text:
    A99A2332.
    BISHOP v. THE STATE.
    (526 SE2d 917)
   Eldridge, Judge.

Kyle Richard (Rick) Bishop filed an application for discretionary review of the Cobb County Superior Court’s denial of his motion to suppress audiotaped recordings of his conversations with a 13-year-old girl victim, which recordings were made by the victim’s parents without a court order. Because of the failure to have court authorization for the wiretap, this Court finds that the evidence should have been suppressed and reverses the trial court’s ruling.

The record in this case shows the following relevant, but disputed, facts: In 1997, Bishop was a 38-year-old man residing with his wife in a Cobb County subdivision. The 13-year-old girl lived with her parents and sisters directly across the street from the Bishops. Bishop and the victim’s family were good friends and often socialized.

Until the middle of 1996, the victim was a gifted student with excellent grades. However, between July 1996 and February 1997, the victim began to fail classes and experienced a dramatic change in demeanor. On February 20, 1997, the victim presented her mother with a falsified permission slip for a nonexistent, overnight school field trip. The victim’s mother contacted the school when she became suspicious about the trip. When the victim was confronted with the forged permission slip and was asked to explain, the victim stated that Bishop had asked her to go with him to “Bike Week” at Daytona Beach, Florida, for the weekend. When the victim’s parents confronted Bishop with this information, he claimed that the victim was “troubled,” had been stalking him, and had tried to invite herself along on the trip.

However, at approximately 10:00 p.m. on February 28, 1997, the victim’s mother became aware that the victim was talking to someone on the phone. The mother surreptitiously lifted up a phone receiver in another room and heard the victim talking to Bishop; the mother immediately recognized Bishop’s voice. According to the mother, Bishop and the victim talked in sexual terms and discussed killing the victim’s parents. The mother hung up the phone and then instructed the victim to get off the phone, claiming that she needed to make a work-related phone call. The mother immediately called the police.

Cobb County Police Detective Darell Streefkerk interviewed the victim and her parents the next day. According to Det. Streefkerk’s investigative report, the victim denied that she and Bishop had engaged in any illicit behavior. Det. Streefkerk refused the parents’ request for a wiretap of their phone line.

Within hours of the police interview, the victim’s parents went to Radio Shack and purchased a tape recorder to tape all of the phone calls to and from their home. After installing the equipment, the parents recorded numerous phone conversations between Bishop and the victim. The victim’s father compiled several of the conversations on a single tape and gave it to Det. Streefkerk on March 18, 1997.

Based on these tapes, Det. Streefkerk called Bishop and asked him to come in for an interview. Bishop and his wife were questioned by the detective. The Bishops claimed that the victim had an adolescent crush on Mr. Bishop and was stalking him by coming to their home, looking in their windows, and calling him at night. Det. Streef-kerk instructed Bishop to avoid all contact with the victim.

The victim subsequently received extensive counseling for depression. In spring 1998, the victim told her therapist that she had engaged in sexual acts with Bishop. Det. Streefkerk again interviewed the victim, who described the molestation in detail. Bishop was arrested and indicted on child molestation, aggravated child molestation, and aggravated sexual battery.

Defense counsel filed a motion to suppress the contents of the audiotapes of the phone conversations between Bishop and the victim. A motion hearing was conducted on March 31, 1999, during which the victim and her mother testified regarding the circumstances of the phone conversations and the recording thereof. The victim specifically testified that, after receiving months of therapy, she was glad her parents made the tapes.

The trial court denied Bishop’s motion to suppress. This Court granted Bishop’s application for appellate review, and this appeal followed. Held:

1. In his first assertion, Bishop claims that the trial court erred in denying his motion to suppress evidence of illegally taped phone conversations by failing to apply the child consent procedures as codified in OCGA § 16-11-66. This Court reluctantly agrees with Bishop’s argument.

OCGA § 16-11-62 prohibits the interception or recording of a telephone call by any person who is not a party to the conversation. OCGA § 16-11-62 (1), (4). This prohibition includes interceptions by family members. Kelley v. State, 233 Ga. App. 244, 248-249 (2) (503 SE2d 881) (1998). “OCGA § 16-11-62 was intended to protect all persons from an invasion of privacy. Ransom [v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985)].” Id. at 249 (2).

However, OCGA § 16-11-66 provides two specific exceptions which allow such interception. OCGA § 16-11-66 (a) reads as follows: “Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” (Emphasis supplied.) Further, OCGA § 16-11-66 (b) provides that the telephone conversations of a child under 18 years of age may be recorded and divulged if, upon written application by a private citizen, law enforcement agency, or prosecutor’s office, a judge of a superior court and the child consent to such taping.

The judge shall issue the order provided hy subsection (b) of the Code section only: (1) [u]pon finding probable cause that a crime has been committed; (2) [u]pon finding that the child understands that the conversation is to be recorded and that such child agrees to participate; and (3) [u]pon determining that participation is not harmful to such child.

OCGA § 16-11-66 (c).

Under OCGA § 16-11-67, “[n]o evidence obtained in a manner which violates [OCGA §§ 16-11-62 through 16-11-66.1] shall be admissible in any court of this state, except to prove violations of [such statutes]This creates a state statutory privacy right.

(a) As an initial matter, it is undisputed that no superior court judge entered an order pursuant to OCGA § 16-11-66 (b) in this case. Accordingly, that provision cannot provide a basis for admissibility of the audiotapes.

(b) Therefore, the only way the tapes could have been admissible in this case is if they were recorded by “a party to the [conversation] or one of the parties to the communication [gave] prior consent to such interception.” OCGA § 16-11-66 (a). The trial court erroneously found that such consent was given by the following methods: (i) the parents’ “vicarious consent” to the recording on behalf of their daughter; (ii) the victim’s implied consent to the recording; and (iii) the victim’s subsequent ratification of the recording.

(i) In its order denying Bishop’s motion to suppress, the trial court ruled that the tapes were admissible under a “vicarious consent exception to Title III as applied in other jurisdictions.” See Omnibus Crime Control & Safe Streets Act of 1968, 18 USC § 2510 et seq. (“Title III”); see also Pollock v. Pollock, 154 F3d 601, 610 (6th Cir. 1998); Campbell v. Price, 2 FSupp.2d 1186, 1191 (E.D. Ark. 1998); Thompson v. Dulaney, 838 FSupp. 1535, 1544 (D. Utah 1993); Silas v. Silas, 680 S2d 368, 371 (Ala. App. 1996); but cf. Williams v. Williams, 229 Mich. App. 318 (581 NW2d 777) (1998) (rejecting the vicarious consent exception). The trial court held that the victim’s parents could consent to the taping because they had “a good faith objectively reasonable basis for believing that it was necessary to consent [to such taping] on behalf of their thirteen year old daughter.” In making such ruling, the trial court relied on the above-cited foreign case law interpreting Title III, instead of applying Georgia’s statutory requirements under OCGA § 16-11-66. Such reliance was error.

Title III was enacted in 1968 to protect the privacy of wire and oral communications and to regulate the conditions under which interceptions would be allowed. Pub. L. 90-351, Title III, § 801, p. 253, 82 Stat. 211 (1968); U. S. Code Cong. & Admin. News, 90th Cong., pp. 2112, 2153 (1968) (Report of the Senate Committee on the Judiciary); see also U. S. Code Cong. & Admin. News, 99th Cong., p. 3555 (1986) (legislative history of the Electronic Communications Privacy Act, which amended Title III); United States v. Giordano, 416 U. S. 505, 514 (94 SC 1820, 40 LE2d 341) (1974). Presently, Title III prohibits the interception of wire, oral or electronic communications without (1) a court order or (2) the prior consent of a party to the conversation. 18 USC § 2511 (1), (2) (a) (ii) and (d).

Unfortunately, for situations which involve minors, as in this case, when Congress enacted Title III, it “did not intend to occupy the entire field of electronic surveillance to the exclusion of state regulation.” People v. Conklin, 522 P2d 1049, hn. 9 (Cal. 1974) (providing a comprehensive review of Title Ill’s legislative history). See also U. S. Const., Art. VI, cl. 2 (Supremacy Clause); City of Atlanta v. Watson, 267 Ga. 185, 192 (3) (475 SE2d 896) (1996); Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (2) (458 SE2d 95) (1995) (the issue of federal preemption of state law is a question of congressional intent); Ga. Pub. Svc. Comm. v. CSX Transp., 225 Ga. App. 787, 788-789 (2) (484 SE2d 799) (1997). In fact,

[t]he legislative history of Title III reveals that Congress intended that the states be allowed to enact more restrictive laws designed to protect the right of privacy. . . . The State statute must meet the minimum standards reflected as a whole in [Title III. Then, the State] would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation. In other words, Congress left room for the states to supplement the law in certain areas, provided the regulations are not more permissive.

(Citations and punctuation omitted; emphasis in original.) People v. Conklin, supra at 1057. See also Roberts v. Americable Intl., 883 FSupp. 499, 503 (E.D. Cal. 1995); United States v. Curreri, 388 FSupp. 607, 613 (D. Md. 1974); People v. Otto, 831 P2d 1178, 1184 (Cal. 1992); People v. Pascarella, 92 Ill. App. 3d 413 (415 NE2d 1285) (1981). While the construction of Title III would make the evidence in this case admissible, there has been no federal preemption.

