text:
    A94A1143.
    CHADWICK v. THE STATE.
    (448 SE2d 751)
   Ruffin, Judge.

The appellant, Douglas M. Chadwick, was convicted by a jury of the offenses of DUI and driving on a suspended license. This appeal followed the denial of his motion for a new trial.

At trial, Officer Pat Sleffel of the Rome Police Department testified that he stopped the appellant’s vehicle for failure to maintain its lane, approached and asked the appellant for his driver’s license and proof of insurance. The officer also stated that the appellant was unsteady on his feet and there was a strong odor of alcohol on his breath. The officer attempted to administer a field alco-sensor test, but the appellant did not cooperate. Instead of following the officer’s instructions, the appellant blocked the tube with his tongue and merely pretended to blow into the instrument. The State argued that the appellant learned from his first DUI that such behavior might enable him to “beat” the alco-sensor test. The officer who charged the appellant with the prior DUI reported the appellant’s eyes were bloodshot and watery, his complexion was flushed and there was a moderate odor of alcohol about his person when he was stopped. He was driving on a suspended license. He submitted to a field breath test. After hearing argument, the trial court found the circumstances of the instant offense and the prior offense were substantially similar and admitted evidence of the prior transaction to show the appellant’s course of conduct and bent of mind.

1. The appellant enumerates as error the trial court’s admission of evidence of his prior DUI conviction pursuant to a guilty plea. He maintains that the circumstances of the prior crime were not similar because in that instance he cooperated with the police, took the in-toximeter test, pled guilty in court and accepted the penalty. In contrast, the appellant argues, in this case he has steadfastly denied consuming any alcohol on the day he was arrested. Moreover, he contends the State improperly used the prior offense to speculate that the appellant learned from his first DUI how to “beat” the alco-sen-sor test when he was stopped a second time for that offense.

“Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citations and punctuation omitted.) Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670) (1993). “[I]t is the simple act of driving while . . . under the influence that establishes the commission of those crimes. A prior act of [DUI] would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. [Cits.]” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 623) (1992).

Decided September 15, 1994.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Lisa W. Pettit, Assistant District Attorneys, for appellee.

We find no impropriety in the State’s use of the similar transaction evidence. Regardless of the circumstances of the offense or the appellant’s conduct after he was stopped, the prior DUI was relevant and admissible for a purpose other than to show a probability that the appellant committed the instant offense because he is a man of criminal character: The appellant’s prior experience with the alco-sensor enabled him to attempt to “beat” the test in the instant case.

2. The appellant complains that a portion of the trial transcript was omitted by the court reporter because of a defective tape. However, the record discloses no attempt by the appellant to correct or supplement the record on appeal in accordance with the provisions of OCGA § 5-6-41 (f), or otherwise to raise the issue before the trial court. Accordingly, this enumeration presents nothing for review. See generally Porado v. State, 211 Ga. App. 728, 730 (3) (440 SE2d 690) (1994).

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A1204.
    WATSON v. THE STATE.
    (448 SE2d 752)
   Ruffin, Judge.

Rolando David Watson was convicted by a jury of the offense of theft by shoplifting. This appeal followed the trial court’s denial of the appellant’s motion for new trial.

The evidence, viewed in the light most favorable to the jury verdict, shows that on February 9, 1993, a Rich’s employee observed Johnny Watson, the appellant’s brother, in the electronics department of Rich’s Southlake Mall store in Clayton County. Neatly dressed in a suit, he placed a stack of five boxed portable telephones from a display table under his arm and rapidly exited the store. He jumped into the passenger side of an older model gray car waiting at curbside and the driver sped away. Less than 15 minutes later, the brothers returned to the electronics department entrance to Rich’s where their 1978 gray Mercury Marquis was spotted by Lieutenant Allen of the Morrow Police Department responding to a call from the store’s security personnel. Five boxed telephones bearing Rich’s pricing tags could be seen in the back seat of the car. The person sitting in the driver’s seat was later identified as the appellant. The appellant got out of the car, keys in his pocket, and entered the store. When apprehended adjacent to the electronics department, the appellant stated he was looking for his brother. Unable to produce sales receipts for the telephones in the car, the appellant was arrested with his brother, and they were later charged with shoplifting. At trial the appellant testified that head injuries in 1985 so impaired his vision that he no longer is licensed to drive, but he is able to work as a brake mechanic.

The appellant raises the general grounds and argues that mere presence at the scene of the offense is insufficient as a matter of law to prove the requisite criminal intent for conviction.

“While mere presence at the scene of a crime affords no basis for a conviction, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Criminal intent may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6. Moreover, where transactions involving relatives are under review slight circumstances are often sufficient to induce a belief that there was collusion between the parties.” (Citations and punctuation omitted.) Carter v. State, 188 Ga. App. 464, 465 (1) (373 SE2d 277) (1988).

We find the evidence was sufficient to enable a rational trier of fact to find the appellant guilty of theft by shoplifting beyond a reasonable doubt. See generally OCGA § 16-2-20; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 15, 1994.

Jim B. Sullivan, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A1028.
    TEASLEY v. THE STATE.
    (448 SE2d 904)
   Birdsong, Presiding Judge.

Lee Anthony Teasley appeals his conviction for violation of the Georgia Controlled Substances Act by possessing cocaine with the intent to distribute (OCGA § 16-13-30 (b)). Teasley contends the trial court erred by denying his Batson challenge, by denying his motion for a directed verdict of acquittal, and by charging the jury improperly. Held:

1. Teasley, who is black, contends the trial court erred by denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), because the State struck the sole black person in the pool of potential jurors. We need not consider whether Teasley established a prima facie case of discrimination under Batson; that issue is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenge and the trial court ruled on the ultimate question of intentional discrimination. Thus, we must address only the sufficiency of the prosecutor’s explanation for the peremptory challenge of the sole black venireman. Chunn v. State, 210 Ga. App. 209, 210 (435 SE2d 728). See Smiley v. State, 263 Ga. 716, n. 2 (438 SE2d 75). Here, after the prosecutor stated that he exercised the peremptory strike because the potential juror indicated he was a personal friend of the defendant, they attended school together, and played on sports teams together, and because the potential juror had personal dealings with the defense counsel’s law firm, the trial court ruled that there had been no Batson violation.

When responding to a Batson motion, the prosecution must show that its peremptory strikes of jurors are neutral, related to the case to be tried, and clear and reasonably specific (Berry v. State, 263 Ga. 493, 494 (435 SE2d 433)) and must offer concrete, tangible, race-neutral and neutrally applied reasons for its strikes. Ford v. State, 262 Ga. 558, 560 (423 SE2d 245). Given the personal relationship between Teasley and the prospective juror, the explanation given provided proper and racially neutral reasons for exercising the strike. Strozier v. Clark, 206 Ga. App. 85, 87 (424 SE2d 368); Mathis v. State, 204 Ga. App. 244, 245 (418 SE2d 800); Glanton v. State, 189 Ga. App. 505 (376 SE2d 386). Further, “[a] prosecutor does not act unreasonably when he is concerned about personal or professional relationships between prospective jurors and the defendant or his attorney.” Osborne v. State, 263 Ga. 214, 216 (430 SE2d 576). Although Teasley contends that with the small black population of his county it is invariable that black potential jurors will know a black defendant, merely knowing the defendant was not the basis the prosecutor asserted. Instead, the prosecutor stated, without rebuttal, the potential juror was a schoolmate, teammate, and personal friend of Teasley. This relationship transcends Teasley’s argument that they were merely part of the same small black community. Additionally, even though the relationship between the potential juror and defense counsel’s firm was not described in detail, Teasley does not contend that the potential juror did not have some relationship with the law firm. Teasley also contends the trial court erred by not making a specific finding that the prosecution had rebutted his prima facie case. Although the trial court did not make specific findings, such a finding is implicit in overruling a Batson objection. Stephens v. Ivey, 212 Ga. App. 407, 409 (442 SE2d 248). As the ruling by the trial court was not clearly erroneous, there was no error. Higginbotham v. State, 207 Ga. App. 424, 426 (428 SE2d 592).

2. Teasley contends the trial court also erred by denying his motion for a directed verdict of acquittal based upon the prosecution’s alleged failure to prove that he possessed cocaine with the intent to distribute. Teasley further contends the trial court erred by denying his motion for a new trial based upon the same argument.

Under our law, a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). In reviewing the denial of such a motion, the reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). Reviewing the evidence in this fashion shows that police officers were watching a location known for drug activity when they saw Teasley take a plastic bag from his pocket and transfer something from the bag to two women. Later, the officers saw Teasley again take the bag from his pocket, remove objects from the bag, and after looking around, conceal the bag on the ground. While still watching Teasley, the officers directed another officer to the location of the bag and this officer found the bag where it was concealed. Objects found in the bag were tested and found to be positive for cocaine. Therefore, there was ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Teasley was guilty of possession of cocaine with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Humphrey v. State, supra. Accordingly, the trial court did not err by denying appellant’s motion for a directed verdict of acquittal.

Teasley’s argument that the trial court erred by denying his motion for a new trial is without merit for the reasons discussed above. Humphrey v. State, supra.

