author: Pope, Judge.

text:
    A90A0975.
    PRATER v. BERTRAND.
    (397 SE2d 562)
   Pope, Judge.

Plaintiff William Donald Prater brought this action against defendant Jay Aaron Bertrand for injuries sustained in an automobile accident which occurred while plaintiff was a passenger in an automobile driven by defendant. The jury awarded plaintiff damages for medical expenses and pain and suffering but plaintiff appeals, asserting the trial court committed certain errors. We affirm.

1. The trial court did not err in refusing to permit plaintiff’s attorney to question defendant’s witness, an adjuster for defendant’s automobile insurance carrier, about her affiliation with the insurance company. Plaintiff argues this was an exception to the general rule against admitting evidence of liability insurance because he was entitled to impeach the witness’ credibility by showing she was employed by defendant’s insurance company. However, the record shows the witness was identified as a claims investigator working on behalf of the defendant. Thus the witness’ affiliation with the defendant was adequately revealed to the jury. The trial court did not err in limiting cross-examination so as to exclude an unnecessary reference to liability insurance. See Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 828 (3) (212 SE2d 638) (1975).

2. We reject plaintiff’s argument that the claims investigator’s testimony concerning admissions made by the plaintiff in a telephone conversation was inadmissible because a proper foundation was not laid concerning the identity of the person to whom the investigator was talking. Pursuant to plaintiff’s direction, only a portion of the transcript was transmitted to this court. However, the comments of the trial judge in that portion of the transcript forwarded on appeal show the plaintiff admitted during his own testimony that he gave a statement to an investigator over the telephone. Although the admissibility of testimony relating to the contents of a telephone conversation requires the other party to the conversation to be identified by competent evidence, see Cannady v. Lamb, 146 Ga. App. 850 (1) (247 SE2d 500) (1978), one method of establishing identity is corroboration by that other party. See Pope v. Associated Cab Co., 90 Ga. App. 560, 563 (3) (83 SE2d 310) (1954). The trial court did not err in admitting the claims investigator’s testimony.

3. Finally, plaintiff argues the trial court erred in charging the jury on the defenses of contributory negligence and assumption of the risk. However, the testimony of only one witness was contained within that portion of the transcript forwarded on appeal. Where a determination of the merits of an enumeration of error requires a review of the entire transcript, and only a portion of the evidence at trial was forwarded on appeal, this court must affirm. See Campbell v. Crumpton, 173 Ga. App. 488 (2) (326 SE2d 845) (1985) and cases cited therein. We must assume the evidence as a whole created a jury issue as to plaintiff’s contributory negligence and assumption of the risk and thus that the trial court did not err in charging the jury on these defenses.

Judgment affirmed. Deen,

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

Decided September 4, 1990

Rehearing denied October 5, 1990

Ronald F. Chalker, Jesse E. Barrow III, for appellant.

Chambers, Mabry, McClelland & Brooks, Arthur L. Myers, Jr., for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A90A1165.
    MILLIGAN v. MANNO.
    (397 SE2d 713)
   Pope, Judge.

Plaintiff Margaret Milligan brought this medical malpractice claim against defendant Joseph A. Manno III, M.D., for injuries she allegedly sustained during eye surgery. In compliance with the requirement of OCGA § 9-11-9.1, plaintiff filed with her complaint the affidavit of Larry W. Anderson, D.O., setting forth his opinion that plaintiff’s injuries were caused by defendant’s piercing the optic nerve with an anesthetic needle during the surgical procedure in contravention of the proper standard of care. The trial court granted defendant’s motion to strike the affidavit on the ground of legal insufficiency and dismissed plaintiff’s complaint because, in the absence of a sufficient expert affidavit, the complaint failed to state a claim.

The issue raised by defendant’s motion is whether the affiant, an osteopathic physician, is competent to testify as an expert witness against defendant, an allopathic physician. “The general rule is that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a malpractice case. 85 ALR2d 1022, § 2.” Sandford v. Howard, 161 Ga. App. 495, 497 (4) (288 SE2d 739) (1982). However, in Sandford this court went on to carve out an exception to the general rule. “Where there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify.” Id. at 497 (5). In Sand-ford we ruled that the allopathic physicians presented as expert witnesses were competent to testify against the defendant podiatric doctors because the evidence showed the treatment of the plaintiff’s ailment was not limited to the defendants’ school of practice but was an area in which the fields of podiatry and allopathic medicines overlapped. Id. In Bethea v. Smith, 176 Ga. App. 467 (336 SE2d 295) (1985), this court held the podiatrist witness was not competent to testify as an expert against the orthopedist (allopath) defendant because, unlike in Sandford, the record did not reflect that the method of diagnosis and treatment of the ailment at issue in that case was the same in the two schools of practice.

Plaintiff argues that the holdings in Sandford and Bethea are not applicable to the case at hand because both osteopathic and allopathic physicians are now licensed as physicians by one Composite Board of Medical Examiners. See OCGA § 43-34-20 et seq. However, that this state licenses both osteopathic and allopathic physicians to practice medicine does not mean, as a matter of law, that the methods of diagnosis and treatment of the two schools of practice overlap in all areas. We take judicial notice that even though osteopaths may now prescribe medicine, the two schools of medicine differ in many respects, both in diagnosis and treatment. See 61 AmJur2d, Physicians, Surgeons, etc., § 9 (1981). Therefore, each case must be reviewed on its own merits. In Hicks v. Mauldin, 190 Ga. App. 660 (379 SE2d 806) (1989), this court addressed the issue of whether an osteopath was competent to testify as an expert in a medical malpractice action filed against an allopath. The ruling that the osteopath was competent to testify was based on the testimony of the expert witness that “there was absolutely no difference in the way an allopathic physician and an osteopath would treat [the patient’s medical condition].” Id. at 662.

The affidavit required by OCGA § 9-11-9.1 to be filed with a malpractice complaint is insufficient if it fails to show the affiant is competent to testify as an expert in the case. See Padgett v. Crawford, 189 Ga. App. 568 (376 SE2d 724) (1988); Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 163) (1988). Now that the law requires the affidavit of a competent expert witness to be filed with a malpractice complaint, the rule set forth in Sandford governing the competence of a member of one school of medical practice to testify against a member of another school applies not only to testimony presented at trial but also to the affidavit required to be filed with the complaint. Pursuant to the holding in Sandford, “proof by competent evidence” must be presented to establish an exception to the general rule that a member of one school of medicine is incompetent to testify against a member of another school of medicine. The affidavit filed by plaintiff in this case merely indicates the witness is a licensed osteopathic physician. The affidavit establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of plaintiff’s condition are the same so as to bring the witness within the exception to the general rule that he is incompetent to testify. Thus, the affidavit is legally insufficient and the trial court did not err in striking the affidavit and dismissing plaintiff’s complaint.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided September 11, 1990

Rehearing denied October 5, 1990

David S. Walker, Jr., Michael T. Bennett, for appellant.

Alston & Bird, Judson Graves, Lisa J. Fellner, for appellee.


author: Beasley, Judge.

text:
    A90A1231.
    DERRY v. CLEMENTS.
    (397 SE2d 594)
   Beasley, Judge.

Margaret Derry alleged that Minnie Clements, her two sons Michael and Joseph, and All Coast Land Development Company, Inc., conspired to defraud her in the sale of a condominium. Some of the alleged fraudulent representations made to Derry concerned the quality and construction of the condominium. Plaintiff also averred that she required a moisture-free environment and was assured of that by Joseph Clements, but that water problems plagued the condominium. Summary judgment was granted to Minnie Clements, who was dismissed as a party defendant. This appeal followed.

Minnie Clements signed the condominium sales contract between Derry and All Coast as president of All Coast. Clements’ affidavit denied that she was an officer, stockholder or employee of All Coast. She stated she had no authority to represent the corporation or to bind its interests; that she made no written or oral representations concerning the condition or construction of the condominium purchased by Derry; that she owned no interest in the condominium nor received any benefit from its sale. She explained that she signed the sales contract at the sole behest of the real estate broker, whom she expressly informed regarding her lack of authority to sign on behalf of the seller, and that the contract was executed without a corporate seal. Clements also affirmed that she was unaware of Derry’s alleged need to live in a moisture-free environment and that she was and never had been a professional builder and was never part of any design or scheme to obtain money or funds from Derry. Derry introduced no proof to contradict Clements’ affidavit and relied upon her allegations of a conspiracy to defraud.

As movant, defendant must unequivocally refute plaintiff’s allegations and conclusively negate one or more essential elements of plaintiff’s case. Scott v. Owens-Illinois, 173 Ga. App. 19, 20 (325 SE2d 402) (1984). Clements’ statement denying her participation in any scheme was direct evidence which could constitute an uncontradicted fact capable of sustaining a motion for summary judgment. Guernsey Petroleum Corp. v. Data General Corp., 183 Ga. App. 790, 792 (2a) (359 SE2d 920) (1987). Because Clements denied the essential allegations of the complaint and submitted evidence that she was not part of a conspiracy to defraud Derry, she carried her burden of showing there was no genuine issue of material fact. The burden was then on respondent not to rest upon the allegations of the pleadings, but to set forth specific facts showing there was a genuine issue for trial. Meade v. Heimanson, 239 Ga. 177, 178 (236 SE2d 357) (1977).