As demonstrated below, OCGA § 16-11-62 et seq. delineates greater state statutory restrictions on interceptions and, therefore, provides greater protection to individual privacy rights than Title III. See Dobbins v. State, 262 Ga. 161, 162-163 (2) (a) (415 SE2d 168) (1992); Tapley v. Collins, 41 FSupp.2d 1366, 1369 (S.D. Ga. 1999) (“Georgia’s telephone privacy statutes arguably provide more privacy protections than their federal counterparts.”); Granese v. State, 232 Ga. 193, 196 (206 SE2d 26) (1974) (holding that Georgia’s interception statute supplements the federal statute). Accordingly, OCGA § 16-11-62 et seq. was not preempted by Title III and should have been applied to this case.

(ii) The issue then becomes whether OCGA § 16-11-66 allows parents to vicariously consent to interceptions of their children’s telephone calls. After reviewing the specific language of the statute, its legislative history, and subsequent case law, we must conclude that it does not.

OCGA § 16-11-66 provides an exception to OCGA § 16-11-62’s prohibition against interceptions of phone calls, i.e., when a party to the conversation expressly or impliedly consents to such interception. See Legislative Review, 10 Ga. St. U. L. Rev. 109,110 (1993). In 1992, the Supreme Court of Georgia decided Dobbins, supra, a case in which police officers had arranged for the recordings of incriminating phone calls between a child and her molester, and the child’s father consented to such arrangement. Id. at 162. After the recordings were admitted at trial, Dobbins was convicted. However, the Supreme Court reversed his conviction, holding that the father could not vicariously consent to such recordings on behalf of his child under OCGA § 16-11-66. In addition, the requirements of OCGA § 16-11-64 had not been satisfied. See id. at fn. 2. Therefore, such recordings were inadmissible at trial under OCGA § 16-11-67. Id. at 163.

The Supreme Court’s ruling in Dobbins spurred the Georgia Legislature to amend OCGA § 16-11-66 in 1993. Legislative Review, supra at 109.

The Act was originally introduced with a provision allowing for guardians, custodial parents, parents or the court to consent for children under the age of fourteen. The Act was amended by the House Judiciary Committee to apply to children under the age of eighteen and to place the decision to grant permission to record in the hands of judges alone as long as certain guidelines are followed.

(Emphasis supplied.) Legislative Review, supra at 111 (citing an interview with the bill’s sponsor, former Rep. Ken Poston). As adopted, the Act stated that one purpose was “to provide that consent to the divulging of the conversation of a child under the age of 18 years shall be given only by court order” (Emphasis supplied.) Ga. L. 1993, p. 565. Although, under Georgia law, such interview and article cannot constitute legislative history, it is clear from the language of the amendment that it precludes the “vicarious consent” utilized by the trial court in this case to admit the recordings of phone calls between Bishop and the victim. The trial court’s finding that the tapes were admissible under this theory is error as a matter of law.

(iii) Further, the specific limiting language of OCGA § 16-11-66 (b) clearly provides that, when one party to a conversation is under the age of eighteen, the only person who can consent to an interception is a superior court judge, although the judge also must have the consent of the minor child. As such, under OCGA § 16-11-66, a minor child alone lacks the capacity to consent to the interception of telephone calls to which the child is a party, even if age ten or older. See OCGA § 39-1-1; cf. Kelley v. State, supra at 247, n. 1 (discussing the varying ages for valid consent in Georgia).

Therefore, as a matter of law, the child victim alone could never have given consent to the recording of her phone calls either by implication or by subsequent ratification. Since OCGA § 16-11-67 precludes the admission of wiretap evidence that had been collected in violation of OCGA § 16-11-66, Bishop’s motion to suppress such tape recordings should have been granted by the trial court.

(c) This Court recognizes that OCGA § 16-11-66, as drafted, creates numerous evidentiary problems in cases such as this, when a child is under significant criminal influence by another and such criminal influence poses a genuine risk which is not recognized by a child of tender years. Clearly, even if the State or the parents in this case had petitioned a superior court judge, under OCGA § 16-11-66 (b), for permission to tape the conversations between Bishop and the victim, the victim would have refused to consent and participate at that time, thereby precluding the issuance of such order. See OCGA § 16-11-66 (c) (2).

Further, while OCGA § 16-11-62 et seq. was intended to protect the privacy rights of all individuals, it is very unlikely that the Georgia Legislature intended to allow child molesters or abusers to hide evidence by asserting their victim’s privacy rights.

However, when the statutory language is clear and unambiguous, as in this case, this Court is not authorized to look behind the Act to discover or implement what the Court believes was the true intent of the Georgia Legislature. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970) (“[w]here the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit.]”). This is particularly true when, as here, the legislature has considered — and rejected — language which would have authorized the admissibility of evidence in criminal cases. Therefore, it is solely the task of the legislature to amend OCGA § 16-11-66 to allow the admission into evidence of tape recordings such as those at issue here, i.e., tapes made by parents with a good faith, objectively reasonable basis for concern regarding the safety of their children as victims of criminal conduct of another.

Decided December 15, 1999.

J. William Morse, Marc D. Celia, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

2. Bishop’s remaining allegations were addressed in Division 1, supra.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

       Defense counsel filed a motion to set aside the trial court’s denial, based upon newly discovered evidence regarding Det. Streefkerk’s participation in the taping.-After conducting a second hearing, the trial court reaffirmed the previous order but added another provision which is not relevant herein.

       OCGA § 16-11-64 provides an exception allowing law enforcement personnel to acquire a warrant to intercept or record wire or oral transmissions. No such warrant was secured in this case.

       “A true and correct copy of the recording provided for in subsection (b) of this Code section shall be returned to the superior court judge who issued the order and such copy of the recording shall be kept under seal until further order of the court.” OCGA § 16-11-66 (c).

       This case is distinguishable from Legg v. State, 207 Ga. App. 399 (428 SE2d 87) (1993), wherein this Court found that a statutory rape victim under the age of 14 had the capacity to consent to the recording of her phone conversations with the defendant in that case. Legg was decided in January 1993, before the legislature amended OCGA § 16-11-66 to include subsections (b) and (c), requiring court approval for recording the private conversations of a minor.

       This Court notes that the evidence in the record overwhelmingly demonstrates that the victim did not impliedly consent to the recording of her phone conversations prior to such recordings. See OCGA § 16-11-66 (a). Although there was evidence which showed that the victim was aware that her mother was listening in on some of the conversations, it also showed that she confronted her mother about the eavesdropping on several occasions. When the victim suspected that her parents may be listening to her calls, she complained to the defendant and actively sought methods to avoid such interception by using telephones outside of the home, as well as through the use of handwritten letters and e-mails. Although the victim never expressly asked her mother to stop the interceptions, such active avoidance precludes a finding that the victim impliedly consented to the recordings. Further, it is undisputed that the victim never gave express prior permission for the interceptions. In fact, it seems clear that the victim did not know about the recordings until her parents told her about them in late March, after the victim’s father had given Det. Streefkerk a tape of recorded conversations. Therefore, the trial court’s finding that the victim gave “implied” consent appears to be clearly erroneous. See Savage v. State, 234 Ga. App. 855 (1) (508 SE2d 418) (1998); Bowen v. State, 210 Ga. App. 348 (436 SE2d 76) (1993).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A2412.
    HOLDEN v. THE STATE.
    (527 SE2d 237)
   Eldridge, Judge.

Judy Holden appeals from the Dougherty Superior Court’s denial of her motion to suppress. She contends the arresting officer did not have reasonable, articulable suspicion to stop her vehicle. We find otherwise and affirm the ruling of the trial court.

The facts are viewed to support the trial court’s findings and are essentially undisputed. Patrol Officer R. Von Mendenhall was assigned to patrol beats 9 and 10 in the City of Albany, which included West Highland Avenue. West Highland is such a well-known drug sale location it is used by the Albany Police Department as a patrol training ground. At the time in issue, Officer Mendenhall had been patrolling the area for approximately six months, had worked several drug cases in the area, and had become familiar with the people who lived there.

Because of Mendenhall’s frequent patrols of West Highland, he also became familiar with Robert Price. Price did not live in the area but frequently sold drugs on the corner of the 600 block of West Highland. Over the months, Mendenhall had “numerous” encounters with Price, who personally admitted to the officer that he sold drugs:

He’s a self-admitted drug dealer. He’s told me he has. I’ve gotten information from him previously. . . . Straight out and told me that he sold cocaine. And since then — actually to put it bluntly — it’s a game for the two of us. I know he’s dealing. He admits he’s dealing. It’s just a matter of catching him dealing.

From his experience, Mendenhall knew the modus operandi of the street dealers on West Highland, including Price: Price, or another dealer, would stand on a street corner waiting for a person who wanted to buy drugs; when such a person drove up in his or her car, “they get in the vehicle and drive around the neighborhood and make the transaction in the vehicle.” Mendenhall knew that Price sold drugs on the comer of the 600 block of West Highland in the early morning hours; as the officer testified, he had “knowledge of what Robert Price does in that area at that time.”

On the date at issue, Mendenhall was patrolling past the corner of the 600 block of West Highland at 2:00 in the morning. Price was on the corner. A gray sport utility vehicle (“SUV”) that the officer did not recognize stopped at the comer. Price got in the vehicle. The SUV was driven by appellant Judy Holden. Mendenhall passed the SUV as Price was getting in. The officer “noticed the white female driver glance at me then turn away sharply. And she appeared nervous to me at that time.” Mendenhall turned his patrol car around and stopped the SUV. After initial questioning, the officer “asked for and obtained permission to search the vehicle and the contents therein.” Marijuana was found, and both Holden and Price were arrested. During a search of Holden’s person incident to arrest, a crack cocaine pipe containing residue was found. Held:

The stop of a moving vehicle in order to question the occupants is an investigative detention pursuant to Terry v. Ohio. And as such,

the officer must possess more than a subjective, unparticu-larized suspicion or hunch. The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.