3. Teasley alleges that the trial court’s charge on the element of intent to distribute was deficient, as the trial court did not instruct the jury adequately that intent was an essential element which must be proven beyond a reasonable doubt. We find no merit to this allegation. Review of the charge given shows the trial court charged that Teasley was charged with unlawful possession of cocaine with intent to distribute, that the State must prove the essential elements of the offense beyond a reasonable doubt, and that intent was an essential element which must be proven. Considering the charge given, there is no factual support for Teasley’s enumeration.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur fully with the majority’s opinion in Divisions 2 and 3. Although I concur in the result reached by the majority in Division 1, I write separately to reiterate the three-step process for evaluating a Batson challenge. Teasley does not challenge the racial makeup of the venire.

In order to establish a prima facie case of purposeful discrimination in violation of Batson, a criminal defendant must show that he is a member of a cognizable racial group, that the prosecutor exercised peremptory strikes to exclude jurors on account of their race, and that these facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory strikes to exclude jurors from the venire based upon race. Diggs v. State, 208 Ga. App. 875 (1) (432 SE2d 616) (1993). The burden then shifts to the prosecution to articulate concrete, tangible, race-neutral and neutrally applied reasons for the exercise of the strikes. Ford v. State, 262 Ga. 558 (423 SE2d 245) (1992). The trial court then determines whether or not there has been purposeful discrimination based upon race by the State in the jury selection process. Kelly v. State, 209 Ga. App. 789 (434 SE2d 743) (1993).

In the case sub judice, because the peremptory challenge exercised by the prosecution resulted in the elimination of the only African-American from the venire, a prima facie case of racial discrimination has been established. See Williams v. State, 195 Ga. App. 648 (394 SE2d 601) (1990). “A weak prima facie case may be rebutted more readily than a strong one.” (Citations and punctuation omitted.) Id. at 649. Considering the stricken juror’s personal relationship with the defendant and the juror’s personal dealings with defense counsel’s firm, the prosecution met its burden in providing sufficient concrete, tangible, and racially-neutral reasons in removing the African-American venireman from the 34-member venire. See Henderson v. State, 257 Ga. 434 (3) (360 SE2d 263) (1987); Williams, supra. Accordingly, the trial court’s ruling on this issue was not clearly erroneous. Id.

Decided August 4, 1994

Reconsideration dismissed September 16, 1994.

Mitchell, Coppedge, Wester, Bisson & Miller, E. Neil Wester III, for appellant.

Jack O. Partain III, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A94A1152.
    HICKEY v. VULCAN MATERIALS COMPANY.
    (448 SE2d 714)
   Blackburn, Judge.

George R. Hickey brought the underlying action to recover damages for injuries he received from the alleged negligence of Vulcan Materials Company (Vulcan). Hickey appeals the trial court’s order granting Vulcan’s motion for summary judgment.

Hickey alleges in his complaint that on an unknown date during the summer of 1990, he was injured due to the jarring manner in which Vulcan loaded crushed stone into his dump truck. The evidence viewed in the light most favorable to Hickey, as the nonmov-ant, reveals that Hickey drove a dump truck in which he delivered rock to road paving construction projects. After having his truck loaded at Vulcan an unspecified number of times during the previous week, Hickey was unable to work on Monday, August 13, 1990, due to severe neck pain.

Hickey deposed that Vulcan employees negligently loaded his dump truck with a front-end loader by dropping the rock into the truck bed from a high position causing jarring and bouncing as the rock landed in the bed of the truck. Hickey stated that he complained twice to Vulcan employees regarding their loading procedures.

In October 1990, Dr. Robert Scheiss conducted a physical examination of Hickey and determined that Hickey had a ruptured disc. Hickey informed Dr. Scheiss that he drove a heavy truck over “very bouncy roads.” Dr. Scheiss informed Hickey that a ruptured disc was caused by a traumatic event. Hickey cannot give an exact date or describe the occurrence when he was injured. However, Hickey deposed that “the only thing that [he could] recollect traumatic happening to [him] was the loading.” Hickey’s complaint is based upon this recollection.

Decided August 18, 1994

Reconsideration denied September 16, 1994.

Doug R. Daum, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, for appellee.

“When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims. There must be more than a scintilla of circumstances to carry the case to the jury. More than a scintilla of circumstances means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [Hickey’s] evidence on the issue of the liability of [Vulcan] amounted only to conjecture and as such was insufficient to get to the jury.” (Citations and punctuation omitted.) Lipe v. Coomler, 171 Ga. App. 389, 391 (319 SE2d 539) (1984).

Vulcan’s motion for summary judgment attacked the causation element of Hickey’s action. Vulcan established that there was no evidence sufficient to create a jury issue as to this element. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Hickey failed to produce any evidence other than conjecture and supposition in response to Vulcan’s motion for summary judgment. The trial court correctly granted Vulcan’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A94A1570.
    WATSON v. THE STATE.
    (448 SE2d 718)
   Birdsong, Presiding Judge.

Leroy Watson appeals his conviction for robbery by force. The evidence shows Watson entered a drugstore in Savannah, Chatham County. The cashier was familiar with appellant, as he had been in the store on previous occasions. Appellant was carrying a paper bag and a pole. He handed the cashier a five dollar bill and asked for change. When the cashier opened the cash register, appellant grabbed the cashier’s left arm. The cashier, who was seven months pregnant and was afraid, pulled her arm away and ran to the middle of the store. After taking the money out of the cash register, appellant left through the door facing Abercorn Street. When police arrived, the cashier described the robber, including his clothing and the pole he had been carrying. Police soon spotted appellant on Abercorn Street, sitting down and smoking a cigar, pole in hand. His clothing and the bag he was carrying matched the cashier’s description of the robber. Within minutes, appellant was taken to the drugstore, where he was positively identified as the robber. Police recovered $192 from him. Held:

Decided August 22, 1994

Reconsideration denied September 16, 1994 —

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Assistant District Attorney, for appellee.

1. Appellant contends the trial court erred in admitting, over objection, the testimony of two police officers as to the cashier’s description of the crime and of appellant. Appellant contends these statements are hearsay and that, as prior consistent statements, they improperly bolster the cashier’s testimony. We find no error. Both prior inconsistent statements and prior consistent statements are admissible. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661); Gibbons v. State, 248 Ga. 858 (286 SE2d 717); Madaris v. State, 207 Ga. App. 145, 146 (427 SE2d 110).

2. Appellant contends the verdict was greatly against the weight of the evidence. He contends that because the cashier does not remember whether he pulled the money out of the cash register before she jerked her arm away from him and ran away, there was no robbery by force (OCGA § 16-8-40 (a)), and that there was, at best, theft by taking. See OCGA § 16-8-2.

Viewed in the light most favorable to the jury’s verdict, the evidence is sufficient to persuade a rational trier of fact that appellant committed robbery by force, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence, viewed in favor of the verdict, shows that appellant did take the money out of the register before the cashier broke away from his grasp. Moreover, even if she had managed to escape his grasp before he actually removed any money from the register, such facts would not negate the finding of robbery by use of force in violation of OCGA § 16-8-40 (a).

Judgment affirmed.

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


text:
    A93A1877.
    GARNER v. VICTORY EXPRESS, INC.
    (448 SE2d 719)
   Blackburn, Judge.

This is the second appearance of this case before us. In Garner v. Victory Express, 210 Ga. App. 481, 482 (436 SE2d 521) (1993), we determined that plaintiff-appellant, Kenneth Garner, failed to properly object to and request relief from defendant, Victory Express’ improper closing argument. However, in Garner v. Victory Express, 264 Ga. 171 (442 SE2d 455) (1994), the Georgia Supreme Court overruled Seaboard Coast Line R. Co. v. Wallace, 227 Ga. 363 (180 SE2d 743) (1971), upon which we based our earlier decision in this case. Thereafter, the Supreme Court remanded this case for our consideration of the merits. Id.

This action arose out of a motor vehicle collision in which the van driven by Garner struck the rear of a tractor-trailer owned by Victory Express. At the time of the collision, the tractor-trailer was stopped, partly in the left turn lane and partly in the left traffic lane, waiting to make a left turn. During Victory Express’ closing argument, counsel referred to the lack of any evidence that the driver of the tractor-trailer rig was not qualified as a safe, careful, and prudent driver. On appeal, Garner contends the trial court erred in overruling his objection to defense counsel’s reference.

“A party’s negligence or lack of negligence on the occasion at issue in the complaint could be proved only by the facts of the event and not by evidence of his prior driving record or of his general character for carelessness or recklessness in driving. Evidence of a party’s similar acts or omissions on other and different occasions is not admissible. It is not probative of the issue at hand and there is a substantial likelihood that the party’s criminal record of prior or subsequent offenses may prejudice the jury against him as to the question of liability in the particular case. It is settled by the decisions of the Supreme Court and of this court that as to the driver, proof of his poor driving record, or of his general character for carelessness or recklessness in driving, is impermissible.” (Citations and punctuation omitted.) (Emphasis supplied.) Leo v. Williams, 207 Ga. App. 321, 322 (428 SE2d 108) (1993).

In the present case, Victory Express’ counsel argued “[plaintiffs counsel] asked questions of [the driver] about the fact that he’d only been driving for Victory Express one week, after working approximately one year, and asked questions about a certain type of driver’s license that was just brought in this last year. I would submit there’s some missing evidence there. If there was any question that [the driver] was not qualified to drive that vehicle, that [the driver] was not qualified as a safe and careful and prudent driver, there would have been evidence there. There would have been evidence —.” At this point, Garner’s counsel objected to defense counsel’s reference to the inadmissible driving record of the driver.