Decided September 20, 1990

Rehearing denied October 5, 1990.

Charles E. Lamkin, for appellant.

Remaining is whether Clements’ execution of the sales contract as president of All Coast is sufficient to raise a jury question as to her involvement in the alleged conspiracy. The signing of the document does not directly establish Derry’s allegations and is at most circumstantial evidence from which the fact may be inferred. OCGA § 24-1-1 (4). As such it must be sufficient to support a verdict in order to withstand a motion for summary judgment. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979). The plaintiff must offer proof which tends in some proximate degree to establish the conclusion claimed; “the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.” Georgia R. & Elec. Co. v. Harris, 1 Ga. App. 714, 717 (1) (57 SE 1076) (1907). Accord Guernsey Petroleum Corp., supra at 792 (2a).

The signing raises a suspicion as to defendant’s conspiracy involvement, but it is also susceptible to the conclusion that she was influenced into signing despite her protestations and against her better judgment. In those circumstances her actions would have had nothing to do with the alleged scheme to defraud plaintiff.

“[A]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” Cohen v. Hartladge, 179 Ga. App. 847, 851 (348 SE2d 331) (1986). “[A] finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244, 245 (361 SE2d 236) (1987). Weighed against direct evidence that defendant was not involved in any scheme, the evidence that she executed the sales contract would raise an inconclusive inference which would not withstand summary judgment. Allen Kane’s Major Dodge, supra at 781; Scoggins v. APAC-Ga., 193 Ga. App. 465, 467 (388 SE2d 58) (1989); Brewer v. Southeastern Fid. Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978).

Judgment affirmed.

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

Lee & MacMillan, S. Wesley Woolf, Thomas J. Lee, for appellee.


text:
    A90A1262.
    BELL v. THE STATE.
    (398 SE2d 29)
    Decided September 6, 1990
    Rehearing denied October 5, 1990

      Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

      W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.
   Pope, Judge.

Defendant Randall Eugene Bell appeals his conviction for driving under the influence.

1. Defendant was charged with violating OCGA § 40-6-391 (a) (1), which makes it a crime to be under the influence of alcohol or drugs to the extent that one becomes a “less safe driver.” The arresting officer testified that the only indication of intoxication exhibited by defendant was the odor of alcohol on his breath. This alone is insufficient evidence to show defendant’s capacity to drive was impaired. See Clay v. State, 193 Ga. App. 377 (2) (387 SE2d 644) (1989). However, evidence was presented that a breath test properly administered to defendant resulted in a reading of .17 grams. An alcohol concentration of over .10 grams creates a presumption of impaired driving ability. See OCGA § 40-6-392 (b) (3); Horah v. State, 173 Ga. App. 306 (2) (325 SE2d 917) (1985). Defendant presented no evidence to rebut the presumption raised by the evidence. Thus, the Superior Court did not err in concluding, on de novo review of the evidence presented to the Probate Court, that the defendant was intoxicated to the extent that he was rendered a less safe driver and in finding defendant guilty as charged.

2. We reject defendant’s argument that the judgment is void because the post of the Superior Court judge who issued it was created in violation of federal law. The United States District Court for the Southern District of Georgia has ruled in the pending case of Brooks v. State Bd. of Elections, Case No. 288-146: “Any decisions by incumbent judges holding over pursuant to this Order are of course valid.” (Emphasis supplied.) Id. slip op. at 3 (S.D. Ga. 1990).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A90A1293.
    RIGENSTRUP v. THE STATE.
    (398 SE2d 25)
   Birdsong, Judge.

Appellant, Robert Henry Rigenstrup, was indicted on two counts of cruelty to children. The alleged victim (hereinafter “B”) is the daughter of the woman with whom appellant was living, Renee Pence. Count one averred that appellant “unlawfully maliciously” caused B “cruel and excessive physical and mental pain by striking said child on the buttocks, about the head and about the body.” Count two averred that appellant “unlawfully maliciously” caused B “cruel and excessive physical and mental pain by omission in failing to seek medical attention” for certain fractures the child had sustained. Appellant was convicted of both counts and appeals from the judgment of conviction, verdict, and sentence.

On April 30, 1988, B, who was then about fourteen months old, was admitted to the Scottish Rite Children’s Hospital following an apparent accidental near-drowning in the bathtub at her home. The treating physician observed multiple bruises in various stages of healing on B’s body, and appropriate investigation commenced. Bone scan and x-rays revealed that B had a fracture of the collarbone, fracture of at least one rib, and compression fractures of at least two and possibly three vertebrae. The bruises on B’s body included a bruise on her cheek, and bruises on her lower buttocks in an area not normally exposed to bruising.

The State introduced certain medical experts who testified inter alia regarding the nature of B’s injuries. Dr. Brown testified without objection that her finding and discharge diagnosis was probable child abuse, and that B’s compression fractures could be caused by being slammed onto a potty seat. Dr. Burton testified without objection that from the constellation of injuries present, together with certain information contained within appellant’s statement, he had concluded B’s injuries were consistent with having been received from the “childhood maltreatment syndrome.”

Ms. Pattillo from the Floyd County Department of Family & Children Services testified inter alia about certain admissions made to her by appellant. Appellant told her that he had told a psychologist “that he was afraid of hurting” B. Appellant denied hurting B, but admitted he had spanked her when she was eleven months old for throwing toys. Appellant attributed B’s collarbone injury to a fall from her bed; as to the bruises, appellant admitted that he had spanked the child on the buttocks on occasion and had on a couple of occasions left bruises.

Detective Wade testified inter alia that appellant admitted he had probably caused the bruises on B’s behind by giving her a “smack” on the behind when she wet her pants. Appellant also admitted that at first he would put B down on the potty easy, but when she did wet her pants he “would put her down a little harder so she understands.” Regarding the collarbone accident, appellant admitted that certain of his friends had seen B’s collarbone and advised him to take her to the hospital if it got worse.

The mother of B, Renee Pence, in essence testified that appellant loved the baby and would not intentionally harm her. The baby’s collarbone was injured when she accidentally fell from the playpen; a pediatrician, Dr. Cuba, was called and he said to ice pack the swollen area, move the arm to see if it hurts, and if the swelling goes down not to worry. She further testified that she has been reminded by her mother that the compression fractures could have occurred in an earlier accident when a stroller collapsed and she fell pushing it onto the baby. Ms. Pence denied ever seeing appellant slam B on the potty, but did observe that “[w]henever [B] would potty in her pants, [appellant] might place her a little harder . . . not enough to hurt her.” When she asked appellant “why so rough,” he replied that “he was a little upset whenever she’d potty in her pants. . . .” Ms. Pence saw appellant on occasion spank B on the bottom with his hand, because of a potty training accident or because the baby was doing something she had already been told not to do. Ms. Pence believed that appellant was spanking a fourteen-month-old baby because that was how he was raised, and he thought that was how you were supposed to do things. Appellant did not listen to her when she told him that was not the way to discipline the child.

Dr. Cuba testified that he had never received a phone call pertaining to B and a broken or swollen collarbone, or of any injury to her arm; and, that he would have advised anyone making such a call to take the baby to his office or to an emergency room.

Appellant testified in essence that he was abused as a child, he did not know that he was incorrectly disciplining B, and that he loved her and would not intentionally harm her, either physically or mentally. He admitted in open court that he had started spanking B for potty training accidents after the first several times, that a friend, Troy, told him it was no way to treat children, and that he “[u]sed to set [B] on the toilet a little harder than what I would if she had to go potty and told us about it.” He further testified that he had told someone he had left bruises on the child when he spanked her, but meant only that he had once left red finger marks. Although appellant had witnessed the stroller accident, he did not take B to the hospital, as Beverly Pence (Renee’s mother, who gave certain corroborating testimony in appellant’s behalf) did not believe it was serious enough. He also testified that he had once told a psychologist that if B grabbed something off the table, he would “smack” her, and that he did not know if this was right or wrong; and, that he had told the detective that he “smacked” B when she had a potty-training accident, but did not “smack” her when he set her down on the toilet harder. Although he understood that Dr. Cuba was called after B’s collarbone accident, he did not call him. Appellant testified that since taking parenting classes he now believes that he “did wrong mentally with [B] by spanking her,” but he was unaware of this at the time it occurred. Held:

1. Appellant asserts that the trial court erred by admitting in evidence a taped interview of appellant without deleting a portion thereof, which put his character in issue. Specifically, during the course of Detective Wade’s interview, appellant volunteered an intended self-serving statement, which was not in response to the question asked of him, and wherein he stated he was on parole and that the “parole man” comes out once or twice a month and could verify that B had no bruises that he had seen.

Pless v. State, 260 Ga. 96 (390 SE2d 40) and Fugitt v. State, 256 Ga. 292 (348 SE2d 451), cited by appellant, are distinguishable from this case.