(Citations, punctuation and emphasis omitted.) State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168) (1996).

Holden contends that the stop of her vehicle was based solely on the “reputation” of Robert Price and was thus unlawful. We will not pass on whether “reputation” alone would provide a sufficient basis for a Terry stop, because we find a much more comprehensive basis for the stop of Holden’s vehicle.

Here, Officer Mendenhall’s stop of Holden’s SUV was based on the following: his knowledge of Robert Price as a drug dealer, which knowledge went well beyond mere “reputation,” since Price personally admitted to the officer that he is a drug dealer and, in effect, dared Mendenhall to “catch” him; his knowledge that Price sells drugs specifically on the corner of the 600 block of West Highland at 2:00 in the morning, which are precisely the time and location at issue; his knowledge that Price did not live in the area and thus had little else to be doing on the corner of the 600 block of West Highland at 2:00 in the morning, save his usual occupation at that locale — selling drugs; his knowledge that Holden was not from the area but was stopping at a notorious drug sale location to pick up a drug dealer at 2:00 in the morning; his knowledge of how a street drug sale transpires, which is precisely the act he saw before him; and his observation of Holden’s nervous reaction when she saw him drive by in his patrol car. These are objective, specific, articulable factors that raise the reasonable inference Holden and Price were engaging in or about to engage in a drug sale. Officer Mendenhall was not obliged to ignore these facts simply because he did not see drugs exchange hands before making his brief investigatory stop. Lewis v. State, 233 Ga. App. 560 (1) (504 SE2d 732) (1998); State v. Barnes, 210 Ga. App. 654 (436 SE2d 798) (1993).

In determining whether a stop was justified by reasonable suspicion,

the totality of the circumstances — the whole picture — must be taken into account. . . . The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.

United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). In this case, the specific data and patterns known to Officer Mendenhall and the reasonable inferences he was entitled to draw from them established a reasonable, articulable suspicion for an investigative stop of Holden’s SUV. The trial court did not err in denying her motion to suppress on that basis.

Decided December 15, 1999.

Christopher S. Warren, for appellant.

Kenneth B. Hodges III, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

       No issue has been raised with regard to the validity of Holden’s consent to search the vehicle and its contents.

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).


author: Blackburn, Presiding Judge.

text:
    A99A2427.
    STUCKEY v. McCALLA, RAYMER, PADRICK, COBB & NICHOLS et al.
    (527 SE2d 219)
   Blackburn, Presiding Judge.

In this second appearance of this case before this Court, Charles Wesley Stuckey appeals the dismissal of his breach of fiduciary duty claim, brought over 11 years after the cause of action arose, against Ticor Title Insurance Company of California and the law firm of McCalla, Raymer, Padrick, Cobb & Nichols. In summary, Stuckey contends that: (1) the trial court improperly found that his claim was barred by a four-year statute of limitation; (2) a ten-year statute of limitation should have been applied to his claim; and (3) certain tolling agreements entered into between the parties should be construed to extend the ten-year statute of limitation such that Stuckey’s claim was timely made. Even if we assume, however, that a ten-year statute of limitation is applicable in this case, the tolling agreements entered into by the parties, if enforceable, do not apply to Stuckey’s breach of fiduciary duty claim and do not extend the statute of limitation. Therefore, as discussed more fully below, we affirm the dismissal of Stuckey’s claim.

1. The facts underlying this case were set out in McCalla v. Stuckey, 233 Ga. App. 397 (504 SE2d 269) (1998). There we explained:

The instant dispute centers on an escrow agreement, which was executed as part of a real estate transaction in 1985, in which plaintiff Charles W. Stuckey agreed to purchase an interest in a condominium unit. The escrow agreement designated the escrow agent for the closing as “McCalla, Raymer, Padrick, Cobb & Nichols ... as agent for Ticor Title Insurance Company of California.” Philip E. Johns, a partner at the McCalla law firm, signed the agreement as its authorized representative, which in turn, was the agent for Ticor. The agreement was also signed by the borrowers (including Stuckey) and was signed again by Philip E. Johns, as attorney for the lender. . . .
The closing on the property took place on December 31, 1985. More than 11 years later, on January 16, 1997, Stuckey filed [a] complaint against McCalla, Raymer, Padrick, Cobb & Nichols, individually and as agent for Ticor Title Insurance Company of California, alleging in Count 1 that a condition of the escrow agreement had been breached; in Count 2 Stuckey alleged a breach of fiduciary duty. After answering, McCalla and Ticor Title moved to dismiss the action on the grounds that the applicable statute of limitation had expired before the suit was filed.
The superior court granted the motion on Count 2 [and] denied the motion as to Count 1.

Id. at 397-398.

In this case’s original appearance before us, McCalla and Ticor Title appealed the trial court’s denial of their motion to dismiss Stuckey’s breach of contract claim, and we reversed the trial court, finding that Stuckey’s contract claim was barred by the six-year statute of limitation on written contracts not under seal. See OCGA § 9-3-24. In response to this opinion, the trial court entered a final judgment dismissing both counts of Stuckey’s complaint. Stuckey subsequently filed a notice of appeal in this case, contending that the trial court improperly dismissed his breach of fiduciary duty claim by finding that it was subject to a four-year statute of limitation.

2. In this appeal, Stuckey argues that McCalla and Ticor Title, as escrow agents, owed a fiduciary duty to him, that they breached this duty, and that any action based on this breach should be subject to the ten-year statute of limitation set out under OCGA § 9-3-27. Even if we were to assume, without deciding, that Stuckey’s arguments had merit, his claim for breach of fiduciary duty would still be barred. If the ten-year statute of limitation applied, it expired on or about December 31, 1995. Stuckey waited to file his claim for over a year following this date. As such, the trial court appropriately dismissed Stuckey’s breach of fiduciary duty claim.

Agreements between the parties concerning tolling of the statute do not change this result. Stuckey and McCalla entered into a “Joint Waiver of Statute of Limitations” which states:

With respect to any statute of limitations on any cause of action founded on the breach of any common law duty, and/ or any state or federal statutory or regulatory cause of action, including without limitations, causes of action based on any state or federal securities act, rule or regulation or any cause of action based on the loan made, which may be brought by either one of the undersigned against the other which arises out of or is related to the purchase of the aforementioned condominium unit, said statutes of limitations are tolled during the period of December 29, 1988 through and including February 1, 1989, such that no statute of limitations shall expire during that period, and so that suit on any cause of action, as to which the statute of limitations would have expired during the period of December 29, 1988 through and including February 1, 1989 may be brought at any time from December 29, 1988 through and including February 1, 1989.

Decided December 15, 1999.

Page & Bacek, Edward J. Dovin, Michel V. Hurley, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Scott H. Michalove, Peter L. Lublin, Morris, Manning & Martin, Lewis E. Hassett, Tacita A. Scott, Jessica F. Pardi, for appellees.

By separate letter agreements, this “tolling window” was extended until January 1990.

Contrary to Stuckey’s arguments, these agreements do not lengthen the statute of limitation on his breach of fiduciary duty claim. The agreements apply specifically to those claims which would have otherwise expired between December 29, 1988 and January 15, 1990. Thus, assuming without deciding that a ten-year statute of limitation applied to Stuckey’s claim, it would have expired years after the tolling window created by the agreements, and, as such, the tolling agreements had no application to this claim.

Therefore, even if we assume that Stuckey’s breach of fiduciary duty claim was otherwise viable and subject to a ten-year statute of limitation, it was still appropriately dismissed by the trial court.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Smith, Judge. Eldridge, Judge,

text:
    A99A0868.
    GODBEY v. THE STATE.
    (526 SE2d 415)
   Smith, Judge.

Ronald Godbey was convicted of one count of child molestation by a Fayette County jury. His amended motion for new trial was denied, he appeals, and we affirm.

1. Godbey first asserts that the State failed to comply with the requirements of OCGA § 17-1-1 and Uniform Superior Court Rule 31 concerning notification of the intent to introduce similar transaction evidence. USCR 31.3 requires that the State provide notice of the prosecution’s intent to present evidence of a similar transaction: “The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” USCR 31.3 (B). The notice must be given and filed “at least ten (10) days before trial unless the time is shortened or lengthened by the judge.” USCR 31.1.

Godbey points out numerous errors in the State’s attempted notice of an alleged similar transaction, including delivery to an erroneous address, a ten-year error in the date of the transaction, and identification of a nonexistent county as the site of the transaction. While a copy of the incorrectly addressed notice was sent by facsimile, it was not received until seven days before trial.

But while Godbey objected to the introduction of the similar transaction evidence during the pretrial hearing conducted pursuant to USCR 31.3 (B), he failed to object to the testimony of the witness at trial and thus failed to preserve his objection for review. Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998); see also White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997).

Godbey also contends that the similar transaction was too remote in time, having occurred approximately eighteen years before trial, and that the facts of the two incidents were too dissimilar. But “[i]n a child molestation case, the sexual molestation of young children, regardless of sex or type of act perpetrated upon them, is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Ryan v. State, 226 Ga. App. 180, 181 (2) (486 SE2d 397) (1997). And

where similar transaction evidence has been admissible otherwise, lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible. Further!,] the lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.

