text:
    A98A1887.
    SAMPLES v. THE STATE.
    (505 SE2d 813)
   Eldridge, Judge.

A Pulaski County grand jury indicted appellant Robert Samples and his co-defendant for the offenses of theft by taking (two counts) and possession of tools for the commission of a crime. The trial court directed a verdict of acquittal as to the two counts of theft by taking. The jury found Samples and his co-defendant guilty of possession of tools for the commission of a crime. Samples appeals from the denial of his motion for new trial.

In the light most favorable to the verdict, the evidence showed the following: On the evening of November 3, 1995, Arthur Woodson observed two males in a small red car pull up in front of Custom Car Care, raise the hood of the car, remove an object from under the hood, and use the object to enter the vending machine located in the front of the building.

James Mason, Jr., an officer with the Hawkinsville Police Department, responded to Woodson’s report. When Officer Mason arrived at the reported address, the car and the men were gone. Shortly thereafter, Officer Mason observed two men standing by the open hood of a small red car parked in front of Jones’ Z-Mart, located about one half-mile from Custom Car Care. When Officer Mason approached them, the car was running. The men lowered, but did not close, the hood of the car, and walked toward Officer Mason, stating that the car was fixed.

Neither man could produce a driver’s license or identification. The two men identified themselves as Bobby Parker and Jerry Lee Butler. It was later determined that Butler’s correct name was Robert Samples. Officer Mason radioed the dispatcher and requested that he run both men’s names through the Georgia Crime Information Center (“GCIC”). There was an active warrant on Parker from another county.

When Officer Mason requested an insurance card, Samples unlocked the glove compartment. The glove compartment “fell open as if it had a real heavy weight in it,” and a brown paper sack rolled to the front. Samples immediately tried to close the glove compartment and told Officer Mason that this was not his car. Officer Mason asked Samples to move away from the car and felt the outside of the bag, concluding it was full of coins. There were also quarters and other coins scattered on the floor and front seat of the car.

The men were placed under arrest and seated in police cars to be taken to jail. The officers then raised the car’s hood and found a set of bolt cutters lying across the engine and a black Bacardi rum bag containing 108 vending machine keys. These keys opened various vending machines in the vicinity, including the vending machines at both Custom Gar Care and Jones’ Z-Mart.

Roger Crosby, the owner of Custom Car Care, testified that the last time he had removed money from the vending machine was approximately 15 to 20 days prior to this incident. When he was called by the police the night of the incident, the vending machine did not contain any money. Crosby estimated that between $50 and $90 had been taken from the vending machine.

1. In his first enumeration, Samples contends that his trial counsel was ineffective. His claims of ineffectiveness, however, are not supported by the record.

(a) Samples contends that his trial counsel was ineffective because he did not object or ask for a mistrial when the State’s witness testified that Samples’ co-defendant had an outstanding warrant from another county. Samples argues that the co-defendant’s character was improperly placed into evidence and that such evidence, also, improperly tainted the jury’s view of him.

Officer Mason’s testimony was that, subsequent to the two men’s arrest, he radioed the station dispatcher and requested that their names be run on GCIC and that a “positive hit” came back on Parker, indicating that there was an active warrant from another county. Even assuming, for the sake of argument only, that such testimony placed Samples’ character in issue, “[a]ll circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.” (Citations and punctuation omitted.) Kirk v. State, 210 Ga. App. 440, 443 (436 SE2d 553) (1993). “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court.” (Citations and punctuation omitted.) Id. “[N]o error is committed by admitting such evidence as part of the res gestae even though it may incidentally have placed appellant’s character in issue. [Cit.]” Overstreet v. State, 182 Ga. App. 809, 811 (2) (357 SE2d 103) (1987).

(b) Samples further contends that his trial counsel was ineffective because counsel did not: (1) seek a mistrial once the court dismissed the two counts of theft by taking; (2) object to the physical evidence related to the theft by taking counts going out with the jury; and (3) request the trial court to instruct the jury not to consider evidence on the theft by taking counts.

“The [S]tate is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial.” (Citations and punctuation omitted.) Altman v. State, 229 Ga. App. 769, 770 (2) (495 SE2d 106) (1997). Possession of tools for the commission of a crime requires the State to prove two elements, possession and intent. Hogan v. Atkins, 224 Ga. 358 (162 SE2d 395) (1968). The evidence before the court on the theft by taking counts was part of the res gestae of the offense of possession of tools for the commission of a crime. Even if Samples had not been indicted for the two counts of theft by taking, the State would be permitted to put up such evidence for the jury’s use in determining Samples’ intent. Such evidence was properly before the jury.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). “To establish a claim of ineffective assistance of counsel, [Samples] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Samples] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citation and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669. Samples “has failed to carry his burden to show affirmatively by the record that counsel’s performance was deficient and that [Samples] was prejudiced as a result thereof.” Dixon v. State, 267 Ga. 136, 138 (2) (475 SE2d 633) (1996); Strickland v. Washington, supra. Accordingly, there was no error.

Decided August 17, 1998.

Genelle, Jennings & Associates, Nicholas E. White, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

2. Samples challenges the sufficiency of the evidence.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Samples guilty beyond a reasonable doubt of the offense of possession of tools for the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Cunningham v. State, 128 Ga. App. 789 (197 SE2d 871) (1973).

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0908.
    SPARKS v. THE STATE.
    (505 SE2d 555)
   Judge Harold R. Banke.

William Antonio Sparks appeals his convictions for burglary and possession of a firearm during the commission of a felony. He challenges the sufficiency of the evidence, claiming his conviction was based upon the uncorroborated testimony of an accomplice. He also contends the trial court erred by denying his motion for a mistrial made after a witness impermissibly placed his character in issue. Held:

1. Although OCGA § 24-4-8 prohibits felony convictions based upon the sole testimony of an accomplice, Sparks’ contention is without merit because his conviction for burglary was not based solely on his accomplice’s testimony. Several witnesses who were not accomplices in the robbery testified that a group of men, including Sparks and his accomplice, Gadson, were in a park smoking and drinking when Sparks and Gadson started talking about robbing someone. Sparks and Gadson left the group and started walking toward the victim’s house. Later, a gunshot was heard and Sparks and Gadson were seen running from the scene. Also, a witness testified that he heard Sparks and Gadson say they were going to rob someone on Seiler Avenue. Another witness testified that on the night in question Sparks asked him for a gun to use in a robbery. Further, the boyfriend of the burglary victim testified that the back door of the house was damaged.

This was sufficient evidence to corroborate Gadson’s testimony that he acted as look out while Sparks kicked in the door. “[Sjlight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. The necessary corroboration may be by circumstantial evidence.” (Citations and punctuation omitted.) Stephenson v. State, 220 Ga. App. 95, 96-97 (3) (469 SE2d 266) (1996).

“The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.” (Citations and punctuation omitted.) Cody v. State, 195 Ga. App. 318 (1) (393 SE2d 692) (1990).

Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Sparks’ contention that the trial court erred by denying his motion for a mistrial is without merit. Sparks contends his motion for a mistrial should have been granted because a witness’ answer placed his character in question.

On direct, the witness testified that Sparks claimed he killed the victim of the burglary. Defense counsel responded to this damaging testimony by attempting to show on cross-examination that this witness did not really believe Sparks’ admission. The witness agreed that he did not believe Sparks had the heart to kill. However, his stated reason for this conclusion was that he and Sparks had limited their activities to numerous less violent crimes such as selling crack and stealing cars.

Decided August 18, 1998.

Savage, Herndon & Turner, Thomas R. Herndon, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

The witness’ answer was made during examination by Sparks’ counsel and this apparently “inadvertent comment in the course of cross-examination . . . does not rise to the level of misconduct condemned in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396).” Martin v. State, 193 Ga. App. 581, 584 (2) (388 SE2d 420) (1989). We do not find from the context of the answer that it was made to intentionally prejudice the jury against Sparks. “‘Trial counsel may not take chances propounding questions which may elicit damaging answers and then demand a mistrial on the basis of [such an] answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore, . . . whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).’ Buxton v. State, 253 Ga. 137, 139 (317 SE2d 538).” Martin v. State, 193 Ga. App. at 584 (2). Under the circumstances, we find no abuse of discretion, and, hence, no error.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


author: Eldridge, Judge.

text:
    A98A1732.
    MEDINA v. THE STATE.
    (505 SE2d 558)
   Eldridge, Judge.