As a general rule, “ ‘[i]t is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.’ ” Berryhill v. State, 235 Ga. 549, 551-552 (6) (221 SE2d 185). Moreover, if the statement at issue is an integral part of a confession to the crime for which the defendant is on trial, it is not rendered inadmissible because the language used therein indicates that the accused committed some other, separate offense. Florence v. State, 162 Ga. App. 830 (1) (292 SE2d 923); compare Dampier v. State, 245 Ga. 427 (10) (265 SE2d 565); Robinson v. State, 192 Ga. App. 32 (383 SE2d 593). Assuming that all jurors were aware that because appellant was on parole, he had a prior criminal record, and viewing the posture of the entire record, we find that it is highly probable that such error, if any, did not contribute to the verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869); compare Florence, supra at 832 (1).

2. Appellant asserts that the trial court erred by refusing to grant a mistrial when Dr. Burton was permitted to testify to the “ultimate issue” to be decided by the jury. The record reflects that appellant posed a timely objection at trial, but upon the specific grounds that Dr. Burton cast “prejudice” upon the defendant by testifying in open court that he was “rendering his [expert] opinion based on facts that he can’t give to the jury.” No timely objection was made to the testimony on the grounds that the witness invaded the province of the jury by testifying as to an “ultimate issue” in the case. “Since this ground was never made an issue before the trial court, no question is presented for appellate review.” Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783 (321 SE2d 110). “On appeal only issues properly raised before the trial court will be considered.” Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (1) (385 SE2d 746).

In his brief, however, appellant also argues that Dr. Burton’s statement that he had other information he was not permitted to tell the jury “was just short of telling the jury how certain he was of [a]ppellant’s guilt.” This particular issue was not reasonably contained within appellant’s enumeration of error. “An enumeration . . . cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. [Cits.] One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citations and punctuation omitted.) City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493). Moreover, appellant’s counsel made an admission in judicio at the new trial motion hearing that this particular issue was “cured” by the subsequent curative action taken by the trial court.

3. Appellant asserts that he was denied effective assistance of counsel by his trial counsel’s failure to object properly to certain opinion testimony of Ms. Pattillo regarding the “ultimate issue” to be decided by the jury. The motion for new trial was filed by appellant’s trial defense counsel, and did not contain an allegation of error based on inadequacy of counsel. Subsequently, appellant was represented at the hearing on this motion by his current appellate counsel. At the motion for new trial hearing, appellate counsel expressly elected not to file an amended motion for new trial, claiming he had just received the files approximately eight days previous. Neither did appellant request any continuance or extension of time for the purpose of such filing.

During the motion for new trial hearing, while arguing the admissibility of certain expert testimony, appellate defense counsel stated, “we would make an argument that there might have been some sort of ineffective assistance of counsel. And the fact that the attorney did not make objection at that point when that evidence was entered, we wanted to perfect the record as to that point.” (Emphasis supplied.) Thus, appellant was then aware of the possible existence of error based on inadequacy of counsel. Nevertheless, appellant did not attempt to assert such error specifically and to obtain a ruling thereon by the trial court. Moreover, appellant did not request that the motion for new trial be expanded to include an inquiry into this matter. At the hearing, appellant’s trial defense counsel was called and questioned on another matter, and was not questioned regarding any assertion of inadequacy of counsel. Finally, appellant did not file an amended enumeration of error to assert inadequacy of counsel even following the conclusion of the hearing. Thus, appellant is attempting to raise this issue for the first time on appeal even though he had ample opportunity to raise it properly at the hearing on the new trial motion. This is not a case where the appellate counsel did not represent the defendant on the motion for new trial. Compare Meders v. State, 260 Ga. 49 (10) (389 SE2d 320) and Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115). As counsel has failed to raise the issue of inadequacy of counsel at “the earliest practicable moment,” the issue is waived and it is unnecessary to discuss the merits. Washington v. State, 193 Ga. App. 823 (389 SE2d 407); see Dawson v. State, 258 Ga. 380 (369 SE2d 897) and Thompson v. State, 257 Ga. 386 (359 SE2d 664).

4. Appellant asserts that the trial court erred by failing to grant a directed verdict of acquittal as the evidence was insufficient as a matter of law. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test ... to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

Under OCGA § 16-5-70, “cruelty to children may be committed by either of two methods: (1) by wilfully depriving a child of necessary sustenance to the extent that the child’s health or well-being is jeopardized, or (2) by maliciously causing the child cruel or excessive physical or mental pain.” Howell v. State, 180 Ga. App. 749, 751 (3) (350 SE2d 473). “The denial of necessary and appropriate medical care for a child under 18 years of age can constitute cruelty to a child when it causes the child ‘cruel or excessive physical or mental pain,’ under OCGA § 16-5-70 (b).” Id. at 751-752; compare Lewis v. State, 191 Ga. App. 287 (1) (381 SE2d 558).

For purposes of this Code section, “ ‘malice’ in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result.” Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587). “Intention may be manifest by the circumstances connected with the perpetration of the offense.” (Citation and punctuation omitted.) Daniel v. State, 179 Ga. App. 54, 55 (1) (345 SE2d 143). Appellant’s intent was a question of fact to be determined “upon consideration of ‘words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ [Cit.] The jury’s [inherent] finding of intent will not be set aside unless it is clearly erroneous. . . . The intention with which an act is done is peculiarly a question for the jury . . . [further,] the jury was authorized in this case in finding as no excuse the appellant’s [contentions of laudable motive and love for the baby].” McGahee v. State, 170 Ga. App. 227 (1) (316 SE2d 832). “Appellant, in essence, has asked us to sanction cruelty to children so long as [he] ‘did not mean to hurt’ the child substantially and had no actual hatred and ill will in [his] heart. We cannot follow this reasoning. [His] deliberate intent, as well as [his] malice, was proven by the consequences of [his] act in this case.” Id. at 228. Turnipseed v. State, 186 Ga. App. 278 (367 SE2d 259), cited by appellant, is distinguishable from this case.

Decided September 6, 1990.

John R. Greco, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652). The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of cruelty to children, as charged. Consequently, the court did not err in overruling appellant’s motion for a directed verdict of acquittal. Jackson v. Virginia, supra.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A0789.
    WILSON v. THE STATE.
    (397 SE2d 744)
   McMurray, Presiding Judge.

Defendant appeals his conviction of two counts of violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute and possession of less than one ounce of marijuana) and of carrying a concealed weapon. The sole enumeration of error complains of the denial of defendant’s motion to suppress. Held:

Shortly before midnight on November 10, 1988, officers of the Cobb County Police Department were dispatched by radio to investigate a threat to kill a confidential informant for the Marietta-Cobb-Smyrna Drug Unit. An officer testified that he was informed by radio that a person outside a specified address in a “Camaro or Firebird was armed with a forty-five automatic and had threatened to kill and was intending to kill the [informant].”

At the specified address the officers found a “Pontiac Firebird, silver in color,” with two people in the vehicle. When the officers activated the police vehicle’s blue lights and approached the Firebird, the female driver started the engine and attempted to drive away at a high rate of speed. After a police vehicle blocked the path of the Fire-bird, the driver attempted to go around the patrol vehicle but after a second patrol vehicle further blocked its path the Firebird was stopped.

After the officers ordered the occupants out of the Firebird there was a great deal of hesitation and during this interval the officers heard the female driver speaking to defendant, who was the passenger in the Firebird, and saying “Don’t do it . . . just get out of the car. Don’t do anything. Get out of the car.” Finally, after a minute or two, defendant leaned over in the passenger’s seat and was momentarily out of the officers’ sight, before leaning back up and getting out of the Firebird. A pat down was done on the defendant and ammunition for a forty-five caliber pistol was found in his coat pocket.

At this time, the officers also had the driver get out of the vehicle. After the driver was unable to produce proof of insurance and stated that she did not think the vehicle was insured, and defendant acknowledged that he owned the Firebird, both were arrested.

Following the arrests, an officer looked under the passenger seat and found a forty-five caliber pistol. The Firebird was impounded, and cocaine and marijuana were found in the trunk during an inventory of the vehicle.

The initial investigatory stop of the Firebird was authorized since it was based on specific, articulable facts sufficient to give rise to a reasonable suspicion that the occupants of the vehicle were, or were about to be, engaged in criminal activity. Probable cause is not required to authorize such a brief investigatory stop. Kettman v. State, 257 Ga. 603, 606 (9) (362 SE2d 342); Evans v. State, 183 Ga. App. 436, 437 (2), 439 (359 SE2d 174); Bell v. State, 179 Ga. App. 790 (2) (347 SE2d 725); Coley v. State, 177 Ga. App. 669 (1), 670 (341 SE2d 9).

The subsequent arrests were proper since the officers had acquired probable cause to believe that both the driver and defendant were in violation of various provisions of OCGA § 33-34-12. This statute requires that proof of insurance coverage be kept in a vehicle while it is in operation and provides criminal sanctions for failure to show the required proof or authorizing another to operate the vehicle without insurance or the required proof thereof.

The search of the passenger compartment of the automobile was authorized by the arrest of the recent occupants of the vehicle. State v. Tinsley, 194 Ga. App. 350 (1) (390 SE2d 289); State v. Watkins, 182 Ga. App. 431, 433 (356 SE2d 82); Oswell v. State, 181 Ga. App. 35 (351 SE2d 221); Coley v. State, 177 Ga. App. 669 (1), supra.