(Citations and punctuation omitted.) Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993). See also Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991). This enumeration of error therefore is without merit.

The special concurrence’s assertion that USCR 31.3 (D) controls in this case is both incorrect and dangerous. The State presented the similar transaction testimony against Godbey in its case-in-chief. No case cited by the concurrence involves such a situation; in those cases, the State presented its similar transaction evidence on rebuttal. Contrary to the concurrence’s statement, Godbey did not state his intention to assert a character defense before trial; the concurrence refers merely to his witness list, which included a number of witnesses later called to testify to his good character. But regardless of any pretrial statement or comment in his opening statement — which is not evidence — Godbey might have elected, on the basis of the State’s case, not to call character witnesses or indeed any witnesses at all.

The danger of allowing the State to anticipate a character defense is that such an assertion could be made in any criminal case on slender grounds, as here, or indeed on none at all. Even if the defendant has listed no witnesses, the defendant himself could still take the stand and testify to his good character. The State could assert in every criminal case that the defendant has a potential character defense. For that reason, I cannot agree with expanding the exception in USCR 31.3 (D) to the State’s case-in-chief. If that is done, the exception will swallow the rule.

2. Godbey’s contention that the trial court erred in qualifying Dr. Jane Hayes as an expert witness is also without merit. Hayes holds a Ph.D. in educational psychology and has completed the course work, training, and internship for a second doctorate in clinical psychology. She has worked in the field for approximately 20 years, and approximately 60 percent of her practice is with children and adolescents. She receives referrals from many departments of family and children services and has seen a number of children who have been sexually abused. She has testified as an expert witness on approximately 50 occasions in the superior courts in Georgia.

While Hayes does not hold a license to practice psychology in Georgia, this is not determinative of her qualifications as an expert witness.

An expert is one whose habits and profession endow him or her with a peculiar skill in forming an opinion on the subject matter in inquiry. This special skill or knowledge may be derived from experience as well as from formal education. Contrary to appellant’s argument, we regularly authorize expert certification of witnesses whose expertise lies in fields for which there is no state licensing procedure. The issue is whether the witness has developed specialized knowledge, not whether the State certifies or licenses the specialty.

(Citations and punctuation omitted.) Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). Godbey’s questions concerning Hayes’s qualifications, experience, and close working relationship with the State go to the credibility of her testimony, not its admissibility. Id. at 792, Given Hayes’s testimony regarding her education and experience, the trial court acted within its discretion in allowing her to testify as an expert.

While Godbey also contends that Hayes in fact offered no expert testimony and “performed only as a parrot” to repeat the victim’s allegations, this assertion is inaccurate. For example, Hayes testified regarding the typical guarded response of children when first questioned about sexual abuse in order to explain the victim’s initial reluctance to talk and the inconsistencies in her accounts of Godbey’s conduct. “It is well-established that expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves.” (Citations and punctuation omitted.) Pyron v. State, 237 Ga. App. 198, 199 (514 SE2d 51) (1999) (physical precedent only) (testimony regarding child interview techniques).

Godbey also contends that Hayes’s testimony lacked sufficient indicia of reliability under the child hearsay statute, OCGA § 24-3-16, but he has failed to preserve this enumeration of error for review. Before Hayes testified regarding the victim’s hearsay statements to her, Godbey moved that the State “limit its questionings to matters within 24-3-16.” But Godbey failed to make any further objection to Hayes’s testimony, particularly on the basis that it lacked sufficient indicia of reliability under OCGA § 24-3-16.

3. Godbey also complains that the trial court erred in failing to declare a mistrial due to the prosecutor’s reading into evidence a portion of Dr. Hayes’s report. During the State’s direct examination of Hayes, the prosecutor questioned her regarding the interviewing process and the typical reticent initial responses of children to questioning regarding sexual abuse. In the course of this examination, the prosecutor began to read into evidence a portion of a report Hayes had prepared: “Let me find the exact language so I make sure I state it correctly. You said she presents her information in a credible manner and presents symptoms consistent with those —.” At this point, Godbey’s counsel objected. The trial court gave an immediate curative instruction that “credibility of any witness is for you to determine. You will get instructions on that at a later time. And it is not for any other witness to tell you what the credibility of another witness is.” Godbey renewed his motion for mistrial after the curative instruction. As the trial court stated during the initial curative instruction, it also instructed the jury on its role as the determiner of credibility on two separate occasions during its main charge.

It is well established that ££[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. “In no circumstance may a witnesses] credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). “ (I)t is not the function of witnesses to determine the veracity of other witnesses.’ [Cit.]” Golden v. State, 233 Ga. App. 703 (1) (505 SE2d 242) (1998). This rule has been stated explicitly by this court on many occasions. See, e.g., Buice v. State, 239 Ga. App. 52, 55-56 (2) (520 SE2d 258) (1999); Putnam v. State, 231 Ga. App. 190, 192 (498 SE2d 340) (1998) (physical precedent only); Hilliard v. State, 226 Ga. App. 478, 481-482 (487 SE2d 81) (1997); Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995).

But it is also true that

[t]he grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused; and, where the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, this court will not disturb the trial court’s judgment refusing a motion for mistrial.

(Citations and punctuation omitted.) Mosier v. State, 218 Ga. App. 586, 589-590 (4) (462 SE2d 643) (1995).

Curative instructions were not given in any of these decisions in which this court considered improper testimony going to the credibility of a witness. In Golden, we held the testimony was properly excluded by the trial court. In Hilliard, Lagana, and Roberson, the witness testified over objection. In Buice and Putnam, the defendant never objected, and reversal occurred under the “plain error” rule.

Here, the trial court took corrective measures not only at the time of the alleged error, but also on two occasions during its instructions to the jury. This response was well within the trial court’s discretion, and a refusal to grant a mistrial therefore was not error. Wof-ford v. State, 234 Ga. App. 316, 317 (1) (506 SE2d 656) (1998).

Moreover, Godbey interposed his objection before the witness answered the prosecutor’s question.

Absent special circumstances, even when an improper question has been completed and propounded to the witness, when objection is made and the question is struck, it is not an abuse of the court’s discretion to deny a motion for mistrial founded upon the mere asking of the question. [Cit.]

Bell v. State, 129 Ga. App. 783, 785 (4) (201 SE2d 340) (1973) (physical precedent only, but cited with approval in State v. Shuman, 161 Ga. App. 304, 306 (3) (287 SE2d 757) (1982)). Here, the question was never answered, and the jury was instructed to disregard its content. The instruction was sufficient to cure any error that might have occurred.

Judgment affirmed.

Pope, P. J., concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

I concur in judgment only.

1. (a) Godbey waived any issue of notice under Uniform Superior Court Rules 31.1 and 31.3 by electing to make his character an affirmative defense. USCR 31.3 (D); Nixon v. State, 234 Ga. App. 797, 799 (507 SE2d 833) (1998); Miller v. State, 226 Ga. App. 509, 513 (486 SE2d 911) (1997). Amy Fredell’s testimony became admissible regardless of whether any notice had been given at all. USCR 31.3 (D).

(b) Further:

Child molestation, child abuse, and family violence are uniquely those cases in which the victim or victims are repeatedly and secretly the subject of criminal conduct over long periods of time, and the accused may maintain a public facade of “good character,” which can be used to defend against such charges. Thus, when an accused seeks to hide behind the masking evidence of “good character,” the requirements of USCR 31.3 are waived, and evidence of prior similar acts of abuse . . . may be used to strip away the mask.

Miller v. State, supra at 514.

Under USCR 31.3 (D), similar transaction evidence regarding a defendant’s prior, similar sex acts against a child are admissible under rules of evidence to show the defendant’s “lustful disposition,” and bent of mind. OCGA §§ 24-9-20; 24-2-2; 24-9-68; Farley v. State, 265 Ga. 622 (2) (458 SE2d 643) (1995). While such evidence may not be introduced during the State’s case-in-chief in anticipation of a character defense, when a defendant elects to put his character into evidence, such evidence becomes admissible in rebuttal. To me, under most circumstances, it is “highly probable” that the order of the otherwise admissible proof (in the case-in-chief — as opposed to rebuttal) would not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Morrow v. State, 229 Ga. App. 242, 245 (493 SE2d 616) (1997).

2. Further, Godbey had sufficient notice and opportunity to raise his questions regarding the admissibility of the similar transaction prior to trial. Accordingly, the trial court did not abuse its discretion in permitting such evidence. Bean v. State, 239 Ga. App. 106, 108 (2) (521 SE2d 19) (1999).

(a) Although the notice incorrectly stated that King’s Mountain, North Carolina, was a “county,” Godbey was from King’s Mountain, North Carolina. At the time the similar transaction notice was served on his defense counsel, Godbey had returned to the King’s Mountain area to live and had been living there “for awhile” prior to trial. Defense counsel knew this and contacted Godbey in King’s Mountain to inform him of the similar transaction notice. See Parrish v. State, 237 Ga. App. 274, 279-280 (514 SE2d 458) (1999).

(b) Although the first notice did not contain Fredell’s telephone number and address, Fredell was Godbey’s next-door neighbor when he previously lived in King’s Mountain; she still lived in the same house in King’s Mountain; and Godbey had stayed in “contact” with Fredell over the years. Fredell and Godbey’s daughter were still good friends. Defense counsel called Fredell and interviewed her prior to the similar transaction hearing. Appellant Godbey, who lived “very close” to Fredell, went to see her and interviewed her himself. Defense counsel knew exactly what Fredell was going to say prior to the hearing on the similar transactions.

