text:
    A97A0981.
    MENCY v. THE STATE.
    (492 SE2d 692)
   Ruffin, Judge.

A DeKalb County grand jury returned an indictment charging Kelvin Mency with three counts of aggravated child molestation, eight counts of child molestation, one count of statutory rape, and one count of criminal attempt to commit child molestation. A jury returned guilty verdicts on seven counts of the indictment. The trial court declared a mistrial on an additional five counts because the jury deadlocked on those counts after two days of deliberation. In addition, the trial court directed a verdict on one count of the indictment. Mency’s appellate counsel filed a motion for new trial and an amended motion for new trial. The trial court held an evidentiary hearing on the motion and thereafter filed an order denying it. For reasons which follow, we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Mency worked as a health and physical education teacher at Knollwood Elementary School from 1991 through the 1993-1994 academic year. The victims in this case were students in his physical education classes.

Victim S. H. testified to several incidents of alleged molestation. One incident occurred in a hallway in front of the school library. Mency kissed her and removed some chewing gum from her mouth as they kissed. On another occasion, Mency asked S. H. to go into a shed on the elementary school property and again kissed her. S. H. also testified that Mency had anal intercourse with her in the teachers’ bathroom. On two additional occasions, Mency had anal intercourse with S. H. in an equipment room of the elementary school. S. H. further described incidents at the elementary school in which Mency kissed her breasts and caused S. H. to put her hands and mouth on his penis.

Victim S. O. testified that one evening she accompanied her mother to a PTA meeting at the elementary school. S. O. went to a classroom at Mency’s request where they kissed. On a second occasion, Mency asked S. O. to go into an equipment room at the elementary school where they kissed and Mency ejaculated in front of S. O. During a third incident in the teachers’ bathroom, Mency touched S. O. on her breasts and buttocks and inserted his finger into her vagina.

Victim L. C. testified that Mency took her outside the elementary school building and put his hand under her skirt. Mency then moved L. C.’s tennis briefs to the side and touched her leg until she forced his hand away. Mency attempted to move his hand further up L. C.’s leg, but withdrew it when two other students came outside. L. C. stated that on another day, as she walked in front of Mency, she turned to ask him a question, and he reached for her buttocks.

1. In his first enumeration of error, Mency challenges two preevidentiary instructions given to the jury by the trial court. In the pre-evidentiary instructions, the trial court told the jury that evidence consisted of the sworn testimony of persons subpoenaed by the State and exhibits admitted into evidence. At the conclusion of evidence, the trial court properly charged the jury on the meaning of evidence. Mency argues on appeal that the trial court’s description of evidence either “implied, or directly stated that the jurors could only consider evidence from witnesses called by the State.”

Because Mency did not preserve this enumeration for appellate review, we do not reach the issue of whether on this record the trial court corrected the pre-evidentiary instructions by giving correct principles of law in the main charge. See Malone v. State, 219 Ga. App. 728, 730 (2) (466 SE2d 645) (1995); Duggan v. State, 225 Ga. App. 291, 294 (2) (483 SE2d 373) (1997). Mency objected neither as the trial court gave the two pre-evidentiary instructions, nor when the trial court concluded giving the pre-evidentiary instructions. At the conclusion of evidence, the judge read the main charges to the jury. Mency’s trial counsel reserved all of his objections to the main charges until the time of his motion for new trial or appeal.

“A pre-evidentiary statement is not the equivalent of a jury charge. Reservation of objections to the main charge does not encompass objections to the pre-evidentiary statement.” (Citations and punctuation omitted.) Malone, supra at 729. To preserve review of any error in the trial court’s pre-evidentiary instructions, Mency should have objected contemporaneously to the pre-evidentiary instructions. See id. He did not do this; therefore, this Court has nothing to review on appeal.

2. In his second enumeration of error, Mency argues through new appellate counsel that the trial court erred in denying his motion for new trial because he was denied the effective assistance of trial counsel.

“To establish a claim of ineffective assistance of counsel, [Mency] 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). [Mency] 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).

To succeed in his claim, Mency “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citation and punctuation omitted.) White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989). We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Cunningham v. State, 222 Ga. App. 740, 743 (2) (475 SE2d 924) (1996). Mency must show that the trial court clearly erred and that such error was harmful in deciding whether his trial counsel was ineffective. Absent clear error and harm, we will affirm the trial court’s finding that Mency did not receive ineffective assistance of counsel. See id.

(a) Mency argues that his trial counsel was ineffective because he failed to object to the court’s pre-evidentiary instructions regarding evidence. Mency’s trial counsel testified at the hearing on the motion for new trial that he was reviewing the jury list and preparing his opening statement during the trial court’s pre-evidentiary instructions. He did not recall what the trial court said, but had he listened attentively, he would have objected to the trial court’s preevidentiary instructions as given. Mency’s appellate counsel argues that the silence of Mency’s trial counsel was not a tactical decision, and that trial counsel was attending to other matters rather than listening to the pre-evidentiary charge.

Based on the record, the trial court did not err in finding that Mency received effective assistance of counsel. For purposes of this analysis, we will assume, as Mency’s appellate counsel asserts, that Mency’s trial counsel should have objected to the pre-evidentiary instructions. Therefore, we must determine if the trial court was clearly erroneous in deciding that the conduct of Mency’s trial counsel in failing to object was not so deficient as to prejudice his trial. See Strickland, supra; Cunningham, supra.

Under the Strickland standard, error does not equal deficiency. Thus, “[i]n determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee error-less counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.” (Citation and punctuation omitted.) Watkins v. State, 206 Ga. App. 575, 576 (2) (426 SE2d 26) (1992). “The test for reasonable attorney performance has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether [a] reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial[.] . . . [W]e are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.” (Citation and punctuation omitted.) Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). Moreover, the burden of proof is on the defendant to establish that the trial court’s finding was clearly erroneous as to his claims of ineffective assistance of counsel. Reddin v. State, 223 Ga. App. 148, 152 (3) (g) (476 SE2d 882) (1996).

Under the circumstances presented in this case, we do not find that the trial court was clearly erroneous in finding trial counsel rendered effective assistance. Rather, the evidence shows that Mency’s trial counsel did not act differently than a “reasonable lawyer at trial could have acted.” See Jefferson, supra. Trial lawyers, unfortunately, are often faced with the predicament of simultaneously performing two or more tasks during a trial. In this case, Mency’s trial counsel was reviewing his jury list and opening statement while the trial court gave preliminary instructions. Although “perfect” counsel might have been able to devote full attention to both matters simultaneously, the record shows that Mency’s trial counsel was working diligently on his client’s behalf during the pre-evidentiary instructions. The fact that Mency’s trial counsel, on hindsight, would have conducted himself differently during these particular pre-evidentiary charges does not mean his trial counsel was deficient. The law requires only that the adversarial process work adequately in Mency’s case based on the totality of the representation, not that Mency have perfect counsel. See Jefferson, supra; Watkins, supra.

Mency’s trial counsel selected jurors, made an opening statement, made appropriate objections, conducted cross-examinations of the State’s witnesses, conducted a direct examination of Mency, presented several character witnesses — including a co-worker from Knollwood Elementary School, a minister, and the U. S. Federal Marshal for the Northern District of Georgia, made a closing argument, and reserved objections to the trial court’s main jury charges. In other words, based on the totality of the representation, Mency had the benefit of competent, well-prepared, and aggressive trial counsel for his defense. Based on this record, Mency has not met his burden of proof that the trial court was clearly erroneous in deciding that trial counsel effectively assisted him. See Cunningham, supra. Therefore, we affirm the trial court with regard to this enumeration.