Decided August 26, 1994

Reconsideration denied September 16, 1994.

William J. Mason, for appellant.

Self, Mullins, Robinson & Marchetti, Ronald W. Self, M. Peterson Robinson, for appellee.

As we have previously determined that the introduction of the driver’s past driving record is reversible error, see Leo, supra, we must also find the defendant’s argument that the lack of such evidence in some way supports its position that the driver was safe and prudent, is also reversible error. There is a substantial likelihood that such an argument may prejudice the jury unfairly. The trial court erred in denying Garner’s motion for new trial.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A94A2022.
    STEPHENS v. ADKINS.
    (448 SE2d 734)
   Blackburn, Judge.

The appellee, Barbara Stephens Adkins, individually and in her capacity as administratrix of the estate of her father, Elza Ray Stephens, commenced the instant action seeking declaratory judgment and damages against appellant Larry Edward Stephens (“Stephens”), her brother, and Equicor, Inc., the obligor on the deceased’s life insurance policy which named Adkins and Stephens as equal beneficiaries. Adkins sought a determination on Stephens’ entitlement to the remaining proceeds of the insurance policy following Stephens’ conviction for the voluntary manslaughter of the deceased. Equicor, Inc. paid the remaining proceeds of the insurance policy into the court’s registry and was subsequently dismissed from the action.

Adkins moved for partial summary judgment, asserting that under OCGA § 33-25-13, Stephens is not entitled to any benefits from the life insurance policy based upon his manslaughter of the deceased. In support of her motion, Adkins filed a certified copy of the jury’s verdict of guilt on Stephens’ voluntary manslaughter of the deceased and the judgment entered on the jury’s verdict. In his affidavit submitted in response to the motion, Stephens averred that he shot his father twice by accident and struck his father several times with the butt of the gun in self-defense. Following a hearing, the trial court granted the motion for partial summary judgment, finding that Stephens is not entitled to the remaining proceeds of the policy based upon his manslaughter of the deceased. This appeal followed. In his sole enumeration, Stephens asserts that the trial court erred in granting the motion for partial summary judgment. We disagree.

Decided September 2, 1994

Reconsideration denied September 16, 1994 —

William R. McCracken, for appellant.

Dunstan, Dunstan & Cleary, Mark A. Cleary, for appellee.

OCGA § 33-25-13 specifically provides that “[n]o person who commits murder or voluntary manslaughter or who conspires with another to commit murder shall receive any benefits from any insurance policy on the life of the deceased, even though the person so killing or conspiring be named beneficiary in the insurance policy.” The statute also provides that a plea of guilty or a judicial finding of guilt not reversed or otherwise set aside as to the crime is prima facie evidence of guilt in determining the rights under this Code section.

In this case, the certified copies of the judgment entered on Stephens’ manslaughter conviction was prima facie evidence of Stephens’ guilt, and there is no evidence that the judgment entered on the conviction has been reversed or otherwise set aside. Although Stephens’ affidavit contains conclusory statements, Stephens did admit therein that he shot his father as his father retreated following several physical confrontations between the two, and that he hit his father with the butt of the gun during another confrontation. However, the aver-ments do not present a genuine issue of material fact as to Stephens’ guilt of the manslaughter of the deceased. See OCGA § 16-5-2.

“It is a well-settled rule that a beneficiary in a life insurance policy who murders or feloniously causes the death of the insured forfeits all rights which he may have in or under the policy. This rule is based upon public policy and upon the principle that no one shall be allowed to benefit from his own wrong.” (Punctuation omitted.) Moore v. Moore, 228 Ga. 489, 491 (186 SE2d 531) (1971). Accordingly, the trial court did not err in granting partial summary judgment in favor of Adkins.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2218.
    In the Interest of C. D. B., a child.
    (449 SE2d 1)
   Blackburn, Judge.

This is an appeal from an order of the juvenile court of Lee County transferring the prosecution of a 15-year-old for the offenses of felony murder, aggravated assault, and discharge of a firearm near a public street, to the superior court pursuant to OCGA § 15-11-39.

The evidence produced at the motion to suppress hearing showed that at approximately 11:00 p.m. on December 24, 1993, C. D. B., his mother, and his 22-year-old brother heard two gunshots outside of their home. When C. D. B. and his brother proceeded outside, they noticed the headlights of a vehicle in an adjacent field, which were subsequently dimmed. At the instruction of his brother, who thought that the occupants of the vehicle were poachers, C. D. B. retrieved a .270 caliber rifle while his brother retrieved a 12-gauge shotgun and both fired shots at the truck as the truck swerved onto their property.

C. D. B.’s mother reported to the local police department that she heard poachers shooting near her residence who left in a small truck, and requested that an officer investigate the incident. Approximately five minutes later, the driver of a truck and a wounded passenger appeared at the sheriff’s office, and the driver indicated that the truck and the wounded victim had been shot in the vicinity of C. D. B.’s residence after the victim fired a shot from a rifle at deer. After the investigating officers received a telephone call from C. D. B.’s brother concerning the investigation, the officers realized the truck and its occupants were involved in the shooting at C. D. B.’s home, and requested that C. D. B., his brother, and his mother report to the police precinct for questioning.

Prior to his 1:20 a.m. interview, C. D. B. was not apprised of his Miranda warnings and his mother was not allowed to be present during the interview. He admitted that he fired shots from a rifle at a truck near his home, but could not identify the victim’s truck as the truck in question. His brother and mother and the truck driver also provided the investigating officers with statements concerning the occurrence. Two days later, the passenger of the truck died from injuries that he received when he was shot with a rifle during the incident.

1. C. D. B. initially asserts that the trial court erred in denying his motion to suppress his incriminating statement made during questioning at the police precinct because the investigating officer failed to apprise him of his Miranda rights. However, C. D. B. was not in custody at the time the incriminating statement was made. Although C. D. B. informed the trial court that he did not feel that he could leave during questioning, C. D. B. voluntarily reported to the police station at the request of an investigating officer to answer questions concerning an investigation which was initiated by his mother.

“For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda warnings are not required simply because questioning takes place in a building containing jail cells. There is no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way by action of the officers when he made his [incriminating] statement to the police. [C. D. B.’s] statement was admissible as a statement made prior to any in-custody interrogation.” (Citations and punctuation omitted.) Wilson v. State, 208 Ga. App. 812, 813 (2) (432 SE2d 211) (1993).

2. Next, C. D. B. maintains that the trial court abused its discretion in failing to adequately consider C. D. B.’s amenability to treatment in view of the absence of evidence that the interest of the community mandated a transfer to the superior court. We disagree.

“OCGA § 15-11-39 (a) (3) (C) allows a juvenile court to transfer a case to superior court if in the court’s discretion it determines that there are reasonable grounds to believe that the child committed the acts alleged, the child is not committable to an institution for the mentally infirm, the child was at least 15 years old when the alleged acts occurred and if ‘the interests of the child and the community require that the child be placed under legal restraint and the transfer be made.’ ” In the Interest of E. M., 198 Ga. App. 729, 731 (402 SE2d 751) (1991). C. D. B. concedes that there are reasonable grounds to believe that he committed the delinquent acts alleged and that he is not committable to an institution for the mentally retarded or mentally ill. However, C. D. B. argues that the State did not prove that his interest and the interest of the community required that he be placed under legal restraint and that a transfer be made.

In this case, the State argued that although C. D. B. was amenable to treatment in the juvenile system as demonstrated by the evidence presented by C. D. B., which included testimony of a psychologist and other members of the community, the interest of the community mandated a transfer, and thus, did not have to prove the juvenile’s amenability to treatment. See State v. M. M., 259 Ga. 637 (2) (386 SE2d 35) (1989). However, contrary to C. D. B.’s assertions, the trial court did recognize that the child was amenable to treatment in the juvenile system but concluded that the community’s interest in treating the child as an adult was paramount based in part upon the superior court’s exclusive jurisdiction over the adult participant and the fact that the acts were done by the juvenile and the adult in concert. “[A] child’s amenability or non-amenability to treatment is but one factor to consider in determining the child’s and the community’s interests.” Id. at 639. Considering the severity of the crimes involved and the involvement of an adult offender, we conclude that the juvenile court had a sufficient basis for finding that the community’s interest mandated C. D. B.’s adjudication in the adult system. See Waller v. State, 261 Ga. 830 (2) (412 SE2d 531) (1992); State v. M. M., supra.

Decided August 29, 1994

Reconsideration denied September 16, 1994

Geer & Rentz, Donald D. Rentz, for appellant.

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A0931.
    TITUS v. COMMERCIAL BANK, DOUGLASVILLE, GEORGIA.
    (448 SE2d 753)
   Birdsong, Presiding Judge.

Tammy Titus appeals from the grant of summary judgment to Commercial Bank, Douglasville, Georgia, on her claim against the bank for money deposited in her attorney’s account. Titus sued the bank after her attorney Thomas A. Jenkins deposited a check made payable to Titus and the attorney in his trust account with the bank even though Titus did not endorse the check. Subsequently, the attorney absconded with the funds.