(c) While the notice did not contain the exact dates of the prior molestation, neither the State nor Fredell knew the exact dates, and defense counsel talked to Fredell about that matter prior to the similar transaction hearing. In addition, the trial court offered counsel a further opportunity to talk to Fredell prior to trial. See Bohannon v. State, 208 Ga. App. 576, 578-579 (431 SE2d 149) (1993).

(d) The defense conceded it was sent a fax transmission regarding the similar transaction ten days prior to trial. The defense used the information contained in that transmission. On this same issue, this Court has held the trial court did not abuse its discretion in recognizing a fax as “notice,” because the defense received actual notice of the similar transaction more timely via fax than by mail: “ ‘had service of the notice been accomplished by mail, it would have been complete upon mailing notwithstanding the date of receipt, even though actual notice would have been closer to trial.’ ” Davidson v. State, 232 Ga. App. 250, 251 (501 SE2d 510) (1998); Willis v. State, 202 Ga. App. 447, 449 (2) (414 SE2d 681) (1992). Accordingly, the purpose for similar transaction notice was served. Id. Notably, counsel did not request a continuance with regard to the similar transaction notice. Instead, defense counsel hoped to use the omissions in the initial notice to preclude Fredell’s testimony altogether.

Decided December 2, 1999

Reconsideration denied December 16, 1999.

Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Paul A. Griffin, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

It is well settled that, “USCR 31.1 provides that the notice be given and filed at least ten days before trial unless the time is shortened or lengthened by the judge. We have interpreted this rule as clothing the trial court with discretion which will not be controlled absent abuse.” (Citations, punctuation and emphasis omitted.) Bryant v. State, 226 Ga. App. 135, 138 (486 SE2d 374) (1997).

Even if the time was shortened in this case, the rule permits it. The purpose of the notice requirement was fulfilled because Godbey had sufficient notice and opportunity to raise his questions regarding the admissibility of Fredell’s similar transaction testimony prior to trial. Bean v. State, supra. No continuance was requested. Accordingly, there was no abuse of the trial court’s discretion in shortening the notice time and permitting Fredell’s testimony. Bryant v. State, supra.

       Here, the record shows that Godbey planned to affirmatively put his character into evidence after receiving the State’s notice of similar transaction evidence and, following the State’s case, called several witnesses to testify specifically as to his character.

       Accord Hawkins v. State, 230 Ga. App. 627, 629 (497 SE2d 386) (1998); Kelly v. State, 197 Ga. App. 811, 815 (7) (a) (399 SE2d 568) (1990); Sidwell v. State, 185 Ga. App. 138, 139 (363 SE2d 603) (1987).

       Accord, e.g., Condra v. State, 238 Ga. App. 174 (2) (518 SE2d 186) (1999); Gibbins v. State, 229 Ga. App. 896, 899 (4) (495 SE2d 46) (1997); Wilson v. State, 220 Ga. App. 487, 489-491 (2) (469 SE2d 516) (1996).


author: Phipps, Judge.

text:
    A99A0999.
    BENTON et al. v. SAVANNAH AIRPORT COMMISSION.
    (525 SE2d 383)
   Phipps, Judge.

Rebecca Cone Benton and Mary Elizabeth Cone Benton sued the Savannah Airport Commission for damages to their property allegedly caused by increased air traffic and noise from the Savannah Airport. In an order entered on September 26, 1996, the trial court dismissed the Bentons’ 42 USC § 1983 claim without prejudice because it was not ripe for adjudication and granted summary judgment against the Bentons on their claims under the state and federal Relocation Acts. In an order entered on September 16, 1998, the trial court granted summary judgment to the Commission on the Bentons’ claims for inverse condemnation and nuisance. The Bentons appeal both orders. We affirm the trial court’s grant of summary judgment to the Commission on the state and federal Relocation Act claims and the claims for inverse condemnation and nuisance. We reverse the trial court’s dismissal of the § 1983 claim.

The Bentons own approximately 200 acres of unimproved real property located in Chatham County. In 1947 or 1948, the property was acquired by the father of Rebecca Cone Benton, who was also the husband of Mary Elizabeth Cone Benton. In 1962, Mr. Benton conveyed an interest in some or all of the property to his wife. Mr. Benton died in 1979. Mary Elizabeth Cone Benton conveyed an interest in some of the property to Rebecca Cone Benton in 1983.

On November 28,1994, the Bentons served the Commission with an ante litem notice under OCGA § 36-33-5. On January 3, 1996, the Bentons filed a complaint, alleging that the air traffic and noise in the immediate vicinity of their property had increased significantly during the period in which they owned the property, leaving them with property that can be put to no productive use. The Bentons sought monetary damages for each of their claims. '

The Commission operates the Savannah International Airport in Chatham County. The Savannah Airport has two main runways, identified as Runway 9/27 and Runway 18/36. Runway 9/27 has been in operation since 1941, when it had an operational length of 2,939 feet and served military aircraft. In 1964, Runway 9/27 was extended to its current length of 9,351 feet. Runway 18/36 became operational in 1967 and is 7,001 feet long.

The Bentons’ property is west of Runway 9/27. The aircraft that fly over or near their property predominately use Runway 9/27 for takeoff and landing. According to the Executive Director of the Commission, there has been no change in the patterns or paths of aircraft since prior to 1992. Based on airport traffic records maintained by the Federal Aviation Administration air traffic control tower, the number of flight operations at the Savannah Airport decreased by 39 percent between 1992 and 1996.

Aircraft operating in the United States are subject to strict noise certification requirements. They are certified as meeting Stage 2 or Stage 3 noise requirements, with Stage 3 aircraft being quieter. From August 1992 to August 1996, the number of Stage 2 operations at the Savannah Airport decreased from 45.13 percent of all airport operations to 24.61 percent. During that same period, the number of Stage 3 operations increased from 54.87 percent to 75.39 percent.

1. The Bentons contend the trial court erred by dismissing their § 1983 claim, which was based on an alleged taking of their property by the Savannah Airport. The Commission responds that the trial court correctly dismissed the § 1983 claim because it was not yet ripe for adjudication.

The Fifth Amendment to the United States Constitution precludes the taking of private property for public use without just compensation. If a state provides an adequate procedure for seeking just compensation, a property owner cannot assert a claim under the Just Compensation Clause until it has used the state procedure and has been denied just compensation.

Georgia law provides a procedure for obtaining compensation for the inverse condemnation of one’s property. In their complaint, the Bentons asserted an inverse condemnation claim and a § 1983 claim. They were entitled to plead both claims alternatively, regardless of any inconsistencies that may exist between the two causes of action. When the trial court issued its order on the motion to dismiss, the Bentons had not yet pursued their state inverse condemnation claim to determine if it would result in unjust compensation (or no compensation at all). But that claim was pending, and its adjudication was the only prerequisite for making the § 1983 claim ripe for adjudication.

In this situation, the trial court should defer a ruling on the motion to dismiss until the state inverse condemnation claim is adjudicated, thus allowing the plaintiff to proceed with both claims in the same lawsuit. Once the inverse condemnation claim has been disposed of, the trial court can consider the § 1983 claim on its merits.

Based on our holding in Division 3, infra, we reverse the trial court’s dismissal of the Bentons’ § 1983 claim and remand the case for consideration of that claim.

2. The Bentons claim the trial court erred in granting summary judgment against them on their claims under the Uniform Relocation Assistance & Real Property Acquisition Policies Act (the URA) and the Georgia Relocation Assistance & Land Acquisition Policy Act. The trial court ruled that the Commission was entitled to judgment on both claims because the Bentons had failed to exhaust the appropriate administrative remedies.

In support of their claim under the URA, the Bentons contend the Commission violated 42 USC § 4651, which sets forth procedures to be followed by federal agencies in seeking to acquire land. The Bentons assert no other claims under the URA. The provisions of 42 USC § 4651 do not, however, create a private right of action in landowners. Instead, the section is no more than a statement by Congress of what it perceives to be the preferred method of dealing with landowners when the government wants to acquire their land. As a result, the Bentons have no claim under the URA and the trial court properly granted summary judgment to the Commission.

The Georgia Relocation Assistance & Land Acquisition Policy Act sets forth procedures to be followed by state agencies in acquiring property for federal-aid works projects. The Bentons contend the Commission violated OCGA § 22-4-9, which provides that a state entity shall be guided by the federal land acquisition procedures to the greatest extent possible. They also reference OCGA § 22-4-8, which allows a prevailing plaintiff to recover litigation expenses incurred in an inverse condemnation action involving a federal-aid project.

OCGA § 22-4-9 does not create a private right of action in favor of a landowner, but merely addresses policies that should guide state agencies when they acquire real property for federal-aid projects. The Bentons have no cause of action under this section. Nor can the Bentons seek compensation under OCGA § 22-4-8 because they have not prevailed in their inverse condemnation action. See Division 3, infra. We affirm the grant of summary judgment to the Commission on this issue.

3. The Bentons challenge the trial court’s grant of summary judgment to the Commission on their inverse condemnation claim. The Commission argues that the trial court correctly determined that the inverse condemnation claim was barred by the statute of limitation.

The Bentons’ inverse condemnation claim is subject to the four-year statute of limitation set forth in OCGA § 9-3-30. The complaint was filed on January 3, 1996; therefore, to avoid the statute of limitation bar, the cause of action must have accrued after January 3, 1992.

