was found in a box approximately two feet from Oldwine. Earlier that day, Oldwine, Horne, and Hummons tried to move Oldwine’s and Horne’s mother into an apartment but it was not ready for occupancy and they left the van filled with her furniture and belongings.

Prior to Hummons’ and Oldwine’s arrest the agents had no contact with Hummons or Oldwine and had no knowledge of them.

The state successfully contended at trial and now argues that Oldwine and Hummons were implicated as knowing participants in the sale of the thirty-one pounds of marijuana. OCGA § 16-2-20. The evidence relied upon is essentially certain statements made by Horne to an agent, inculpating Hummons and Oldwine. Horne said, in response to questions asked by the agent, that “the other people” rode with Horne in the van to get the marijuana and both Hummons and Oldwine were “involved in the drug deal.” Earlier, at the time of Horne’s arrest, he told the agent his brother was in the apartment in response to the inquiry as to who was there. The agent was of the impression that Hummons was the brother. The statements were admitted as substantive evidence of Oldwine’s and Hummon’s guilt. In testimony, Horne denied making them, so they are characterized as prior inconsistent statements. The state further contends the statements as testified to by the agent were independently corroborated by other evidence, to the effect that the thirty-one pounds of marijuana had a strong odor. The inference is that Oldwine and Hummons would have been aware of it when they rode in the van.

It is true that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence [of the guilt of the accused, a third party], and is not limited in value only to impeachment purposes,” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982); see also Maxwell v. State, 170 Ga. App. 831, 832 (1) (318 SE2d 650) (1984), and that a defendant may be convicted on the testimony of an accomplice if the testimony is independently corroborated and such corroboration connects the defendant to the crime or leads to the inference that he is guilty. OCGA § 24-4-8; Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983), aff'd 252 Ga. 418 (314 SE2d 210) (1984); Allen v. State, 175 Ga. App. 128, 129 (2) (333 SE2d 11) (1985).

Horne testified that he alone brought the thirty-one pounds of marijuana down in his van the day before the sale. He denied ever telling the agent that his brother and Hummons were involved in transporting the marijuana or involved in the sale. He further testified that Oldwine was asleep in the van after they found out that they could not move their mother and that Oldwine did not know they were going to Avrett’s residence and never knew that he (Horne) and Avrett were going to the service station to make a drug deal.

The evidence is too tenuous and sparse to implicate either Hummons or Oldwine in the sale of the thirty-one pounds. Viewed most favorably to the verdict, the most that can be said in regard to their involvement in the transaction is that they rode in the van, which neither of them owned or had any control over, when the marijuana was originally procured, that they would have been aware of its presence because of its odor, and that a co-defendant said they were “involved” in the “deal.”

Oldwine’s presence in the van in proximity to the independent one-pound of marijuana and the presence of a loaded revolver between the front seats of the van and Hummons’ knowledge of the weapon add little if anything to the evidence of aiding and abetting in the sale or being otherwise affirmatively concerned in its commission.

“Mere presence of one where a crime is committed, without more, will not support a conviction. [Cit.]” Russell v. State, 132 Ga. App. 35, 36 (1) (207 SE2d 619) (1974). In addition there was no evidence that there was any discussion about the drug sale among Horne, Hummons, and Oldwine in the van enroute to Avrett’s apartment or among Avrett, Hummons, and Horne once at the apartment. Although Oldwine was in the presence of the one-pound bag of marijuana in the van, which the agent testified was visible, he was not charged with its possession but rather was prosecuted and convicted for the sale of the thirty-one pounds of marijuana. The state failed to link possession of this one-pound bag to the sale of the larger quantity of marijuana. Hummons was not connected to the one-pound by any evidence.

As to the revolver, Horne testified that it belonged to him and that he carried it with him wherever he went. There was no evidence that the weapon was used in the drug sale or that Oldwine or Hummons would have been alerted to the sale by the presence of the gun.

To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt but must exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6.

The trial court is authorized to direct a verdict of acquittal if the state clearly fails to meet its burden. When the court declines to do so and the jury returns a verdict of guilt, we are not bound if a reasonable hypothesis of innocence appears from the evidence or the lack thereof. Muckle v. State, 165 Ga. App. 873 (1) (303 SE2d 54) (1983); OCGA § 17-9-1. The state failed to carry its burden inasmuch as a reasonable hypothesis of innocence appears from the lack of evidence. Evidence that defendants were “involved” plus the proximity evidence, without more, does not establish that either appellant was a party to the crime. OCGA § 16-2-20 (3) or (4). Therefore the defendants’ convictions cannot stand. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 10, 1987.

Coleman C. Eaton, Jr., for appellant (case no. 74942).

Richard D. Wilson, for appellant (case no. 75186).

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

2. Our decision in Division 1 makes it unnecessary to address Hummons’ additional contention that the trial court should have directed a verdict of acquittal because no “sale” within the meaning of the statute took place or to address the propriety of the denial of his motion for new trial based on the general grounds.

Judgments reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    74964.
    MEMORIAL MEDICAL CENTER, INC. et al. v. MOORE et al.
    (361 SE2d 49)
   Banke, Presiding Judge.

The appellees sued the appellants to recover for the alleged wrongful death of their child resulting from medical malpractice. The appellants counterclaimed, pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), to recover damages for abusive litigation. Without notice to the appellants, the appellees subsequently filed a notice of voluntary dismissal and, on the same day, obtained an ex parte order from the trial court dismissing their complaint without prejudice. The appellants responded with a “motion to strike and objection to [appellees’] voluntary dismissal.” The trial court subsequently denied that motion but further ruled that “the [appellants] shall be allowed to independently adjudicate its (sic) Yost counterclaim presently pending in the action.” The appellants filed a direct appeal from this order. The appellees have moved to dismiss the appeal based on the pendency of the counterclaim and on the appellants’ failure to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34. Held:

“While Yost eliminated the requirement that claims for malicious use of process be brought in a subsequent action, it did not change the requirement of a favorable termination.” Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 116 (351 SE2d 513) (1986). Accord Smith v. Pierce, 179 Ga. App. 724, 725 (4) (347 SE2d 692) (1986). “[A] voluntary dismissal [without prejudice] is not a termination of the suit in [defendant’s] favor. (Cit.)” Rothstein, supra at 115-116. It follows that the trial court was incorrect in concluding that the appellants could continue to pursue their Yost counterclaim against the appellees as an independent action, notwithstanding the appellees’ voluntary dismissal of their complaint. However, since the counterclaim was never actually dismissed, technically speaking it still remains pending in the court below. Consequently, the dismissal of the complaint cannot be considered a final judgment within the meaning of OCGA § 5-6-34 (a) (1), and it follows that we are without jurisdiction to entertain a direct appeal from it.