Defendant argues for the first time on appeal that the impoundment of the Firebird was improper since defendant and the driver were not consulted concerning their preferences regarding disposition of the vehicle. See Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681); State v. Darabaris, 159 Ga. App. 121 (282 SE2d 744). However, this contention extends beyond the boundaries of defendant’s motion to suppress which questioned the existence of probable cause for the arrest of defendant but did not raise any issue directly concerning the impoundment of the vehicle. OCGA § 17-5-30 (b) requires that a motion to suppress evidence “state facts showing that the search and seizure were unlawful.” Unless defendant has satisfied this requirement the State is under no duty to present evidence in rebuttal. Smith v. Hopper, 240 Ga. 93, 95 (3) (239 SE2d 510). Therefore, defendant’s failure to raise the issue in his motion to suppress relieved the State of any burden of proving that the impoundment of the vehicle, after defendant’s legal arrest, was proper. Hunter v. State, 249 Ga. 114, 115, 116 (2) (288 SE2d 214).

Decided October 5, 1990.

James IF. Bradley, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1109.
    SMITH v. SHERMAN.
    (397 SE2d 617)
   McMurray, Presiding Judge.

This is an action for damages arising from a motor vehicle collision. Plaintiff Smith was injured when the vehicle in which she was a passenger collided with an alleged family purpose vehicle owned by defendant Sherman and driven by his son. Additional parties to this action are third party defendant Vandenburgh, driver of the vehicle in which plaintiff was a passenger, and third party defendant Candler Development Company, manager of the shopping center where the collision occurred.

Defendant Sherman moved for summary judgment, contending that the family purpose doctrine is inapplicable to the case sub judice, so that, since he was not driving a vehicle involved in the collision, there is no genuine issue of material fact for resolution by a jury. The superior court initially denied defendant’s motion, but, following the filing of depositions of defendant Sherman and his son by third party defendant Candler Development Company and the filing of defendant Sherman’s motion for reconsideration, granted summary judgment in favor of defendant Sherman against plaintiff. Held:

Pretermitting the issues raised by plaintiff’s first enumeration of error, concerning whether the superior court ruled upon defendant’s motion for reconsideration without allowing plaintiff an appropriate period of time for response, we address plaintiff’s second contention, that genuine issues of material fact remain as to whether the family purpose doctrine is applicable to the case sub judice. First, we note that the pleadings and evidence present an issue for the jury concerning the alleged negligence of defendant Sherman’s son. Therefore, since in our view, there is evidence which would authorize a jury to conclude that defendant Sherman is liable under the family purpose doctrine for any negligence of his son, we must reverse the superior court’s grant of summary judgment in favor of defendant Sherman and against plaintiff.

“The principles underlying the family purpose car doctrine are set out in Phillips v. Dixon, 236 Ga. 271, 272 (223 SE2d 678) (1976), where the rule is stated as follows: ‘In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose.’ See OCGA § 51-2-2.” Tolbert v. Murrell, 253 Ga. 566, 568 (2) (322 SE2d 487). “To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 SE2d 104) (1980).” Quan v. Johnson, 190 Ga. App. 510 (379 SE2d 426). However, the principal factor is authority and control, and we have stated that “the four conditions prescribe when the test is to be applied, but the actual test is authority and control.” Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750). Additionally, the family member to whom the vehicle is furnished must be a member of the owner’s immediate household. Finnocchio v. Lunsford, 129 Ga. App. 694 (2) (201 SE2d 1).

There is uncontroverted evidence that defendant Sherman supplied, for family purposes, the vehicle which his unemancipated minor son was driving and that the automobile was being driven with his consent (albeit permission was provided via defendant Sherman’s wife who had been vested by defendant Sherman with authority to decide whether or not the son could drive) at the time of the collision. See generally Young v. Wooldridge, 187 Ga. App. 661, 663 (1) (371 SE2d 100).

While his family resided in Georgia at the time of the collision, defendant Sherman had established a separate residence in Louisiana due to a transfer with his employer to that location. He stated that at the time of the collision he considered Louisiana to be his principal residence and contends that his son was not living within his household at that time. While defendant Sherman testified as to his divorce subsequent to the date of the collision and that he and his wife were not living together at the time of the collision, he also stated that at that time he and his wife were not separated and that the family residence continued to be his home in Georgia so that when he had occasion to return to Georgia he would usually stay there. When something required his presence at the Georgia residence he was able to return on short notice and with little expense due to his employment with an airline. Indeed, when defendant Sherman learned of the collision the following morning he immediately returned to Georgia. Additionally, he retained his Georgia driver’s license and had not acquired a Louisiana driver’s license or registered to vote in that state. Defendant Sherman’s son testified that defendant Sherman “resided in New Orleans and came in on the weekends.”

Decided October 5, 1990.

Rubin Law Offices, Robert P. Hoyt, for appellant.

Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, for appellee.

Genuine issues of material fact remain for a jury concerning whether, at the time of the collision, defendant Sherman and his son continued to be members of the same household. Despite the multiple residences and subsequent divorce, there is evidence that at that time defendant Sherman’s family continued to function as a cohesive social entity, and that he had the right and did in fact exercise authority and control over the use of the automobile involved in the collision. The superior court erred in granting defendant Sherman’s motion for summary judgment.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A90A1417.
    TCHORZ v. THE STATE.
    (397 SE2d 619)
   Sognier, Judge.

Louis W. Tchorz was convicted in a bench trial of the offense of theft by conversion, and he appeals.

The evidence adduced at trial showed that appellant, a licensed insurance agent, was the proprietor of the Lou Tchorz Insurance Agency in Columbia County on May 18, 1989, when Samuel Jones completed an application for automobile insurance to cover a 1987 Chevrolet Celebrity. Jones listed the applicant as Cora Jones, his wife, and signed her name, paying appellant $443 in cash for the first year’s premium. The application showed the effective date of the policy as May 26, 1989. At Jones’ request, appellant filled in by hand a blank Georgia liability insurance identification card provided by Cotton States Insurance Company referring to policy #001006437, as though such a policy had been issued, and informed Jones the policy would be mailed to him. When the policy was not received and Jones began inquiring when it would arrive, appellant informed him that he had not written the insurance with Cotton States but with Omni Insurance Company. Jones testified he telephoned and visited appellant numerous times because he and his wife became concerned about not receiving the policy, but appellant either was not in or kept putting him off. On August 25, 1989, Jones and his wife swore out a warrant for appellant’s arrest. The State also called as a witness David Peters, a representative of Omni, whom it had subpoenaed, but Peters was not present and did not testify.

Appellant testified that he deposited the cash given him by Jones in his business account and sent his own check to Omni along with Jones’ application; that he telephoned Omni’s home office in Atlanta on two occasions in June, and was told first that the policy was in “underwriting,” and then that Omni was having difficulty locating a document.

Appellant contends the elements of the crime of conversion were not shown because the State failed to prove that appellant appropriated to his own use the cash given him by Jones. We agree and reverse. “A person commits the offense of theft by conversion when, having lawfully obtained funds ... of another . . . under an agreement or other known legal obligation to make a specified application of such funds ... he knowingly converts the funds ... to his own use in violation of the agreement.” OCGA § 16-8-4 (a).

“[P]roof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract.” Baker v. State, 131 Ga. App. 48, 51 (1) (205 SE2d 79) (1974). In the case at bar, although it is uncontroverted that no policy was issued to the Joneses, appellant testified that he properly applied the cash given him by Jones to the purpose for which it was intended. Appellant’s testimony stood uncontradicted by any evidence proffered by the State. There was thus no discrepancy between the amount received by appellant and the disbursement made by him going toward the completion of the contract. The State did not prove that Omni never received appellant’s check, or that no such check was written according to appellant’s own records. We find that absent such evidence and given appellant’s uncontradicted testimony that he properly applied the cash, notwithstanding the fact that appellant may have acted improperly or even suspiciously by issuing a Cotton States insurance identification card on a policy which did not yet exist and evading Jones’ questioning, the State failed to prove an essential element of the charged crime. Accordingly, appellant’s conviction must be reversed. See Baker v. State, 135 Ga. App. 500, 501 (218 SE2d 171) (1975).

Decided October 5, 1990.

Stephen E. Shepard, for appellant.

Michael C. Eubanks, District Attorney, Hugh M. Hadden, Assistant District Attorney, for appellee.

Judgment reversed.

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


author: Banke, Presiding Judge.

text:
    A90A1591.
    ACME FENCE COMPANY v. DEPARTMENT OF TRANSPORTATION.
    (397 SE2d 622)
    Decided October 5, 1990.

      Clark & Smith, Dwight Bowen, for appellant.
    Eileen M. Witt, pro se.

      Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Charles M. Richards, Assistant Attorney General, for appellee.
   Banke, Presiding Judge.

This is an appeal from an order granting a motion to drop a party respondent in a condemnation proceeding which remains pending in the trial court. “Since the order appealed from is not a final judgment [cits.] and the interlocutory appeal procedure specified by [OCGA § 5-6-34 (b)] has not been followed, the appeal must be dismissed. [Cits.]” Wallace v. Bledsoe, 244 Ga. 674 (261 SE2d 399) (1979). See also Atlanta Dev. Co. v. Peel & Sons, 189 Ga. App. 453 (377 SE2d 552) (1988).