A Henry County jury found Jose Aragon Medina guilty of four counts of child molestation for sexual acts he perpetrated upon an eight-year-old girl. Without challenging the sufficiency of the evidence against him, Medina contends that two errors of law require reversal of his conviction. We disagree and affirm.

1. Medina first challenges the admission of the outcry statements made by the eight-year-old victim to other persons immediately after the incident occurred. Medina contends that, because of alleged inconsistencies, the outcry statements lacked sufficient indicia of reliability to qualify for admission under the Child/Victim Hearsay Statute, OCGA § 24-3-16. This contention lacks merit.

(a) While the trial court must find that the circumstances of a child/victim’s statement provide sufficient indicia of reliability, “such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding.” (Emphasis in original.) Gregg v. State, 201 Ga. App. 238, 239 (3) (a) (411 SE2d 65) (1991).

“Indicia of reliability must spring from the circumstances of the statement. The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” (Citations and punctuation omitted; emphasis supplied.) Gregg v. State, supra at 240-241.

Here, considering the child’s age; the immediacy and spontaneity of the outcry to her mother; the general consistency of her statements to numerous adults trained to work with abused children (police, medical personnel, and a DFACS worker); the lack of time between the incident and the outcry, thereby demonstrating the absence of “coaching”; the child’s fear of the defendant; and the physical manifestations of possible abuse consistent with the child’s statements, we find that the record establishes a sufficient showing of indicia of reliability within the meaning of OCGA § 24-3-16 so as to support the admission of the challenged outcry testimony. Wells v. State, 222 Ga. App. 587, 588 (474 SE2d 764) (1996); Gibby v. State, 213 Ga. App. 20, 23 (443 SE2d 852) (1994). Accordingly, any alleged inconsistencies in the victim’s outcry statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility. See Tidwell v. State, 219 Ga. App. 233, 234 (1) (b) (464 SE2d 834) (1995).

(b) Furthermore, if defense counsel had the opportunity to confront and cross-examine the witness who made the out-of-court statement, the statement was admissible. Calloway v. State, 199 Ga. App. 272, 273 (2) (404 SE2d 811) (1991). “Here, the victim took the stand and testified. [Medina] had the opportunity to and did, in fact, cross-examine the witness who made the out-of-court statement. Thus, the statement was properly admitted.” Duck v. State, 210 Ga. App. 205, 207 (435 SE2d 725) (1993).

2. Although Medina failed to reserve objection to the trial court’s jury charge, he contends that the court’s charge contains “substantial error” because the jury was instructed that child molestation is committed with the intent to arouse or satisfy the sexual desires “of the person [defendant],” rather than the sexual desires “of either the child or the person [defendant].” OCGA § 16-6-4.

Failure to object to a jury charge in a criminal case constitutes a waiver except where, under OCGA § 5-5-24 (c), there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made or not. Maynard v. State, 171 Ga. App. 605 (320 SE2d 806) (1984); Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986); see Crawford v. State, 254 Ga. 435, 438-439, n. 4 (330 SE2d 567) (1985). In order to satisfy this standard, appellant must show that “the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. [Cits.]” Maynard v. State, supra at 606 (2). “[Njothing is presented for consideration on appeal unless ... a gross miscarriage of justice attributable to [the jury charge] is about to result.” (Citations and punctuation omitted.) Foskey v. State, 116 Ga. App. 334, 336 (157 SE2d 314) (1967).

Here, we find no substantial error which would require our review under the exception set forth in OCGA § 5-5-24 (c). On its face, the alleged error in the trial court’s charge to the jury actually benefits Medina: it narrows the scope of the intent necessary to prove child molestation from “the intent to arouse or satisfy the sexual desires of either the child/victim or the defendant,” to “the intent to arouse or satisfy the sexual desires of the defendant only. Further, the trial court’s charge neither removes nor lessens the State’s burden to prove the requisite intent as an essential element of the crime. Compare Jackson v. State, 205 Ga. App. 513, 514 (3) (422 SE2d 673) (1992). Accordingly, Medina’s failure to object to the trial court’s jury instructions presents nothing for this Court to review. Foskey, supra at 336.

Decided August 18, 1998.

Chapman & Pope, Daniel C. Chapman III, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Under the same indictment, Medina was also charged with one count of aggravated child molestation for a sexual act allegedly committed against another child; the jury found him not guilty on that count.

       Overruled on other grounds, Strickland v. State, 223 Ga. App. 772 (479 SE2d 125) (1996).


text:
    A98A1824.
    LASTER v. THE STATE.
    (505 SE2d 560)
   Eldridge, Judge.

A jury convicted the defendant, Robert McCloud Laster, of arson in the first degree by finding him guilty but mentally retarded. He was sentenced to twenty years to serve ten years, balance on probation. The defendant appeals from the trial court’s denial of his motion for new trial.

In the light most favorable to the verdict, the evidence shows the following: On October 8, 1996, at approximately 10:24 p.m., Sergeant Donny Cooper of the Tifton Police Department responded to a call at the Tifton Cinema Six Theater. The defendant, Daniel Green, and James Lee Couson were creating a disturbance and smoking in violation of the theater’s regulations. They had refused to obey the manager’s request to leave. When Officer Cooper requested that they leave the theater, the defendant and Couson left. Green, however, charged at the manager and shoved him. Green was arrested. Officer Cooper testified that, as he was placing Green in the police car, the defendant and Couson turned around and “started coming back like they were going to help him out[.]” Officer Cooper directed the defendant and Couson to leave the premises. After hesitating a few seconds, they left.

Couson was called as a witness for the State. He testified that, once he and the defendant left the premises of the theater, they went to a nearby Pizza Hut and then went to Foodmax and purchased “two jugs of water,” emptied the water from the containers, and filled the containers with gasoline at a nearby gas station. After filling the containers with gasoline, the defendant and Couson walked to the Video Warehouse and the bowling alley and then went back to the Cinema Six Theater with the intention to set it on fire. The defendant carried one container of gasoline and Couson carried the other. When they arrived at the theater, the defendant poured the gasoline on the outer wall of the theater and set the gasoline on fire with a match.

In a statement to the police, the defendant admitted buying the gasoline but stated he purchased it for a friend whose name he did not know. The defendant stated that he and Couson thought about burning down the theater, but decided not to because they were both on probation and did not want to go to jail. The defendant stated that he and Couson took the gasoline they purchased back to the friend.

Paul Boyd and Adam Smith, firefighters for the City of Tifton Fire Department, responded to the fire at the theater. Both testified that the burned area smelled of gasoline and the burn pattern indicated a fire that was started by gasoline. Mitch Williams, an investigator with the Tifton Police Department, took samples of the grass and stucco near the burned area of the theater and sent it to the Georgia Bureau of Investigation for testing. Brian Hargrett of the Georgia Bureau of Investigation testified that the tests he performed on the grass and vegetation samples revealed the presence of gasoline.

1. The defendant challenges the sufficiency of the evidence. “On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offense for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The defendant further alleges that his character was improperly placed into evidence by the State and that the trial court erred in denying his motion for mistrial.

During the State’s direct examination of Sergeant Cooper, the following testimony was given: “Q. Did you just state that you recognized this defendant? A. Yes, sir, he was wearing glasses like he is now at the theater that time. Q. Okay sir. A. At the revocation hearing, he wasn’t wearing glasses.” The defendant made a motion for a mistrial, which was denied by the trial court. No curative instructions were requested or given.

“[T]he decision of whether such [statement is] so prejudicial as to warrant a mistrial is left to the discretion of the trial court. On appeal, our inquiry must focus on whether the trial court abused that discretion, which includes consideration of the nature of the statement, the other evidence introduced during the trial, and the action taken by the court and counsel concerning the impropriety.” (Citations and punctuation omitted.) Ranalli v. State, 197 Ga. App. 360, 364 (398 SE2d 420) (1990).

Decided August 18, 1998.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.