The record shows Titus, pursuant to a contingency fee agreement, retained Jenkins to represent her in a tort claim. The record, however, does not show that the bank had any knowledge of this. The agreement specified the fee that Jenkins would charge and also covered the usual matters such as Titus’ obligation to pay for costs and expenses. Further, although the contingency fee agreement with Jenkins initially contained a provision giving him authority to endorse and deposit checks made out to Titus in his trust account, Titus struck this provision from the agreement. Later, Jenkins settled the claim without Titus’ approval and received a check from the other parties’ liability carrier made payable to Titus and Jenkins. Jenkins deposited this check in his trust account with the bank after apparently having endorsed the check in handwriting as follows: “Tammy Titus [some illegible notation], P. O. Box 44446 Atl. GA 30 [illegible numbers], Thomas A. Jenkins.”

At some point Jenkins withdrew the funds from the bank and did not pay Titus. After learning of this, Titus sued the alleged tort-feasors, but the court held that the settlement agreement negotiated by Jenkins on behalf of Titus was enforceable against her. Thereafter, Titus made a demand upon the bank, and the bank denied liability. Titus then sued the bank under OCGA § 11-3-419 seeking payment of the full amount of the check, interest from the date of her demand, expenses of litigation, and attorney fees. Ultimately, the trial court granted the bank’s motion for summary judgment based upon an attorney’s inherent authority to endorse checks made payable to a client and deposit those checks in the attorney’s trust account. The only issue on appeal is whether the trial court correctly ruled that Titus could not recover from the bank. Held:

Although this case concerns a check that was not endorsed by one of the payees, this is not a case involving a forged endorsement. “ ‘ “As a general rule an attorney can endorse his client’s name to negotiable instruments payable to the order of his client only when he has been expressly authorized to do so. . . . However, the power to make an endorsement has been implied where it is a mere matter of form to enable the attorney to effect the purpose for which he was employed by the client. . . .” Moreover, an attorney having an interest in the collection in the nature of a commission for services in effectuating the collection, has authority to endorse the name of his client to whom the check is made payable, by himself as attorney, in order that he may deduct the commission fees before remittance of the collection to the client. . . . There can be no forgery where the attorneys have authority to endorse the name of their client on a check payable to the client, by themselves as attorneys.’ John Bean Mfg. Co. v. Citizens Bank, 60 Ga. App. 615, 617-18, 619 (4 SE2d 924) (1939).” Pope v. State, 179 Ga. App. 739, 741 (347 SE2d 703). See also Trust Co. Bank v. Henderson, 185 Ga. App. 367, 368-369 (364 SE2d 289). Accordingly, Titus’ claim against the bank based upon a bank’s liability for paying because of a forged endorsement is without merit.

The only question presented in this appeal is whether Jenkins had apparent authority to endorse the check. Because the record shows that Jenkins endorsed the check in his capacity as Titus’ attorney, this question must also be answered in the affirmative.

Examination of the check in the record shows that the front of the check contains the statement that “THIS DRAFT ISSUED FOR FINAL PAYMENT FOR BODILY INJURY FOR TAMMY TITUS” and is made payable to: “TAMMY TITUS, ATTY THOMAS JENKINS, POST OFFICE BOX 44446, ATLANTA, GEORGIA 30336.” As shown above, Jenkins endorsed the check as Titus’ attorney and deposited the check in his trust account. Under John Bean Mfg. Co., Jenkins had authority to deposit the check in this fashion, and the bank is not liable for depositing the check in Jenkins’ account. “If an attorney has authority to indorse a check payable to his client, he has apparent authority to deposit the proceeds thereof either in his individual account or his account as attorney.” Id. at 619. Therefore, “the bank was within its right and authority when it cashed or paid the check by deposit to the credit of the attorneys making the collection, and would not be liable to the client to whom the attorneys may have defaulted in remittance of the proceeds arising from the collection.” Id. at 619-620.

Decided September 16, 1994.

Gibson, Deal & Fletcher, John W. Gibson, for appellant.

Howe & Dettmering, W. O’Neal Dettmering, Jr., for appellee.

Although Titus contends that John Bean Mfg. Co. v. Citizens Bank of Gainesville, supra, is no longer valid precedent because it was decided prior to the enactment of the Uniform Commercial Code, we find no support for this contention. Application of OCGA § 11-3-419 does not require a different result since the attorney had authority to endorse and deposit the check under Georgia law.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A0941.
    WILLIS v. THE STATE.
    (448 SE2d 755)
   Ruffin, Judge.

The appellant was convicted of two counts of burglary and sentenced to serve 20 years consecutively on each count. He appeals from the denial of his motion for new trial.

1. The appellant contends that the evidence was insufficient to support his conviction on either count of the indictment. Count 1 concerned the burglary of an auto parts store between July 26 and 27, 1989, in which two screwdrivers were taken. Five days after the burglary, the appellant’s girl friend informed the police that the appellant had hidden some things under a pear tree in her yard. The police found a pry bar there, along with two screwdrivers which were positively identified as those taken in the burglary. The appellant denied having any knowledge of the screwdrivers found by the officers.

“Although . . . proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary.” Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). In the instant case, however, the inference arising from the appellant’s unexplained possession of the stolen screwdrivers, accompanied by the evidence of the appellant’s concealment of the goods, was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of burglary, as charged in Count 1 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McLendon v. State, 210 Ga. App. 404 (2) (436 SE2d 524) (1993).

Count 2 alleged that between July 27 and 28, 1989, the appellant made an unauthorized entry into a retail warehouse where he worked, with the intent to commit a theft. Access to the warehouse had been gained by breaking through a sliding glass door in the rear of the building, and $80 to $90 were missing from a money box hidden on the premises. Also in evidence was a statement by the appellant’s girl friend, made to the police prior to her knowledge of this burglary, that the appellant had told her he knew how to get into the building where he worked and knew where the money was hidden. The appellant denied any participation in that burglary and instead claimed that he was with his girl friend on the night it occurred.

“In criminal cases the corpus delicti, the identity of the stolen property, and the accused’s connection with the commission of the crime, may all be established by circumstantial evidence where such evidence is sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused. [However], [circumstantial evidence is worth nothing in a criminal case if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.” (Citations and punctuation omitted.) O’Quinn v. State, 153 Ga. App. 467, 471-472 (265 SE2d 824) (1980).

In the instant case, although the evidence presented as to Count 2 may have created a strong suspicion that the appellant burglarized the warehouse, mere suspicion is insufficient to support a conviction. Id. “ ‘Proximity without additional evidence of participation in the crime is insufficient to support the conviction.’ Crumley v. State, 185 Ga. App. 795, 796 (366 SE2d 171) (1988). . . . Without some evidence establishing a connection between [the appellant] and the break-in, the proof was insufficient to exclude every reasonable hypothesis save that of guilt. [Cits.]” Fitz v. State, 201 Ga. App. 83, 86 (410 SE2d 186) (1991). Accordingly, the judgment of conviction and sentence as to Count 2 must be reversed.

2. On direct examination by the State, the appellant’s girl friend testified that she had lied in the statement she gave the police. The appellant contends that the trial court erred in allowing the State to impeach its own witness by admitting her prior inconsistent statement as substantive evidence without any showing of surprise or entrapment; that the statement was not made under oath and irrelevant portions, including mention of unrelated criminal transactions, were not redacted; and that introduction of the statement was prejudicial and crucial to his conviction. See OCGA § 24-9-81. We disagree.

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Further, the allusions to the appellant’s parole officer or other criminal acts committed by the appellant, where the evidence was otherwise relevant, did not become inadmissible because his character was inadvertently impugned. Spencer v. State, 236 Ga. 697 (4) (b) (224 SE2d 910) (1976); Jackson v. State, 209 Ga. App. 217 (3) (433 SE2d 655) (1993). Accordingly, the statement was properly admitted into evidence.

Decided September 16, 1994.

Adams & Adams, W. Allen Adams, Jr., for appellant.

3. On direct examination, the appellant testified he did not know where the money box was hidden at the warehouse, because his employer knew he was a parolee and kept the location of the money box secret for that reason. On cross-examination, the State questioned him about the convictions for which he was placed on parole. The appellant contends that the State was thus improperly allowed to introduce evidence of prior convictions.

“Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988). Since it was the appellant who introduced the topic on direct examination, he cannot now complain that the prosecutor followed up on cross-examination. Mitchell v. State, 193 Ga. App. 214 (2) (387 SE2d 425) (1989).

4. The appellant contends that his motion for new trial should have been granted because of the ineffective assistance of his trial attorney. An evidentiary hearing on this ground was held, at which the appellant was represented by different counsel. The trial court concluded that the “shortcomings” of trial counsel enumerated by the appellant did not amount to incompetence, and denied the motion.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be affirmed unless clearly erroneous. [Cit.]” Mack v. State, 212 Ga. App. 187, 188 (2) (441 SE2d 503) (1994). The trial court’s order was well-reasoned, thorough and complete, and its finding was not clearly erroneous. Therefore, the denial of the appellant’s motion for new trial as to this issue was authorized. See Gibbs v. State, 213 Ga. App. 117, 118 (1) (443 SE2d 708) (1994).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., concurs. Blackburn, J., concurs in the judgment only.

Johnnie L. Caldwell, Jr., District Attorney, for appellee.


author: Smith, Judge.

text:
    A94A1059.
    SOUTHERN GUARANTY INSURANCE COMPANY v. CENTRAL MUTUAL INSURANCE COMPANY.
    (449 SE2d 3)
   Smith, Judge.