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A1903, A90A1904.
    EUROSTYLE, INC. v. JONES et al; and vice versa.
    (397 SE2d 620)
   Deen, Presiding Judge.

Eurostyle, Inc. d/b/a Walther Eurostyle Furnishings (Eurostyle) contracted with the Joneses to install cabinets in the Joneses’ home. When the Joneses refused to pay in full because of alleged defects in the cabinets, Eurostyle filed a lien against the Joneses’ property on November 14, 1988. On August 14, 1989, Eurostyle commenced an action to enforce the lien; Eurostyle, however, did not file any notice of commencement of suit. The Joneses counterclaimed, seeking damages for slander of title.

The trial court found that Eurostyle’s lien was rendered unenforceable by its failure to file a notice of commencement of suit at the time it commenced the action. The trial court, however, granted summary judgment for Eurostyle on the Joneses’ slander of title claim. In Case No. A90A1903, Eurostyle appeals from the trial court’s dissolution of the lien, and in Case No. A90A1904, the Joneses appeal from the trial court’s grant of partial summary judgment for Eurostyle on the slander of title claim. Held’.

1. OCGA § 44-14-361.1 (a) (3) provides “[t]he commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county where the subject lien was filed.” Filing of the notice of commencement of the action is a prerequisite to the enforceability of the lien. Statham Machinery &c. Co. v. Howard Constr. Co., 160 Ga. App. 466 (287 SE2d 249) (1981); D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170) (1984). It was undisputed that Eurostyle did not file such a notice, and the trial court properly found the mechanic’s lien unenforceable.

2. The trial court granted summary judgment for Eurostyle on the Joneses’ claim for slander of title, on the grounds that Eurostyle’s filing of the lien and action to enforce the lien were privileged under OCGA § 51-5-8. We agree with that determination.

Judgments affirmed.

Pope and Beasley, JJ., concur specially.

Pope, Judge,

concurring specially.

I concur in the majority opinion and in the result. However, I must clarify that the language in the materialman’s lien statute used to support Eurostyle’s argument that no notice need be filed in superior court if the action is also filed in superior court was removed by the amendment to the statute put into effect in 1983. See Ga. L. 1983, pp. 1450, 1453. Before 1983, the pertinent language required commencement of an action to recover the amount of the claim within 12 months of the date the amount was due and “‘if the action is not filed in the superior court of the county in which the claim of lien was filed, then also within such 12 months’ period, the party claiming the lien shall file under oath with the clerk of the superior court of the county wherein the subject lien was filed a notice. . . .’” Statham Machinery &c. Co. v. Howard Constr. Co., 160 Ga. App. 466, 467 (287 SE2d 249) (1981). However, the statute was amended to read as it is set out in the majority opinion. The statute now requires that notice be filed in every case. The materialman’s lien statute is in derogation of the common law; it must be complied with strictly. Allied Elec. Contractors v. Kern & Co., 184 Ga. App. 747 (362 SE2d 452) (1987).

Decided October 5, 1990.

George P. Graves, for appellant.

David R. Rogers, for appellees.

I am authorized to state that Judge Beasley joins in this special concurrence.


text:
    A90A1970.
    HARRELL et al. v. LOUIS SMITH MEMORIAL HOSPITAL.
    (397 SE2d 746)
   Birdsong, Judge.

This appeal arises from the granting of summary judgment in favor of appellee, Louis Smith Memorial Hospital (see generally OCGA § 9-11-56 (h)). The children of the deceased brought suit for medical malpractice against the treating physician and the hospital. The hospital asserted, inter alia, the defense of charitable immunity. Held:

1. Appellants assert that the trial court erred in making factual findings instead of utilizing the procedures under OCGA § 9-11-56. OCGA § 9-11-52 does not apply to certain actions including all motions except as provided in OCGA § 9-11-41 (b). OCGA § 9-11-52 (b); see generally Fudge v. Colonial Baking Co., 186 Ga. App. 582 (1) (367 SE2d 814); Karsman v. Portman, 173 Ga. App. 108 (3) (325 SE2d 608). However, in certain cases when the trial court makes findings of fact and conclusions of law in ruling on motions for summary judgment, it can be “helpful to the appellate courts and instructive to the parties.” Lewis v. Rickenbaker, 174 Ga. App. 371, 372 (1) (330 SE2d 140). Accordingly, the mere entry of findings of fact and conclusions of law in ruling on a motion for summary judgment does not constitute error per se. Moreover, it appears on the face of the order that the trial court did apply the test of OCGA § 9-11-56, as it concluded “[t]here are no genuine issues as to any material facts and said defendant is entitled to a judgment as a matter of law.” See generally OCGA § 9-11-56 (c). It is the duty of the party asserting error to show it by the record; mere assertions of error in briefs cannot satisfy this duty. Denny v. Nutt, 189 Ga. App. 387, 389 (375 SE2d 878). Appellants have failed to carry their burden. In any event, we will review this case using well-established principles of law pertaining to summary judgment. See Division 2 (b), below.

2. Appellants assert the trial court erred in entering summary judgment on behalf of appellee hospital on the grounds of the charitable immunity doctrine.

(a) On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. When, as in the instant case, movant is a defendant, it has the additional burden of piercing the plaintiffs’ pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing parties should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the parties opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Yet once the party moving for summary judgment has made out a prima facie case, the burden of proof shifts to the opposing parties who must come forward with rebuttal evidence or suffer judgment against them. Leah Enterprises v. Chouinard, 189 Ga. App. 744, 745-746 (377 SE2d 514).

(b) Today, virtually all states have “rejected the complete immunity of charities”; however, Georgia is among a “handful of states” which have “attempted to modify the immunity so that it is retained in some cases but not in others.” Prosser & Keeton on Torts (5th ed.), Immunities, § 133. In Georgia an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (1) (353 SE2d 515); Wynn v. Fulton-DeKalb Hosp. Auth., 196 Ga. App. 52 (395 SE2d 343).

“[T]he doctrine of charitable immunity . . . does not extend to the corporate or original negligence of the charitable entity in the employment or retention of incompetent employees. . . .” Y.M.C.A. &c. v. Bailey, 107 Ga. App. 417, 420 (130 SE2d 242). Moreover, “[t]he failure to exercise ordinary care to provide a sufficient number of competent and adequately instructed employees and the failure to exercise ordinary care in selecting or retaining competent employees cannot be distinguished.” Y.M.C.A., supra. Thus, the doctrine of charitable immunity would not extend to any negligence of the appellee hospital, assuming it qualifies as a charitable entity, in failing to provide a sufficient number of competent and adequately instructed employees for its staff. See Y.M.C.A., supra; Hipp v. Hospital Auth., 104 Ga. App. 174, 177 (2) (121 SE2d 273).

Appellants averred, inter alia, in their complaint that appellee hospital “was at such time required to provide a staff adequately trained to exercise a reasonable dégree of medical care and skill in the delivery of health care,” that it “failed to provide staff who were qualified to adequately diagnose and to treat myocardial infarction,” and that it “failed to properly refer [deceased] to a facility capable of handling acute myocardial infarctions at a proper time.” Compare Hipp, supra. This pleading was sufficient to place appellee hospital on reasonable notice of an averment of inadequate staffing beyond the pale of the doctrine of charitable immunity. Thereafter, the record reflects that the appellee hospital failed to pierce appellants’ pleadings as to these particular averments of inadequate staffing. In fact, the president of the hospital in his deposition testimony made several admissions which per se would create a genuine issue of material fact as to whether the hospital, particularly its emergency room, was adequately staffed with personnel who were competent and adequately instructed. As appellee hospital failed to pierce appellants’ pleadings as to the averment of inadequate staffing, appellants were entitled to rely on their pleadings and were not required to come forward with rebuttal evidence or suffer judgment against them. See Division 2 (a) above. Accordingly, the trial court erred in granting summary judgment for the appellee hospital.

(c) In its order, the trial court concluded that decedent was not a “paying patient.” See generally Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (1) (385 SE2d-436); Wynn, supra; compare FultonDeKalb Hosp. Auth. v. Fanning, 196 Ga. App. 556 (396 SE2d 534) (principal and concurring opinions). As this issue and the related issue of non-charitable assets undoubtedly will be litigated also at trial, we will address these issues in the interest of judicial economy. Appellants averred in the complaint that decedent, “while receiving care at [appellee] Louis Smith Memorial Hospital and by Dr. Guy Mann was at all times a paying patient.” (Emphasis supplied.) In its responsive answer to appellants’ complaint, appellee hospital expressly admitted this averment, and did not thereafter timely and effectively withdraw its admission. See generally Green, Ga. Law of Evid. (3rd ed.), Admissions, § 238.1. “The averment in the answer stands as a solemn admission in judicio, which the defendant may not controvert by the introduction of evidence.” Y.M.C.A. v. Bailey, 112 Ga. App. 684, 689 (146 SE2d 324). Moreover, we find no merit in appellee’s assertion that its admission by way of pleadings was not an admission in judicio because the admission only constituted a conclusion of law or fact, rather than the admission of a factual matter. See generally Conaway v. American Guarantee &c. Co., 189 Ga. App. 194, 195 (375 SE2d 144). The manner in which the averment was crafted in the complaint in this case expressed a factual matter, and appellee’s answer constituted an unconditional admission of the fact that deceased was a “paying patient.” Appellee cannot be heard to complain on appeal regarding the effect of its own pleading procedures before the trial court.