The evidence that the defendant had previously been on probation was properly admitted as part of the defendant’s statement to the police. Sergeant Cooper read the statement defendant made to him to the jury. In such statement, the defendant stated that he and Couson decided not to burn down the theater because they were both on probation and did not want to go to jail. “Proof of the same facts by legally admissible evidence renders harmless any admission of inadmissible evidence. [Cits.]” (Punctuation omitted.) Smith v. State, 196 Ga. App. 758 (396 SE2d 809) (1990); Crawford v. State, 178 Ga. App. 739 (344 SE2d 533) (1986). Accordingly, it was not error to deny the defendant’s motion for a mistrial.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A1847.
    ZEBLEY v. THE STATE.
    (505 SE2d 562)
   Eldridge, Judge.

Deserae Dawn Zebley appeals from a Lowndes County trial court’s order of restitution.

Zebley was charged with one count of robbery and one count of aggravated assault. She entered a non-negotiated plea of guilty to both counts. The trial court sentenced Zebley to ten years, serve two, balance probated. As conditions of probation, the court ordered Zebley to pay a $20 probation supervision fee; a $1,000 fine; reimbursement for county-paid attorney fees; and restitution to “Emily Spikes in the amount of $500.00, to Progressive Insurance Company in an amount to be determined, to Angela Miller in the amount of $4,492.00, and to Scott Avery in the amount of $1,247.25, to be paid jointly and severally with co-defendant[.]” The record does not show that the trial court considered the factors outlined in OCGA § 17-14-10 when ordering restitution. Held:

1. Zebley contends that the trial court erred by (a) failing to consider the factors enumerated in OCGA § 17-14-10 prior to ordering restitution and (b) failing to make specific written findings of fact with regard to the factors enumerated in OCGA § 17-14-10.

(a) As part of the Restitution Act, Ga. L. 1980, p. 1382, OCGA § 17-14-10 states that “[i]n determining the nature and amount of restitution, the ordering authority shall consider: (1) The present financial condition of the offender and his dependents; (2) The probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (6) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.”

Decided August 18, 1998.

Loyce W. Turner, Jr., for appellant.

This Court has determined that the provisions of OCGA § 17-14-10 should be considered in cases where restitution has been imposed pursuant to the entry of a non-negotiated guilty plea. Fonseca v. State, 212 Ga. App. 463 (441 SE2d 912) (1994). This is such a case, and there is no evidence in the record of such consideration. Accordingly, we reverse that portion of Zebley’s sentence regarding payment of restitution and remand.

(b) Upon remand and prior to ordering restitution, the record should reflect the trial court’s consideration of the factors enumerated in OCGA § 17-14-10. See Cardwell v. State, 225 Ga. App. 337 (484 SE2d 38) (1997). See also OCGA § 17-14-8 (b).

2. Appellant also raises a double jeopardy challenge to the imposition of restitution to Progressive Insurance Company. Zebley argues that since the trial court initially ordered restitution thereto “in an amount to be determined,” the subsequent naming of a definite dollar amount to be paid to Progressive Insurance would be an “increase in punishment” to which she did not agree, as proscribed by the Supreme Court of Georgia in Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992). This contention is meritless. A trial court may “defer[ ] the initial decision on the amount of restitution until a later hearing[.]” Id. at 861, n. 1; see also McKerley v. State, 214 Ga. App. 529, 530 (448 SE2d 85) (1994). The Supreme Court’s decision in Harris v. State addressed a situation in which a specific dollar amount of restitution was ordered and then increased after service of sentence had begun. That is not the case herein.

Order of restitution vacated and case remanded for disposition not inconsistent with this opinion.

McMurray, P. J., and Blackburn, J., concur.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

       We note that Zebley’s sentence of restitution, alone, is affected by this decision; incarceration, probation, fines, probation fees, and reimbursement for attorney.fees are not affected hereby.


text:
    A98A1332.
    NAMETH v. THE STATE.
    (505 SE2d 778)
   Judge Harold R. Banke.

At the conclusion of a bench trial, Daniel G. Nameth, Jr., was convicted of driving under the influence. On appeal, Nameth enumerates two errors.

The evidence, when viewed in a light most favorable to the verdict, showed that Nameth was stopped at a routine roadblock. As Georgia State Patrol Trooper, J. C. Brown, asked Nameth to produce his license and insurance card, Brown detected a strong odor of alcoholic beverage coming from inside Nameth’s Jeep. Brown saw that Nameth had two passengers and spotted an open beer bottle in the console. At that point, Brown directed Nameth to pull over onto the shoulder and asked him to step from his vehicle. Although Brown detected a strong odor of alcoholic beverage emitting from Nameth’s person, Nameth initially denied consuming any alcohol. But when Brown stared at him, Nameth volunteered to having had one beer. After Brown obtained a positive reading on a portable alcosensor, Nameth admitted to having consumed five beers, whereupon Brown administered two field sobriety tests. Nameth, however, was not able to successfully execute the one-leg stand and walk and turn tests. After Nameth failed the two field tests, Brown arrested him and advised him of his implied consent rights. Brown testified that he would not have placed Nameth under arrest solely on the basis of the alcosensor result. While in custody, Nameth adamantly refused to submit to further testing. The trial court admitted testimony about a prior DUI incident because the court found that in the absence of scientific evidence of Nameth’s blood alcohol concentration in this case, evidence of Nameth’s course of conduct and bent of mind was being offered for a proper purpose. Held:

1. Nameth contends that the trial court erred by admitting evidence of a prior nolle prossed DUI which did not prove any material element in dispute and for which the State failed to show a proper purpose for its admission. We disagree. Evidence that Nameth had previously operated a vehicle while under the influence of alcohol was relevant to prove bent of mind or course of conduct indicating that Nameth would attempt to drive notwithstanding his prior consumption of alcoholic beverages. Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996); Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

Decided August 7, 1998

Reconsideration denied August 19, 1998.

William C. Head, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

2. Nameth contends that evidence from the field sobriety tests should have been excluded because he had not been warned of his rights against self-incrimination. Brown testified without contradiction that he believed that he lacked sufficient grounds to arrest Nameth until after Nameth failed the field sobriety tests. In these circumstances, Nameth was not in custody at the time of the field testing, so warnings against self-incrimination were not required. State v. Pastorini, 222 Ga. App. 316, 318 (1) (474 SE2d 122) (1996); Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988). Compare Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (where defendant told she was going to jail regardless of performance on field evaluations, she was in custody).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Initially, Nameth attempted to contest the propriety of the roadblock under Fourth Amendment jurisprudence, but the Supreme Court transferred this case after noting that the law was well-settled on that issue.


author: McMurray, Presiding Judge.

text:
    A98A0886.
    JOHNSON v. THE STATE.
    (506 SE2d 189)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of robbery by intimidation. The evidence adduced at trial reveals that a man approached, threatened and robbed the victim while the victim was fueling his car at a service station at about 9:45 in the evening on July 15, 1996. Although the robber fled with the victim’s wallet, defendant was apprehended and identified by the victim as his assailant less than eight minutes after the robbery. The next morning, an officer found the victim’s wallet in the police car where defendant had been seated.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. The victim’s identification testimony, as well as proof that the victim’s wallet was found in the police car where defendant was seated, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided August 19, 1998.

Randall, Nestor & Spivey, Brian T. Randall, Stacey Nestor, for appellant.

2. Defendant contends the trial court erred in allowing the victim to identify him at trial as the perpetrator of the crime charged, arguing that the victim’s perception was unfairly influenced by an on-the-scene showup procedure.

Pretermitting whether this showup procedure was “ ‘ “unduly permissive (see generally State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915))(, the controlling issue) [in the case sub judice] is whether any procedure resulted ‘in a very substantial likelihood of irreparable misidentification.’ The factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: ‘(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).’ (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).” Montgomery v. State, 210 Ga. App. 147, 148 (3a) (435 SE2d 510).’ Lampkin v. State, 213 Ga. App. 589, 592 (1) (445 SE2d 324).” Jones v. State, 220 Ga. App. 236 (1) (469 SE2d 379).