Decided September 10, 1987.

Lee C. Mundell, Anne C. Marscher, for appellants.

Carlton R. Stewart, Benjamin S. Williams, for appellees.

We reject the appellants’ contention that the trial court’s actions somehow resulted in a severance of the main claim from the counterclaim pursuant to OCGA § 9-11-21, so as to establish the main claim as an independent action, the dismissal of which was directly appealable pursuant to Pizza Ring Enterprises v. Mills Mgt. Sources, 154 Ga. App. 45 (1) (267 SE2d 487) (1980). In the first place, OCGA § 9-11-21 deals with the joinder and severance of claims asserted against different parties, not the same party. Consequently, it is inapplicable to this case. In the second place, there was obviously no intention on the part of the trial judge to sever the main claim from the counterclaim prior to the dismissal of the main claim, so as to enable the two claims to proceed as independent actions. Indeed, such a ruling would have been both totally illogical and contrary to the express mandate of Yost, supra.

Appeal dismissed.

Carley and Benham, JJ., concur.


text:
    74999.
    FOWLER v. THE STATE.
    (360 SE2d 918)
   Banke, Presiding Judge.

The appellant was convicted of fraud in obtaining public assistance (OCGA § 49-4-15) and was sentenced to five years’ probation. On appeal, she contends that the trial court erred in imposing as a condition of her probation a requirement that she pay $500 to the clerk of the court as restitution for the fees of her appointed counsel.

Decided September 10, 1987.

James T. Irvin, for appellant.

Michael H. Crawford, District Attorney, Leonard Geldon, Assis tant District Attorney, Michael J. Bowers, Attorney General, for appellee.

Held:

The Georgia Criminal Justice Act, OCGA § 17-12-1 et seq., establishes a comprehensive scheme for the provision of legal representation to “indigent persons” in criminal proceedings. OCGA § 17-12-4 (a). “Indigent person” is defined by OCGA § 17-12-2 (5) to mean “a person who is unable, without undue hardship, to employ the legal services of an attorney or to defray the necessary expenses of legal representation, determined as provided for in this article.”

Provision for the recoupment of benefits extended to criminal defendants under the Act is found in OCGA § 17-12-10, which provides, in pertinent part, as follows: “(c) To the extent that a person covered under this Code section is able to provide for the employment of an attorney, the other necessary services and facilities of representation, and court costs, the court concerned may order him to provide for this payment or reimbursement.” The Attorney General has construed this code section as authorizing “a superior court [to] tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but . . . only ... to the extent of the individual defendant’s financial capability to pay.” 1985 Op. Att’y Gen., No. U85-32, p. 205. Additionally, the county is authorized pursuant to OCGA § 17-12-11 to file suit to recoup benefits from criminal defendants who were or who are at the time of the filing of such suit financially able to pay for the benefits received.

Although the trial court determined at the sentencing hearing that the appellant was receiving income in the amount of $360 per month, there is no indication in the record that the court made any attempt to determine the amount of her assets, expenses, or outstanding obligations, so as to determine her ability to reimburse the county for the cost of her legal representation. See OCGA § 17-12-10 (a). In fact, the judge stated for the record that he assumed the appellant continued to “qualify as an indigent” and on that basis offered to appoint, and apparently did appoint, her trial counsel to continue to represent her on appeal. This record obviously provides no basis for a determination that the appellant was “able to provide for the employment of an attorney.” It follows that no basis has been shown for requiring her to reimburse the county for the expenses of her legal representation pursuant to OCGA § 17-12-10 (c), supra. That portion of the sentence is consequently vacated.

Judgment vacated in part.

Carley and Benham, JJ., concur.


text:
    75016.
    SHORE LIVESTOCK, INC. v. SANDERS.
    (361 SE2d 50)
   Benham, Judge.

Appellant Shore Livestock, Inc. (Shore) sued appellee Ida Mae Sanders for damages it suffered when Shore’s tractor-trailer struck Sanders’ disabled automobile, which was stopped in the left lane of a Richmond County highway. Shore alleged that Sanders’ vehicle was parked and abandoned without any warning of its presence, and that Sanders’ negligence precipitated the collision. After a jury trial, a verdict was returned in appellee’s favor. Appellant’s sole enumeration on appeal is that the trial court erred when it instructed the jury that “the uncontroverted facts of this case show the plaintiff was speeding. This is negligence per se, and that’s the Court’s ruling in regard to that.” The court went on to charge the jurors that they were to decide whether or not appellant’s negligence was the proximate cause of the accident, whether appellee was negligent, and, if so, whether her negligence contributed to the proximate cause of the collision.

Appellant contends that the trial court’s statement as quoted violated OCGA § 9-10-7, which prohibits a judge from expressing or intimating his or her opinion as to what has or has not been proved. We disagree. The evidence adduced at trial regarding appellant’s driver’s speed showed that the speed limit in the area was 45 miles per hour; that appellant’s driver testified on direct examination that he was going “around fifty miles an hour” at the time just before the accident, and on cross-examination admitted that he remembered testifying at his deposition that he was going 50 to 55 miles per hour. The driver denied telling the investigating officer at the accident scene that he was going 45 miles per hour. A witness to the accident testified that he thought the tractor-trailer was “running between sixty and seventy miles per hour.” There was no testimony to show justification or excuse for appellant’s driver exceeding the speed limit. The evidence of speeding was indeed uncontroverted, and so the trial court did not err in making its statement. “[W]here, as here, the evidence demands a finding as to the opinion expressed, there is no cause for reversal. [Cits.]” Ga. Power Co. v. Mozingo, 132 Ga. App. 666 (4) (209 SE2d 66) (1974).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided September 10, 1987.

Kenneth R. Chance, for appellant.

Richard R. Mehrhof, Jr., for appellee.


text:
    75028, 75029, 75030.
    SHERIFF v. THE STATE (three cases).
    (361 SE2d 53)
   Birdsong, Chief Judge.