(b) Mency also argues that his trial counsel was ineffective because he failed to object when the trial court questioned one of the State’s witnesses, K. W. The State asked questions of K. W., a ninth grade student, in an attempt to have her recall a conversation that she had with one of the victims in the case. Mency’s counsel objected to K. W.’s responses on the grounds that the answers were speculative and non-probative. The trial court sustained the objections and then asked K. W. a series of questions regarding her recollection of her conversation with the victim. The court then allowed the State to proceed with its direct examination.

“A trial court has the right to develop fully the truth of a case, and may exercise this right by examining witnesses called by the parties. . . .” (Citation omitted.) Ashley v. State, 263 Ga. 820, 822 (3) (a) (439 SE2d 914) (1994). The trial judge in this case asked the witness a series of questions that elicited specific factual testimony, as opposed to speculation and opinion. Moreover, the trial court’s questions did not express or intimate its opinion about what the State had proven in the case. See Calloway v. State, 199 Ga. App. 272, 274 (7) (404 SE2d 811) (1991). We therefore cannot say that the trial court abused its discretion in questioning a ninth grader regarding her recollection of a conversation after sustaining the objections of Mency’s trial counsel to K. W.’s answers. The failure of Mency’s. trial counsel to make meritless objections was not ineffective assistance.

(c) Mency next challenges his trial counsel’s failure to object to K. W.’s “bolstering” of S. O.’s testimony. K. W. testified that when she first learned of S. O.’s sexual contact with Mency, she knew that S. O. was sincere and “wasn’t telling no story.”

Mency’s trial counsel testified at the hearing on the motion for-new trial that he did not object to this testimony, although he thought it was “borderline objectionable.” He did not elaborate on his reasons for not doing so. We do not reach the issues of whether this was a correct decision, or whether counsel was deficient in this area. “ ‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ ” Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). Assuming, however, as appellate counsel suggests, that this failure to object was not part of trial strategy, Mency, nevertheless, fails to show by the record how K. W.’s alleged bolstering of S. O.’s testimony so prejudiced his defense as to affect the outcome of his trial.

The jury apparently disbelieved Mency’s testimony with respect to all three victims, not just S. O. Based on the record, we cannot conclude that Mency’s trial counsel was ineffective because he did not object when S. O.’s friend testified that she believed the victim. Because Mency did not meet the second prong of the Strickland test, we affirm the trial court on this enumeration of error. See, e.g., Johnson v. State, 260 Ga. 159 (391 SE2d 113) (1990).

(d) Mency further questions his trial counsel’s failure to object to the State’s witness Detective Reynold’s “bolstering” of S. H.’s testimony. Mency specifically challenges Detective Reynold’s testimony that he did not believe S. H.’s initial statement in which S. H. denied any sexual involvement with Mency.

At the hearing on the motion for new trial, Mency’s appellate counsel specifically asked Mency’s trial counsel if his failure to object to Detective Reynold’s testimony was a tactical move. Mency’s trial counsel responded that although he thought Detective Reynold’s testimony was borderline objectionable, he “did not want to magnify the importance of that testimony.” He further testified that S. H.’s testimony created some ambiguities with which he, as Mency’s trial counsel, would have to contend.

“Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . [T]he fact that [Mency] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Mency’s] original representation was inadequate. (Cits.)” White, supra at 430. Mency’s counsel did not object as part of his trial strategy of not “magnifying the importance of that testimony.” See Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994). The failure of Mency’s trial counsel to object to Detective Reynold’s testimony, on this record, was not ineffective assistance of counsel.

Moreover, although Detective Reynold’s phrasing was unartful, he could appropriately testify that S. H.’s statement was not consistent with what he had learned during the remainder of his investigation. Cf. Satterwhite v. State, 212 Ga. App. 543 (2) (442 SE2d 5) (1994). Mency’s trial counsel therefore was not deficient in failing to object to this testimony. Accordingly, this enumeration also is without merit.

(e) Mency further argues that his trial counsel was ineffective because he elicited testimony from the school’s principal, William Duncan, that he had discussed with Mency inappropriate contact with female students. In response to questioning by Mency’s trial counsel, Duncan indicated that he had offered Mency “counsel or advice related to inappropriate contact with [female] students. . . Duncan also stated that when he counseled Mency he did not, at that particular time, counsel all of his male instructors. During deliberations, the jury sent a note to the judge asking if they could consider Duncan’s testimony regarding his counseling to Mency about contact with students. The trial court instructed the jury that they could consider any testimony not stricken from the record.

At the hearing on the motion for new trial, Mency’s trial counsel testified that the principal “spoke with [Mency] and all of the other male instructors at [Knollwood Elementary School], advising them of things they might do in order to shield themselves from these types of charges [of inappropriate conduct]. . . .” Mency’s trial counsel further testified that his motivation for this line of questioning was to “sensitize the jury to the fact that [Mency] was particularly sensitive to placing himself in compromising situations because he was aware of what these things could lead to, and that the principal had, in fact, raised that with all the male instructors.” According to trial counsel, “the attempt to introduce that testimony was a decision — a conscious decision.”

Mency’s trial counsel made a strategy choice — a conscious decision — to question Duncan about his counseling of Mency. Mency’s trial counsel apparently made this decision based on his belief that Duncan had spoken with all the male teachers. “It is not the duty of courts to second-guess trial counsel’s choice of strategy.” Hammond v. State, 264 Ga. 879, 882 (3) (a) (452 SE2d 745) (1995). The fact that Mency and his appellate counsel may now disagree with trial counsel’s choice does not affect the reasonableness of trial counsel’s tactics. See id. Effectiveness is not judged by hindsight or by result. White v. State, supra at 430. We thus find that the trial court did not err in denying Mency’s motion on this ground.

(f) Mency next challenges his trial counsel’s failure to offer into evidence defendant’s Exhibit 1, a diagram of the school’s layout. Mency’s trial counsel testified at the hearing on the motion for new trial that he made an agreement with the State that he would not introduce the diagram into evidence if the State did not introduce a videotape of victim interviews into evidence. Mency’s trial counsel testified “There was some trade-off there.” During deliberations, the jury asked to see the diagram, but the judge refused because it was not introduced into evidence.

The testimony of Mency’s trial counsel conclusively establishes that his decision not to offer the diagram into evidence was part of his trial strategy. As stated above, the fact that Mency and his appellate counsel disagree with the decisions, tactics, or strategies made by trial counsel does not demonstrate that Mency’s trial counsel rendered ineffective assistance. See id. This enumeration therefore is also meritless.

(g) Mency also questions his trial counsel’s stipulation that certain of the State’s witnesses consistently testified in court with statements they made in earlier interviews, which were recorded on videotape. At the hearing on the motion for new trial, Mency’s trial counsel acknowledged that he had originally intended to stipulate that neither the State nor Mency would play the videotape, but instead agreed to the broader stipulation read to the jury at trial.

We do not reach the issue of whether the performance of Mency’s trial counsel was deficient in this respect. See Lajara, supra at 440. Mency does not show by the record how a stipulation about the consistency between the witnesses’ videotaped interviews and the witnesses’ in-court testimony prejudiced his defense. Because Mency did not meet the second prong of the Strickland test, we also affirm the trial court on this enumeration of error.

(h) Mency further argues that his trial counsel was ineffective because he failed to object to the trial court’s order that Mency testify earlier than defense counsel anticipated. Mency’s trial counsel wanted to call Mency to the stand after several character witnesses had testified. The trial proceeded more quickly than the parties anticipated, however, and Mency’s character witnesses were unavailable until the following day. The trial court did not wish to recess at 3:30 p.m. Therefore, the trial court ordered Mency to testify first — if he chose to testify — to avoid delaying the trial.

The trial court has broad discretion in controlling the order of proof at trial. Bruce v. State, 263 Ga. 273, 274 (4) (430 SE2d 745) (1993). We will not disturb the trial court’s ruling on such matters unless the record shows an abuse of that discretion. Cf. Attain v. State, 202 Ga. App. 706, 708 (3) (415 SE2d 315) (1992). The record in Mency’s case does not show that the trial court abused its discretion. Consequently, the failure of Mency’s trial counsel to object to the trial court’s order did not amount to ineffective assistance of counsel.