Moreover, assuming arguendo the admission in appellee’s pleading had not met the criteria of an admission in judicio, as the admission in pleadings nevertheless remained in effect, it would appear to constitute evidence for purpose of summary judgment. Compare Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223); see also OCGA § 9-11-56 (c); Four Square Constr. Co. v. Jellico Coal &c. Co., 145 Ga. App. 650 (244 SE2d 612); Wood v. Brunswick Pulp &c. Co., 119 Ga. App. 880, 881-882 (169 SE2d 403); cf. OCGA § 9-11-36 (b).

(d) The trial court further held that even if decedent met the three-prong test of a “paying patient” (see generally Wynn, supra), appellee hospital does not have “non-charitable assets” from which to satisfy a tort liability judgment. Among the trial court’s findings of fact in support of this legal conclusion were that the appellee hospital had a substantial loss in its operation for the year 1987 and had no assets or properties which are not employed in its total operation used for its charitable purpose.

Some cases have stated that recovery is limited to non-charitable “assets.” See, e.g., Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424, 426 (2) (297 SE2d 28); Medical Center Hosp. Auth. v. Andrews, 162 Ga. App. 687, 689 (2) (292 SE2d 197), aff’d. 250 Ga. 424 (297 SE2d 28). Others have stated that recovery is limited to the extent of “income” derived from patients who paid for their services. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 168 (384 SE2d 205) with Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga. App. 505 (2) (388 SE2d 372). Some cases state “recovery [is] to be satisfied only out of the noncharitable assets or income.” Y.M.C.A., supra at 112 Ga. App. 687; Morehouse College v. Russell, 109 Ga. App. 301, 317 (136 SE2d 179). These cases are not necessarily in conflict, as the language in each case was tailored to address the circumstances then in issue. Moreover, the term “assets,” employing its general meaning, encompasses “[property of all kinds, real and personal, tangible and intangible. . . . The entire property of a person, association, corporation, or estate that is applicable or subject to the payment of his or her or its debts.” Black’s Law Dictionary (5th ed.). However, the scope of the test was further clarified in Ponder, supra at 834, where the Supreme Court stated that although a “paying patient” exception exists to the doctrine of charitable immunity, “the recovery is limited to income derived from non-charitable sources.” (Emphasis supplied.) Accord Morton v. Savannah Hosp., 148 Ga. 438 (3) (96 SE 887); Robertson v. Executive Committee &c., 55 Ga. App. 469 (1) (190 SE 432). Recovery has never been limited solely to net income derived from non-charitable profits. In Fulton-DeKalb Hosp. Auth. v. Alexander, supra at 506 (2), appellant contended, as in this case, that “because all the money which comes into its coffers is expended in furtherance of its mission to provide medical services to the disadvantaged, it has no non-charitable assets which could be subjected to a judgment in appellee’s favor. . . This court rejected this argument in Alexander holding “Morton [,supra,] permits a judgment to be satisfied from the income derived from paying patients, not ‘assets.’ ” (Emphasis omitted.) Id.; compare Robertson, supra at 470 (3). In fact, certain language in Morton is broader and holds “the judgment can only subject funds derived strictly from non-charitable pay patients. . . .” (Emphasis supplied.) Id. at 438 (5), 441 (5). “Hence the test is not the use to which the income is put [e.g., payment of charitable expenses], but the nature of the source from which the income is derived.” Mack v. Big Bethel &c. Church, 125 Ga. App. 713, 715 (188 SE2d 915). (We note that in this appeal the sufficiency of the complaint is not in issue as it was in Fulton-DeKalb Hosp. Auth. v. Alexander, supra; however, appellee’s answer reflects a first defense that the complaint fails to set forth a claim against the hospital upon which relief can be granted. Suffice it to say, in the case sub judice the complaint avers that deceased was a paying patient, thereby placing appellee hospital on reasonable notice of the existence of “income” from at least that source. As discussed in Division 2 (c), above, this averment was duly admitted by appellee hospital.)

The testimony by way of deposition of the custodian of all patient accounts of appellee hospital admits that the hospital has several categories of patients and that among them are self-pay patients and patients whose accounts are paid by insurance and other commercial sources. It may reasonably be inferred from this testimony (see Division 2 (a), above) that the hospital has received and is receiving income from these paying patients within the meaning of Morton, supra, and Fulton-DeKalb Hosp. Auth. v. Alexander, supra. A defendant claiming, a charitable immunity can be held liable to the extent of its income derived from non-charitable sources. Medical Center Hosp. Auth. v. Andrews, 162 Ga. App., supra. The income from paying patients has been held to be a non-charitable asset, that is, it is derived from a non-charitable source. Andrews, supra; compare Morton, supra; Alexander, supra; Patterson, supra at 168; Robertson, supra; see generally Mack, supra at 714 and cases therein cited where the income was derived from non-charitable pay patients.

Decided October 5, 1990.

Sutton & Slocumb, Berrien L. Sutton, B. Jean Crane, for appellants.

Wade H. Coleman, William U. Norwood III, for appellee.

Further, the affidavit of the president of appellee hospital contains an admission that the hospital has certain property from which rental income is received and, although apparently not operating at a profit, is property on which taxes must be paid. Under the charitable immunity doctrine, “the test as to whether property is subject to execution of a judgment is whether the property is subject to taxation. The rental property under consideration here would not be exempt from taxation and, applying the above test, could not be classified as a charitable asset immune from execution of a judgment. Hence defendant has not carried its burden of showing that it has no assets other than charitable assets ... in the motion for summary judgment, and the judgment sustaining it must be reversed.” (Citations and punctuation omitted.) Mack, supra at 715-716.

Accordingly, the trial court erred in concluding that appellee hospital “does not have ‘non-charitable assets’ from which to satisfy a tort liability judgment.” Appellee hospital would be liable to the extent of income derived from non-charitable sources, as above discussed, and “[t]he extent of the hospital’s liability would therefore be an issue for jury determination.” Andrews, supra at 689.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


author: Carley, Chief Judge.

text:
    A90A1073.
    BROOKS v. THE STATE.
    (397 SE2d 622)
   Carley, Chief Judge.

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

1. The trial court’s refusal to charge on simple battery as a lesser included offense is enumerated as error.

There is some confusion in the cases as to whether it is possible for simple battery to be an included offense in child molestation as a matter of fact or whether, as a matter of law, it is not possible for simple battery to be such a lesser included offense of the crime of child molestation. In State v. Stonaker, 236 Ga. 1, 2-3 (222 SE2d 354) (1976), the Supreme Court held: “Under the facts of this case we hold that simple battery as defined in [OCGA § 16-5-23] is not a lesser crime included in the crime of child molestation as defined in [OCGA § 16-6-4].” (Emphasis supplied.) See also McCord v. State, 248 Ga. 765, 766-767 (285 SE2d 724) (1982); Conejo v. State, 189 Ga. App. 14, 17 (3) (374 SE2d 826) (1988); Mosley v. State, 187 Ga. App. 70, 71 (2) (369 SE2d 345) (1988); Massengale v. State, 164 Ga. App. 57, 58 (3) (296 SE2d 371) (1982). However, State v. Stonaker, supra, has subsequently been cited for the very different and much broader proposition “that simple battery is not, as a matter of law, a lesser crime included in the crime of child molestation. . . .” (Emphasis supplied.) Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988). See also Houston v. State, 189 Ga. App. 61, 63 (3) (375 SE2d 239) (1988); Giles v. State, 143 Ga. App. 558 (2) (239 SE2d 168) (1977).

While recognizing the existence of this confusion, we nevertheless need not use the instant case as the vehicle for resolving it. Even if simple battery can be an included offense in child molestation as a matter of fact, it was not error to refuse to give appellant’s request. The victim testified to appellant’s commission of acts of fondling which, if believed by the jury, would clearly show that he had committed the crime of child molestation. Appellant was the sole defense witness and nothing in his testimony would authorize a finding that he had committed the crime of simple battery rather than child molestation. Appellant’s testimony ranged from an outright denial that he had committed the acts of fondling to an admission that he did not really remember the events because of his intoxication and, although he may have committed the acts of fondling, he did not believe that he had. Under this testimony, appellant either committed an act of child molestation or he did not. His testimony would not show that he had merely made physical contact of an insulting or provoking nature with the victim rather than fondling her with the intent to arouse or satisfy his sexual desires. Compare Conejo v. State, supra. Accordingly, it was not error to refuse to give the requested instruction. Mosley v. State, supra; Massengale v. State, supra.