The appellant John Sheriff brings these appeals from his conviction in the State Court of Houston County on three separate Uniform Traffic Citations, each alleging driving under the influence. Appellant contends the court erred in not allowing him to withdraw his pleas of guilty. Held:

Under OCGA § 40-6-1, it is a misdemeanor for a person to do any act forbidden by that chapter, which includes DUI. See OCGA § 40-6-391 (a). In misdemeanor cases, it is discretionary with the trial court as to whether the proceedings are transcribed. OCGA § 5-6-41 (b). No transcription of the trial is included in the record. The legislature has provided that the Uniform Traffic Citation form shall act as a citation, summons, accusation, “and as the record of the disposition of the matter by the court before which the accused is brought. . . .” OCGA § 40-13-1. Thus, since these DUI offenses are misdemeanors and the citation acts as the record, absent a demand for a transcript prepared at the expense of the requesting party, the reporting of such a case is not required as a matter of law. Godwin v. State, 138 Ga. App. 131 (1) (225 SE2d 723).

An appellant has the right to have a record constructed under OCGA § 5-6-41 (g). It appears that appellant has sat on his right to have a recollected record. Anderson v. Anderson, 235 Ga. 115 (1) (218 SE2d 846); Williams v. State, 140 Ga. App. 87, 89 (230 SE2d 94). On appeal the burden is on appellant to show error (Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16)), and such error must be shown by the record (Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437)); this cannot be done in the brief. Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840).

From the record before us, we cannot determine what type of motion was made to withdraw former pleas of guilty, when they were presented, what ruling was made, or whether waiver is involved. In short, this type error can be reviewed only by reference to a transcript and absent a transcript we must assume the ruling of the trial court is supported by the evidence. Aviation Elec. v. U. S. Energy &c. Systems, 242 Ga. 224 (248 SE2d 610); Goss v. State, 161 Ga. App. 539 (288 SE2d 253).

Decided September 10, 1987.

Alvin C. McDougald, for appellant.

Carl A. Veline, Jr., Solicitor, for appellee.

Judgments affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75058.
    MITCHELL v. THE STATE.
    (361 SE2d 51)
   Banke, Presiding Judge.

The appellant was convicted of possession of marijuana with intent to distribute. On appeal, it is contended that the court erred in allowing one of the arresting officers to relate to the jury the contents of an electronically monitored conversation which had transpired between the appellant and an undercover agent immediately prior to the appellant’s arrest. The appellant objected to the testimony on the ground that the officers had made a tape recording of the conversation which they had been unable to produce in response to a pre-trial discovery motion served on the state pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1983).

The undercover agent, wired by the arresting officers with a “body bug” (i.e., hidden transmitter), had approached the appellant in a pool hall seeking to purchase marijuana from him. Immediately thereafter, the appellant and the undercover agent left the pool hall and entered a nearby automobile. Based on statements subsequently overheard and recorded by the officers by means of the body bug indicating to them that a drug sale was in progress, the officers approached the vehicle at this time to make an arrest. A brown paper bag containing 3.89 ounces of marijuana was seized from the floorboard of the vehicle at the time of the arrest. Because the undercover agent (whose identity was not concealed by the state) was not called as a witness by either side and because the arresting officers were unable to account for the tape recording, the officers’ testimony constituted the only evidence regarding the contents of the electronically monitored conversation between the appellant and the undercover agent. Held:

Since it is undisputed that the state’s attorney never had the tape in his possession, and since the arresting officers did not know the whereabouts of the tape, it obviously was not within the state’s power to produce it. It has been held that “there could be no error in failing to require the State to produce something it did not possess.” Pittman v. State, 175 Ga. App. 50 (2), 51 (332 SE2d 356) (1985). See also West v. State, 251 Ga. 458 (3) (306 SE2d 909) (1983). Moreover, in order for a defendant to prevail on a contention that his due process rights were violated as a result of the suppression by the prosecution of evidence favorable to him, he is required to show both that the evidence was material and that it was in fact favorable to him. Stevens v. State, 242 Ga. 34, 36 (247 SE2d 838) (1978). In the present case, the appellant did not himself offer any testimony indicating that the arresting officers’ account of his conversation with the undercover agent was inaccurate, nor did he otherwise suggest how the tape recording might have benefited him. It follows that he established no due process violation. Additionally, we note that the appellant objected to the testimony of only one of the two arresting officers. In fact, he called the second officer as his own witness. Since the second officer offered substantially the same account of the conversation as the first, it follows that any error committed by the trial court in admitting the first officer’s testimony must be considered harmless.

Decided September 10, 1987.

Albert B. Wallace, for appellant.

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74180.
    ROSE v. HAMILTON MEDICAL CENTER, INC. et al.
    (361 SE2d 1)
   McMurray, Presiding Judge.

A minor child, by his mother and next friend, brought suit against a hospital and three physicians, seeking damages for alleged malpractice in the prenatal care, delivery and postnatal care of the child, as well as a claim for past and future medical expenses attributable to the child’s alleged brain damage. The defendant physicians and the defendant hospital separately moved for partial summary judgment as to the plaintiff’s claim for medical expenses. The superior court granted the motions for partial summary judgment holding that a cause of action for medical expenses incurred by a child rests in the parent so that unless the action for medical expenses is brought within two years (following the date on which the negligent or wrongful act occurred), it is barred by the statute of limitation under OCGA § 9-3-71. Plaintiff appeals the grant of partial summary judgment in favor of the defendant physicians and defendant hospital. Held:

It is undisputed that in the case sub judice, no action to recover medical expenses was brought within two years of the date on which the negligent or wrongful act or omission occurred as provided by OCGA § 9-3-71. Plaintiff argues that although the parents may be barred, the bringing of this action for recovery of medical expenses by the child is proper because the provisions of OCGA § 9-3-90 toll the statute of limitation with regard to the child, allowing him to bring the claim for medical expenses in his own name, by next friend, at any time up to two years after the removal of his disability.

OCGA § 51-1-9 provides that “[e]very person may recover for torts committed to himself, his wife, his child, his ward, or his servant.” This enactment is a declaration of the common law. Collins v. Martin, 157 Ga. App. 45, 47 (276 SE2d 102) (1981). “The right to recover damages for loss of services and medical expenses from a tortious injury to a minor is in the father. [Cit.]” City of Dalton v. Webb, 131 Ga. App. 599 (206 SE2d 639) (1974). This is because “[t]he father of a minor is bound by law to provide necessary medical care to his minor child. [OCGA § 19-7-2] . . . The father alone has the right to sue to recover medical expenses necessitated by a tortious injury to the child. This the law accords to him since the law makes it his legal duty and obligation to provide his minor children with necessaries — of these medical care is one.” Id. at 600. Since the language of OCGA § 19-7-2 has been amended to reflect that it is the joint and several duty of each parent to support his or her minor children, it follows that the action to recover medical expenses of a minor is now vested exclusively in both parents.