Southern Guaranty Insurance Company (“Southern Guaranty”) filed a complaint against Central Mutual Insurance Company (“Central Mutual”) seeking contribution for post-judgment interest. Cross-motions for summary judgment were filed, and the trial court granted Central Mutual’s motion, denying that of Southern Guaranty. Southern Guaranty brought this appeal. We find that summary judgment was correctly granted to Central Mutual and affirm.

The underlying facts are not in dispute. Central Mutual’s insured, Sharon Causey, was involved in a collision in South Carolina with a Honda automobile insured by Southern Guaranty. A passenger in the Honda, Debra Paschal, brought suit against both Causey and the driver and owner of the Honda. Both insurance carriers defended their insureds.

Prior to judgment, Central Mutual offered Paschal its policy limit, $25,000, in return for the release of Causey. Paschal refused the offer and the case went to trial. A jury returned a verdict awarding Paschal $350,000 against all defendants. The judgment entered on the verdict was affirmed on appeal. Paschal v. Causey, 420 SE2d 863 (S. C. App. 1992). The parties then entered into a settlement for $450,000, representing the verdict amount of $350,000 plus post-judgment interest of $100,000.

In partial payment of that settlement, Southern Guaranty tendered its draft in the amount of $425,000. Central Mutual tendered $25,000, which was the amount of its policy limit. Paschal executed a release, and a satisfaction of judgment was entered in September 1992. Southern Guaranty then demanded that Central Mutual pay one-half the post-judgment interest on the entire verdict, $50,000. Central Mutual refused to do so, and this action ensued.

1. Under the principle of lex loci contractus, actions sounding in contract are governed by the substantive law of the place where they were made. See Gen. Tel. &c. Co. v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). The parties agree that South Carolina law governs this case. In this appeal, we therefore apply South Carolina law in determining the parties’ contractual obligations.

We note initially that prior to April 5, 1988, South Carolina followed the common law rule prohibiting contribution among joint tortfeasors. Travelers Ins. Co. v. Allstate Ins. Co., 155 SE2d 591 (S. C. 1967). In 1988, South Carolina adopted the Uniform Contribution Among Tortfeasors Act, enacting it as S. C. Code Ann. § 15-38-20. That statute abrogates the common law rule, making contribution possible among joint tortfeasors. It does not apply, however, to causes of action accruing before its effective date, April 5, 1988. Cousar v. New London Engineering Co., 410 SE2d 243, 244 (S. C. 1991). The incident giving rise to this action occurred on March 23, 1987, and therefore S. C. Code Ann. § 15-38-20 does not apply.

2. Southern Guaranty contends Travelers, supra, is distinguished from this case and therefore inapplicable. Consequently, it further contends that contribution is allowable here even though S. C. Code Ann. § 15-38-20 does not apply. This is so, it argues, because this case does not involve an action for contribution for payment of the amount of a judgment, as did Travelers, but an action for contribution for the payment of post-judgment interest.

Southern Guaranty claims that because only post-judgment interest is involved here, the insurance companies in this case are bound not as tortfeasors but under their contracts. It argues that the issue here is simply the applicability or enforceability of the supplementary payments provisions in the insurance contracts, an issue not addressed in Travelers. Further, it asserts that under the language of the supplementary payments clause of the Central Mutual policy, Central Mutual is contractually obligated to pay 50 percent of the post-judgment interest on the entire verdict, regardless of its policy limit. We do not agree.

Regardless of which particular items the contribution sought by Southern Guaranty represents, we find no material distinction between the operative facts in Travelers and those in this case. Both actions were brought by the insurer of joint tortfeasors against the insurer of other joint tortfeasors; both sought contribution for sums paid on behalf of the insured joint tortfeasor. The opinion in Travelers relies on the blanket prohibition under the common law against contribution, id. at 593-594, and Southern Guaranty cites no authority or policy reason for its argument that the prohibition is against contribution toward the payment of judgments alone. Likewise, no authority is provided to support its position that a contribution toward payment of post-judgment interest is different in kind from a contribution toward a judgment, and we conclude that it is not.

Although Travelers did not address the issue of supplementary payments clauses, those clauses govern only the carrier’s obligation to its own insured. In order for Southern Guaranty to claim entitlement to reimbursement from Central Mutual for any post-judgment interest it paid, it must, of necessity, rely upon the principle of contribution. It is clear, however, under Travelers, that the applicable law expressly prohibits contribution among joint tortfeasors, and contrary to Southern Guaranty’s argument, under South Carolina law the insurers stand in the place of their insureds in this regard. Travelers, supra at 593.

Decided September 16, 1994.

Wetzel & Carroll, Michael L. Wetzel, Brenton S. Bean, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, John C. Bonnie, for appellee.

3. We find no merit in Southern Guaranty’s contention that contrary to the trial court’s determination, two cases purportedly allowing contribution between the insurers of joint tortfeasors are applicable here. Both Nationwide Ins. Co. v. Hartford Acc. & Indent. Co., 178 SE2d 660 (S. C. 1971) and Southern Home Ins. Co. v. Burdette’s Leasing Svc., 234 SE2d 870 (S. C. 1977), relied upon by Southern Guaranty, are based on entirely different facts from those of this case, and a different rule was therefore applied. In both those cases, one insurer was allowed to recover reimbursement from another insurer. However, the insurers covered the same risk and were not the insurers of joint tortfeasors. In Nationwide, one carrier insured the driver of a vehicle and the other insured a trailer being towed by that vehicle. In Southern Home, a carrier insuring the lessee of a vehicle sought contribution from the lessor of the same vehicle, who was self-insured. The trial court correctly held that neither case was applicable here.

4. Because any action by Southern Guaranty for reimbursement of postjudgment interest is an action for contribution, see Division 2, supra, we need not address Southern Guaranty’s contentions regarding the construction of the supplemental payments provision in Central Mutual’s policy.

The trial court properly granted Central Mutual’s motion for summary judgment and denied that of Southern Guaranty.

Judgment affirmed.

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


text:
    A94A1365.
    GREENE v. THE STATE.
    (448 SE2d 758)
   Smith, Judge.

James Homer Greene, Sr., was convicted of driving under the influence and other traffic offenses. He appeals following the denial of his motion for new trial. He enumerates separately the sufficiency of the evidence to convict him, the denial of his motion for directed ver-diet, and the denial of his motion for new trial. Greene’s enumerations present a single question for review and will therefore be treated together. See, e.g., Griffin v. State, 212 Ga. App. 411, 412 (441 SE2d 897) (1994).

The evidence, viewed to support the verdict, shows that a Cobb County police officer was dispatched to State Route 120 at Due West Road to investigate a report of an impaired driver operating a blue and silver pickup truck with no license plate visible. Immediately prior to this dispatch, the vehicle was reportedly traveling westbound on State Route 120. The officer found the vehicle within five minutes of receiving the original dispatch. The vehicle was stopped on the roadway in the right turn lane. The officer parked his vehicle immediately behind the pickup truck. At the time, the engine was running, and both the brake lights and reverse lights were lit. The license plate was improperly displayed in the rear window, consistent with the original report that no license plate was visible.

As the officer approached the cabin of the truck* he noticed Greene in the driver’s seat, slumped over the wheel and apparently passed out. The officer tapped on the driver’s side window, startling Greene. Greene “jumped up,” and the vehicle rolled backwards several inches. Greene reached for the gear shift, put the truck in park, and turned the ignition off.

It is undisputed that Greene was intoxicated at the time of his encounter with the officer. The only question is whether Greene was in control of a moving vehicle at any time while intoxicated. Greene’s explanation at trial was that the truck, which had been driven by another, experienced brake failure. According to Greene, he was merely guarding the truck and the tools contained therein while others went for help. This fails to explain Greene’s ability to keep the truck stationary by applying the brake while he was passed out and the truck was in reverse. Moreover, the officer tested the vehicle at the scene and found the brakes to be in working order.

Even if the jury was not authorized to disbelieve Greene’s implausible story based on the circumstantial evidence alone, it would appear that the arresting officer nevertheless witnessed Greene in a state of actual physical control of a moving vehicle while intoxicated in violation of OCGA § 40-6-391. We disagree with Greene’s argument that the distance the officer witnessed the truck roll backwards is not the kind of movement prohibited by OCGA § 40-6-391. Greene suggests that if such were the case, a person could be convicted of DUI even if he just happened to be sitting behind the wheel in an intoxicated condition when a strong gust of wind caused the otherwise stationary vehicle to begin moving. We are not particularly troubled by this possibility. In any event, Greene’s hypothetical is clearly distinguishable from the actual case before us. It was Greene’s own failure to maintain control of a vehicle that was running and in gear that caused it to move in the officer’s presence, and not a force totally beyond his control.

Decided September 16, 1994.

J. Guy Sharpe, for appellant.

Ben F. Smith, Jr., Solicitor, Aurieanne Sneed, Barry E. Morgan, Mark A. Basurto, Assistant Solicitors, for appellee.

The jury was authorized to find Greene guilty of the offenses charged beyond a reasonable doubt based on the evidence presented, both direct and circumstantial. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A94A1895.
    ALLIANZ INSURANCE COMPANY v. STATE FARM FIRE & CASUALTY COMPANY.
    (449 SE2d 5)
   Blackburn, Judge.

Allianz Insurance Company (“Allianz”) appeals the trial court’s order which granted defendant State Farm Fire & Casualty Company’s (“State Farm”) motion for summary judgment and denied Al-lianz’ motion for partial summary judgment. In the underlying action Allianz sought to subrogate the amount it paid to its insured as excess insurer against State Farm, the primary insurance carrier.