The Commission submitted evidence from its Executive Director showing that the number of flights of noisier Stage 2 aircraft declined from 1992 to 1996. In addition, although the number of flights of Stage 3 aircraft increased during the same period, the total number of flight operations at the Savannah Airport decreased by 39 percent between 1992 and 1996.

The Bentons did not submit any evidence to contradict the evidence presented by the Commission. The Commission’s evidence regarding

the frequency of flights, flight patterns, and reduction in numbers of flights of Stage 2 aircraft [ ] is sufficient to show there has been no increase in the nuisance over [the Bentons’] propertyf,] and, if [the Bentons] had a cause of action, it accrued more than four years prior to the filing of their complaint.

By coming forward with this evidence, the Commission discharged its burden on summary judgment. The Bentons cannot rest on their pleadings, but must point to some evidence that the Commission’s information is inaccurate or that the overall reduction in noise levels does not apply to their property.* Because the Bentons submitted no evidence on this issue, we find that the trial court correctly granted summary judgment to the Commission on the inverse condemnation claim.

4. Although the Bentons claim the trial court erred by granting summary judgment on their nuisance claim, they fail to address the trial court’s basis for its ruling — that the nuisance claim is barred by the statute of limitation.

To address this claim, we must first determine if the operation of an airport constitutes a continuing or permanent nuisance. A continuing nuisance “is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it.” If the operation of the Savannah Airport is a continuing nuisance, every continuance of the nuisance is a fresh nuisance for which a new action will lie. The damage caused by a permanent nuisance is complete at the time the nuisance is created and gives rise to only one cause of action, which accrues immediately upon the creation of the nuisance.

Decided November 16, 1999

Reconsideration denied December 16, 1999

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants.

Rebecca C. Benton, pro se.

Fincher & Hecht, Steven M. Fincher, Brennan & Wasden, Joseph P. Brennan, for appellee.

Whether an airport is considered to be a permanent nuisance will depend on the relevant circumstances. If the offending noise and traffic are relatively constant, the nuisance is permanent. Where the nuisance is intermittent or becomes greater over time, it may be considered a continuing nuisance.

When Runway 9/27 was extended to its current length in 1964, the noise and traffic associated with its use necessarily constituted an injury to the Bentons’ property. There has been .no change in the patterns or paths of aircraft since prior to 1992. In addition, the Commission has established, and the Bentons have not disproved, that the flight operations at the Savannah Airport decreased during the four-year period preceding the filing of the complaint. As a result, there is no fresh nuisance on which to base a cause of action.

Given these facts, we find that the Bentons’ nuisance claim accrued in 1964 when Runway 9/27 became operational at its present length, at which time the damage to the property was complete and capable of being fully compensated. We therefore affirm the trial court’s holding that the Bentons’ nuisance claim is barred by the applicable four-year statute of limitation.

Judgment affirmed in part and reversed in part and case remanded.

Pope, P. J., and Eldridge, J., concur.

        Williamson County Regional Planning Comm. v. Hamilton Bank, 473 U. S. 172, 195 (105 SC 3108, 87 LE2d 126) (1985).

       Ga. Const. of 1983, Art. I, Sec. III, Par. I; Adams v. City of Atlanta, 253 Ga. 581, 582 (2) (322 SE2d 730) (1984).

       OCGA § 9-11-8 (e) (2); Utica Mut. Ins. Co. v. Kelly & Cohen, Inc., 233 Ga. App. 555, 556 (504 SE2d 510) (1998).

       42 USC § 4601 et seq.

       OCGA § 22-4-1 et seq.

       42 USC § 4602 (a); United States v. 410.69 Acres of Land, 608 F2d 1073, 1074, n. 1 (5th Cir. 1979).

       Id.

        City of Atlanta v. Starke, 192 Ga. App. 267, 268 (1) (b) (384 SE2d 419) (1989).

        Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 667-668 (1) (472 SE2d 499) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.; Southfund, supra at 668.

        City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897).

       Id.

         Id.

       See Southfund, supra at 669; see also Provident Mut. Life Ins. Co. &c. v. City of Atlanta, 938 FSupp. 829 (N.D. Ga. 1995) (noise and dust generated by planes must have been obvious from first use of runway).

       Id.

        Southfund, supra.


author: Smith, Judge.

text:
    A99A1161.
    In the Interest of M. M., a child.
    (523 SE2d 886)
   Smith, Judge.

The mother of M. M. filed a petition in juvenile court to terminate the parental rights of her child’s biological father. The father responded with a petition to legitimate M. M. After a hearing, the juvenile court entered an order terminating the father’s parental rights. The father appeals, contending that the petition should have been filed in superior court. We are constrained to agree, and we therefore vacate the judgment of the juvenile court.

Decided September 29, 1999

Reconsideration dismissed December 16, 1999.

Michael R. McCarthy, for appellant.

Maxine C. Morris, for appellee.

This case is controlled by the recent decision of In the Interest of M.C.J., 236 Ga. App. 225 (511 SE2d 533) (1999). There, as here, the mother had physical custody of the children and filed a termination petition against the biological father in juvenile court. This court concluded that the juvenile court lacked subject matter jurisdiction over a deprivation proceeding between parents. Even when, as here, the action appears to be a genuine deprivation case and not a disguised custody dispute, “the authority is clear: a deprivation petition brought between parents must be filed initially in superior court for a determination that it is indeed a valid deprivation case.” Id. at 226. In such circumstances, the juvenile court does not have proper subject matter jurisdiction, and the judgment must be vacated. Id.

We note that the Supreme Court of Georgia has granted a writ of certiorari in M. C. J, supra, on May 14, 1999 (Case No. S99C0742). The Supreme Court indicated particular concern with the finding of lack of subject matter jurisdiction in a termination action between a mother and a biological father. Id. But this case must be decided by December 3, 1999, Ga. Const. 1983, Art. VI, Sec. IX, Par. II, and the Supreme Court is not required to render its decision in M. C. J. before then. We are therefore bound by this court’s decision in M. C. J. and must vacate the judgment on the ground of lack of subject matter jurisdiction.

Judgment vacated.

Pope, P. J., and Eldridge, J., concur.

       Appellee here seeks to distinguish M. C.- J. by contending that the father in that case may have had a legal relationship with the children. But the term “biological father” generally is used in contrast to the term “legal father.” See OCGA § 15-11-83 (e). Furthermore, the grant of certiorari by the Supreme Court of Georgia in M. C. J., see below, explicitly states that the biological father is not the legal father.


author: Miller, Judge.

text:
    A99A1274.
    COTTON v. BOWEN et al.
    (524 SE2d 737)
   Miller, Judge.

Anthony Cotton sued H & J Erectors, Inc. (the company which installed a printing press) and Reed Bowen (a co-employee) for injuries he sustained at work when his arm was crushed in the chiller rollers of the printing press. The trial court granted Bowen’s motion for summary judgment, and a jury found in favor of H & J Erectors in the subsequent trial. Cotton appeals both judgments. Because the Workers’ Compensation Act is the exclusive remedy for injuries sustained in the course of employment from a co-worker’s negligence, we affirm the grant of summary judgment to Bowen. And although the evidence was insufficient to support a jury charge on “assumption of the risk,” we find that the error was harmless and affirm the judgment on the jury verdict.

1. Cotton contends that the trial court erred in charging the jury on assumption of the risk. If there is no evidence to support the defense, the charge was error.

The evidence showed that Cotton was an employee of Dittler Brothers as a second pressman, and his primary duty was to “web” the printing press, which is to hand feed sheets of paper through rollers. For years Cotton webbed the press by pushing the paper over the top and reaching in the bottom with his arm to take it back underneath. One of the presses was taken out for modification and subsequently reinstalled, leveled, and aligned by H & J. After the press was installed, Cotton was asked to test it, and as he was webbing the press, his arm was caught and pulled into and between the rollers.

H & J contends that Cotton assumed the risk of his arm being crushed because he testified that he knew that there were no guards on the rollers, that there was always a possibility of being caught, and that the rollers were turning in opposite directions and if they had been turning in the same direction, he would not have been caught. H & J also points out that Cotton could have webbed the press in a manner that did not involve him placing his hand between the rollers.

But to show assumption of the risk, the defendant must present evidence that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk. In other words, there must be some evidence that Cotton was aware that the new rollers had been placed closer together, that he understood the risk of inserting his arm between the new rollers, and that he decided to take the risk of his arm being crushed. Based on his experience before the adjustments, Cotton was aware only of the general risk of placing his arm between the rollers, which was insufficient to support a jury charge on assumption of the risk. Knowledge of the risk means both actual and subjective knowledge on the plaintiff’s part of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Cotton may have assumed general risks in webbing the press but not the specific risk he encountered. There is no evidence that (a) Cotton had actual knowledge that the rollers were now closer together, (b) that he understood that this circumstance put him in harm’s way, and (c) that with this knowledge he decided to take the risk of his arm being crushed. Although Cotton testified he noticed that the rollers were moving in opposite directions before inserting his arm between them, there is no evidence that prior to the modification they had turned in the same direction. Nor is there evidence that Cotton was aware of the reduced spacing between the rollers. Thus, Cotton may have been contributorily negligent in causing his injury, but no evidence showed he assumed the risk.

Hillman v. Carlton explained this distinction:

Assumption of risk means the plaintiff is fully aware of the dangerous defect or condition caused by defendant’s negligence but freely chooses to proceed nonetheless. Contributory or comparative negligence means the plaintiff, though exposing himself to danger, nevertheless is unaware of the defendant’s negligence and thus expects the defendant to act or to have acted with reasonable care.