Contrary to plaintiff’s assertions, the instances in which the courts have on occasion allowed minors to sue for medical expenses do not amount to a disavowal of this rule or a declaration that filing such a suit is an action which, in and of itself, can bootstrap the minor into “emancipation,” thus validating the suit. See Shinall v. Henderson, 123 Ga. App. 169 (1) (179 SE2d 677) (1971); Brown v. Seaboard Air Line R. Co., 91 Ga. App. 35 (84 SE2d 707) (1954); and Coleman v. Dublin Coca-Cola &c. Co., 47 Ga. App. 369, 372 (3) (a) (170 SE 549) (1933). Under Georgia law, emancipation can only arise under the terms of OCGA § 19-7-1. See Hicks v. Fulton County DFACS, 155 Ga. App. 1, 2 (270 SE2d 254) (1980). Since none of the conditions precedent to emancipation in OCGA § 19-7-1 (b) has been met in the case sub judice, nor can it reasonably be claimed that under the particular allegations of the case sub judice the plaintiff minor can ever be acknowledged as emancipated by his parents, the act of filing a suit to recover medical expenses cannot be said to have emancipated the plaintiff minor child in the case sub judice. Nor could the parents have “transferred” their right to recover medical expenses to the child by the act of allowing him to bring the action, as it is uncontroverted that the parents’ right to recover medical expenses on his behalf had been extinguished by operation of law when they failed to exercise that right within the two-year statutory period. As they no longer had such a right, they had, in effect, nothing to transfer. See generally Skinner v. DeKalb Fed. Savings &c. Assn., 246 Ga. 561, 562, 563 (272 SE2d 260) (1980).

Thus, the child had no right to bring an action for his medical expenses incurred or to be incurred while he is a minor. Upon the child reaching the age of majority, presently 18, OCGA § 19-7-2 will no longer be applicable. Thus, insofar as we are addressing the child’s claim for medical expenses prior to age 18, it follows that even though OCGA § 9-3-73 permits tolling the statute of limitation for disabilities in medical malpractice actions, plaintiff here cannot assert the tolling provisions of OCGA § 9-3-90 inasmuch as “ ‘(w)here minors are seeking to toll the statute of limitations, their interest must be such as will enable them to maintain an action in their own name. [Cits.]’ [Cit.]” DeLoach v. Emergency Med. Group, 155 Ga. App. 866, 867 (2) (274 SE2d 38) (1980). However, as plaintiff may maintain an action in his own name for medical expenses incurred after reaching the age of majority, the tolling provisions of OCGA § 9-3-90 are applicable to this portion of plaintiff’s claim. See Roth v. Law, 579 SW2d 949 (11, 12); and Olivieri v. Adams, 280 FSupp. 428 (1). Accordingly, we find the superior court erred in granting partial summary judgment in favor of the defendant physicians and defendant hospital against plaintiff insofar as it bars plaintiff’s claim for future medical expenses after the age of majority.

Judgment reversed.

Beasley, J., concurs specially. Sognier, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

It is true that the medical and other expenses incurred by the parent are barred in this suit. The child cannot recover them because they are not damages to the child but losses sustained by the parent, who is legally obligated to maintain the child until majority or other loss of parental power. OCGA §§ 19-7-2; 19-7-1. The parent, who is not a plaintiff anyway, cannot recover them because, being her cause of action, she has lost it by not exerting her right within the two-year statute of limitation applicable to her claim for damages resulting to her. OCGA § 9-3-71.

This dichotomy, of course, creates two causes of action, one being that of the child who suffered the injury and one being that of the parent who sustained attendant expenses. But as discussed, all of the medical expenses sought will not be recoverable by the parent because she will not be obligated for those incurred after the child reaches majority. Pruitt v. Pierce, 100 Ga. App. 808, 809 (3) (112 SE2d 327) (1959). That stands to reason, because the elements of any negligence action are four: duty, breach, causation, and damages. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). And where one does not have compensable damages, the fourth element is missing, injuria absque damno. 1 AmJur2d 597, Actions, § 69, and cases cited.

Decided July 31, 1987

Rehearing denied September 11, 1987

Charles B. Tanksley, Kenneth M. Henson, Jr., for appellant.

George W. Hart, John T. Minor III, for appellees.

Don C. Keenan, David S. Bills, amici curiae.

It is perhaps unfortunate that the difference in the rights of each, and the statute’s tolling only as to the child’s rights, creates potentially two lawsuits. The parents must bring theirs “within two years after the date on which the negligent or wrongful act or omission occurred.” OCGA § 9-3-71. The child need not then join in but may wait and file years later, within two years after he reaches majority. OCGA § 9-3-90 (a). Or he may, as he has done here, file before majority for the medical and other expenses which will be incurred after majority. The major question consuming time and money in each suit will be liability, a question that is identical in both suits. But the legislature has not seen fit to consolidate the actions and avoid not only the duplication of the resources of litigants and courts alike but also the possibility of inconsistent verdicts. Compare New Jersey Statutes Annotated §§ 2A:14-2.1; 59:8-8.


author: Pope, Judge.

text:
    74420.
    STRICKLAND v. THE STATE.
    (361 SE2d 207)
   Pope, Judge.

Buddy Strickland brings this appeal from his conviction and sentence of rape. Held:

1. Defendant’s first three enumerations challenge the sufficiency of the evidence to support the verdict. On the date in question, defendant, along with Luke Dupree, went to the victim’s trailer where they inquired about her brother. The victim testified that defendant and Dupree (who are her cousins) left but later returned and the three of them sat and drank beer. After a while the defendant went to the bathroom located off the back bedroom, and when the toilet would not flush he called out for the victim’s assistance. The victim testified that when she went into the bedroom, defendant grabbed her, threw her on the bed and raped her. Moreover, she testified that she bit defendant two or three times on the right shoulder while he was attacking her. The victim’s husband testified that when he arrived home from work he found his wife crying, and upon questioning her, she told him that defendant had raped her. The State also presented the investigating officer who testified that the victim appeared to be upset and nervous when she came into the station to report the rape, and that when defendant was questioned he had marks on him that resembled bite marks.

Defendant alleges that he had consensual sex with the victim and that the marks on him were caused by a bedpost in the course of moving it. Moreover, defendant’s companion Luke Dupree testified that both of them had consensual sex with the victim on this occasion.