(i) Finally, Mency challenges his trial counsel’s failure to object to the State’s closing argument about the habits and propensities of child molesters as compared to other criminals. During her closing argument, the assistant district attorney told the jury that child molesters commit their crimes in private. Mency’s trial counsel did not object because he thought the State’s argument was a logical deduction from the evidence in the case. At the hearing on the motion for new trial, he stated: “I did not think an objection would be sustained as to that particular line of discussion, and I did not want it to appear that [the defense was] somehow mortally wounded by having that discussion go on.” Mency’s trial counsel therefore allowed the State to continue “rather than prolong [the State’s closing argument] or magnify it. . . .” This is nothing more than trial strategy, and it does not equate with ineffective assistance of counsel. Counsel may argue the evidence and the reasonable deductions therefrom. Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993). In this case, the evidence reflected that in each instance, Mency and the victims were alone, although at a public place. A reasonable inference from that evidence is that Mency, like most people, engaged in sexual acts in private regardless of whether such sexual acts are legal or illegal. Mency does not show by the record that a reasonable probability exists that the result of the trial would have been different if the State had not argued that child molesters commit their crimes in private. If Mency was not prejudiced by the argument, he certainly was not prejudiced by his trial counsel’s failure to object to the argument. The trial court did not err in denying the defendant’s motion for new trial on this ground.

3. In his third enumeration of error, Mency argues that the trial court erred in charging the jury that the uncorroborated testimony of the victims was sufficient to convict the defendant of child molestation and aggravated child molestation. We disagree.

The record shows that the trial court instructed the jury: “the uncorroborated testimony of the victim is sufficient to sustain a conviction of the charges of child molestation and aggravated child molestation as contained within this bill of indictment if that testimony is sufficient to convince you of the defendant’s guilt beyond a reasonable doubt.” Although Mency concedes that this is a correct statement of law, he argues that this legal principle is not appropriate as a jury charge, because if applicable to the facts, the charge demands a guilty verdict. According to Mency, “there is a reasonable likelihood that the jury applied a standard of proof less stringent than that required by the state and federal due process clauses.”

Decided October 1, 1997.

Joseph J. Drolet, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Sheila A. Connors, Assistant District Attorneys, for appellee.

We approved a similar jury charge in Harris v. State, 189 Ga. App. 49 (2) (375 SE2d 122) (1988). In that case, the court charged that in a child molestation case the uncorroborated testimony of the victim is sufficient to sustain a conviction. Id. Mency correctly argues that a correct statement of law embodied in a reviewing court’s opinion is not necessarily appropriate as a jury charge. Sumlin v. State, 207 Ga. App. 408, 409 (2) (427 SE2d 868) (1993). Nevertheless, on this record we hold that the charge, which was coupled with instructions regarding the burden of proof, was an appropriate statement of relevant law to give to the jury. Therefore we find no error.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A1119.
    SNOW v. THE STATE.
    (492 SE2d 564)
   Johnson, Judge.

A jury found Carl Lee Snow guilty of raping his girl friend’s daughter. He appeals from the conviction entered on the verdict and the denial of his motion for new trial.

1. Snow challenges the sufficiency of the evidence to support the conviction. Viewed in the light most favorable to the verdict, the evidence shows the following: Snow lived with his girl friend and her 18-year-old daughter. The daughter is legally blind, mentally retarded, and, at the time of the offense, functioned at the level of a five-year-old child. At trial, the victim testified that Snow had sexual intercourse with her on her bedroom floor even though she had told him “stop and ... no, no, no, no, no.”

An investigator with the sheriff’s department testified that when he interviewed the victim at school a few days after the incident, she trembled and exhibited behavior typically displayed by victims of sexual assault. In a statement which was taped and played for the jury, the victim stated that Snow told her to lie on the floor and remove her underwear. Snow had sexual intercourse with her despite her telling him “please don’t do this to me.” When the investigator went to the victim’s home, the victim pointed to the area next to her bed where Snow forced her to have intercourse. The officer was able to detect what appeared to be seminal fluid in the carpet and removed a carpet sample for testing.

A forensic scientist who conducted DNA tests on the sample and compared the sample to a specimen obtained from Snow testified that only seven percent of the North American Caucasian population could have been responsible for producing the specimen and that Snow is included in that pool.

An emergency room physician examined the victim and concluded that she had had intercourse in the past, though he could not determine when. Snow denied ever having sexual intercourse with the victim. The record reveals ample evidence from which a rational trier of fact could find Snow guilty beyond a reasonable doubt of rape. See Dean v. State, 215 Ga. App. 23, 24 (4) (449 SE2d 622) (1994). Snow’s argument that the victim’s “statements and testimony were vague, unintelligible, equivocal, and self-contradictory,” addresses itself to the victim’s credibility, which is a matter within the province of the jury. See Robinson v. State, 204 Ga. App. 637 (419 SE2d 926) (1992). This enumeration is without merit.

2. Snow argues that the trial court erred in allowing, over objection, the investigator’s testimony that he believed the victim. Although opinion evidence about the credibility of a witness is generally inadmissible (see Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991)), there was no error here because defense counsel elicited the testimony.

While cross-examining the investigator, defense counsel asked him if he thought it was important to “check out [the victim’s] story and find out whether or not she may have told you everything.” Snow’s attorney then asked the investigator if he spoke with the victim’s mother only once, to which the officer responded that if he had known “she was going to hinder or she was going to take sides with Carl Snow,” he would have taken a statement from her. Defense counsel next asked the officer if he “ever [thought] that maybe [the mother] wanted to tell the truth rather than taking sides?” The witness replied that he believed the mother was protecting Snow instead of her daughter. Counsel then asked:. “And you think that because you’re on this side, not on that side?” The officer answered: “No, sir, ‘cause I experienced the interview with [the victim] and I believe [her].” Defense counsel objected, which objection was overruled, and then continued his cross-examination.

By asking the investigator about the victim’s credibility, her mother’s credibility, and the witness’ reasons for thinking the mother was trying to protect Snow, defense counsel propounded dangerous questions. Snow cannot now object to the court’s ruling on one of the answers. See Henson v. State, 168 Ga. App. 210, 212 (2) (308 SE2d 555) (1983); Helton v. State, 217 Ga. App. 691, 693-694 (4) (458 SE2d 872) (1995). Moreover, the testimony complained of was cumulative of evidence admitted earlier without objection. See Milan v. State, 207 Ga. App. 206, 207 (427 SE2d 573) (1993). Earlier in the trial, Snow did not object when another deputy testified that he told Snow he and the investigator believed the victim. Finally, we note that the trial court instructed the jury that the jury alone determines which witnesses and testimony to believe. Based on the foregoing, this enumération is without merit.

3. Snow contends the trial court erred in denying his motion for mistrial when the prosecutor offered at trial, in the presence of the jury, to send the victim’s underpants back to the crime lab for analysis since the lab failed to analyze them. Snow complains that the state’s offer to postpone trial so that the evidence could be analyzed made the jury “suspicious” of the defense, who refused to consent to testing at such a late date. After the trial judge denied Snow’s motion for mistrial, he announced that he would instead give a curative instruction telling the jury that the defendant had no duty to consent to testing at this time. In response, Snow asked the court to add that it was not the defendant who would not allow testing. The trial court assured Snow that it would inform the jury that the rules require testing be done well before trial. Snow did not object. The court gave the instruction and added that the court was not going to* stop the trial for additional testing to be conducted. No further objection or motion for mistrial was made. Accordingly, Snow’s assertion on appeal that the trial court’s curative remarks were insufficient has been waived. See Allen v. State, 224 Ga. App. 324, 325 (2) (480 SE2d 328) (1997).