The undisputed facts establish that Robert G. Weinstein leased an automobile from Mercedes-Benz Credit Corporation (“MBCC”). Weinstein obtained an automobile insurance policy from State Farm which covered Weinstein and the subject automobile. The State Farm policy listed MBCC as an additional insured. MBCC obtained an additional insurance policy to protect its interests from Allianz.

The covered vehicle was reported as stolen on December 19, 1991, and Weinstein’s insurance claim with State Farm was denied on June 17, 1992. State Farm contends that no loss, as defined by the policy, occurred because its investigation revealed that Weinstein conspired to or caused the damage to the vehicle. MBCC informed State Farm of its right to have its interest protected under the State Farm policy as MBCC was listed as both loss payee and additional insured under such policy. State Farm disagreed with MBCC’s “conclusions.” By check dated August 14, 1992, Allianz paid MBCC $109,312.24 pursuant to its insurance contract with MBCC. Thereafter, Allianz filed this action for subrogation.

Allianz contends the trial court erred in finding the payment to MBCC was voluntary. We agree with the trial court. In Federated Mut. Ins. Co. v. Northland Ins. Co., 254 Ga. 402, 403 (329 SE2d 493) (1985), the Georgia Supreme Court determined that Federated was not legally obligated to make the additional payment it made to its insured; therefore, Federated was not entitled to subrogation against the tortfeasor’s insurance company. The Court held that “[sub-rogation is never applied for the benefit of a mere volunteer who pays the debt of another without any assignment or agreement for subro-gation, and who is under no legal obligation to make the payment, and is not compelled to do so for the preservation of any rights or property of [its] own.” Id. See also Nationwide Mut. Ins. Co. v. Kershaw Mfg. Co., 198 Ga. App. 153 (2) (401 SE2d 23) (1990); and Transport Ins. Co. v. Maryland Cas. Co., 187 Ga. App. 361 (3) (370 SE2d 188) (1988).

In the present case, it cannot be disputed that the State Farm policy provided the primary coverage on the vehicle and the Allianz policy provided excess coverage only as to the lessor, MBCC. Fatal to Allianz’ argument that it was not a volunteer, its policy contained an exclusion which provided: “[w]e will not pay the ‘loss’ if the lessee’s insurance company fails to pay the actual cash value of the ‘leased auto.’ ” Yet, Allianz paid MBCC despite State Farm’s failure to pay the actual cash value of the leased vehicle.

Allianz’ reliance on Rutledge v. Dixie Auto. Ins. Co., 106 Ga. App. 577 (127 SE2d 683) (1962) and Continental Ins. Co. v. Federal Ins. Co., 153 Ga. App. 712 (266 SE2d 351) (1980) is misplaced. In Rutledge, supra, the insured sued his insurance company to recover damages he allegedly sustained as a result of the insurance company’s failure to fulfill its obligations under the insurance contract. We specifically stated, “[t]his [is] not a suit by the co-insurer to recover contribution from the defendant.” Id. at 580. The insured, in Rutledge, had obtained two insurance policies, both of which applied to a collision involving the insured. Id. at 578. In his complaint, the insured alleged that by the terms of the insurance policies, both insurers were to participate on a pro rata basis on any covered losses. We held that the insured was entitled to seek reimbursement from one insurer for the amount of settlement and attorney fees the insured was obligated to pay under a loan agreement with his other insurer. Id. at 581. In the present case, by the terms of its own policy, Allianz was under no obligation to pay MBCC’s claim. In Rutledge, we were not presented with this issue, nor did we address it.

In Continental, supra, two insurance companies insured the same residence against fire loss in the same amount. Both insurance policies contained identical other insurance or pro rata clauses. When one insurance company refused to pay the loss, the other paid it in full, and brought an action against the co-insurer for contribution. Id. at 713. The defendant insurance company contended that the plaintiff insurance company was a mere volunteer for paying more than its pro rata share. Id. Our analysis of this factual situation was dependent on both insurers being obligated for the same loss. Id. at 714. Nothing in Continental reveals that the plaintiff insurer was not obligated to pay any portion of the loss. Such is the issue in the case now before us, which was addressed by neither Rutledge, nor Continental.

Decided September 16, 1994.

Neeley & Player, Richard B. North, Jr., Carolyn E. Wright, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., H. Clifton Cobb, Robert J. McCune, for appellee.

State Farm’s motion for summary judgment was properly granted.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A1373, A94A1374.
    In the Interest of A. S. M., a child.
    (448 SE2d 703)
   Beasley, Presiding Judge.

The Bartow County Department of Family & Children Services (DFACS) filed a petition to terminate the rights of the parents to their minor child. The father contends (Case No. A94A1373) that the court erred in admitting the expert testimony of a social worker, who based her opinions, at least in part, on hearsay from a psychologist, who did not testify at trial. The mother contends (Case No. A94A1374) that the evidence presented was insufficient to establish by the appropriate standard that a termination of her parental rights was warranted.

In May 1990, the parents were involved in a contested divorce proceeding, and the court awarded temporary custody of their child to DFACS. The court-ordered investigations of the parents’ homes resulted in neither home being approved for placement of the child. The divorce proceeding was dismissed after the parties apparently reconciled. The court declined to return custody of the child to either parent and transferred the issue of custody to the juvenile court.

In January 1991, the juvenile court issued a consent order finding that the child was deprived as contemplated by OCGA § 15-11-2 (8) (A) and awarding temporary custody to DFACS. In the order, the court outlined a case plan designed to reunite the child and her mother, with visitation by the father. It required each parent to attend Alcoholics Anonymous at least once a week; attend counseling and/or group therapy as arranged or approved by DFACS; attend such parenting classes as recommended by DFACS; maintain a suitable home fit for occupation by the child; maintain steady employment; refrain from alcohol abuse; submit to random home visits by a representative of DFACS; and visit the child regularly. In addition, the mother was required to submit to random drug and alcohol screens requested by DFACS, refrain from the use of illegal substances, have no live-in male companions nor any overnight male guests to whom she was not married, and pay child support in the amount of $5 per week while the child was in the custody of DFACS.

The matter came before the superior court for judicial review in August at the request of the Citizens Review Panel. Following a hearing, the court found that the parents had both failed substantially to comply with the case plan, which it somewhat altered. Additional home evaluations were ordered for each parent. Again, neither home was approved. The parents divorced in November and custody was awarded to the mother, subject to final determination by the juvenile court.

The following March, the court extended the January 1991 and September 1991 orders after finding that in intervening months, the mother, unlike the father, had failed to follow most of the case plan. The court also found that when the child came into the custody of DFACS in May 1990, at the age of two years and eight months, she was in diapers, cried for a bottle, and could not speak intelligibly. It took some time for the foster parents to get her head clean. At age 37 months, she was found to be the developmental equivalent of a 19-month-old. Many of her teeth were decayed and the top front four had to be extracted. She was provided with several crowns and was fitted with a partial bridge. At age 47 months, her developmental equivalent was that of a 46-month-old.

The court again found that the child was deprived, that the parents were unable to provide for her proper care and control, that her return to the home of either parent would be contrary to her welfare, and that custody should remain in DFACS. The reunification plan was continued and both parents were ordered to comply with its terms. The father was granted increased visitation due to his work toward compliance with the plan.

The next month, April 1992, the court entered an order stating that DFACS had filed a motion for “supervised visitation pending investigation,” based upon allegations by the child that her father had sexually abused her after her foster mother noticed anal injuries while bathing her. DFACS requested that he submit to testing, to which he agreed, and the court granted the motion for supervised visitation.

The father was tested at the Highland Institute. The written report of the director, Deloris Roys, stated that the father had been administered a battery of psychological tests and had scored in the deviant range on various of the test measures of sexual deviance. The report recommended that he undergo sex offender treatment.

Several months later, DFACS filed the present petition for termination of parental rights. At the hearing, DFACS called Roys as a witness. She testified that in her capacity as a master’s-level licensed social worker, she administers tests to determine if the individuals tested have the characteristics of sex offenders. She does not interpret the tests. They are interpreted by Dr. Nichols, a licensed clinical psychologist. Roys acknowledged that all she knows about the interpretation of the tests is what she was told by Dr. Nichols, that by state law she is prohibited from interpreting the tests, that all she can do is give the results to the individual and make recommendations concerning treatment, and that these tests form part of the basis of her opinion. For these reasons, the father objected to her offering any testimony based on the tests as hearsay, since Dr. Nichols was not available for cross-examination. The court overruled the objection.

Roys also prepared a written report summarizing her conclusions based on the psychological tests she administered to the father. This report was admitted without objection after Roys gave her objected-to testimony in which she likewise stated her conclusions based on the tests.

The juvenile court entered separate orders terminating the father’s and mother’s parental rights. In the mother’s order, the court stated that it had found by clear and convincing evidence that she had failed significantly for a period of one year or longer prior to the filing of the petition to comply with the court-ordered plan designed to reunify her with the child in that she failed: to attend AA at least once a week, to obtain counseling as directed, to attend parenting classes as directed, to maintain a suitable home fit for occupation by the child, to maintain steady employment, or to pay child support as directed. See OCGA § 15-11-81 (b) (4) (C) (ii) and (iii).