In the case sub judice, the victim testified that the robber was standing directly in front of him; that the gas station was well lighted at the time of the robbery; that he examined the robber’s face for “a second or two seconds”; that this view was enough for him to get a “good look” at his assailant, and that his training as a “Wells Fargo” security officer focused his attention on the robber’s appearance. Further, the record shows that the victim’s on-the-scene description of his assailant’s clothing matched the clothing defendant was wearing on the night of the robbery; that the showup procedure was conducted only minutes after the victim was robbed, and that the victim immediately identified defendant as his assailant at the on-the-scene showup procedure. This evidence, and the victim’s positive trial testimony that defendant was the perpetrator of the crime charged, authorizes the trial court’s finding that there is “no possibility for a misidentification in this case.” Accordingly, the trial court did not abuse its discretion in allowing the victim’s identification testimony at trial. See Hood v. State, 216 Ga. App. 106, 107 (2) (453 SE2d 128).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Charles H. Weston, District Attorney, Jeffrey N. Powers, Myra Y. Christian, Assistant District Attorneys, for appellee.


text:
    A98A0907.
    PIRKLE v. THE STATE.
    (506 SE2d 186)
   McMurray, Presiding Judge.

Defendant Pirkle appeals his conviction of the offense of child molestation. Held:

1. The first two enumerations of error are predicated upon the admission of testimony concerning statements made by defendant to his then wife. The statements could be viewed as admissions by defendant of conduct amounting to the crime of which defendant was convicted. Defendant argues that these statements were confidential communications between husband and wife, and therefore inadmissible under OCGA § 24-9-21. One enumeration of error is directed to the wife’s testimony concerning defendant’s statement to her. The other enumeration of error is directed to testimony of the former wife’s brother concerning what he heard after she asked defendant to repeat what he had said to her during a telephone conversation and then handed the telephone to the brother.

Defendant’s reliance upon OCGA § 24-9-21, which was formerly Ga. Code § 38-418 (1), is misplaced in that he fails to acknowledge the modification of that statute by the 1957 amendment of Ga. Code § 38-1604, now OCGA § 24-9-23. Under the statutory scheme since that change, defendant’s former wife is a competent witness and it is only where the witness is not competent under the statute that objections to the witness testifying may be made by a party. See Hubbard v. State, 145 Ga. App. 714, 715 (1) (b) (244 SE2d 639). While the wife could not be compelled to testify, the record shows that she testified freely and under no compulsion so that it will be presumed that she did so pursuant to a waiver of her privilege. Kellar v. State, 226 Ga. 432 (1) (175 SE2d 654); Mapp v. State, 191 Ga. App. 622 (2) (382 SE2d 618).

The arguments advanced by defendant also fail to consider that the privilege created by OCGA § 24-9-23 (a) does not apply in proceedings, such as this, in which the husband or wife is charged with a crime against the person of a minor, albeit testimony is compellable only with respect to the specific act for which the defendant is charged. See OCGA § 24-9-23 (b).

And finally, McKie v. State, 165 Ga. 210 (140 SE 625), cited by defendant, had no application to the case sub judice since it was decided under the former statutory scheme and therefore premised on the supposition that defendant’s former wife could not be a competent witness against him. As there was no statutory privilege or public policy opposing the admission of the evidence of which defendant complains, these enumerations of error lack merit.

2. A psychologist was permitted, over defendant’s hearsay objection, to testify as to statements made to him by the victim. While defendant argues that the statements were not admissible pursuant to OCGA § 24-3-16 because the victim was over the age of 14 years at the time the statements were made, this does not affect the admissibility of this testimony under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661), which allows admission of a prior consistent statement of a witness who, such as the victim, testified under oath at trial and was subject to cross-examination. See also Richardson v. State, 256 Ga. 746, 747 (353 SE2d 342); Smith v. State, 228 Ga. App. 144, 145 (491 SE2d 194); Perkins v. State, 226 Ga. App. 613, 614 (1), 615 (487 SE2d 365).

3. In response to a direct examination question as to what he had done when the victim became reluctant to give specific details as to what had happened to him, the psychologist stated that “my tendency and what I have done is backed off. By the time I had decided to conduct therapy with [the victim] for child molestation I felt comfortable that that was what I was treating. . . .’’No contemporaneous objection was made to this testimony, but defendant subsequently moved for mistrial on the basis that this evidence was an improper expression of the expert witness’s opinion on the issue of whether the victim had been sexually abused since the jury was capable of determining from the evidence of record whether the victim was in fact molested by defendant. See Allison v. State, 256 Ga. 851, 853 (5), (6) (353 SE2d 805). Due to the absence of a contemporaneous objection, reversal on this ground is not appropriate. Id. at 853 (7).

We also note that the probability of any harm to defendant due to this testimony is extremely remote due to the curative instruction given to the jury following defendant’s motion for mistrial. The jurors were instructed that the psychologist was not allowed to offer an opinion as to whether the alleged victim had been molested or whether defendant committed an act of child molestation, and that such determinations were for the jurors to make.

4. Defendant enumerates as error the admission of similar transaction testimony from defendant’s sister because of remoteness. Defendant’s thirty-year-old sister testified as to being molested by him from the age of five until she was fifteen or sixteen years of age. The sixteen-year-old victim testified as to being molested by defendant from the age of six years. Thus, the interval of time from the most recent similar transaction until trial was fifteen years or less, and the interval between the most recent similar transaction and the first molestation of the victim of the crime charged was five years or less. These intervals of time fall well within the limitations established by Gilstrap v. State, 261 Ga. 798, 799 (1) (410 SE2d 423). In view of the liberal construction of the similar transaction rules in cases involving sexual offenses and particularly with respect to cases such as this showing the sexual exploitation of family members through successive generations, the passage of time goes to weight and credibility but does not render the similar transaction evidence inadmissible. Nichols v. State, 221 Ga. App. 600, 602 (3) (473 SE2d 491); Bryson v. State, 210 Ga. App. 642, 643 (2) (437 SE2d 352).

Decided August 19, 1998.

Edmund A. Waller, for appellant.

Lydia J. Sartain, District Attorney, for appellee.

5. In the final enumeration of error, defendant maintains that the trial court erred in allowing the similar transaction testimony from his sister to be introduced prior to the conclusion of the State’s evidence. In Gilstrap v. State, 261 Ga. 798, 799 (2), supra, the Supreme Court of Georgia found that allowing the State to introduce nine similar transactions from witnesses other than the victim before introducing evidence concerning the crimes charged raised a substantial possibility the jury could have settled upon the guilt of that defendant based solely upon the similar transaction evidence. Nonetheless, the Supreme Court of Georgia acknowledged the discretion of a trial court as to the order of admission of evidence and declined to determine the outer limit of that discretion in that case.

The case sub judice is factually distinguishable from Gilstrap in that here the victim testified as to the crime charged prior to the introduction of the similar transaction evidence. This factual distinction alone is sufficient to remove the case sub judice from the concerns expressed by the Supreme Court of Georgia in Gilstrap. Accord Charo v. State, 206 Ga. App. 297, 298 (1) (424 SE2d 900).

Additionally, we note that prior to admission of the similar transaction evidence, the trial court conducted a hearing in compliance with the requirements of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649). Also, the trial court determined that the victim’s testimony alone was sufficient to support admission of the similar transaction under the limited evidentiary purpose for which the jury may consider it. We find no merit in defendant’s argument that the trial court was required to hear all of the State’s evidence as to the offense charged before determining whether to admit the similar transaction evidence.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0954.
    PARKER v. THE STATE.
    (506 SE2d 191)
   Judge Harold R. Banke.

Paul Steven Parker was convicted of trafficking in cocaine. He enumerates two errors on appeal.

This case arose after two officers stopped Parker for failing to maintain a single lane of traffic. As the officers peered into Parker’s car through both front windows, they noticed on the passenger’s seat an open brown paper bag containing a plastic zip-lock bag holding rocks of cocaine, individually wrapped in clear plastic. One of the officers asked Parker to get out of the car and inquired whether there were any intoxicating substances in the vehicle. Parker responded in the negative and consented to a search of the car, during which the officers found 100 grams of cocaine in the bag. Held:

1. Parker argues that the trial court erred in denying his motion to suppress because the evidence was insufficient to show that he consented to the search or the cocaine was in plain view. The record refutes these contentions.