4. We find no merit in Snow’s contention that the trial court erred in allowing into evidence part of his statement to investigators but in redacting a portion of the statement in which Snow said that the victim had previously had sexual intercourse with her cousin. The investigator testified that when he arrested Snow, informed him of the charges, advised him of his rights, and told him the investigators believed the victim, Snow stated: “[W]ell f— you. I don’t care what you believe. I took good care of the little b— and I’m not that kind of person.”

The trial court ruled that, despite OCGA § 24-3-38, the rape shield statute (OCGA § 24-2-3) prohibits the introduction of testimony that the victim had previously had sexual intercourse with someone other than Snow. We agree. The rape shield statute, which supersedes all evidentiary exceptions (see Phillips v. State, 196 Ga. App. 267, 268 (3), (4) (396 SE2d 57) (1990)), prohibits the introduction of evidence related to the victim’s past sexual behavior except in certain instances not applicable here. See Brown v. State, 225 Ga. App. 49, 51 (1) (c) (483 SE2d 318) (1997); Stancil v. State, 196 Ga. App. 530 (1) (396 SE2d 299) (1990). And, in this instance, the evidence sought to be introduced by Snow apparently had the added disability of being based on hearsay. Id. There was no error.

5. Similarly, there was no error in the trial court refusing to allow Snow to introduce evidence of the victim’s past sexual behavior to explain how her hymen became perforated. See generally Brown, supra. Snow’s reliance on Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993), is misplaced because the evidence sought to be introduced in that case involved prior sex crimes committed against the victim, not the victim’s prior sexual behavior. “It is no reflection on character that one has been an unwilling victim of prior crimes.” Id. at 161.

6. The trial court did not err in refusing to give the following requested charge: “When the testimony of a principal witness is vague, equivocal, and self-contradictory, it should be construed most strongly against the cause that he is testifying for.” Snow has cited only civil cases as authority for such a charge. The only criminal case our research uncovers which may possibly support such a charge addresses contradictions by the state’s only witness. See Wallace v. State, 55 Ga. App. 872, 875 (192 SE 81) (1937). In the case before us, the state did not rely upon the testimony of a single witness. Furthermore, the trial court charged the jury that it was to determine the credibility of witnesses, taking into consideration such factors as the witnesses’ intelligence and whether their testimony included contradictory statements. The court is not required to give a charge which is not a correct statement of the law, was substantively covered elsewhere in the charge, or is inapplicable to the case. See West v. State, 178 Ga. App. 550, 553 (2) (343 SE2d 759) (1986).

7. The trial court did not impermissibly comment on the case by instructing the jury to “consider with great care and caution the evidence of any statement made by the Defendant. The jury may believe any statement in whole or in part, believing that which you find to be true and rejecting that which you find to be untrue.” The charge was given in conjunction with instructions not about Snow’s testimony, but about the statement he gave police upon his arrest. This explains why his statement was discussed separately from the testimony of other witnesses; his testimony was not “singled out.” In any event, the court instructed the jury to apply the general rules for testing the believability of the witnesses and the weight of the evidence. Moreover, the trial court specifically included in its charge a statement that it did not intend to comment on the credibility of the witnesses. We find no error.

8. Snow contends the trial court erred in denying his post-trial motion for funds to have the victim’s underwear tested for the presence of semen. He argues that such testing might exonerate him by showing the absence of seminal fluid or the presence of fluid produced by someone else. The record shows that Snow requested funds for expert analysis of the underwear more than a year after he was convicted. “[T]he grant or denial of a motion for assistance of expert witnesses and other investigative services lies within the sound discretion of the trial court.” (Citations and punctuation omitted.) Smith v. State, 258 Ga. 179, 180 (5) (366 SE2d 687) (1988). Considering the fact that his was a post-trial motion and Snow has demonstrated no special need for such a test, we find there was no abuse of discretion. Id. at 181 (5).

Decided October 1, 1997.

Jill L. Anderson, Steven W. Reighard, Mary Erickson, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1304.
    BRADSHAW v. McNEILL et al.
    (492 SE2d 568)
   Judge Harold R. Banke.

Pat McNeill sued Carol Bradshaw alleging fraud and undue influence and seeking to set aside a warranty deed. The trial court denied Bradshaw’s motion for summary judgment and motion to file a counterclaim. Bradshaw appeals, enumerating three errors.

This case arose in the wake of Dorothy C. Harris’ death. After her husband died in 1984, Harris converted several bank accounts and certificates of deposit she had held with him into joint accounts with McNeill, her niece who lived in Florida. Years later, as Harris’ health began to fail, her deceased husband’s niece, Carol Bradshaw, assisted her. Harris devised her estate in equal shares to Bradshaw and McNeill.

Just over a month before her death, Harris was hospitalized. After her release, Bradshaw accompanied her to an attorney’s office where Harris executed a power of attorney to Bradshaw. A week later, on July 5, 1995, Harris deeded her home to Bradshaw, but reserved a life estate for herself. Again, Bradshaw accompanied Harris to the attorney’s office to complete this transaction.

On July 24, 1995, Bradshaw admitted Harris to a local convalescent home. The next day, after examining Harris’ will and learning that she and McNeill were to share equally in the estate, Bradshaw used her power of attorney to liquidate all but one of the joint accounts in Harris’ and McNeill’s names, which totaled over $70,000. Using those funds, she opened several joint accounts in Harris’ and her names. The concomitant penalties on these transactions totaled several hundred dollars. Bradshaw testified that she viewed the funds as a gift although she “probably” knew that McNeill would have received them at Harris’ death if the accounts had been left alone. See OCGA § 7-1-813 (a) (sums remaining on deposit at the death of a party to a joint account belong to the surviving party as against the estate absent clear and convincing evidence of contrary intent). Harris died the following day, July 26, 1995.

After learning of the above-mentioned transactions, McNeill commenced this action. Finding disputed issues about Harris’ competence during her last month, the trial court denied Bradshaw’s motion for summary judgment. It also determined Bradshaw lacked authority under the power of attorney to undertake the transactions regarding the joint accounts. Bradshaw then unsuccessfully sought leave to file a counterclaim, alleging that, if the transactions on the accounts were unlawful, then Harris intended for the funds from the joint accounts to go to her estate. The trial court granted McNeill’s motion for judgment on the joint funds, finding Bradshaw had conceded that the joint survivorship rules in the banking code authorized McNeill’s right to claim the funds remaining in her name. Held:

1. The trial court did not err in denying Bradshaw’s motion for summary judgment on the joint account issue. The power of attorney permitted Bradshaw “to close, out any checking or savings accounts . . . and to open new checking or savings accounts.” Because McNeill did not contribute to the accounts, Harris or Bradshaw, acting for Harris under the power of attorney, was authorized to close out the accounts any time prior to Harris’ death. OCGA § 7-1-812 (a) (“A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contribution by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.”).

However, the power of attorney also specified that any such activity was to be taken on Harris’ behalf. This provision comports with Georgia law, which prohibits agents such as those acting under a power of attorney from benefiting from their position to the principal’s detriment. Johnson v. First Nat. Bank &c., 253 Ga. 233, 234 (1) (a) (319 SE2d 440) (1984); see OCGA §§ 10-6-1; 10-6-5. Although Bradshaw had the legal right to open and close the accounts on Harris’ behalf, whether Bradshaw was in fact acting on Harris’ behalf and whether she exceeded the scope of her authority by retaining the funds present jury questions, particularly in light of Bradshaw’s testimony that she withdrew the funds and created the new accounts to pay for Harris’ care in the convalescent home. Further, a jury must resolve the disputed issues of Harris’ intent regarding the ownership of the joint accounts and certificates of deposit. OCGA § 7-1-812 (a); see also Johnson, 253 Ga. at 234 (1) (a) (the requisite detriment may be established with proof that funds were diverted in a manner which contravenes the principal’s intent).