2. The trial court did not err in admitting into evidence a pornographic book over the objection that the State had made an insufficient showing that it belonged to appellant. Although appellant was not the sole occupant of the apartment where the book had been found, the evidence showed that he did occupy the downstairs area and that the book was located in a downstairs closet in a box which contained some of appellant’s possessions. Since appellant was not on trial for possession o.f the book, the State did not have to prove appellant’s possession beyond a reasonable doubt. See Evans v. State, 238 Ga. 254, 255 (3) (232 SE2d 533) (1977). “A review of the transcript convinces us that there was sufficient foundation for the introduction of [the book] in evidence, and the weight or persuasive value of this evidence was within the domain of the jury.” Grantling v. State, 229 Ga. 746, 747 (2) (194 SE2d 405) (1972). “The evidence objected to was clearly admissible, not merely to show the intent to commit the [crime] charged here, but to show [appellant’s] motive generally and his state of mind and lustful disposition. [Cit.]” Stamey v. State, 194 Ga. App. 305, 307 (2) (390 SE2d 409) (1990).

Decided October 9, 1990.

Michael Greene, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A90A1221.
    SOUTHERN GENERAL INSURANCE COMPANY v. THOMAS.
    (397 SE2d 624)
   Carley, Chief Judge.

Appellee-plaintiff Thomas brought suit against Roy Grissom to recover for injuries sustained in an automobile collision and he also served a copy of his complaint on appellant-defendant in its capacity as his uninsured motorist carrier. Because Safeway Insurance Company (Safeway) had issued a policy which provided liability coverage to Grissom, Safeway undertook the defense of appellee’s action against Grissom. However, Grissom failed to appear for the jury trial wherein a verdict in appellee’s favor was returned, and Safeway thereafter refused to pay appellee’s resulting judgment on the ground that Grissom had breached the cooperation clause contained in his policy. Appellee filed a garnishment action against Safeway, but that proceeding proved to be unsuccessful. He then filed the instant contract action to recover the amount of his judgment pursuant to the uninsured motorist endorsement of his own policy with appellant. Appellant answered and denied its contractual liability to appellee. Subsequently, cross-motions for summary judgment were made. The trial court denied appellant’s motion and granted summary judgment in favor of appellee. It is from that order that appellant brings this appeal, urging that its motion was erroneously denied and that appellee’s motion was erroneously granted because appellee’s damages are not the result of the operation of an “uninsured motor vehicle.”

It is not appellee’s own automobile that is the alleged “uninsured motor vehicle” but Grissom’s. Thus, appellant’s reliance upon the decisions in Roderick v. Intl. Indem. Co., 183 Ga. App. 393, 394 (3) (358 SE2d 923) (1987); Lauer v. Bodner, 137 Ga. App. 851, 853 (2) (225 SE2d 69) (1976), and Barras v. State Farm &c. Ins. Co., 118 Ga. App. 348 (163 SE2d 759) (1968) is misplaced. There is no legal bar to appellee’s recovery against Grissom and appellee has, in fact, obtained a judgment against him. Thus, appellant’s reliance upon the decisions in Williams v. Thomas, 187 Ga. App. 527 (370 SE2d 773) (1988) (exclusivity of workers’ compensation remedy) and Roderick v. Inti. Indem. Co., supra (family tort immunity also is misplaced). There is a policy in existence which affords Grissom liability coverage but, on the basis of Grissom’s failure to cooperate, Safeway has denied coverage for the damages sustained by appellant in the collision. OCGA § 33-7-11 (b) (1) (D) (iii) defines an “uninsured motor vehicle” as one as to which there is “liability insurance and property damage liability insurance in existence but the insurance company writing the. insurance has legally denied coverage under its policy. ...” Thus, appellant’s contention that appellee’s damages are not the result of the operation of an “uninsured motor vehicle” would appear to be without merit. It is, however, appellant’s contention that the definition of “uninsured motor vehicle” that is established by OCGA § 33-7-11 (b) (1) (D) (iii) does not extend to cover the situation where, as here, there is a liability insurance in existence at the time of the collision and the insurer issuing that liability policy only subsequently denies coverage on the basis of its own insured’s breach of a policy condition.

Contrary to appellant’s contention, OCGA § 33-7-11 (b) (1) (D) (iii) provides only for the liability carrier’s legal denial of coverage to its insured and limits neither the timing of nor the specific basis for that legal denial. Accordingly, the uninsured motorist carrier is not insulated from potential contractual liability to its injured insured simply because the alleged tortfeasor has, at the time of the collision, a liability policy. “Should [the liability carrier] later deny coverage . . ., a cause of action [against the uninsured motorist carrier] may then arise, because only at that time would there be an ‘uninsured’ motor vehicle [as defined in OCGA § 33-7-11 (b) (1) (D) (iii)].” (Emphasis supplied.) Yarbrough v. Dickinson, 183 Ga. App. 489, 490 (359 SE2d 235) (1987). Likewise, the uninsured motorist carrier is not insulated from potential contractual liability to its insured simply because the liability carrier’s subsequent denial of coverage is based upon its own insured’s breach of a policy condition. “Where an insured tortfeasor behaves in such a way ‘so as to make his policy unenforceable (fry failure to give timely notice of an accident, or the like), the effect on his victim is very much the same as if the tortfeasor had never procured the insurance.’ [Cits.] Since the [injured party] cannot legally enforce [the tortfeasor’s] policy with [the liability carrier], the practical result is that [the tortfeasor] is uninsured. In such a case, the injured party should be able to proceed against his own insurance company under his uninsured motorist coverage. [Cits.]” (Emphasis supplied.) Smith v. Commercial Union Assur. Co., 246 Ga. 50, 52 (268 SE2d 632) (1980).

Decided October 9, 1990.

Michael L. Wetzel & Associates, Michael L. Wetzel, for appellant.

Crim & Bassler, Philip G. Pompilio, Morris L. Richman, Jim White, for appellee.

It follows that the trial court erred in the instant case only if a genuine issue of material fact remains as to whether Safeway has “legally denied” liability coverage to Grissom. “[C] overage can be said to have been legally denied [only if] the denial is, under applicable law, legally sustainable.” (Emphasis in original.) Hemphill v. Home Ins. Co., 121 Ga. App. 323, 335 (5) (174 SE2d 251) (1970). Under applicable law, the tortfeasor’s failure to cooperate can, under certain circumstances, form the legally sustainable basis for his liability carrier’s denial of coverage. See H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800 (172 SE2d 355) (1969). Compare Hemphill v. Home Ins. Co., supra. Appellant makes no contention that any genuine issue of material fact remains as to whether the particular circumstances of Grissom’s failure to cooperate would form a legally sustainable basis for Safeway’s denial of coverage. Compare Cotton States &c. Ins. Co. v. Proudfoot, 123 Ga. App. 397 (181 SE2d 305) (1971). Appellant urges only that, pretermitting the existence of a legally sustainable basis for Safeway’s denial of coverage to Grissom, appellee has nevertheless suffered no damages as the result of the operation of an “uninsured motor vehicle” as defined in OCGA § 33-7-11 (b) (1) (D) (iii). As discussed above, such an interpretation of OCGA § 33-7-11 (b) (1) (D) (iii) is erroneous. It follows that the trial court correctly denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee.

Judgment affirmed.

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


text:
    A90A1339.
    BOYD v. GARDEN CENTER, INC.
    (397 SE2d 626)
   Banke, Presiding Judge.

This is an appeal from a summary judgment for the defendant in a slip-and-fall case.

The defendant, a non-profit corporation formed by five garden clubs, owns an historical home in Valdosta, Georgia, which it rents * out for social functions such as weddings and receptions. The plaintiff’s sister rented the house to have her wedding there, and the plaintiff attended as a guest. Prior to the ceremony, the plaintiff went upstairs to pose for some photographs with her sister, using the main stairway located at the front of the house. By the time she was ready to return downstairs, the wedding music had already commenced. She testified during her deposition that as she was about to descend the main stairway, an unidentified woman told her to “take the back stairs,” evidently because the bride was about to make her entrance down the main stairway. While attempting to negotiate the back stairway, she slipped and fell.

The plaintiff alleged in her complaint that the back stairway was unsafe because it was very steep, the stairs were worn and slippery, and there was no carpet or other material on them to prevent slipping. She further asserted, both in her complaint and in an affidavit submitted in response to the defendant’s motion for summary judgment, that her fall was caused by these alleged defects. During her deposition, however, she testified repeatedly and unequivocally that she had no idea why she had fallen. In her affidavit, she sought to explain this inconsistency by stating that she believed she “had already given [defense counsel] the answers that he was looking for in . . . papers . . . already filed with the court” and therefore “did not completely understand exactly what [he] was asking for” in the deposition. She further averred in her affidavit, for the first time, that she believed she might have “avoided the fall or perhaps lessened its damage to me” if there had been a handrail on the stairway.

During her deposition, the plaintiff further testified, initially, that the unidentified woman who had directed her to use the back stairwáy had “said she worked there.” However, upon being asked to reflect carefully and to state exactly what this woman had told her, the appellant responded that the woman had simply given her directions to the back stairway. The rental chairperson for the defendant corporation testified that the organization had no employees but only volunteers and that if any of its members were present at the house on the occasion in question, they were there simply as guests of the wedding rather than in any official capacity. Held:

1. The plaintiff’s averment in her affidavit that she slipped on the stairway because it was excessively steep and slippery and because it lacked a handrail clearly was not consistent with her deposition testimony that she had no idea why she had fallen. Where a respondent offers self-contradictory testimony on motion for summary judgment, such testimony will be construed against him unless a reasonable explanation is offered for the contradiction. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). We hold that the trial judge was not required to accept as reasonable the explanation given by the plaintiff for her contradictory testimony in the present case and consequently was authorized to conclude that she did not in fact know what had caused her to fall. (We note in passing that the plaintiff similarly contradicted herself on the issue of whether the unidentified woman who had given her directions to the back stairway had told her “she worked there” and that no attempt whatever was made to explain this contradiction.)