Viewed in the light most favorable to the verdict, the evidence established that the search was permissible under either theory. Buffington v. State, 229 Ga. App. 450, 452 (494 SE2d 272) (1997). The arresting officer’s testimony that Parker invited him to search the car is sufficient to support a finding of consent, notwithstanding Parker’s denial of that fact. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Evidence that the officers saw the cocaine in the brown paper bag while peering into the car after a traffic stop satisfies the requisites of a plain view search. See Talley v. State, 200 Ga. App. 442, 444 (3) (b) (408 SE2d 463) (1991). This testimony requires us to affirm the trial court’s findings despite what Parker characterizes as conflicting testimony. Tate, 264 Ga. at 54 (1) (appellate courts lack authority to reweigh the evidence). The evidence presented, particularly the testimony describing the bag’s condition when the cocaine was first seen, rendered any error arising from the loss of the brown paper bag harmless. See Mullins v. State, 258 Ga. 734, 735 (2) (374 SE2d 530) (1988).

2. Parker argues that he lacked actual or constructive possession of the cocaine because he was driving a car an acquaintance had rented. We disagree.

Here, Parker was the sole occupant of the vehicle and the cocaine sitting on the passenger seat was so obviously visible that two officers peering into the windows recognized it. These facts distinguish Whipple v. State, 207 Ga. App. 131 (1) (427 SE2d 101) (1993), on which Parker relies. The evidence presented establishes far more than mere presence. Compare id.; see Parris v. State, 226 Ga. App. 854, 855 (487 SE2d 690) (1997).

Decided August 19, 1998.

Rubin, Winter, Rapoport & Hall, Joseph M. Winter, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A98A1023.
    MULLIS v. SPEIGHT SEED FARMS, INC.
    (505 SE2d 818)
   Blackburn, Judge.

Eugene Mullís, pin-chaser of tobacco seed, sued Speight Seed Farms, Inc., the seed manufacturer, for damages resulting from allegedly defective seed. The trial court granted summary judgment to Speight, and Mullís appeals. For the reasons that follow, we reverse.

On appeal from a trial court’s grant of summary judgment, the evidence is reviewed de novo. Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that no genuine issue of material fact remains for trial and that the undisputed facts and inferences reasonably drawn therefrom, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Gentile, supra at 736-737.

Viewed in this light, the record reveals these pertinent facts: In November 1994, Mullís, a commercial tobacco farmer, telephoned Ellenton Farm Supply and ordered a quantity of Speight’s G-70 tobacco seed. Neither Mullís nor Ellenton’s employee discussed whether the seed was sold subject to any limitation of warranty or remedy. They only discussed seed variety and price. After Mullís picked up his seeds from Ellenton, he read certain information on the label, which led him to believe he needed more seed than originally planned. He did not, however, read the limitations of warranty and remedy printed on the label. The label on the seed can provided: “NOTICE TO PURCHASER: Speight Seed Farms (“Speight”) warrants that, at the time of delivery, the seeds in this container conform to the label description as required under state and federal laws. Speight makes no other warranties whether written, oral, statutory, express or implied, including but not limited to warranty of merchantability, fitness for a particular purpose, or otherwise, that would extend beyond such descriptions contained herein. In any event, Speight’s liability for breach of any warranty with respect to such seeds shall be limited to the purchase price. Purchaser assumes the risk for results obtained, from use of such seeds, including but not limited to the condition under which the seeds are planted, germinated, or grown.”

Mullis placed a second seed order in December 1994. Again, warranties were not discussed. Mullis planted the seed. The following spring, Mullis’ tobacco fields failed to produce as anticipated, and only about 15 percent of the seed germinated and produced viable plants. Mullis and other farmers attributed the crop failure to the improper pelleting of the tobacco seed.

Mullis filed suit against Speight and others contending the seed was defective and caused economic losses to him in excess of $15,000. Speight moved for summary judgment, contending that Mullis could recover only under a warranty theory; that Speight had effectively limited its warranties, including the warranty of merchantability and fitness for a particular purpose in its disclaimer printed on the seed can; and, that if Speight was liable under a breach of warranty theory, Mullis could recover only his purchase price because his remedies had been so limited in the disclaimer. The superior court granted Speight’s motion, finding that the limitations and disclaimers on the seed label were neither unconstitutional nor unconscionable. Whether the warranty disclaimer and limitation of remedies provisions found on Speight’s label are unconscionable is an issue of first impression in Georgia.

Although a seller may exclude or modify warranties, see OCGA § 11-2-316, and limit available remedies, see OCGA § 11-2-719, the court, as a matter of law, can find that any clause of the contract is unconscionable and refuse to enforce the clause or the contract. See OCGA § 11-2-302. See also NEC Technologies v. Nelson, 267 Ga. 390 (478 SE2d 769) (1996) (discussing unconscionability with regard to an exclusion of incidental and consequential damages resulting from use of a television set). Additionally, OCGA § 11-2-719 (2) requires that the limitation of remedy must not “fail of its essential purpose.” Other jurisdictions have also determined that warranty disclaimers made pursuant to UCC § 2-316 are limited by the conscionability requirement in UCC § 2-302. See Martin v. Joseph Harris Co., 767 F2d 296, 299 (6th Cir. 1985) and Schmaltz v. Nissen, 431 NW2d 657, 661-662 (S.D. 1988). Such cases rely on § 2-302’s specific application to “any clause” of a contract and § 2-316’s failure to expressly exclude application of § 2-302’s requirements. See Martin, supra at 299.

Speight relies on NEC Technologies, supra (television set), McCrimmon v. Tandy Corp., 202 Ga. App. 233 (414 SE2d 15) (1991) (computer hardware and software), and Apex Supply Co. v. Bendow Indus., 189 Ga. App. 598 (376 SE2d 694) (1988) (piping), for its position that its limitation of remedy provision should be upheld as valid. However, such cases are distinguishable as they involve products such as television sets, computers, and piping, the value of which is established by the product itself, rather than agricultural seeds, the value of which is established by the plant grown from the seed. In other words, Mullis was forced to expend substantial sums of money for bed preparation, fumigation, plastic covering for the seed beds, labor, fertilizer, and irrigation, before the seed was of any benefit to him. Additionally, products such as television sets, computers, and piping are subject to repair or replacement remedies, whereas a failed crop is not repaired or replaced by the original cost of the seed. The Supreme Court of Georgia has noted that a determination of unconscionability must be made “in the light of the general commercial background and the commercial needs of the particular trade or case” (Punctuation omitted; emphasis supplied.) NEC Technologies, supra at 391. Therefore, Speight’s reliance on cases involving television sets, computers, and piping is misplaced.

“It has been recognized that ‘unconscionability’ as set forth in UCC § 2-302 is ‘not a concept, but a determination to be made in light of a variety of factors not unifiable into a formula.’ (Footnote and emphasis deleted.) Vol. 1, White & Summers, Uniform Commercial Code (4th ed.), p. 213, § 4-3. See also A & M Produce Co. v. FMC Corp., 186 Cal. Rptr. 114, 120 (App. 1982) (unconscionability is ‘a flexible doctrine designed to allow courts to directly consider numerous factors which may adulterate the contractual process’). Foreign courts have generally divided the relevant factors into procedural and substantive elements. See UCC-Unconscionable Warranty Disclaimer, 38 ALR4th 25, §§ 2, 3 (a) (b). Procedural unconscionability addresses the process of making the contract, while substantive unconscionability looks to the contractual terms themselves. Id.; White & Summers, supra. A non-inclusive list of some factors courts have considered in determining whether a contract is procedurally unconscionable includes the age, education, intelligence, business acumen and experience of the parties, their relative bargaining power, the conspicuousness and comprehensibility of the contract language, the oppressiveness of the terms, and the presence or absence of a meaningful choice. See, e.g., Fotomat Corp. of Fla. v. Chanda, 464 S2d 626, 629 (Fla. App. 5th Dist. 1985); Wille v. South western Bell Tel. Co., 549 P2d 903, 906-907 (Kan. 1976) (commercial transaction); Schroeder v. Fageol Motors, 544 P2d 20, 23 (Wash. 1975). See also White & Summers, supra, p. 215, § 4-3, fn. 15. As to the substantive element of unconscionability, courts have focused on matters such as the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and similar public policy concerns. See, e.g., Fotomat Corp. of Fla. v. Chanda, supra, 464 S2d at 629; A & M Produce Co. v. FMC Corp., supra, 186 Cal. Rptr. at 122 (commercial transaction). See also White & Summers, supra, §§ 4-4 through 4-6.” NEC Technologies, supra at 391-392.

“The procedural element focuses on two factors: ‘oppression’ and ‘surprise.’ ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’ ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” (Citations omitted.) A & M Produce Co. v. FMC Corp., supra, 186 Cal. Rptr. at 121-122.