The uncertainty regarding intent distinguishes LeCraw v. LeCraw, 261 Ga. 98 (401 SE2d 697) (1991). There, 13 months transpired between the issuance of the power of attorney and the principal’s death. The principal was found to be competent during that time and her acquiescence to her agents’ actions revealed her intent. Id. at 99. Here, Harris died without an opportunity to ratify or repudiate Bradshaw’s actions.

The reach of the trial court’s February 7, 1997 order granting McNeill’s application for judgment on the funds is unclear. We read it as correctly granting judgment on the sole account remaining in the names of McNeill and Harris. Thus, this division reverses only the findings involving those accounts Bradshaw closed. Because parties may not enlarge their enumerations of error in their briefs, we decline to address Bradshaw’s “collateral” argument about McNeill’s purported violation of the loyalty rule. Carroll v. Ralston & Assoc., P.C., 224 Ga. App. 862, 865 (481 SE2d 900) (1997).

2. The trial court correctly determined that questions of fact remain to be tried in the action to set aside the warranty deed. The record shows that during the month prior to her death Harris transferred her house to Bradshaw and granted Bradshaw power of attorney. This raised a presumption of undue influence which has not been rebutted. Parker v. Spurlin, 227 Ga. 183, 187 (3) (179 SE2d 251) (1971) (a conveyance from the weaker to the dominant party involved in a confidential relationship raises a presumption of undue influence); see Tingle v. Harvill, 228 Ga. 332, 339-340 (5) (185 SE2d 539) (1971).

Further, the record includes an affidavit by Sue Whitmire stating Harris was not herself during the final six months of her life and occasionally appeared confused, disoriented, and agitated. Whitmire also attested that Harris would never knowingly have deeded her residence or transferred her accounts to Bradshaw so McNeill’s name could be removed from them. This evidence, viewed in the light most favorable to the nonmovant, precluded summary judgment. Childs v. Shepard, 213 Ga. 381, 382 (2) (99 SE2d 129) (1957); compare White v. Irwin, 220 Ga. 836, 841 (3) (a) (142 SE2d 255) (1965) (proof of undue influence requires more than the mere opportunity to exert it),

Decided October 1, 1997.

Alan W. Connell, for appellant.

Mallory & Trice, Truitt A. Mallory, for appellees.

3. The trial court did not abuse its discretion in denying Bradshaw’s motion to assert a counterclaim alleging the disputed funds in the joint account belonged to Harris’ estate. Bradshaw’s right to assert a claim on behalf of Harris’ estate did not accrue until her appointment as executrix, which occurred after she moved to file the counterclaim. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 277 (2) (398 SE2d 271) (1990) (right of action lies with estate’s representative); see Orange County Trust Co. v. Estate of Takowsky, 119 Ga. App. 366 (1) (166 SE2d 913) (1969).

This is not to say, however, that the estate is not a proper party, particularly in light of Bradshaw’s testimony indicating that unpaid creditors remain. Indeed, we cannot say that all the issues in this case can be completely resolved unless the estate is included as a party. See OCGA § 9-11-13 (f), (h); Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 394 (3) (469 SE2d 469) (1996); see Edenfield v. Trust Co. Mtg., 185 Ga. App. 678, 681 (2) (365 SE2d 520) (1988). However, notwithstanding the parties’ arguments to the contrary, that issue is not presently before us.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ, concur.

       She also learned that she was named executrix. At the time of Bradshaw’s deposition, the will had not been probated because Bradshaw “didn’t feel like I needed to.” Bradshaw was unable to close the one remaining account because not all the checks had cleared.

       We question, however, whether such action was necessary in order to accomplish that goal. See OCGA § 7-1-812 (a).


author: Ruffin, Judge.

text:
    A97A1402.
    WILLIAMS v. ST. PAUL COMPANIES et al.
    (492 SE2d 560)
   Ruffin, Judge.

Attorney Peter Williams sued The St. Paul Companies (“St. Paul”) alleging St. Paul tortiously interfered with his representation of clients in two separate lawsuits. The trial court granted St. Paul summary judgment, and Williams appealed. For reasons which follow, we affirm.

“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. ... 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. OCGA § 9-11-56 (e).” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Williams, the non-movant, the evidence in this case shows that Williams represented Myrtis Tinsley in a medical malpractice action against the Estate of George Norton, M.D. and an Alabama surgical clinic. Williams also represented Jessie and Bennie Wise in a separate medical malpractice action against the same defendants. St. Paul provided coverage to the defendants in both actions. In an effort to dispose of the two lawsuits, St. Paul proposed an aggregate settlement in which the settlement of each claim was contingent on settlement of the other. According to Williams’ affidavit, he rejected the offer because “there was no way, short of violating the attorney-client privilege with Tinsley that [he] could discuss what Tinsley would or would not accept as settlement, with Wise. And, vice versa, [he] could not discuss with Wise what Tinsley would accept as settlement.” Williams further asserted in his affidavit that “[i]t was impossible for [him] to perform [his] contract with either or both of [his] clients because of the way in which the settlement offer from Defendant was conditioned.” Williams contends that St. Paul’s settlement offer constituted a tortious interference with contract because it created this conflict of interest.

To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show “ ‘that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. . . . [T]he term “malicious” or “maliciously” means any unauthorized interference or any interference without justification or excuse. [Cit.]’ ” Perry & Co. v. New South Ins. Brokers &c., 182 Ga. App. 84, 89 (4) (354 SE2d 852) (1987).

In his response to St. Paul’s summary judgment motion, Williams failed to produce any evidence supporting any of the first three elements enumerated above. As to the first two elements, there is no evidence of any improper or malicious conduct by St. Paul in extending the aggregate settlement offer. We have long recognized that it is sound public policy to encourage parties to engage in settlement negotiations to the end that litigation may be avoided. See Justice v. Davidson Kennedy Co., 194 Ga. App. 585, 586 (391 SE2d 414) (1990); Continental Ins. Co. v. Fed. Ins. Co., 153 Ga. App. 712, 714 (266 SE2d 351) (1980). St. Paul’s apparent desire to settle the cases at issue was in furtherance of this public policy. And, though it is preferable to structure such offers in a manner that allows parties to settle their claims independently, the fact that Williams found himself faced with a conflict of interest was not the result of any wrongful conduct by St. Paul, but rather the consequence of Williams representing multiple clients with conflicting or potentially conflicting interests.

Williams’ representation of Tinsley and the Wises is governed by Canon 5 of the Code of Professional Responsibility which generally provides that “[a] lawyer should exercise independent professional judgment on behalf of a client.” The corresponding Directory Rules (“DR”) and Ethical Considerations (“EC”) more specifically regulate Williams’ representation of both Tinsley and the Wises against a common defendant. EC 5-14 provides that “[mjaintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.” Before Williams agreed to the representation at issue here, he should have recognized the possibility of divergent interests and “explain[ed] fully to each client the implications of the common representation and . . . accepted] or continue[d] employment only if the clients consented].” EC 5-16. Furthermore, contrary to Williams’ assertion that he could not discuss the aggregate settlement offer with his clients, DR 5-106 provides that “[a] lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement for the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement.” (Emphasis supplied.) DR 5-106. Finally, if Williams ultimately found that he could not effectively continue his multiple representation he should have ceased such representation. See EC 5-15; DR 5-105 (B). Again, it was not St. Paul’s conduct that caused Williams’ dilemma, but his own representation of multiple clients.

Finally, as found by the trial court, Williams failed to produce any evidence that St. Paul directly induced his clients to do, or not do anything. Inasmuch as he was required to produce such evidence in support of the third element of his cause of action and, as stated above, he failed to produce any evidence supporting the first two elements, the trial court did not err in granting summary judgment to St. Paul. See Pakwood Indus. v. John Galt Assoc., 219 Ga. App. 527, 530 (2) (466 SE2d 226) (1995).