The court also found that the results of a psychological evaluation in April 1991 indicated that the mother had serious psychological problems, that she was probably in need of psychotropic medication, that she was in need of counseling which she did not obtain, and that a psychologist had testified that it was unlikely that without counseling she had gotten any better. The court proceeded to find that she suffers from a mental or emotional deficiency of such a nature as to make it highly unlikely that she could ever have custody of the child. See OCGA § 15-11-81 (b) (4) (B) (i).

The court found by clear and convincing evidence that the mother is responsible for the past physical, mental and emotional neglect of the child; that the child is a deprived child; that the lack of proper parental care or control by both her natural parents is the cause of the child’s status as deprived; that the cause of the child’s deprivation is likely to continue and will not likely be remedied; that the continued deprivation of the child will cause or is likely to cause serious physical, mental, emotional or moral harm to the child; and, that after considering the physical, mental, emotional and moral condition and needs of this child including her need for a secure and stable home, termination of parental rights is in her best interest. See OCGA § 15-11-81 (a); (b) (4) (A) (i) through (iv); (b) (4) (B) (v).

In the father’s order, the court found that, based on Roys’ testimony, he had scored in the deviant range on various tests and had scored 26 on an empirically derived scale wherein a cut-off score of 15 or higher shows scoring similar to known child molesters. The court noted that Roys testified that even if the father obtained recommended treatment, he would never be “cured”; that in her opinion he was a danger to children; and that she would not recommend that he ever have sole custody of the child. Based primarily upon the Highland Institute evaluation, the court further found that the father has a medically verifiable deficiency of his mental or emotional health of such duration and nature as to render him unable to provide adequately for the physical, mental, emotional, and moral condition and needs of the child. See OCGA § 15-11-81 (b) (4) (B) (i), supra.

We turn to the legal issues.

1. As in Brown v. State, 206 Ga. App. 800 (427 SE2d 9) (1992), the testifying expert, Roys, based her opinion upon conclusions reached by a non-testifying expert, Nichols, who had interpreted psychological tests given to the defendant. In ruling on the issue, the court recited the applicable law and applied it as follows:

“ ‘(The expert) may give an opinion based upon his own examination of a person, upon his observation of that person, or upon any state of facts, supported by some evidence in the case, which he assumes as true.’ [Cit.] ‘An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others.’ (Emphasis in original. Citations and punctuation omitted.) [Cits.] In [Brown], the opinion of the psychologist drawn from the test results was not a part of the record in the case, and it is clear the State’s expert psychiatrist based his own opinion, at least in part, on the psychologist’s opinion. [Cit.] To the extent the State’s expert relied upon the opinion of another expert not before the court, his testimony was inadmissible hearsay without probative value even in the absence of an objection. [Cit.]” (Footnote omitted.) Brown, supra at 801-802.

The State’s reliance on Westbrook v. State, 186 Ga. App. 493, 496 (2b) (368 SE2d 131) (1988), which was cited in Brown, is misplaced. Westbrook holds that where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other’s findings. Roys’ opinion was not based upon her personal observation of data collected by another. It was based upon another expert’s interpretation of data collected by her.

The State’s reliance on King v. Browning, 246 Ga. 46 (268 SE2d 653) (1980), cited in Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981), is likewise misplaced. Citing as authority State Hwy. Dept. v. Peters, 121 Ga. App. 167, 169 (1) (173 SE2d 253) (1970), King does state that an expert may base his opinion on hearsay. However, Peters holds only that the opinion of an expert appraiser as to the value of land is not inadmissible because it is based on hearsay. King does not overrule the established rules applied in Brown.

The opinion evidence based on hearsay concerned the critical issue of the father’s ability to serve as a parent. It is evident that the court relied on this evidence in resolving this issue. As in Brown, we cannot say the erroneous admission of this evidence was harmless. Nor can we conclude that the error in the court’s consideration of it was waived by the father’s failure to object to admission of the report after objecting to the admission of Roys’ testimony. As noted in Brown, supra at 802, it was “without probative value even in the absence of an objection. [Cit.]” We must therefore reverse the termination of the father’s parental rights and remand the case to the juvenile court for further proceedings not inconsistent herewith.

2. With respect to the mother’s appeal, “ ‘the appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” ’ (Cits.)” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984). The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. In the Interest of A. T., 187 Ga. App. 299, 300 (1) (370 SE2d 48) (1988).

The mother argues that there was insufficient evidence to authorize a finding that she had significantly failed to comply with the court ordered reunification plan. To the contrary, the mother was only able to verify that she had gone to AA approximately fifteen times in the almost two years that this requirement had been in place. In November 1991 and August 1992, she met with two separate psychiatrists for interviews of .50 and 1.25 hours respectively, but she failed to appear for follow-up appointments. She was released from parenting classes because the instructor felt she was incapable of meeting her own needs much less the needs of a young child. She failed to pay child support as directed, even though she was only ordered to pay a relatively nominal amount designed to evaluate her sincerity in seeking custody of the child. She did not begin to refit her home for occupation by the child until threatened with a termination of parental rights. She did not maintain steady employment, and her only explanation is that her prior jobs did not work out permanently.

Decided August 15, 1994

Reconsideration denied September 20, 1994.

S. Lester Tate III, Kelley A. Dial, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Velma C. Tilley, Nelson & Bradley, Stephen R. Bradley, for appellee.

The evidence authorized the court to find that the mother, without justifiable cause, failed significantly for a period of one year or longer prior to the filing of the termination petition to comply with the reunification plan and failed to provide for the support of the child as required by the plan. OCGA § 15-11-81 (b) (4) (C) (ii), (iii), supra. The court was also authorized to find a mental inability on the part of the mother to care for the child. In the Interest of T. R. L., 162 Ga. App. 659, 660 (292 SE2d 518) (1982); OCGA § 15-11-81 (b) (4) (B) (i), supra.

The court did not err in terminating the mother’s rights based upon the paramount importance of the welfare of the child. In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523) (1982); compare Shover v. Dept. of Human Resources, 155 Ga. App. 38, 40 (270 SE2d 462) (1980) (the State may. not intercede simply because the child’s lot is substandard and the mother has failed to live up to societal norms for productivity, morality, cleanliness and responsibility).

Judgment reversed in Case No. A94A1373; judgment affirmed in Case No. A94A1374.

Andrews and Johnson, JJ., concur.


author: Johnson, Judge.

text:
    A94A1391.
    WEST 80 INVESTORS et al. v. CHEQUERS INVESTMENT ASSOCIATES.
    (448 SE2d 735)
   Johnson, Judge.

West 80 Investors (“West 80”), a Georgia general partnership, borrowed $1,885,000 from Great Southern Federal Savings Bank (“Great Southern”) in 1985. In connection with the loan, a note was executed in favor of Great Southern secured by a motel located on 1.80 acres of real property. William N. Searcy and Robert A. Wynn were personal guarantors on the loan. The note and security deed were subsequently assigned to Chequers Investment Associates (“Chequers”).

Following several notices of default, Chequers initiated non-judicial foreclosure proceedings, advertising the property in September 1993 for an October 5 sale. The parties began negotiations in an effort to avert the foreclosure, and on October 4, 1993, West 80 forwarded a workout proposal for restructuring the debt according to the following terms: 1) the original maturity date of the loan was extended; 2) West 80 would pay $250,000 past-due interest by 2:00 p.m. on October 5th; 3) rolling the remaining past-due interest into a reamortized principal balance; and 4) providing for monthly payment of interest at the rate of 11 percent per annum. The letter also made reference to the execution of “yet undisclosed loan modification documents which you (Che-quers) contemplate utilizing.” When West 80 refused to sign the loan modification documents, Chequers re-initiated foreclosure proceedings. West 80 applied for and was granted a temporary injunction, prohibiting advertising for a January sale date, but allowing Chequers to advertise for a February sale. On January 31, 1994, the court entered an order dissolving the injunction, finding that although there was adequate consideration to support a loan modification, the parties’ explicit acknowledgment that new loan documents reflecting the restructuring of the terms of the loan were contemplated and that West 80’s refusal to sign the documents clearly showed that there was no “meeting of the minds” with respect to its terms. West 80 directly appeals from the trial court’s dissolution of the injunction.

This case was originally filed in the Supreme Court, which transferred it to this court. While the case facially involves injunctions, we construe the Supreme Court’s remand as a ruling that the instant case involves no substantive issues of equity but rather seeks resolution of whether the October 4 letter constitutes an enforcable novation, a question sounding in contract law. See Pittman v. Harbin Clinic, P.A., 263 Ga. 66 (428 SE2d 328) (1993).

Appellants argue the trial court erred in dissolving the injunction because the parties had entered into an enforceable loan modification agreement which they had not breached. “If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must follow that a valid and binding contract was not made as of the earlier date.” (Punctuation omitted.) Jackson v. Easters, 190 Ga. App. 713, 714-715 (1) (379 SE2d 610) (1989). “ ‘ “Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.” Hartrampf v. Citizens & Southern &c., 157 Ga. App. 879, 881 (278 SE2d 750) (1981).’ ” Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401 (422 SE2d 277) (1992). West 80’s refusal to sign the loan documents referenced in the October 4 letter, which it drafted, makes it clear that all of the material terms of the refinancing had not been agreed upon. If anything, West 80’s refusal to sign the new loan documents belies its own argument that the terms of the October 4 letter represented a “meeting of the minds” on the terms of the loan. There having been no novation, the original loan remained the contract in effect between the parties. Being in default, Chequers was entitled to a dissolution of the injunction enabling it to proceed with non-judicial foreclosure and any other remedies available pursuant to the loan or at law.