In the present case, Mullis is a farmer, not a professional seed merchant. Mullis purchased the seed over the telephone during a conversation in which only the seed variety and price were discussed. Speight’s president deposed that Speight does not negotiate warranty terms with any customers. Mullis, “like most farmers, was not in a position to bargain for more favorable contract terms, nor was he able to test the seed before the purchase. A crop failure is inevitable if the [tobacco] seed is ineffective and to enforce the provisions here in question, which would only allow the return of the purchase price, would leave [Mullis] without any substantial recourse for his loss. In essence, [Mullis] would be left without a remedy for another’s breach.” Hanson v. Funk Seeds Intl., 373 NW2d 30, 35 (S.D. 1985).

With regard to the surprise factor, at the time the contract was made to purchase the seed over the telephone, Mullis was not made aware of the warranty disclaimer or the limitation of remedies provisions. Additionally, considering the substantive element of unconscionability, it is apparent that the allocation of risk for ineffective seeds is better shouldered by the manufacturer of the seed, rather than the consumer. The consumer does not have the ability or resources to test the seed prior to its use; however, the manufacturer does. Furthermore, the farmer is required to expend large sums of money before any defect in the seed is noticeable, and once a defect is found an entire year’s crop might be worthless. Once the crop has failed, the farmer’s only recourse is monetary compensation to cover his lost profit and expenditures; replacement and repair are not viable options. The manufacturer is also in a better position to allocate the cost of testing among all consumers of its product.

Our review of this area of law in other jurisdictions revealed a substantial number of cases wherein warranty disclaimers and limitation of remedy provisions were found to be unconscionable in similar factual settings such as the purchase of seeds for crops or pesticides to control weeds on crops grown for commercial purposes. See Lutz Farms v. Asgrow Seed Co., 948 F2d 638 (10th Cir. 1991) (limitation of remedies provision on onion seed labels- and invoice was unconscionable as it failed of its essential purpose); Martin v. Joseph Harris Co., supra (disclaimer of warranty and limitation of remedy clause used by cabbage seed producer were unconscionable under Michigan law due to unequal bargaining position between farmer and seed producer, existence of latent defect in seed, and seed producer’s knowledge of potential defect); Schmaltz v. Nissen, supra (disclaimer of warranty and limitation of remedy used by sorghum seed manufacturer were unconscionable as they left farmer without substantial redress for loss); Hanson v. Funk Seeds Intl., supra (court found warranty disclaimer and limitation of remedy provision unconscionable in action by farmer against seed corn supplier because farmer not in position to bargain or able to test seed and enforcement of such provisions would leave farmer without a remedy); Durham v. Ciba-Geigy Corp., 315 NW2d 696 (S.D. 1982) (court determined that disclaimer of warranty and limitation of consequential damages found on pesticide’s pre-printed label were unconscionable and contrary to public policy as they left consumer without substantial recourse for loss); Mallory v. Conida Warehouses, 350 NW2d 825 (Mich. App. 1984) (court found limitation of remedy to purchase price of red kidney bean seed was unconscionable). Compare Jones v. Asgrow Seed Co., 749 FSupp. 836 (N. D. Ohio 1990) (limitation of liability not unconscionable where limitation was conspicuous, buyer was experienced commercial tomato seed buyer, not an ordinary consumer, and seed contained undiscoverable latent defect); Nunes Turfgrass v. Vaughan-Jacklin Seed Co., 246 Cal. Rptr. 823 (1988) (seller’s limitation of consequential damages clause in sales confirmation for sale of commercial sod seed mix was not unconscionable where both buyer and seller were large commercial entities familiar with sod seed business and had done business together for 20 years). But see A & M Produce Co. v. FMC Corp., supra (disclaimer of warranties and exclusion of consequential damages contained in form contract selling farming equipment were unconscionable).

Based on the foregoing, we find Speight’s disclaimer of warranty and limitation of remedies provisions to be unconscionable and unenforceable under the facts of this case. Therefore, the trial court erred in granting Speight’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.

Decided August 19, 1998

Sellers & Prevail, Ernest A. Sellers, Jr., for appellant.

       OCGA § 11-2-302 provides: “(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.”


text:
    A98A1047.
    A98A1869.
    LA PETITE ACADEMY, INC. v. PRESCOTT et al. LA PETITE ACADEMY, INC. v. O. M. ENTERPRISES OF LOUISVILLE, INC. et al.
    (506 SE2d 183)
   Blackburn, Judge.

La Petite Academy, Inc. sued O. M. Enterprises of Louisville, Inc. and Georgia/Florida Children Today, Inc. for tortious interference with business relations. The trial court granted summary judgment in favor of the defendants, and it also entered an award against La Petite for the defendants’ attorney fees and costs pursuant to OCGA § 9-15-14. In separate appeals which have been consolidated herein, La Petite contends that both orders of the trial court were erroneous.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must .demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to ány essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“To recover under a theory of tortious interference with business relations, [La Petite] must demonstrate financial injury and must show that [O. M. Enterprises and Children Today]: acted improperly and without privilege; acted purposely and with malice with intent to injure; and induced a third party or parties not to enter into or continue a business relationship with [La Petite].” (Punctuation omitted.) Strahley v. Pruitt Corp., 231 Ga. App. 502, 506 (2) (498 SE2d 78) (1998). La Petite has not satisfied this burden.

La Petite is an organization which owns and operates child care centers throughout the United States, and the defendants are competitors of La Petite in this industry. In December 1994, La Petite fired its real estate broker, Jerry Prescott, with whom it had contracted to find property to house its centers. Subsequently, Prescott contracted with Children Today to provide similar brokerage services. In September 1995, Prescott acted as an agent for Children Today in the latter’s attempt to rent certain Florida property which, at that time, was rented by La Petite and coming up for renewal. This bid by Children Today ultimately failed, and La Petite renewed its rental agreement. After being terminated by La Petite, Prescott also wrote letters to a number of La Petite’s lessors in which he offered to negotiate on the lessors’ behalf against La Petite or find different competitors to lease the underlying properties. There is no evidence, however, that O. M. Enterprises or Children Today had any involvement with the drafting or transmittal of these letters.

Although La Petite contends that O. M. Enterprises and Children Today tortiously interfered with the renewal of one of its leases resulting in the restructuring of said lease to its financial detriment, La Petite has failed to cite any part of the record which supports its claim. The evidence cited by La Petite shows only that Children Today made a bid to lease certain property currently under lease by La Petite when said lease came up for renewal. David Anglewicz, executive vice president of La Petite, deposed that Children Today “tried to take [the lease] away from us. And we had an agreement with that landlord. And then we had to come up with a new agreement, which cost La Petite more money.” However, Anglewicz further deposed that the renewal “agreement” was not final and remained subject to approval in La Petite’s home office.

La Petite’s evidence merely shows that Children Today made a bid on the property in the normal course of a competitive real estate market. Moreover, La Petite ultimately did renew the lease in question, so La Petite’s business relationship with its lessor was not discontinued. Accordingly, La Petite’s claim for tortious interference with business relations cannot stand under Lau’s Corp., supra, and the trial court properly granted summary judgment in favor of O. M. Enterprises and Children Today.

2. La Petite also contends that the trial court erroneously granted O. M. Enterprises’ and Children Today’s motion for attorney fees pursuant to OCGA § 9-15-14 against La Petite.

“OCGA § 9-15-14 (a) provides that the trial court shall award reasonable and necessary attorney fees where the offending party’s position lacked any justiciable issue of law or fact so that it could not be reasonably believed that a court would accept it. OCGA § 9-15-14 (b) provides that the trial court may assess attorney fees if the action brought or defended lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct. OCGA § 9-15-14 (a) provides for a mandatory award of attorney fees. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary[,] and the standard of review is abuse of discretion.” (Punctuation omitted.) C. A. Gaslowitz & Assoc. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

The trial court entered two orders with regard to the award of attorney fees in this case: an original order on April 10, 1998, and an amended order on April 21, 1998. As La Petite filed its notice of appeal with this Court on April 20, 1998, the trial court was divested of its jurisdiction at the time that the second order was issued, and we do not consider it. Deans v. Dain Mgmt., 201 Ga. App. 466, 468 (411 SE2d 354) (1991).