Decided October 1, 1997

L. B. Kent, for appellant.

Peter G. Williams, pro se.

Tisinger, Tisinger, Vance & Greer, David F. Miceli, for appellees.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A97A1595.
    PENN AMERICA INSURANCE COMPANY v. MILLER et al.
    (492 SE2d 571)
   Pope, Presiding Judge.

Penn America Insurance Company (“Penn”) issued a liability insurance policy to Mon Suk Bennett and her business, the Lucky Seven Lounge. After William Miller was shot and killed at the Lucky Seven, his parents, Billy D. and Mary Miller, sued Bennett for failing to protect their son from the attack. Bennett sought coverage for the claims and a defense from Penn. The insurer brought this action against the Millers and Bennett for a declaratory judgment that an “assault and battery” exclusion rendered its policy inapplicable to the shooting incident and any claims arising from it. The trial court granted summary judgment to Bennett and the Millers.

Penn issued Bennett this policy on May 19, 1995, and the shooting occurred on November 29, 1995. Penn, however, had issued the policy without complying with OCGA § 33-24-9 (a), which provides that “[n]o basic insurance policy ... or printed rider or endorsement form . . . shall be issued ... in this state unless the form has been filed with and approved by the [Insurance] Commissioner.” The trial court found this statute applicable to Penn’s policy and concluded Penn’s admitted failure to file the exclusion and obtain administrative approval of it rendered the exclusion void and unenforceable. We need not determine whether the statute applies to Penn’s policy; assuming it does, we find nothing in the statute which indicates the legislature intended to render an unfiled exclusion void as a matter of law.

“In construing the statutes and regulations at issue, our goal is to determine the intent of the legislature. [Cit.]” First Union Nat. Bank of Ga. v. Collins, 221 Ga. App. 442, 444 (471 SE2d 892) (1996). “If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry. [Cit.]” Diefenderfer v. Pierce, 260 Ga. 426 (396 SE2d 227) (1990). OCGA § 33-24-9 requires filing with the Commissioner but specifies no penalty for failure to file, much less the penalty exacted by the trial court. The omission of this penalty is significant because in other statutes regulating insurance policies, the legislature has specifically stated that the inclusion of inappropriate provisions voids or invalidates those provisions. See, e.g., OCGA §§ 33-24-19 (invalidating policies which incorporate the insurer’s charter or bylaws); 33-24-23 (voiding certain provisions in health insurance policies); 33-24-25 (same); 33-24-43 (voiding policy provisions which purport to pay benefits in anything but dollars). “Where a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.” (Citation and punctuation omitted.) Coastal Ga. &c. Center v. Higdon, 263 Ga. 827, 829 (1) (439 SE2d 902) (1994).

“[Statutes and regulations relating to the same subject matter must be construed together and harmonized to ascertain their legislative or administrative intent. [Cit.]” Collins, 221 Ga. App. at 444. In the same article, OCGA § 33-24-12 (a) provides that “[a]ny insurance policy, rider, or endorsement . . . otherwise valid which contains any condition or provision not in compliance with the requirements of this title shall not be rendered invalid due to the noncomplying condition or provision but shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy, rider, or endorsement been in full compliance with this title.” This latter statute shows the legislature did not intend a technical violation of OCGA § 33-24-9 (a) automatically to invalidate an unfiled exclusion. The Oklahoma Court of Appeals reached a similar conclusion in Hill v. Agri-Risk Svcs., 827 P2d 904 (Ok. App. 1992). There the court determined that an exclusion in a policy not filed with the state insurance commissioner was not void under a statute nearly identical to OCGA § 33-24-9 (a). In reaching its conclusion, the court applied a statute identical to OCGA § 33-24-12. It held the trial court had properly applied and construed the exclusion “as if the policy and exclusionary endorsement had been submitted to and approved by the Insurance Commissioner as required. . . .” Id. at 906-907.

The statutory criteria by which the Insurance Commissioner is directed to approve or disapprove policies also lend support to the conclusion that a failure to file does not invalidate an exclusion. Under OCGA § 33-24-10, the grounds upon which the Commissioner may invalidate a policy provision are limited to instances in which the policy provisions are inconsistent, misleading, illegible, unfair, or contrary to public policy. Moreover, pursuant to OCGA § 33-24-9 (d) the Commissioner may exercise his discretion “in exceptional cases” to exempt insurance documents from the filing and approval requirements where administrative action is “not desirable or necessary for the protection of the public.” No party has raised in this appeal any claim that Penn’s assault and battery exclusion is misleading, illegible, or violates public policy, and this Court has generally found exclusions such as the one at issue enforceable. See, e.g., Boomer’s, Inc. v. Whitney, 226 Ga. App. 195 (486 SE2d 59) (1997); Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 425 (1) (457 SE2d 696) (1995). In the absence of clear evidence showing the Commissioner would not have approved this exclusion, no reason exists to invalidate it as a matter of law.

Bennett and the Millers cite cases from numerous jurisdictions holding that the failure to file an exclusion with the state’s insurance commissioner and obtain approval invalidates the exclusion. Chief among those cases is the Florida case of American Mut. Fire Ins. Co. v. Illingworth, 213 S2d 747, 749 (Fla. App. 1968), upon which the trial court based its decision. Illingworth, however, contains no analysis of the basis for its decision and cites as authority only one Texas case, Commercial Union Assur. Co. v. Preston, 282 SW 563 (Tex. 1926). Preston involved an unapproved fire insurance policy provision which differed from the standard policy prescribed by the state insurance commissioner. Id. at 565-566. The court held that under then-existing Texas law, all fire insurance policies were required to be standardized because “[w]hen a man contracts for insurance, he knows that he is contracting for a standard policy and for nothing else, and he knows that he will get that and nothing else.” Id. at 565. See also Mut. Life Ins. Co. &c. v. Daddy$ Money, 646 SW2d 255 (Tex. App. 1983).

The reasoning of Preston does not apply in this state, where insureds who can read are required to read the policy and are presumed to have understood its contents. O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 382 (3) (461 SE2d 311) (1995). “Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy.” (Citation and punctuation omitted.) Florida Intl. Indem. Co. v. Guest, 219 Ga. App. 222, 225 (464 SE2d 847) (1995). Given these principles, we find persuasive the reasoning of the federal appeals court in FDIC v. American Cas. Co. &c., 975 F2d 677, 683 (10th Cir. 1992), where the court observed: “Voidance of exclusion to an insurance policy is a severe penalty which alters the very terms of the deal between the parties. It requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” See also McCullough Transfer Co. v. Virginia Surety Co., 213 F2d 440, 442 (6th Cir. 1954), in which the court found the failure to file should not void “a policy of insurance freely entered into by the parties.” Because the trial court improperly found the failure to file this exclusion voided the exclusion as a matter of law, we reverse the trial court’s grant of summary judgment to Bennett and the Millers.

Decided October 1, 1997

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Rothschild & Morgan, W. Donald Morgan, Jr., for appellant.

Buchanan & Land, Benjamin A. Land, Charles A. Gower, George W. Snipes, for appellees.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

       The parties characterize this policy as “surplus lines” insurance issued pursuant to OCGA § 33-5-20 et seq. As of July 1, 1997, an amendment to OCGA § 33-5-21.1 renders OCGA § 33-24-9 inapplicable to “surplus lines” policies.


author: Blackburn, Judge.

text:
    A97A1829.
    MORING v. MORING.
    (492 SE2d 558)
   Blackburn, Judge.

Felix C. Moring, co-trustee of a trust set up for the benefit of S,ue W. Moring (the Trust), appeals the trial court’s order allowing the sale of a building which is the property of the Trust. The trial court allowed the sale upon the petition of Joel J. Moring, Jr., the other co-trustee of the Trust. Felix contends that the trial court erred in allowing the sale of an asset of the Trust after it was notified of his opposition to such sale, and that a previous order of the probate court purporting to remove him as a co-trustee was void ab initio.