Decided September 8, 1994

Reconsideration denied September 20, 1994 —

McCallar & Associates, C. James McCallar, Jr., Todd E. Schwartz, Brannen, Searcy & Smith, Daniel C. Cohen, for appellants.

Appellants rely on Beller & Gould v. Lisenby, 246 Ga. 15 (268 SE2d 611) (1980), and Cohen v. William Goldberg &c., 202 Ga. App. 172 (413 SE2d 759) (1991), in support of their contention that not all terms must be specified before an enforceable agreement may be reached. These cases are factually distinguishable, however.

“The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case.” OCGA § 9-5-8. On numerous occasions the Georgia Supreme Court has held that the exercise of discretion by the lower court in granting or continuing injunctions will not be interfered with on appeal absent manifest abuse. Slautterback v. Intech Mgmt. Svcs., 247 Ga. 762 (a) (279 SE2d 701) (1981). The trial court did not abuse its discretion in finding the October 4 letter did not constitute a new contract and dissolving the temporary injunction.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Hunter, Maclean, Exley & Dunn, Marvin A. Fentress, Slutzky, Wolfe & Bailey, Ray S. Smith III, for appellee.

         A grant or denial of a temporary injunction is directly appealable to the Supreme Court as á final judgment under OCGA § 5-6-34 (a) (4). See Pizza Hut of America v. Kesler, 254 Ga. 360 (1) (329 SE2d 133) (1985). An appeal from the dissolution of a temporary injunction is not included in these provisions. However, the trial court reached the core issue in this case, whether the October 4 letter constituted a novation. Therefore, it constitutes a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where no issue remains for resolution and leaves the parties with no final recourse in the trial court, making this case appropriate for consideration on direct appeal. See Spring-U Bonding Co. v. State of Ga., 200 Ga. App. 533 (408 SE2d 831) (1991).


text:
    A94A1428.
    BROWN v. THE STATE.
    (448 SE2d 723)
   Beasley, Presiding Judge.

Brown appeals from his conviction and sentence for rape, OCGA § 16-6-1, and the denial of his motion for new trial.

1. Brown asserts that the court erred in denying his motion for new trial because there was no evidence against him except the unsupported testimony of the victim, which is insufficient for conviction. He cites no authority for this position. Even if we do not consider it abandoned under Court of Appeals Rule 15 (c) (2), his premise is incorrect; for there was other evidence.

The victim’s testimony gave the details, and others corroborated it. She testified that after encounters with Brown earlier in the evening, she gave him permission to drive her home but he instead drove her to a secluded area on a dirt road where, despite her protests and struggles, he raped her. At one point she escaped from the car but he caught her and brought her back to the car. He then took her home. The victim’s sister was there and testified that she heard the victim screaming and knocking on the door. She also testified that the victim was crying, had dirt on her shorts, her elastic shirt was stretched out of shape, and she appeared to have been in a fight. The victim’s mother testified that the victim was highly upset, her clothes and hair were in disarray, she was bruised, and her elastic top had been stretched so it would not stay up.

There was also testimony from another woman who accompanied the victim during the prior encounters with Brown, from a scientist who found sperm in cervical and vaginal smears taken from the victim the night of the rape, and from the officer who investigated the rape. The evidence was sufficient to support the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Johnson v. State, 209 Ga. App. 514 (1) (433 SE2d 717) (1993).

2. Brown contends that the court erred in refusing to allow him to present one witness who would have testified that he had previously engaged in sex with the victim for money and one witness who would have testified that the victim had previously approached him about exchanging sex for money. The first of these witnesses would have testified that these events occurred before the rape and that Brown knew of them at the time of the rape. Brown’s only defense to the crime was that the victim had consented to sex in exchange for money. He testified that he and the victim engaged in consensual sex and that the victim never left the car at the scene.

The general rule under the Rape Shield Statute is that evidence of the victim’s past sexual behavior is inadmissible. OCGA § 24-2-3 (a); exceptions are permitted under subsection (b) or (c). Defendant’s proffered evidence is not covered by subsection (b) because, for one thing, it did not “directly [involve] the participation of the accused.” See Smith v. State, 206 Ga. App. 184 (1) (424 SE2d 864) (1992). In addition, as to one of the witnesses, there was no evidence that Brown knew of the victim’s alleged prior behavior with the witness before the date of the crime. Thus it could not have affected Brown’s belief in the victim’s consent so as to be admissible under either subsection (b) or (c) (2). See Concepcion v. State, 200 Ga. App. 358, 361-362 (5) (408 SE2d 130) (1991); Smith, supra.

The only question remaining is whether the testimony of the other witness, who would testify that he had exchanged sex with the victim for money and that Brown knew of this at the time of the incident, should have been admitted under subsection (c) (2)’s “highly material” category.

The 1989 amendments to the Rape Shield Statute strengthened the general rule by narrowing the range of admissible evidence of a prosecuting witness’ alleged past sexual behavior. The legislature changed “or” to “and” in subsection (b) so that the exception related only to past sexual behavior involving the defendant. Having thus reduced two exceptions to one, the legislature created another very limited exception for evidence which “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2); Ga. L. 1989, p. 272, § 1. Brown relies on this and argues that, since consent was his only defense, “justice mandates the admission” of the evidence.

Contrary to the State’s position, subsection (c) (2) evidence need not relate to prior behavior between the defendant and victim. Nevertheless, we find no error in the exclusion of the evidence.

Whether to allow testimony concerning a rape victim’s prior sexual history is in the court’s discretion. See Postell v. State, 200 Ga. App. 208, 213 (4) (b) (407 SE2d 412) (1991), reversed on other grounds, 261 Ga. 842 (412 SE2d 831) (1992). Here the court was specific in exercising its discretion, finding that the evidence was not so highly material to the asserted defense because the alleged prior behavior was not connected with the defendant and his only information concerning it would have come to him as hearsay. The evidence Brown sought to admit did not concern any behavior or verbal exchange that concerned the defendant, it did not relate to this instance, and it could not legitimately be claimed to have prompted a belief in consent on this occasion. See Johnson v. State, 146 Ga. App. 277, 279 (1) (246 SE2d 363) (1978). It could not even be considered part of the res gestae, so it was not material, much less “highly material.” Compare Logan v. State, 212 Ga. App. 734, 742-743 (1) (442 SE2d 883) (1994) (Beasley, P. J., concurring in part and dissenting in part).

“ ‘(R)ape shield laws are intended generally to protect the complaining witness, thereby encouraging the reporting and prosecution of rapes[.]’ [Cit.]” Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211) (1987). Allowing evidence of prostitution that does not relate to the incident itself discourages reporting and prosecution of rapes. Even if such evidence is accurate, it does not remove the protection of the Rape Shield Statute. Id. at 668 (1) (b). See also White v. State, 201 Ga. App. 53, 55-56 (2) (410 SE2d 441) (1991). Brown’s attempt to broaden the subsection (c) (2) exception would, if accepted, destroy it. Consequently we reject it.

Brown was free to claim that the defendant had consented to sex in exchange for money and to cross-examine the victim about the issue of consent and about any monetary basis for that consent, which he did. He was not foreclosed from any evidence of what occurred between them on the occasion at issue or what led up to it. Given this breadth, any connection between this incident and the evidence of prior behavior which Brown wished to introduce was at most remote. Considering the unimpeachable objectives of the Rape Shield Statute and the clarity of its drawing, we hold that the court did not abuse its discretion in concluding that the evidence Brown sought to introduce was not so highly material to the defense that justice mandated its admission.

3. Finally, Brown asserts the court erred in granting the State’s motion in limine concerning two defense exhibits. Brown made no offer of the exhibits, did not attempt to introduce them in any way and they are not part of the record on appeal. Brown has attached the purported exhibits to his appellate brief, but “ ‘a brief or attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. (Cit.) “We must take our evidence from the record and not from the brief of either party.” (Cit.)’ [Cit.]” Henderson v. State, 203 Ga. App. 733, 734 (1) (417 SE2d 413) (1992).

The transcript reveals that the evidence sought to be introduced was a warrant sworn by the victim and an “agreement” by her to pay court costs if she withdrew prosecution. Brown asserts that these were relevant to the issue of the victim’s state of mind in pursuing prosecution. He claimed they would reveal a delay in taking action to pursue prosecution and would address her credibility by showing she had a pecuniary interest in maintaining her version of the events. The court, noting that the case was proceeding under indictment so that the warrant was no longer relevant, ruled that the “agreement” was probably against public policy as well as being superseded and could not be discussed. The court did repeatedly point out that Brown could cross-examine the victim on any delay, which he did, and her state of mind concerning the prosecution, which he did not. As the warrant and associated “agreement” had been superseded by the indictment, Ramsey v. State, 189 Ga. App. 91, 94 (375 SE2d 63) (1988), and Brown had ample opportunity to explore the matters he wished to show by those documents, the court did not err in granting the State’s motion in limine.

Decided September 1, 1994

Reconsideration dismissed September 20, 1994.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, William E. Holland, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       For legislative history of the 1989 amendment, see 6 Ga. State Univ. L. Rev. 245 (1989).