We find from the evidence presented at trial that any rational trier of fact could have found defendant guilty of rape beyond a reasonable doubt. Accord Melson v. State, 157 Ga. App. 268 (277 SE2d 284) (1981).

2. Defendant’s remaining enumeration cites as error the denial of his motion for new trial on the ground of newly discovered evidence. The evidence upon which defendant bases this enumeration was given by a deputy sheriff at defendant’s sentencing hearing. The deputy testified: “The victim called me after I intended to serve the warrant and wanted to withdraw the warrant, and I advised her that she would have to take it up with [the investigating officer] since he had obtained the warrant. She got very mad about it and told me to go to hell, that there wasn’t nothing to it no way.” Defendant’s counsel at the sentencing hearing (who was standing in for trial counsel who was ill) offered the deputy’s testimony “in mitigation and mitigation alone.” The trial court noted that defendant offered no explanation as to why this evidence had not been offered at trial and sentenced him to twenty years, fifteen to serve incarcerated.

In order for a new trial to be granted on the basis of newly discovered evidence the defendant must satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that it will not impeach the credit of a witness only; and (6) that the affidavit of the witness should be procured or its absence accounted for. Timberlake v. State, 246 Ga. 488 (1) (271 SE2d 792) (1980); Burge v. State, 133 Ga. 431 (2) (66 SE 243) (1909). The burden is on the defendant to show complianee with each of the six requirements. Tanner v. State, 167 Ga. App. 554, 555 (307 SE2d 45) (1983).

Decided September 11, 1987.

James E. Greene, for appellant.

Darrell E. Wilson, District Attorney, Mickey Thacker, Assistant

District Attorney, for appellee.

We will assume for the sake of argument that the issue of newly discovered evidence was properly presented to the trial court on motion for new trial, although this is not entirely clear from the record. Further assuming the materiality, etc., of the newly discovered evidence (see In the Interest of J. F. F., 177 Ga. App. 816 (1) (341 SE2d 465) (1986)), the record is nonetheless entirely devoid of any showing that this evidence became known to defendant since the trial and that its sooner acquisition was not owing to defendant’s lack of due diligence. The evidentiary assertions in defendant’s brief provide no factual predicate for a finding in this regard. See Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109) (1980); McFarland v. State, 134 Ga. App. 470 (1) (214 SE2d 721) (1975). Under these circumstances we find no abuse of the trial court’s discretion in denying defendant’s motion for new trial. Hayes v. State, 163 Ga. App. 465 (2) (295 SE2d 159) (1982); see Atkins v. State, 228 Ga. 578 (4) (187 SE2d 132) (1972).

Judgment affirmed.

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

       Although appellant’s notice of appeal was filed three days prior to the entry of the trial court’s order denying his motion for new trial, we will review the case on its merits rather than dismiss it for lack of jurisdiction. Cunningham v. State, 232 Ga. 416 (207 SE2d 48) (1974); Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987).


author: Carley, Judge.

text:
    74446.
    FORTNER v. W. C. CAYNE & COMPANY, INC.
    (360 SE2d 920)
   Carley, Judge.

While working at a construction site, appellant-plaintiff fell from a scaffolding which had been mounted on casters for mobility. The casters had been designed so that they could be securely attached to the scaffolding posts by the use of pins, wire, or a number of other items. However, the scaffolding from which appellant fell had not been mounted on casters which had been secured to the posts of the scaffolding. The scaffolding had been assembled at the construction site by appellant’s co-workers who had merely slid the casters into the bottom of the scaffolding posts without securely attaching them thereto. At the time of his fall, appellant was atop the scaffolding as his co-workers were pushing it across the floor. The scaffolding came to an unexpected and abrupt halt upon encountering some unidentified obstruction in the path of its forward progress across the floor. The momentum was sufficient to cause one end of the scaffolding to leave the floor and, as the result, the unattached casters at that end fell out of the scaffolding posts into which appellant’s co-workers had slid them. When the scaffolding righted itself, the end from which the casters had fallen was now some 10 inches shorter than the opposite end which still had the casters in place. This discrepancy in the height of the respective ends of the scaffolding caused it to fall, taking appellant with it.

Appellant sued appellee-defendant in its capacity as the lessor of the scaffolding and the casters. Appellant alleged that the equipment had been leased to his employer by appellee, that the leased equipment was defective, and that his injuries were the proximate result of the defective equipment. Appellee answered, denying the material allegations of appellant’s complaint. The case came on for jury trial. At that trial, appellant attempted to prove his allegation that the equipment was defective by introducing evidence that appellee had failed to provide any pins for the attachment of the casters to the scaffolding posts and had failed to provide a warning that the casters should be secured to the posts by some means. Appellee’s motions for a directed verdict were denied and the case was submitted to the jury. However, a mistrial was declared when the jury could not reach a verdict. Appellee then moved for judgment notwithstanding the mistrial. The trial court granted appellee’s motion and appellant appeals from the resulting judgment which was entered in favor of appellee.

1. “A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where ‘(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict.’ [Cit.]” Gordon v. Carter, 126 Ga. App. 343, 344 (190 SE2d 570) (1972). Appellant enumerates the grant of appellee’s motion as error, asserting that, under the evidence, numerous factual conflicts existed for jury resolution and that the trial court erred by purporting to make “findings” in its order which resolved those conflicts.

A review of the transcript does disclose that some of the “findings” made by the trial court in its order would appear to represent its own resolution of certain disputed factual issues. However, “ ‘[t]he mere existence of conflicts in the evidence does not render [the grant of judgment notwithstanding mistrial] erroneous if it was demanded either from proof or lack of proof on the controlling issue. [Cits.]’ ” (Emphasis supplied.) Lakeview Memory Gardens v. Nat. Bank & Trust Co., 155 Ga. App. 478, 480 (3) (271 SE2d 219) (1980). The “controlling issue” in this case is whether appellee, as lessor of the equipment, breached its duty “[t]o warrant. . . that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” OCGA § 44-12-63 (3). Under OCGA § 44-12-63 (3), “[o]ne who supplies an appliance for such use by others that it is obvious to him that any defect will be likely to result in injury to those using it is liable to any person who, using the appliance properly for the purpose for which it is supplied, and without notice or warning of its defective condition, is injured thereby. This principle of law has been applied to defective scaffolds for workmen to work upon. [Cits.]” Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 370 (2) (167 SE 789) (1933). Accordingly, the burden in this case was upon appellant to produce evidence which would authorize a finding that appellee had breached its duty as a lessor by leasing scaffolding which was defective. If there was a lack of proof as to this controlling issue, then the grant of appellee’s motion was authorized notwithstanding a conflict in the evidence as to any other issue.