1. The record contains an order of the probate court dated August 25, 1994, which purports to remove Felix as a co-trustee of the Trust. Felix challenges this order as void due to the probate court’s lack of subject matter jurisdiction to remove a trustee. We agree.

Pursuant to the Georgia Constitution, “[pjrobate courts shall have such jurisdiction as now or hereafter provided by law, without regard to uniformity.” Ga. Const. 1983, Art. VI, Sec. Ill, Par. I. Although, under certain conditions, a probate court has concurrent jurisdiction with the superior courts to appoint new trustees and accept the resignation of trustees, see OCGA § 15-9-127, a probate court does not have jurisdiction to remove a trustee. In fact, OCGA § 53-12-176 requires that for a trustee to be removed, application must be made to the superior court. Therefore, the probate court was without subject matter jurisdiction to remove Felix as a co-trustee of the Trust, and such order is void.

Decided October 1, 1997.

Alvin L. Kendall, for appellant.

Felix C. Moring, pro se.

Green & Tribble, Judson L. Green III, for appellee.

Joel contends that because Felix failed to raise this issue in the trial court, it is not properly addressed by this Court. However, OCGA § 9-11-60 (a) provides that “[a] judgment void on its face may be attacked in any court by any person.” Therefore, the issue is properly before us.

2. Felix next contends that the trial court erred in allowing the sale of Trust property after it was notified of his opposition. The trial court held a hearing on January 17, 1997, at 9:00 a.m., on Joel’s petition to sell Trust property. In an order entered on February 3, 1997, the trial court determined that the purchase price was reasonable and that the proceeds of the sale were necessary to pay expenses incurred on behalf of the Trust beneficiary. The court also found that Felix was personally served with notice of the hearing and was given an opportunity to present objections to the sale but that he was not present at the hearing. On January 17, 1997, however, before the court’s order was entered, Felix filed a notice of dismissal of counsel and voluntary dismissal in which he purported to dismiss Joel’s petition to sell Trust property. The trial court did not address the effect of this attempt to dismiss Joel’s petition in its order. Therefore, we must remand this case for the trial court’s consideration of this issue in light of our prior holding that Felix’s purported removal as co-trustee was void ab initio. See Chrostowski v. G & MSS Trucking, 198 Ga. App. 140, 144 (401 SE2d 53) (1990) (trial court’s failure to consider relevant issue required remand); Meredith v. Meredith, 238 Ga. 595, 597 (234 SE2d 510) (1977) (same).

Judgment reversed and case remanded with direction.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2040.
    In the Interest of B. L. M., a child.
    (492 SE2d 700)
   Blackburn, Judge.

B. L. M. was adjudicated delinquent for committing acts which, if she were an adult, would constitute the offense of reckless abandonment of a child, in connection with the death of her infant daughter. On appeal, she contests the sufficiency of the evidence and also contends the trial court erred in allowing evidence of her statement to police.

In the early morning hours of December 10, 1994, B. L. M., who was then 15 years of age, gave birth to a baby girl at her home. B. L. M. claimed that she was not aware she was pregnant until she gave birth, and that the baby did not show signs of life. B. L. M. then wrapped the baby in a towel, took the baby to the kitchen, and placed it in a trash bag. She tied up the bag containing the baby and placed it with the garbage on the porch. She then went to sleep an hour or two later.

B. L. M.’s mother returned from work about 7:00 a.m. and heard a whimpering sound coming from the garbage bag. She searched the garbage bag and discovered the baby wrapped in a towel. She testified that there were paper towels, scraps of food, and other household trash on top of the baby in the garbage bag. She had her husband call the paramedics. B. L. M. told her mother the child was not hers. The baby was taken to the hospital, where she died on the night of December 14.

1. Under OCGA § 16-5-72 (a), a parent commits the offense of reckless abandonment of a child under the age of one year when the parent “willfully and voluntarily physically abandons such child with the intention of severing all parental or custodial duties and responsibilities to such child and leaving such child in a condition which results in the death of said child.” B. L. M. contends that there was no evidence that her actions resulted in the death of the child, since the medical testimony showed the child would likely have died in any event. “In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile! ] committed the acts charged. In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991); see generally Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).” In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997).

Dr. Gerald Gowitt, the pathologist who participated in the autopsy on the child, testified that the child had numerous health problems. He testified that the child was born approximately eight to ten weeks prematurely, that there was an infection in the mother’s womb, and that there was a blockage in the child’s lungs that prohibited it from exchanging gases properly. Based upon this lung problem alone, he said that the child probably had a one in one hundred chance of surviving. However, he consistently testified that the cause of death was a combination of the child’s prematurity and its exposure to the elements, and that he could not separate those two factors. He testified that it is important to begin treatment on premature infants as soon as possible, and that the quicker treatment is begun, the more likely it is that the child will survive. Dr. Cecil Sharp, who treated the child upon admission to the hospital, also testified that he could not separate the exposure from the child’s other problems as a cause of death.

There are no cases construing OCGA § 16-5-72’s requirement that the defendant leave the child in a condition “which results in the death of said child.” However, in homicide cases, it has been held that “[w]here one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a preexisting cause.” (Punctuation omitted.) Adams v. State, 203 Ga. App. 794, 795 (1) (418 SE2d 68) (1992). Although the child’s exposure was not the sole proximate cause of death, the trial court was authorized to find that it materially contributed to or accelerated the cause of death. Accordingly, the court was authorized to find that the mother’s actions legally resulted in the child’s death as required by OCGA § 16-5-72.

2. B. L. M. contends that the trial court erred in admitting her statement to a police investigator regarding her actions, arguing that such statement was not voluntary. However, even assuming that it was error to admit such statement, B. L. M. herself offered substantially the same testimony at trial. On direct examination by her attorney, she admitted giving birth to the baby, tying it up in the trash bag, and placing it on the porch. Since B. L. M. offered substantially the same testimony at trial, it is highly probable that any error in admitting her statement to the investigator did not contribute to the juvenile court’s adjudication. See Larry v. State, 266 Ga. 284, 286 (2) (a) (466 SE2d 850) (1996) (“any error in admitting the statement would have to be deemed harmless because the statement was echoed by [defendant’s] testimony at trial”); Callaway v. State, 257 Ga. 12, 14 (2) (354 SE2d 118) (1987).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided October 1, 1997.

Samuel W. Cruse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: McMURRAY, Presiding Judge.

text:
    A97A0982.
    MATHEWS v. CONTINENTAL CASUALTY COMPANY.
    (492 SE2d 535)
   McMURRAY, Presiding Judge.

On November 22, 1989, Van Edward Redd and Gianna Mathews were involved in a motor vehicle collision. Both Redd and Mathews were driving vehicles owned by their respective employers and both were acting within the scope of their employment at the time of the collision. After Government Employees Insurance Company (“GEICO”) provided Mathews over $30,000 in no-fault insurance benefits, Mathews filed a personal injury action against Redd and his employer, Georgia Waste Systems, Inc. (“Waste Systems”). Redd and Waste Systems later resolved this matter by paying Mathews and her two attorneys over $200,000 and agreeing to pay Mathews “$375 per month guaranteed for 20 years. . . .” This settlement included Mathews’ execution of a settlement contract wherein she agreed to indemnify Waste Systems’ automobile liability insurance carrier, Continental Casualty Company (“Continental”), “against all such claims, demands, objections, actions, causes of action, damages, costs and expenses.” Because Waste Systems’ truck exceeded 6,500 pounds, GEICO filed a subrogation action against Continental pursuant to former OCGA § 33-34-3 (d) (1) (A) (enacted Ga. L. 1978, p. 2075, § 1; repealed Ga. L. 1991, pp. 1608, 1629, § 3.4.). Continental then filed a third-party claim against Mathews, asserting its indemnity rights under the settlement contract Mathews executed in resolving her tort claim. After GEICO and Continental settled the subrogation action for $15,000, a jury awarded Continental $15,000 on its indemnity claim against Mathews. This appeal followed the denial of Mathews’ motion for new trial. Held:

1. Citing Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755 (294 SE2d 570), Mathews argues that the trial court erred in denying her motion for directed verdict “because the third-party claim was not authorized by the Georgia no-fault statute, which is subject to strict construction.”