The trial court’s original order in this case recites only that, “[a]fter consideration of argument of counsel, materials and pleadings on file, and the study of applicable law . . . [t]he court awards attorney’s fees to the defendants ... in the amount of $11,714.75.” Such order fails to point out examples of La Petite’s conduct which would support the award under the standards set forth under OCGA § 9-15-14 (e.g., La Petite pursued claims it could not reasonably believe that a court would accept, etc.). Without identifying the conduct giving rise to the award of attorney fees, “[t]his purported finding is entirely too vague and conclusory to permit any meaningful appellate review of the award of attorney fees and expenses of litigation under OCGA § 9-15-14 (a). Although the record in the case sub judice may reveal conduct authorizing an award in some amount, it is incumbent upon the trial court to specify that conduct.” Aycock v. Re/Max of Ga., 221 Ga. App. 587, 589-590 (2) (472 SE2d 137) (1996). Therefore, the “court’s order awarding attorney fees must be vacated. Upon remand the . . . court is directed to reconsider the award of attorney fees and expenses of litigation under OCGA § 9-15-14, enter appropriate findings of fact, and enter a new judgment from which the losing party may appeal.” Shimshi v. A. G. Spanos Dev., 228 Ga. App. 669, 670 (492 SE2d 531) (1997).

Decided August 19, 1998.

Warren R. Hinds, for appellant.

Paul D. Hermann, Thomas E. Lavender III, for appellees (case no. A98A1047).

Fellows, Johnson, Davis & La Briola, Henry D. Fellows, Jr., Shawn M. Willette, for appellees (case no. A98A1869).

Judgment affirmed in Case No. A98A1047. Judgment vacated and remanded with direction in Case No. A98A1869.

McMurray, P. J., and Eldridge, J., concur.

       Although La Petite brought the same claim, along with several others, against Jerry C. Prescott, Heritage Commercial Realty, Inc., and Heritage Commercial Ventures, Inc., La Petite entered into a settlement with such parties after filing this appeal and subsequently dismissed its claims against them.

       Although the contract is dated January 5, 1994, the parties thereto testified that the date was merely a typographical error and that the contract was actually signed on January 5, 1995, after Prescott’s relationship with La Petite had been terminated.


text:
    A98A1233.
    MASSALINE v. THE STATE.
    (506 SE2d 181)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of armed robbery. The evidence adduced at trial reveals that defendant used a handgun to rob Jacob Rawls and Jeff Henderson on the afternoon of June 27, 1996, while the victims were using a roadside rest area and lavatory facility. Defendant’s accomplice, Tressie Evans, was called as a State’s witness and testified that she waited in the getaway vehicle while defendant committed the crime; that she and defendant fled to a nearby hotel after the robbery; that defendant gave her the pistol he used in the armed robbery, and that she “got scared and got the gun . . . and threw it in a trash can.” Evans explained that she pleaded guilty to committing robbery by intimidation; that she had not yet been sentenced for this crime, and that she was originally charged with armed robbery. The trial court did not allow defense counsel to question this witness about the sentencing advantage she acquired by pleading guilty to the lesser included offense of robbery by intimidation.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in allowing Jeff Henderson to identify him at trial as the perpetrator of the crime charged, arguing that Henderson’s perception was influenced by an impermissibly suggestive showup procedure which police officers conducted at a hotel where defendant was arrested about 30 minutes after the armed robbery.

Pretermitting whether this showup procedure was “ ‘ “unduly permissive (see generally State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915))(, the controlling issue) [in the case sub judice] is whether any procedure resulted ‘in a very substantial likelihood of irreparable misidentification.’ The factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: ‘(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).’ (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).” Montgomery v. State, 210 Ga. App. 147, 148 (3a) (435 SE2d 510).' Lampkin v. State, 213 Ga. App. 589, 592 (1) (445 SE2d 324).” Jones v. State, 220 Ga. App. 236 (1) (469 SE2d 379).

In the case sub judice, Jeff Henderson’s testimony reveals that he had ample opportunity to view the man who robbed him on the afternoon of June 27,1996. Henderson testified that the gunman was standing directly in front of him during the armed robbery; that he looked his assailant right “in the eyes”; that he was then mindful of the robber’s appearance, and that he watched the man for about 15 to 30 seconds during the robbery. Henderson gave officers a detailed account of the suspect’s appearance during the robbery, and this description matches defendant’s physical traits and the clothing defendant was wearing 30 minutes after the armed robbery. Further, Henderson spontaneously identified defendant as the armed robber, with no direction or prompting from law enforcement officers, as soon as he arrived at the hotel where defendant was apprehended. These circumstances, the fact that Henderson positively identified defendant as his assailant at trial, and the degree of detail Henderson gave regarding the sequence of events during the armed robbery, bolster the reliability of Henderson’s identification of defendant as the perpetrator of the crime charged. We, therefore, find no substantial likelihood of irreparable misidentification due to the showup identification procedure used in the case sub judice. Accordingly, the trial court did not abuse its discretion in allowing Henderson’s identification testimony at trial. See Hood v. State, 216 Ga. App. 106, 107 (2) (453 SE2d 128).

2. Defendant contends the trial court erred in failing to permit cross-examination of Tressie Evans about any sentencing advantage she acquired by agreeing to testify for the State and pleading guilty to the lesser included offense of robbery by intimidation.

Decided August 19, 1998.

Joseph M. Williams, for appellant.

Charles H. Weston, District Attorney, Howard Z. Simms, Barbara A. Becraft, Assistant District Attorneys, for appellee.

In Byrd v. State, 262 Ga. 426 (420 SE2d 748), the Supreme Court of Georgia held that a trial court abuses its discretion by refusing to allow cross-examination of a State’s witness about pending criminal charges against the witness. This ruling is based on the significance of exposing a witness’ possible interest or motive when testifying for the State. Id. at 427 (2). We find no difference between the circumstances in Byrd and the trial court’s decision in the case sub judice not to allow cross-examination of Tressie Evans about any sentencing advantage she acquired by agreeing to testify for the State. The trial court, therefore, erred in not allowing the jury to hear the full extent of any benefit Tressie Evans may have acquired for turning State’s evidence. Nonetheless, we find this error harmless beyond a reasonable doubt because there is overwhelming evidence of defendant’s guilt. Jeff Henderson positively identified defendant as the perpetrator of the crime charged. Defendant was arrested 30 minutes after the armed robbery at a nearby hotel where the robber’s handgun was found stashed in a hotel trash can, and defendant’s physical characteristics and clothing matched the victims’ descriptions of their assailant. See Byrd v. State, 262 Ga. 426, 428, supra.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1238.
    WILLIAMS v. THE STATE.
    (505 SE2d 816)
   Blackburn, Judge.

James Williams appeals the special condition of probation imposed by the trial court, following his conviction of the offense of solicitation of sodomy. He was sentenced to 12 months of confinement, which was probated, with a special condition of his probation being that for a certain number of hours he wear a placard stating “BEWARE HIGH CRIME AREA” while walking through the area where he committed his offense. Williams contends that the special condition constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. For the reasons outlined herein, we reverse the sentence and remand the case to the trial court for resentencing.

As one of his special conditions of probation, Williams was required to perform 150 hours of community service. For the first 40 hours of such service, Williams was ordered to “walk that portion of Findley Street located between Hancock and Broad Streets [in Athens, Georgia, where the solicitation occurred] in 4 hour intervals on ten (10) days between the hours of 7:00 p.m. and 11:00 p.m. displaying a sign containing the language ‘BEWARE HIGH CRIME AREA’ which is to be large enough for citizens in the area to view same; such 40 hours of community service are to be performed on approved days with notice to police department that such hours are being performed in order that periodic police patrol in the area can accomplish 2 things: (1) that offender is complying with the Court’s special condition of probation and (2) provide an appropriate level of safety to the probationer during such work period. Such 40 hours of community service to only be performed during favorable weather conditions.” It is this condition which Williams contends was cruel and unusual punishment.

“[A] trial judge is expressly authorized by OCGA § 17-10-1 (a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted; emphasis in original.) Tuttle v. State, 215 Ga. App. 396, 397 (2) (450 SE2d 863) (1994).