There is no evidence that Cotton was aware of the dangerous condition of the reduced spacing between the rollers; therefore, the court erred in instructing the jury on the principle of assumption of the risk.

But the presumption of harm arising from a charging error may be overcome by a review of the record as a whole. Upon review, the overwhelming evidence shows that Dittler Brothers hired H & J to install, align, and level the press after it was modified (in addition to some minor fabrication not related to the chiller rollers). There is no evidence that H & J was involved in the design or the manufacture of the chiller rollers. It was undisputed that Bowen designed the chiller rollers which injured Cotton, that Dittler Brothers installed the rollers into the press, and that H & J merely reinstalled the press. H & J, as an independent contractor, performed as directed by Dittler Brothers and cannot be liable to Cotton for the resulting injury. Because it is undisputed that the installation was approved and accepted by Dittler Brothers and there is no evidence that H & J held itself out as experts in the field of design, the exceptions for negligently performed work do not apply. Since the evidence overwhelmingly supported the jury’s verdict in favor of H & J, any error in charging the jury on assumption of the risk was harmless.

2. In granting summary judgment to Bowen, the trial court ruled that Cotton’s claim was barred by the Workers’ Compensation Act, specifically OCGA § 34-9-11 (a).

The Georgia Workers’ Compensation Act is the exclusive remedy for injuries sustained by an employee during the course of employment from the negligence of a co-worker. OCGA § 34-9-11 (a) forbids suits against negligent co-employees of the same employer. Bowen was indisputably a co-employee at Dittler Brothers and therefore immune.

The parties mistakenly argue that a co-employee loses his immunity if he is a construction design professional. This misconstrues the statute, which provides that all co-employees, regardless of their position, skills, or responsibilities, are immune, and that in addition, construction design professionals, even if not co-employees, are also immune (with certain exceptions). Warden v. Hoar Constr. Co. confirms that OCGA § 34-9-11

creates three express exceptions to the employee’s right to sue a third party, granting immunity from tort liability to employees of the same employer, persons who provide worker’s compensation benefits under a contract with the employer, and “construction design professionals.”

Thus, rather than serving as an exception to the co-employee immunity, the “construction design professional” portion of the statute adds a second category of immune persons.

Decided November 2, 1999

Reconsideration denied December 16, 1999

Coppedge & Leman, Warren N. Coppedge, Jr., David L. McGuffey, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Jo Beth Gosdeck, Long, Weinberg, Ansley & Wheeler, Anandhi S. Rajan, Kenneth M. Barre, for appellees.

Because OCGA § 34-9-11 (a) provides that the Workers’ Compensation Act is Cotton’s exclusive remedy for injury caused by the negligence of a co-employee and since it is undisputed that Cotton received workers’ compensation benefits, the trial court properly granted Bowen’s motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       See Jiminez v. Morgan Drive Away, 238 Ga. App. 638, 639 (519 SE2d 722) (1999).

        Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); Hillman v. Carlton Co., 240 Ga. App. 432, 433 (1) (522 SE2d 681) (1999).

       See id.; Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524) (1991).

        Vaughn, supra, 266 Ga. at 864 (1).

       240 Ga. App. at 435.

        Roberts v. State, 267 Ga. 669, 676 (10) (d) (482 SE2d 245) (1997); Payne v. Thompson, 234 Ga. App. 533, 534 (507 SE2d 257) (1998).

       See Whatley v. Nat. Svcs. Indus., 228 Ga. App. 602, 606 (2) (492 SE2d 343) (1997).

        See David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990).

        Webster v. Dodson, 240 Ga. App. 4 (522 SE2d 487) (1999); Wall v. Phillips, 210 Ga. App. 490, 491 (436 SE2d 517) (1993).

       OCGA §34-9-11 (a).

       269 Ga. 715, 716 (1) (507 SE2d 428) (1998).

       (Footnotes omitted.) Id.


text:
    A99A1374.
    CASTRO v. THE STATE.
    (527 SE2d 12)
   Smith, Judge.

Maria Castro, along with her husband, Jose Castro, was convicted of the offenses of aggravated child molestation and child molestation involving their three-year-old daughter. Maria Castro filed a motion for new trial, which was denied. In this appeal, Castro contends that the trial court erred by refusing to grant her motion for directed verdict of acquittal on the aggravated child molestation count and erred by refusing to grant a mistrial after a witness improperly commented that she believed the victim was telling the truth. We find no merit to either assertion. Although one of the State’s witnesses improperly uttered a gratuitous remark about the victim’s credibility, we do not find that the trial court abused its discretion in resolving the matter by employing appropriate curative instructions.

1. Castro contends that the trial court erred in denying her motion for directed verdict on the count for aggravated child molestation. We disagree.

Construed to uphold the jury’s verdict, evidence showed that both Castro and her husband, Jose, sexually victimized their three-year-old daughter. After their daughter mentioned certain sexual activities engaged in by and with her parents to her babysitters, they contacted authorities, and the Floyd County Department of Family & Children Services instituted an immediate investigation. Dr. Susan Campbell, a clinical psychologist affiliated with Harbor House, interviewed the victim the day after DFCS received the initial report of the sexual abuse allegedly perpetrated by the child’s parents. Dr. Campbell, an expert in the field of child psychology and forensic interviews of child abuse victims, spoke with the child. Campbell’s interview of the victim was preserved on a videotape that the jury was permitted to view. Dr. Campbell testified that “she described very easily sexual behaviors that had occurred between herself and her parents and between her parents that are things that she would not have knowledge about if she had not experienced them herself.” According to Dr. Campbell, “[this child] actually put her mouth on the genitalia of the dolls, which I would say in less than five cases in the — of the 450 that we’ve seen at Harbor House is something that I’ve seen children do.” During this initial interview, the victim indicated that she had taken her mother’s underwear off and kissed her on the buttocks, that she had kissed her mother in her vaginal area, and that her mother had kissed her in her crotch area. Using £®ia-tomical dolls, the victim reenacted placing her mouth on her mother’s vaginal area.

Eva Lovell, a clinical psychologist, provided counseling to the victim through more than 22 therapy sessions. The victim repeatedly and consistently described acts of sexual touching involving both her parents to Lovell during therapy. Lovell’s supervisor, Dr. William Blackerby, testified that the victim’s claims against her parents had been consistent “all the way along.” Lovell testified that the child’s explicit sexual knowledge and behavior exceeded 99.999 percent of typical children of her age.

The victim’s foster mother confirmed that the child acted out sexually and behaved in a manner inappropriate for her age. According to the foster mother, she observed the victim repeatedly enacting scenes with dolls indicating intercourse and oral sex.

About six weeks after the preliminary interview, Dr. Campbell again met with the victim. Dr. Campbell’s decision to conduct a second interview was prompted by remarks made by the victim after she was in foster care that seemed to possibly implicate two additional perpetrators. The purpose of the second interview was solely to investigate whether other persons may have also sexually abused the child. Dr. Campbell felt that she did not obtain reliable information concerning abuse by anyone other than the parents. Dr. Campbell testified that the victim’s accounts of the aberrant sexual misconduct by her parents remained consistent over time. According to Dr. Campbell, the victim never retracted anything she had previously said about either of her parents. In Dr. Campbell’s view, the victim “absolutely” exhibited symptoms and behaviors of a child who has been sexually abused. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain Castro’s conviction for aggravated child molestation. See Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998) (a victim’s testimony alone can sustain a conviction). In light of the overwhelming evidence of Castro’s guilt, the trial court properly denied the motion for directed verdict. Cantrell v. State, 230 Ga. App. 693, 694-695 (498 SE2d 90) (1998).

2. Castro asserts that the trial court erroneously refused to grant her motion for mistrial after the State’s expert improperly bolstered the credibility of the victim.

«This witness, Lovell, an expert in clinical psychology and therapy of sexually abused children, treated the victim. She testified concerning her observations of the victim during play therapy, describing the victim as showing much aggression and violence, and explaining how the victim’s behavior indicated that she had experienced sexual trauma. She also testified that the victim reported sexual abuse by her parents on more than one occasion.

While on direct, Lovell was asked a proper question: “Do you find it significant that this child consistently, over a year’s time, has continued to name her mother and father as abusers?” At this point, Lovell supplied an unresponsive, impermissible answer: ‘Yes, I believe that she’s telling the truth.” Both Castros immediately moved for a mistrial, and a bench conference ensued. The trial court refused to grant a mistrial, electing instead to immediately give the jury this curative instruction:

Members of the jury, we have different professionals come in, and they have been qualified as an expert. The question of whether or not someone believes the child — is it may be important to somebody in the treating of the child, but there is no way that the law is going to permit any expert to come in, no matter how much training, and — and testify to the truthfulness of what the child is saying. That is the ultimate that the jury must decide, and it cannot be decided by — by an expert, and there has been a motion made, and I am excluding that from your consideration, the witness’s last testimony — statement that she believes the child.

After so instructing the jury, the court then polled the jury to ensure that no prejudice had occurred. The court continued:

Now, it’s so important that you be able to separate your decisions from what this witness told you in response to the last — her last response that I need to ask you a question. Can all of you set aside the witness’s last statement that she believes the child and, then, make your own decisions as to whether or not you believe the child? If you cannot do that, please raise your hand.