In Poole Truck Line, the Yeagers received no-fault insurance benefits from “State Farm” after settling a tort action which arose from a motor vehicle collision. This Court held that the Yeagers’ execution of a release during the settlement proceedings, relieving the alleged tortfeasor of further liability, did not defeat State Farm’s subrogation rights under then Code Ann. § 56-3405b (d) (1), later OCGA § 33-34-3 (d) (1) (A), repealed Ga. L. 1991, pp. 1608, 1629, § 3.4. Referring to fairness and equity, this Court reasoned (in a two-judge decision) that the tortfeasor and his automobile liability insurance carrier had constructive notice of State Farm’s subrogation rights but failed to withhold “from the settlement a sum sufficient to satisfy the insurer’s subrogation claim.” Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755, 758, supra. Applying the same logic in the case sub judice, it is presumed that Mathews had constructive knowledge of GEICO’s subrogation rights but settled her claim against Redd and Waste Systems for over $200,000 without making specific provision for the $10,000 in no-fault benefits she had already received from GEICO. Under these circumstances, we find no policy reasons to set aside Mathews’ agreement to indemnify Continental against GEICO’s subrogation claim. And in so holding, we reject Mathews’ assertion that it is “illogical” for her to reimburse Continental for honoring GEICO’s subrogation claim. To say otherwise under the circumstances of the case sub judice, allows Mathews a double recovery.

Decided September 17, 1997

Reconsideration denied October 2, 1997.

Pat D. Dixon, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Timothy C. Lemke, for appellee.

2. Mathews next contends her indemnity agreement is unenforceable for lack of mutual assent because it did not specifically provide that she agrees to indemnify Continental against GEICO’s subrogation claim. This assertion is without merit. The settlement agreement not only clearly and unambiguously provides that Mathews will indemnify Continental “against all such claims, demands, objections, actions, causes of action, damages, costs and expenses,” it is presumed that Mathews (represented by two attorneys during the settlement proceedings) was fully aware of GEICO’s $10,000 subrogation claim. Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755, 758, supra.

The trial court did not err in denying Mathews’ motion for directed verdict.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A1421.
    JIMENEZ v. THE STATE.
    (492 SE2d 530)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and convicted of committing the armed robbery of a Chamblee convenience store on December 25, 1992. Joshua Hart, the convenience store’s clerk, testified that defendant came into the shop at about 5:00 in the afternoon on Christmas day and threatened him with a pistol when he confronted defendant about taking the beer. Mohammed Ibssa, the owner of another Chamblee convenience store, testified that he caught defendant stealing beer at his store about two and one-half years before the crime charged (June 27, 1990) and that defendant threatened him with a knife a day after he confronted defendant about stealing the beer. The trial court instructed the jury that Ibssa’s testimony was admissible for the limited purpose of proving common design, scheme, plan, course of conduct, motive, location in place or time, identity, state of mind, knowledge, or intent.

Defendant testified that he entered the convenience store which is the subject of the crime charged on December 25, 1992; that Hart harassed him after he purchased some beer; that he was in possession of a pistol during this incident and that the pistol was tucked in his pants, visible to Hart during the confrontation. Defendant testified that he was acting in self-defense when he pulled a knife on Ibssa in June 1990., and explained that he did not threaten Hart with a gun or steal any beer from his store. Held:

In four enumerations of error, defendant challenges the trial court’s admission of the similar transaction evidence. He argues that the incidents were not sufficiently similar; that the incidents were too remote in time; that the prejudicial impact of his prior criminal act outweighed its probative value and that the trial court’s limiting instruction to the jury was too broad because his identity was not an issue, that is, the evidence was not admitted for a proper purpose.

“Prior crime evidence is admissible when the State satisfactorily makes the three affirmative showings required by Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B). ‘The independent act does not have to be identical in character to the charged offense if there is a sufficient connection between them.’ Smith v. State, 264 Ga. 46, 47 (2) (440 SE2d 188) (1994).” Spencer v. State, 268 Ga. 85, 86 (2) (485 SE2d 477). Both the crime charged and the June 27, 1990, convenience store incident involved confrontations with store workers which involved threats of violence by defendant with lethal weapons and which were precipitated by defendant’s theft of beer. These circumstances authorize the trial court’s finding that proof of defendant’s actions during the June 27, 1990, incident is relevant to show defendant’s motive, scheme, plan, bent of mind and course of conduct during the December 25, 1992, armed robbery. See Spead v. State, 218 Ga. App. 547 (1), 548 (462 SE2d 635). The relevance of the similar transaction evidence, along with the trial court’s appropriate limiting instruction regarding the purpose of this evidence, outweighed its prejudicial impact upon defendant’s character. See Cantrell v. State, 210 Ga. App. 218, 219 (1), 221 (435 SE2d 737). The time span between defendant’s prior criminal act and the crime charged was not too remote as not to be relevant. See Childs v. State, 202 Ga. App. 488 (1), 489 (414 SE2d 714). We find no error in the admission of the similar transaction evidence.

Decided September 10, 1997

Reconsideration denied October 2, 1997

James W. Gibert, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Desiree S. Peagler, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur in the judgment only.


author: McMurray, Presiding Judge.

text:
    A97A1568.
    SHIMSHI v. A. G. SPANOS DEVELOPMENT, INC. et al.
    (492 SE2d 531)
   McMurray, Presiding Judge.

In this action for wrongful eviction by plaintiff Schill against defendant A. G. Spanos Development, Inc. d/b/a Harbor Point Apartments and Peggy Pietropola, the state court entered an order granting defendant’s motion for attorney fees and litigation expenses pursuant to OCGA § 9-15-14 against Schill and attorney Shimshi. Attorney Shimshi sought and obtained permission to file this discretionary appeal from the award of attorney fees and litigation expenses. Held:

One of the issues raised by Shimshi is that the order of the state court is “void” because it fails to state any conduct which would authorize the award of attorney fees and litigation expenses. Where a judgment contains no findings by the trial court of conduct that would authorize the award of legal fees or expenses of litigation under OCGA § 9-15-14, that portion of the judgment must be vacated. Keeler v. Keeler, 263 Ga. 151, 152 (2) (430 SE2d 5); Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31); Coker v. Mosley, 259 Ga. 781 (2), 782 (2) (c) (387 SE2d 135); Morris v. Morris, 222 Ga. App. 617, 618 (2) (475 SE2d 676); Aycock v. Re/MAX of Ga., 221 Ga. App.

Decided September 10, 1997

Reconsideration denied October 2, 1997.

Ezra Shimshi, pro se.

Long, Weinberg, Ansley & Wheeler, Kathryn S. Whitlock, John C. Bonnie, for appellees.

587, 589 (2) (472 SE2d 137); Katz v. Harris, 217 Ga. App. 287, 290 (3) (457 SE2d 239); MacDougald v. Phillips, 213 Ga. App. 575, 576 (1) (445 SE2d 357) (aff’d in part and rev’d in part, 262 Ga. 778 (425 SE2d 652)). The state court’s order does not contain findings of conduct that authorize an award of attorney fees or expenses of litigation. Nor is this requirement satisfied by an unsigned document, styled as the lower court’s findings of fact, which was filed approximately two weeks after the judgment being appealed. Therefore, that portion of the state court’s order awarding attorney fees must be vacated. Upon remand the state 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.

Judgment vacated and case remanded with direction.

Beasley and Smith, JJ., concur.