This case is distinguishable from Ballenger v. State, 210 Ga. App. 627 (436 SE2d 793) (1993), in which this Court found that it was not cruel and unusual punishment to require someone convicted of driving under the influence to wear a pink bracelet imprinted with the words “DUI CONVICT.” We explained: “[T]he two essential purposes of probation in Georgia, as elsewhere[,] are the rehabilitation of the probationer, and the protection of society. Being jurists rather than psychologists, we cannot say that the stigmatizing effect of wearing the bracelet may not have a rehabilitative, deterrent effect on Ballenger. ... It may also serve the second purpose, that of protecting society, in the event someone notices the bracelet and chooses not to ride with Ballenger or refuses to allow him to drive. Balancing the possible beneficial purpose of this condition of probation, we do not find as a matter of law that the possible embarrassment of being required to wear the bracelet constitutes an unreasonable infringement on Ballenger’s constitutional rights. Finally, we do not find the trial court’s assessment that this condition has rehabilitative value to be so totally without basis that we will interfere with its broad discretion in matters of conditions of probation.” (Citations and punctuation omitted.) Id. at 629 (2).

Decided August 19, 1998.

Deborah N. Bedsole, for appellant.

Kenneth W. Mauldin, Solicitor, Elizabeth M. Grant, Donna M. Dunn, Assistant Solicitors, for appellee.

Likewise, in the present case, we cannot say that wearing the placard may not have a rehabilitative, deterrent effect on Williams. In addition, society might be protected in that citizens may heed the placard’s warning and be more wary about entering this high crime area of Athens, Georgia.

Unlike the present case, however, Ballenger did not involve any risk of danger to the defendant. Here, the sign itself indicates that Williams would be patroling in a high crime area. It is possible that the trial court could have intended that the message be tongue-in-cheek, but we must give words their normal meaning. The sentence itself requires the police to provide an appropriate level of safety to Williams, which indicates some exposure to danger.

In DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S. 189, 199-200 (109 SC 998, 103 LE2d 249) (1989), the U. S. Supreme Court held that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” One who is on probation is equally covered by DeShaney to the extent that the State controls the probationer’s conduct and presence at a particular place. Included in the responsibility for the probationer’s safety is the duty to keep such person out of harm’s way. To knowingly place one under its control in danger is a violation of the Eighth Amendment and the Due Process Clause of the U. S. Constitution. See also Williams v. Dept. of Corrections, 224 Ga. App. 571, 575 (481 SE2d 272) (1997).

The trial judge in this case is to be commended for having the initiative to adopt a new and creative form of sentencing which might very well have a positive effect on Williams and be beneficial to the public. The law does not permit, however, the imposition of a condition of probation where compliance would result in the probationer being placed in danger. We therefore vacate the sentence and remand the case to the trial court for resentencing, consistent with this opinion.

Judgment vacated as to sentence and case remanded for resentencing.

McMurray, P. J., and Eldridge, J., concur.


author: Johnson, Presiding Judge.

text:
    A98A1529.
    WALKER v. THE STATE.
    (506 SE2d 179)
   Johnson, Presiding Judge.

John Walker appeals his convictions for child molestation and incest. For reasons which follow, we affirm.

Viewed in a light most favorable to support the verdict, the record shows that Walker’s stepdaughter was admitted to drug and alcohol treatment sometime after October 1993. During treatment, she informed counselors that Walker had molested her. The matter was investigated by the Burke County Department of Family & Children Services, and Walker was indicted for one count of child molestation and one count of incest. The indictment alleged that between July 7, 1987 and October 22, 1993, Walker engaged in sexual intercourse with the victim and fondled her breasts and vagina. The victim had previously told two teachers at her school about the sexual abuse when she was in fifth grade, but no action was taken.

1. We note initially that while Walker presents three enumerations of error, his brief contains only one continuous argument instead of the separate arguments required by Court of Appeals Rule 27 (c) (1). This rule clearly provides that “[t]he sequence of argument or arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Court of Appeals Rule 27 (c) (1). Walker’s violation of the Court’s rules “not only impedes our review of the errors asserted, but also presents the risk that an asserted error will not be addressed because it cannot be correlated with any argument in the brief.” Byron v. State, 229 Ga. App. 795 (1) (495 SE2d 123) (1997). However, we will address Walker’s enumerations of error based on what we perceive his arguments to be.

2. Walker contends the evidence was insufficient to sustain his convictions. We disagree. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citation and punctuation omitted.) Newman v. State, 233 Ga. App. 794 (504 SE2d 476) (1998).

In the present case, the victim testified at length about numerous sexual assaults Walker committed on her between the time she was ten or eleven years old and the time she was fourteen years old. She testified that Walker used to lie on her bed and fondle her breasts. The victim related that Walker carried her into his bedroom, laid her on the bed, performed oral sex on her breasts and vaginal area, and “put his penis inside of me.” Walker sexually abused the victim twenty or more times over the four-year period. On at least ten occasions, he made the victim watch pornographic movies and perform oral sex on him. This evidence was sufficient for a rational trier of fact to find Walker guilty beyond a reasonable doubt of child molestation. See Newman, supra; Cantrell v. State, 231 Ga. App. 629 (500 SE2d 386) (1998).

This evidence also satisfied the requirements of the incest statute. Incest is committed when a father has sexual intercourse with a person he knows is his stepdaughter. OCGA § 16-6-22 (a) (1). Walker’s argument that he should not have been found guilty of incest because the victim was an accomplice lacks merit. The victim testified that most, if not all, of the sexual encounters between Walker and herself took place when she was between ten and fourteen years old. Thus, “her age made it impossible that she be treated as an accomplice and impossible in the eyes of the law that she might grant her consent to the acts constituting the basis of the charges against the defendant.” Beldonza v. State, 160 Ga. App. 647, 649-650 (5) (288 SE2d 37) (1981). The evidence was sufficient for a rational trier of fact to find Walker guilty beyond a reasonable doubt of incest. See Raymond v. State, 232 Ga. App. 228 (501 SE2d 568) (1998); Legg v. State, 207 Ga. App. 399, 400 (3) (428 SE2d 87) (1993).

3. Walker also contends that the trial court erred in granting a motion in limine under the rape shield statute (OCGA § 24-2-3) and disallowing him to question the victim concerning promiscuity. According to Walker, he wanted to question the victim about an allegation that she had infected another member of the community with a venereal disease. This is precisely the type of testimony the rape shield statute is designed to preclude. See Grant v. State, 160 Ga. App. 837 (1) (287 SE2d 681) (1982).

Moreover, even if the trial court’s decision to disallow the inquiry was erroneous, Walker was not harmed by the decision. Both in his cross-examination of the victim and of the social worker who investigated the abuse allegations, defense counsel elicited testimony regarding the victim’s prior use of illicit controlled substances and her previous history of sexual misconduct, including the fact that she had engaged in prostitution. Defense counsel also elicited evidence that the victim had sexually abused herself, had been hospitalized for psychiatric problems, and had attempted to commit suicide. Since Walker successfully introduced the type of testimony the trial court’s order was designed to foreclose, he was clearly not harmed by the order. See Goodwin v. State, 208 Ga. App. 707 (1), 708 (2) (431 SE2d 473) (1993); Frink v. State, 177 Ga. App. 604, 607 (1) (340 SE2d 631) (1986); see also Panos v. Dept. of Transp., 162 Ga. App. 53 (2) (290 SE2d 295) (1982).

4. Walker contends he was not afforded effective assistance of counsel. However, Walker failed to raise this issue in the trial court during his motion for new trial, during his extraordinary motion for new trial, or after being granted an out-of-time appeal. “The grant of an out-of-time appeal ‘should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal.’ [Cit.] It therefore includes the right to file a motion for a new trial. [Cit.] And it follows that because a claim of ineffective assistance of counsel must be determined through an evidentiary hearing at the earliest practicable moment, such a claim may not be asserted in an out-of-time appeal unless it has been raised in a motion for new trial after the grant of an out-of-time appeal, and the issue has been raised and resolved at an evidentiary hearing. [Cit.]” Nobles v. State, 233 Ga. App. 63, 64 (2) (503 SE2d 321) (1998). We therefore conclude that Walker waived his right to assert this issue on appeal.

Decided August 19, 1998.

Samuel W. Cruse, for appellant.

Daniel J. Craig, District Attorney, Nancy B. Johnson, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Judgment affirmed.

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