2. It is undisputed that appellee had not supplied attachment pins in connection with its lease of the equipment. However, it is also undisputed that appellee itself had not been supplied with such attachment devices. The manufacturer of the casters did not supply pins with its product. Prior to the adoption of “strict liability,” a lessor’s duty with regard to the lease of defective products under OCGA § 44-12-63 (3) was analogized to a manufacturer’s duty with regard to the sale of defective products, that duty being defined by the traditional standards of negligence. See Queen v. Patent Scaffolding Co., supra. Under current law, a manufacturer may now be held liable for injuries caused by his defective product even in the absence of negligence. It would necessarily follow that a lessor’s liability with regard to the lease of defective products under OCGA § 44-12-63 (3) is not as great as a manufacturer’s liability under existing OCGA § 51-1-11 (b). Accordingly, if the evidence in this case would not authorize a finding that the casters without attachment devices were “defective” products so as to permit a recovery against the manufacturer under OCGA § 51-1-11 (b), it clearly would not authorize a finding that they were “defective” products so as to permit a recovery under OCGA § 44-12-63 (3) against appellee as the lessor.

Under the evidence, the absence of attachment devices neither rendered the casters unusable nor rendered the scaffolding inherently unsafe for any use. Compare Queen v. Patent Scaffolding Co., supra at 374 (4). There is no dispute that the scaffolding could be safely rolled on a level surface even if it was mounted on casters which had not actually been attached to the posts. A scaffolding which had been mounted on casters that were not securely attached became dangerous only when it was rolled across a surface which was not level. This danger that any unattached casters might disengage if the scaffolding was rolled across an uneven surface was, however, an obvious one and was actually recognized by one of appellant’s co-workers who had assembled the scaffolding. Compare Queen v. Patent Scaffolding Co., supra at 369 (2). This co-worker testified to the need for secure attachment of the casters “just in case you run over a pothole or something like that so the wheels wouldn’t fall off.” Neither a manufacturer nor a lessor “ ‘ “is under the duty of making a machine accident proof or foolproof . . . (He) is under no duty to guard against injury from a patent peril or from a source manifestly dangerous.” ’ [Cit.] Nor is there a duty on the manufacturer or [lessor] to warn of obvious common dangers connected with the use of a product. [Cits.]” Poppell v. Waters, 126 Ga. App. 385, 387-388 (1) (190 SE2d 815) (1972). See also Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 45 (2) (248 SE2d 15) (1978); Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811 (295 SE2d 183) (1982).

Appellee’s failure to have provided any pins or other attachment devices to guard against the obvious danger of disengagement of the casters on an uneven surface was not a “secret.” The equipment had been delivered by appellee to the construction site in an unassembled state. That no attachment devices which would guard against the disengagement of the casters had been provided was apparent to and was actually noted by appellant’s co-workers who had assembled the scaffolding. “No warranty can be implied that [casters] obviously not equipped with [caster pins are] intended for safe use [on an uneven surface]. [Cit.]” Poppell v. Waters, supra at 388 (2). Compare Queen v. Patent Scaffolding Co., supra at 369 (2), wherein the evidence “tended to show that the rail was painted and that it took a close scrutiny or inspection to ascertain [its alleged defective condition].”

Moreover, the casters that were supplied by appellee were capable of being securely attached to the scaffolding. It is undisputed that they were designed to accommodate a secure attachment to the scaffolding posts by the employment of items otherwise generally available at a construction site, such as bolts or wire. This design capability was also apparent to and actually noted by appellant’s co-workers. The evidence showed that the use of such items to secure casters to the scaffolding that was mounted upon them was “not an uncommon” practice and at least one of appellant’s co-workers had himself previously attached casters by using bolts or wire found at a construction site. However, in this particular instance appellant’s co-workers had sought neither bolts nor wire at the construction site and had not attached the casters to the scaffolding because their supervisor had not directed that it be done and because the floor where the scaffolding was to be rolled was considered to be “a flat surface.” Although the floor may have been flat, it is undisputed that there was debris on it. With full knowledge of the existence of the debris on the floor and of the lack of any secure attachment of the casters to the scaffolding posts, appellant’s co-workers nevertheless undertook to push the scaffolding across the floor while allowing appellant to remain atop it.

Decided September 11, 1987.

Christopher G. Nicholson, for appellant.

W. Allen Evans, for appellee.

On this evidence, the scaffolding mounted on unsecured casters was safe for limited use on a level surface and was also readily adaptable for safe use on an uneven surface as against the obvious danger of disengagement of the casters. A product is not rendered “defective” by the patent absence of a specific safety device which would serve to guard against a common danger connected with the limited use of a product, which danger the ultimate user can himself recognize and otherwise guard against. See generally Hunt v. Harley-Davidson Motor Co., supra; Stodghill v. Fiat-Allis Constr. Machinery, supra; Rhodes v. R. G. Indus., 173 Ga. App. 51 (325 SE2d 465) (1984). Under the evidence of record in this case, appellant’s injuries are attributable to the acts of his co-workers who assembled the scaffolding and who, having initially failed to employ any means to activate the design of the casters for achieving a secure attachment to the posts, then pushed it across an uneven surface with appellant atop it. The evidence thus showing no actionable breach of appellee’s duty under OCGA § 44-12-63 (3), the trial court did not err in granting appellee’s motion for judgment notwithstanding mistrial.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74492.
    THE STATE v. McKENZIE.
    (361 SE2d 54)
   Pope, Judge.

The State brings this appeal from the trial court’s November 17, 1986 order granting defendant’s motion for acquittal pursuant to OCGA § 17-7-170. The record shows that on February 28, 1986 defendant was arrested for public indecency in violation of OCGA § 16-6-8. Although not apparent of record, the parties agree, and the trial court found, that at the time of his arrest defendant was issued a Uniform Traffic Citation containing the charges against him and a hearing date. At the hearing held on March 14, 1986 defendant entered a not guilty plea and was bound over to the State Court of Fulton County. Defendant’s file was received in the solicitor’s office on March 20, 1986. On May 19, 1986 defendant filed his speedy trial demand with the Clerk of the State Court of Fulton County and the State concedes, delivered a copy to the solicitor’s office. The solicitor’s office filed a formal accusation against the defendant on June 25, 1986. On September 23, 1986 defendant filed his motion for acquittal. At the hearing held thereon, the trial court concluded that although defendant’s demand for speedy trial was filed prior to the return of the accusation against him it would nevertheless grant defendant’s motion because the demand and accusation were filed within the same term.