After no juror responded, both defendants renewed their motions for a mistrial. The court then denied the motions and cautioned the witness as follows:

THE COURT: Doctor, I’m not trying to question you —.
THE WITNESS: Yes, sir.
THE COURT: [B]ut there is a line of demarcation between what you’re able to do for this jury by way of helping them —.
THE WITNESS: Uh-huh (affirmative).
THE COURT: [A]nd what you can do by — and — and — and you’re prohibited from telling the jury what your opinion is for their purpose of opinion.

As the State concedes, Lovell’s unresponsive comment that she believed the child was improper. Witness credibility lies exclusively within the province of the jury. OCGA § 24-9-80. A witness’s credibility simply cannot be bolstered by the opinion of another that the witness is telling the truth. See, e.g., Buice v. State, 239 Ga. App. 52, 55-56 (2) (520 SE2d 258) (1999); Hilliard v. State, 226 Ga. App. 478, 481-482 (487 SE2d 81) (1997); Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995).

But in these circumstances, a mistrial was not mandated. The grant or denial of a motion for mistrial lies within the sound discretion of the trial court, and this discretion will not be disturbed unless manifestly abused. Mosier v. State, 218 Ga. App. 586, 589-590 (4) (462 SE2d 643) (1995); see Davis v. State, 238 Ga. App. 84, 88-89 (6) (517 SE2d 808) (1999). Unless it is obvious that a mistrial is essential to the preservation of the right to a fair trial, appellate courts will not interfere with the exercise of the court’s discretion. Jones v. State, 226 Ga. App. 721, 725 (2) (487 SE2d 618) (1997).

Here, recognizing the problem with this impermissible bolstering, the trial court took immediate remedial action to rectify the situation. The court provided a strongly worded curative instruction, polled the jury, then advised the witness to avoid giving her opinion. Jones, supra (by providing cautionary instructions and polling the jury, the trial court did not abuse its discretion in denying motion for mistrial); see Davis, supra; English v. State, 202 Ga. App. 751, 755 (5) (415 SE2d 659) (1992). Given the court’s curative efforts, the nature of the unresponsive comment, and the lack of apparent prejudice, we find no abuse of discretion in the denial of the motion for mistrial. James v. State, 270 Ga. 675, 677 (4) (513 SE2d 207) (1999).

Moreover, here, as in Stamey v. State, 194 Ga. App. 305 (390 SE2d 409) (1990), sufficient other evidence implicated the defendant, permitting us to conclude that it is highly probable that the erroneous opinion testimony did not contribute to the verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) (even when error is shown, reversal is not warranted when it is highly probable that the error did not contribute to the jury’s verdict). In Stamey, supra, we concluded that improper opinion testimony concerning the victim’s credibility did not usurp the jury’s role because that expert also “exhaustively explained the basis for determining the child’s credibility.” Id. at 306 (1) (a). Here, the jury heard Dr. Campbell explain the characteristics of the child sexual abuse accommodation syndrome which includes acting out sexually and pretending to do sex acts, viewed two videotapes of the victim explicitly depicting sexual activities with her parents in which she was an active participant, and heard testimony from several witnesses describing the victim’s bizarre sexual behavior. From this evidence, the jury could determine for itself whether the victim’s accounts and conduct appeared credible. Even if any error occurred, we nevertheless conclude that it is highly probable that the therapist’s inappropriate response did not contribute to the verdict. Huntley v. State, 271 Ga. 227, 230 (5) (518 SE2d 890) (1999). Since the jury had abundant other evidence from which it could judge the victim’s credibility, reversal is not warranted. Berry v. State, 235 Ga. App. 35, 38 (2) (508 SE2d 435) (1998); see Dickerson v. State, 207 Ga. App. 241, 242 (427 SE2d 591) (1993) (harmless error analysis applied despite impermissible bolstering of victim’s credibility).

For two reasons, a response to the special concurrence is required. Curative instructions are not fungible items. Their content and quality always matter. Whether curative instructions are sufficient to cure the harm must always be determined under the circumstances of each case. Wilson v. State, 268 Ga. 527, 528 (2) (491 SE2d 47) (1997); Maddox v. State, 227 Ga. App. 602, 603 (2) (490 SE2d 174) (1997). It simply cannot be said that whenever a trial court provides curative instructions and also polls the jury that those two combined actions are always “legally sufficient” to foreclose all appellate consideration as to whether the trial court properly exercised its discretion. On the contrary, as noted in Jones, supra, when the trial court gives cautionary instructions and also polls the jury, the issue remains whether these measures preserved the right to á fair trial. Id.

The cases relied upon by the special concurrence do not hold otherwise. In Garcia v. State, 207 Ga. App. 653, 658 (428 SE2d 666) (1993), the defendant elected not to renew his motion for a mistrial after the trial court gave curative instructions and polled the jury. Id. at 657. This court nevertheless explored whether there was a reasonable probability that the improper comment changed the result of the trial. Id. at 658. In Smith v. State, 267 Ga. 372, 374 (4) (477 SE2d 827) (1996), the trial court did not poll the jury but merely limited the jury’s consideration of the evidence.

The evidence that this child was, in fact, the victim of horrendous sexual abuse was absolutely overwhelming. The evidence incriminating Maria Castro as a perpetrator of sexual abuse was also overwhelming. Indeed, the last sentence of Division 1 of this opinion says just that. But it would be inappropriate and fundamentally unfair to consider evidence not relating to defendant Maria Castro in reviewing her appeal. Yet much of the evidence cited by the special concurrence may have pertained only to Jose Castro and not necessarily to Maria Castro. In addition, there was some evidence, albeit conflicting, that others may also have sexually abused this child.

Judgment affirmed.

Pope, P. J, concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially in judgment only.

I cannot concur fully in the majority opinion for the following reasons:

1. In Division 2, I do not believe that the majority’s additional analysis regarding “the nature of [Lovell’s] unresponsive comment and the lack of apparent prejudice” is required by law. I find that, after the trial court’s thorough curative instructions, the poll of the jury and its response (or lack thereof) was legally sufficient to determine that the trial court did not err in denying Castro’s motion for mistrial.

[T]he trial court’s poll of the jury reflects that no juror believed he or she could not follow the curative instruction. Moreover, qualified jurors, under oath, are presumed in the absence of clear contrary evidence to follow the procedural directives of and to respond honestly to questions of the trial judge.

Decided December 3, 1999

Reconsideration denied December 16, 1999

Garcia v. State, 207 Ga. App. 653, 658 (428 SE2d 666) (1993); Smith v. State, 267 Ga. 372, 374 (3) (477 SE2d 827) (1996). Accordingly, the trial court’s denial of the motion for mistrial was not error.

2. Also, contrary to the majority, I would not characterize the evidence in this case as “sufficient” — but overwhelming. Three-year-old J. C. was able to sustain for over a year a consistent version of sexual abuse by the defendants, which was a “highly unlikely” feat according to forensic psychologist Susan Campbell; three different psychologists testified that J. C.’s outcry fit within the parameters of well-recognized credibility standards; outcry witnesses repeated the same version of sexual abuse by her parents as told to them by J. C.; in two video tapes, J. C. repeated her statements about her parents’ abuse; evidence of a “child sexual behavior checklist” was introduced showing J. C. had more sexual knowledge and acted more sexually that 99.999 percent of similar children; statements from J. C.’s father (defendant Jose Castro) were introduced that he “noticed [J. C.] awake” and watching as the defendants had sex, and “he had noticed her watching them have sex on at least one occasion and that perhaps she had seen them other times also”; J. C.’s outcry was further corroborated by Dr. Sara Rogers who testified that a physical examination of three-year-old J. C. showed severe vaginal penetration that had completely removed the hymenal membrane.

Clearly there was overwhelming evidence by which the jury could judge the victim’s credibility, notwithstanding Lovell’s single improper statement — a statement the jury confirmed it would not credit. Further, contrary to the majority’s position, it is not “inappropriate and fundamentally unfair” to consider cill of the evidence against Maria Castro, as she is a party to any crimes committed by Jose Castro and vice versa, and the trial court charged on parties to a crime. OCGA § 16-2-21. Accordingly, it is “‘highly probable that [Lovell’s statement] did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Huntley v. State, 271 Ga. 227, 230 (5) (518 SE2d 890) (1999).

James C. Wyatt, for appellant.

TambraP. Colston, District Attorney, FredR. Simpson, C. Stephen Cox, Assistant District Attorneys, for appellee.

       Jose Castro is not a party to this appeal.

       Dr. Campbell explained that “[a] forensic interview is focused on gathering data.” Dr. Campbell had personally conducted over 250 such interviews and participated in over 100 others.

       Sara Rogers, M.D., a pediatrician who examined the victim, testified that the child had sustained a severe penetrating injury to her hymen, caused by the insertion of an object.

       In the case cited by the majority for the proposition that further analysis is necessary, the trial court issued curative instructions, alone, and did not poll the jury to determine the effect of the improper testimony. James v. State, 270 Ga. 675, 677 (4) (513 SE2d 207) (1999).

       Accord Dennis v. State, 263 Ga. 257, 258 (2) (430 SE2d 742) (1993); Griffin v. State, 221 Ga. App. 138, 140 (3) (470 SE2d 744) (1996); Touchton v. State, 210 Ga. App. 700 (437 SE2d 370) (1993); McDaniel v. State, 204 Ga. App. 753, 754 (2) (420 SE2d 636) (1992); Harris v. State, 202 Ga. App. 618, 620 (414 SE2d 919) (1992); Truitt v. State, 168 Ga. App. 616 (1) (309 SE2d 895) (1983).

       Clinical psychologist Eva Lovell, forensic psychologist Campbell, and neuropsychologist William Blackerby.