Under these facts we agree with the State that the trial court erred in granting defendant’s motion for acquittal. “It is well settled in Georgia law that the protection conferred by [OCGA § 17-7-170] attaches with the formal indictment or accusation. [Cit.] ” Anders v. State, 175 Ga. App. 22, 23 (332 SE2d 299) (1985). Thus, “ ‘a demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. Fisher v. State, 143 Ga. App. 493 (238 SE2d 584) (1977).’ Majia v. State, 174 Ga. App. 432, 433 (1) (330 SE2d 171) (1985).” State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987). There is no provision in Georgia law whereby a prematurely filed speedy trial demand can be resuscitated by a later returned accusation (or indictment) whether they are filed in the same term or not.

Defendant, however, posits the argument that the Uniform Traffic Citation issued at the time of his arrest contained the necessary accusation and thus his demand was not prematurely filed. See State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986); Majia v. State, 174 Ga. App. 432 (1), supra. We disagree. Those cases in which we have held that the citation itself contains the necessary accusation, including those cited above, have all concerned traffic-related offenses which may be prosecuted on the citation without the necessity of returning a formal accusation pursuant to OCGA § 17-7-71. See OCGA § 17-7-71 (b) (1); OCGA §§ 40-13-1; 40-13-3 and 40-13-24; see also Evans v. State, 168 Ga. App. 716 (310 SE2d 3) (1983). Such an exception does not apply to the crime of public indecency, and the citation issued in the present case was not sufficient to constitute the accusation against the defendant herein. Accordingly, defendant’s demand for speedy trial was prematurely filed and the trial court erred in granting defendant’s motion for acquittal.

Judgment reversed.

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

Decided September 11, 1987.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellant.

W. Jason Uchitel, for appellee.

       We note that OCGA § 17-7-170 has been amended effective July 1, 1987 so as to provide that a demand for speedy trial must be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant. Ga. L. 1987, p. 841, § 1.


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    74527.
    FORSYTH COUNTY BOARD OF EDUCATION et al. v. TRUSTY.
    (361 SE2d 55)
   Carley, Judge.

Appellee was denied workers’ compensation benefits following a hearing before an administrative law judge. However, a copy of the award was apparently not mailed to the current address of record for appellee’s counsel. Appellee’s counsel did not receive actual notice of the award until a week after it had been issued. Appellee’s application for de novo review by the Full Board was filed on the thirty-first day following the date of the award. The Full Board entered no formal order with regard to appellee’s application. Instead, in a series of letters, appellee was informed that the Full Board would not proceed to a consideration of her claim, for the reason that her application for de novo review had not been timely filed within thirty days of notice of the award as required by OCGA § 34-9-103. Acting pursuant to OCGA § 34-9-105, appellee then filed an appeal to the superior court, asserting that the Full Board had erroneously computed the time within which she was allowed to file her application for de novo review of the award denying her workers’ compensation benefits.

The superior court’s order posited two alternative analyses of the existing status of the Full Board’s failure to conduct a de novo review of appellee’s appeal. The superior court’s order did not, however, indicate which of the two alternative analyses and depositions would be proper and it gave no final direction to the parties or the Full Board. The superior court’s order merely concluded that “if’ its first alternative analysis were the correct one, then the Full Board was ordered “to commence review of [appellee’s] appeal” but “if’ its second alternative analysis were correct, “then this order is of no force and effect and [appellee] will have to take steps necessary to cause the Full Board ... to hear her appeal, i.e., seeking a writ of mandamus to compel the Full Board to act.” Appellants applied to this court for a discretionary appeal from the superior court’s order. This appeal results from the grant of appellants’ application.

OCGA § 34-9-105 provides that, in a workers’ compensation case, an appeal to the superior court may only be brought from a “final award,” a “final order or judgment,” or “any other final decision.” A superior court has the threshold jurisdiction to determine whether it has jurisdiction over an appeal that has been filed pursuant to OCGA § 34-9-105. See generally Garner v. Owens-Ill. Glass, 134 Ga. App. 917 (216 SE2d 709) (1975). If the superior court determines that it has no jurisdiction pursuant to OCGA § 34-9-105, it should dismiss the appeal. Garner v. Owens-Ill. Glass, supra. If it determines that jurisdiction exists, it then has the authority and jurisdiction to affirm or to reverse the appealable ruling or, in some cases, to remand the proceedings. See Fulton Cotton Mills v. Lashley, 123 Ga. App. 528, 531 (3) (182 SE2d 180) (1971). See also American Cas. Co. v. Harris, 96 Ga. App. 720, 723 (101 SE2d 618) (1957); Employers Mut. Liab. Ins. Co. v. Videtto, 124 Ga. App. 458, 462 (2) (184 SE2d 210) (1971).

Decided September 11, 1987.

Daniel C. Kniffen, for appellants.

Kenneth Rajotte, for appellee.

The superior court’s order in this case identifies the issues to be resolved, to wit: whether, pursuant to OCGA § 34-9-105, it had jurisdiction over appellee’s appeal from the inaction of the Full Board; and, if such jurisdiction did exist, the propriety of the Full Board’s refusal to afford appellee a de novo review of the merits of her claim. However, a final order such as a superior court is authorized and required to enter in a workers’ compensation case has not been entered in this case. The order under consideration neither dismisses appellant’s appeal for lack of jurisdiction nor does it, in the exercise of jurisdiction pursuant to OCGA § 34-9-105, proceed to affirm, reverse or remand appellee’s claim to the Full Board. It was incumbent upon the superior court to make a determination as to its jurisdiction and then to enter an appropriate final order implementing that determination. Accordingly, the order in this case must be reversed with direction that the trial court enter an order which finally disposes of appellee’s appeal, either by dismissing it or by remanding the proceedings to the Full Board. When the superior court has entered a final order in this case, either dismissing appellee’s appeal or remanding the proceedings to the Full Board, the losing party will be free to seek appellate review pursuant to OCGA § 5-6-35.

Judgment reversed and case remanded with direction.

Banke, P. J., and Benham, J., concur.


text:
    74673.
    PARRISH v. STATE OF GEORGIA et al.
    (361 SE2d 57)
    Decided September 11, 1987.

      Ronnie A. Wheeler, for appellant.

      Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Bryndis R. Jenkins, Assistant Attorney General, for appellees.
   Benham, Judge.

Alleging that there existed a contract under which he was employed by the Georgia Department of Agriculture, appellant sued the State and the Commissioner of the Department of Agriculture for breaching that contract by terminating his employment. Defendants filed a motion to dismiss on the grounds of sovereign immunity, executive official immunity, lack of personal and subject matter jurisdiction, and failure to state a claim on which relief could be granted. This appeal is from an order granting the motion on all the grounds raised.

In order to prevail on his claim of wrongful termination and to overcome appellees’ defenses of sovereign immunity and executive official immunity, appellant must prove the existence of a written contract. See Miles v. Bibb County, 177 Ga. App. 364 (1) (339 SE2d 316) (1985), with regard to wrongful termination; and see Ga. Const. 1983, Art. I, Sec. II, Par. IX, with regard to immunity. While it seems unlikely from the record that appellant can bear that burden, the judgment in this case was not based on the entire record, but on the pleadings and argument of counsel. In his pleadings appellant alleges the existence of a contract. It cannot be said, based solely on the pleadings, that there is not a state of facts provable by appellant which would authorize a recovery by him. That being so, the defense of failure to state a claim, which includes the sovereign immunity defenses under the circumstances of this case, does not entitle appellees to judgment as a matter of law. See Torok v. Yost, 176 Ga. App. 149 (2) (335 SE2d 419) (1985). The other grounds raised in appellees’ motion are of no more avail to them than failure to state a claim, and for the same reason: the record has not been developed sufficiently and the pleadings do not reveal a flaw fatal to appellant at this early stage of the litigation. Adjudication of appellant’s claim must wait until the record is developed to a point when the claim can be decided on its merits.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


text:
    74691.
    MARTIN v. WILSON.
    (361 SE2d 209)
   Pope, Judge.

Plaintiff Wilson brought his complaint against defendant Martin and other physicians alleging their professional negligence proximately caused injury to, and ultimately the death of, plaintiff’s wife. Essentially, plaintiff alleges defendant was negligent in prescribing the drug Dolobid to his wife when he knew she was also taking the drug Coumadin. In support of his motion for summary judgment defendant filed his own affidavit stating generally that he exercised the appropriate degree of care in his treatment of the decedent. In opposition to the motion plaintiff offered the affidavit of a physician stating generally that defendant failed to meet the degree of care required of a reasonable physician under the circumstances. Defendant’s motion was denied.

1. The primary issue in this case is whether the affidavit of plaintiff’s expert was sufficient to controvert the defendant’s opinion and create an issue of fact. This issue is virtually identical to that addressed in Division 1 of the opinion in Loving v. Nash, 182 Ga. App. 253 (355 SE2d 448) (1987). Here, as in Loving, the plaintiff’s expert failed to “establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom.” Id. at 255. Applying the rationale of Loving to the facts of the case at hand, we reverse the trial court’s denial of summary judgment to defendant.

2. We reject plaintiff’s argument that defendant’s motion should fail for his failure to attach to the motion a separate statement of his theory of recovery pursuant to Rule 6.5 of the Uniform Superior Court Rules. Because the motion itself contained a clear and concise statement of the theory of recovery upon which the motion was grounded, failure to file a separate pleading resulted in no confusion or disadvantage to the plaintiff in defending the motion.

3. We also reject plaintiff’s argument that issues remain since the affidavit submitted by defendant failed to address the allegation of his joint liability with the other doctors named in the complaint. The only allegations of the complaint which relate to defendant Martin concern his prescription of drugs to the decedent. The complaint alleges no facts by which the alleged negligence of the remaining defendants could be imputed to defendant Martin. The motion and affidavit fully address the allegations made against this defendant thereby entitling him to summary judgment.

Judgment reversed.

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

Decided September 11, 1987.

Carr G. Dodson, Bradley J. Survant, for appellant.

Alfred N. Corriere, G. Stuart Watson, for appellee.


text:
    74724.
    BOWMAN v. THE STATE.
    (361 SE2d 58)
   Carley, Judge.

Appellant was tried before a jury and found guilty of child molestation. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates the general grounds. After reviewing the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence from which the jury could find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The indictment upon which appellant was brought to trial contained an allegation that the act of molestation had occurred between September 1, 1985 and November 19, 1985. The victim’s testimony at trial included references to two other similar acts of molestation which had occurred prior to the period alleged in the indictment. Citing Uniform Superior Court Rule 31.3, appellant objected to this testimony on the ground that the State had not given notification ten days prior to trial of its intent to introduce the two prior incidents into evidence. The trial court overruled appellant’s objection and this ruling is enumerated as error.

An “ ‘indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the . . . period of limitation, including the date[s] alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period.’ [Cit.]” Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986). The dates alleged in appellant’s indictment were not an essential averment thereof. The two prior similar acts of molestation which the victim attributed to appellant had occurred within the applicable four-year statute of limitation. “Thus, the evidence did not fall within the ambit of Rule 31.1 relating to notice of the State’s intention to present evidence of a similar transaction. Rather, it was evidence of the offense charged and admissible. . . .” Pittman v. State, supra at 760 (1). This enumeration is without merit.

Decided September 11, 1987.

Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

3. Over objection, the trial court admitted into evidence the results of appellant’s polygraph examination and this ruling is enumerated as error.

The record shows that the trial court was authorized to find that appellant had entered into an express, oral stipulation that the results of the polygraph examination could be used as evidence “for or against him” at trial. “[U]pon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” State v. Chambers, 240 Ga. 76-77 (239 SE2d 324) (1977). While it is the better practice to obtain a written stipulation as to the admissibility of the results of a polygraph examination, an oral stipulation is sufficient. See Dein v. Mossman, 244 Ga. 866, 870 (262 SE2d 83) (1979); Blount v. State, 172 Ga. App. 120, 123 (6) (322 SE2d 323) (1984). The trial court did not err in admitting the results of appellant’s polygraph examination.

4. Over appellant’s objection, the victim’s guidance counselor was allowed to testify that the victim told her of having been molested by appellant. Because the victim herself was “under oath and subject to cross-examination about her testimony and about her out-of-court statement^]” the testimony of the guidance counselor was admissible. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). See also Edwards v. State, 255 Ga. 149, 150 (2) (335 SE2d 869) (1985); Brannon v. State, 176 Ga. App. 781 (1) (337 SE2d 782) (1985). Appellant’s enumeration of the admission of the testimony of the guidance counselor as erroneous is without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.