2. The plaintiff contends that the record contains independent evidence that her fall was caused by one or more of the alleged defects in the stairway in the form of expert opinion testimony to that effect offered by a building contractor. However, while this witness may have been in a position to testify that the stairway was defective, he clearly was in no better position than the plaintiff to form an opinion as to whether her fall was caused by one of these defects. Consequently, his opinion in this regard must, under the circumstances, be considered wholly speculative and without probative value. A contrary conclusion is not required by Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675 (5) (278 SE2d 100) (1981). There, an engineer was permitted to state, on the basis of the physical evidence and the application of basic principles of physics, that the plaintiff’s injuries from a bicycle accident were probably attributable to the dropping of the front wheel of her bicycle into a drainage grill, resulting in the sudden stopping of the bicycle and the forward continuation of her body over the handlebars. In the present case, there is no physical evidence which would suggest that the plaintiff’s injuries were attributable to á defect in the stairway rather than to some other cause, such as, for example, the possibility that she was in such a hurry to get downstairs that she failed to use due care in negotiating the stairway.

3. To recover in a slip-and-fall case, the plaintiff must do more than prove the existence of an unsafe condition existing on the premises; he or she must also establish a causal connection between that condition and the injuries for which recovery is sought. In Brown v. RFC Mgmt., 189 Ga. App. 603 (376 SE2d 691) (1988), this court held that where a plaintiff was unable to state what had caused her to slip and fall on a stairway located in her apartment building, the defendant property owner was entitled to summary judgment even though there was evidence that the stairway was not illuminated and was covered by a threadbare, loosely fitting carpet which might have caused the fall. Accord Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); Bradley v. Red Food Stores, 179 Ga. App. 39 (345 SE2d 127) (1986). As the plaintiff in the present case similarly testified that she did not know what had caused her to slip on the stairway and as she offered no other probative evidence which would tend to establish a causal connection between her injuries and one or more of the alleged defects therein, we must conclude that the defendant in this case was similarly entitled to summary judgment. We do not interpret this court’s decision in Best v. Dublin Eye Assoc., 188 Ga. App. 225 (372 SE2d 495) (1988), as authority for a contrary result. The plaintiff there consistently and unequivocally maintained that she had slipped because of an alleged defect in a mat covering a portion of a walkway located on the defendants’ premises, a mat which had presumably been placed on the walkway to make it less slippery. Although she was unable to state whether her foot had slipped on the mat or whether the mat had slid on the pavement beneath it, we held that since her injuries could, in either event, be attributed to a defect in the mat, this lack of specificity did not entitle the defendants to summary judgment. In the present case, it is not the plaintiff’s inability to state the precise manner in which an alleged defect caused her to fall which is at issue but rather her inability to attribute her injuries to any alleged defect whatever.

Decided October 9, 1990.

Helms & Blacknall, J. Jeffrey Helms, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A1666.
    SAMS v. THE STATE.
    (397 SE2d 751)
   Deen, Presiding Judge.

Melvin Sams was convicted of two counts of violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute and possession of cocaine), and possession of drug-related objects. The two drug counts were merged by the trial court at sentencing. On appeal Sams asserts seven enumerations of error.

1. Appellant first asserts the general grounds as to the count alleging possession of cocaine with intent to distribute.

The evidence showed that officers of the Rome-Floyd Metro Task Force executed a search warrant at appellant’s residence. Two women and appellant were present when the warrant was executed. When the officers entered the house, appellant ran from the living room to a bedroom and was apprehended when he walked out of a utility room which was connected with the bedroom. Suspected cocaine was found stuffed down a drainpipe in the utility room, and fresh blood was found on the rim of the drainpipe. The arresting officer inspected appellant’s hand and found a bleeding cut on his right index finger. During the search of appellant’s home, the officers discovered white powder scattered around the living room and in a sock in the drainpipe, several boxes of baking soda, gram-ounce scales, two glass smoking pipes, and $1,191 in cash which was recovered from various locations in the house (a sock in the drainpipe, in a leather shoe, inside a cardboard tube, etc.). A set of Ohaus scales was seized from a pick-up truck parked in appellant’s driveway. Although the truck was not registered in appellant’s name and he disavowed any knowledge of it, one of the officers testified that he had seen appellant driving a truck of the same make, model, and color as the one in the driveway. One of the women who was arrested in appellant’s house testified that she had been to the house twice earlier in the day and had purchased cocaine from appellant, and that she had arrived shortly before the officers to make a third purchase.

To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession. Wright v. State, 154 Ga. App. 400, 401 (268 SE2d 378) (1980), cert. denied 449 U. S. 900 (1980). In the instant case, the testimony of a woman, who was present in the house at the time the search warrant was executed, that she had made cocaine purchases from appellant earlier in the day and was present to make a third buy, when combined with other evidence (scales for weighing cocaine, drug paraphernalia, baking soda for cutting it, and a large amount of cash which consisted largely of $20 bills), authorized the jury to find the defendant guilty of possession of cocaine with intent to distribute despite the fact that the total amount of cocaine found on the premises totaled only two grams. Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989); Houston v. State, 180 Ga. App. 267, 268 (349 SE2d 228) (1986). On appeal, the evidence is construed to uphold the jury verdict, because the jury alone determines the credibility of the witnesses and the weight to be given to the testimony and other evidence. Doe v. State, supra; Thomas v. State, 175 Ga. App. 873, 874 (334 SE2d 903) (1985). A review of the evidence reveals that it was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, 178 Ga. App. 343, 344 (343 SE2d 401) (1986).

2. Appellant also contends that under the rule set forth in Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216) (1988), the trial court erred in failing to give his charge that mere presence in the vicinity of contraband does not establish possession. An examination of the jury charge shows that the jury was charged the law as to permissible inferences it could make as to the ownership of the premises, possession and equal access, and the pertinent law on possession of contraband. These charges were taken directly from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. 2, Criminal, which relies upon Knighton v. State, 248 Ga. 199, 200 (282 SE2d 102) (1981); Gee v. State, 130 Ga. App. 634, 636 (204 SE2d 329) (1974); and Lee v. State, 126 Ga. App. 38 (189 SE2d 872) (1972), as authority for the charges. We find no error in the charge as given on these issues, and the trial court correctly refrained from giving appellant’s requested charge on mere presence, as the evidence indicated that the defendant was the possessor of the searched premises.

3. Appellant’s contention that the trial court erred in not granting his motion requesting the criminal histories and statements of all the witnesses, and in denying his motion to reveal the deal, is without merit.

As to the latter motion, the Assistant District Attorney who tried the cases stated that prior to trial she had informed defense counsel that no deals had been made between the State and any witness. No evidence was presented to the contrary. In fact, when a co-indictee was questioned as to any deals made with the prosecution for her testimony, she replied that none had been made.

Appellant relies upon Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), to support his position that the State should have been required to produce the criminal histories and statements of the State’s witnesses. Brady does not place such an extensive burden upon the prosecution; it only requires the State to produce evidence favorable to the defendant. Hicks v. State, 232 Ga. 393, 394 (207 SE2d 30) (1974); Callahan v. State, 179 Ga. App. 556, 566 (347 SE2d 269) (1986).

4. Appellant further asserts as error the introduction into evidence of testimony that 19 grams of a white powdery substance were seized at his home, while only 2 grams were proved to be cocaine. He claims that he was prejudiced by the introduction of this evidence because the jury based its verdict on the possession with intent to distribute count on this testimony. We must disagree that this testimony was the basis for the jury verdict because there was testimony as to sales that appellant had made to one of the witnesses. Moreover, the expert witness from the State Crime Laboratory testified that he did not analyze all the material that was sent to him, but could testify only that four of the State’s exhibits tested positive for cocaine. We find no error in admitting testimony that 19 grams of a white powdery substance were recovered from appellant’s home.

5. It was not error for the lower court to deny appellant’s motion for a mistrial based on the State’s request for an attachment for a non-appearing witness. The State made a showing of its attempt to secure the witness’ attendance in order to have the trial judge sign an attachment so that the absent witness could later be found to be in contempt of court for failure to respond to the State’s subpoena. “[A]n officer of the court may make a statement in his place which is taken to be prima facie true unless verification of such statement is required by the opposing party at the time the statement is made. [Cits.]” Harbin v. State, 165 Ga. App. 631, 633 (302 SE2d 386) (1983). Appellant did not object to the veracity of the statement, and the motion for a mistrial was properly denied.

Decided October 9, 1990.

S. David Smith, Jr., for appellant.

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

6. As appellant opened the door for the admission of testimony about surveillance of his residence, we find no merit in his seventh enumeration. He testified that the Task Force had used one of the witnesses arrested in his home to “set me up.” On cross-examination he testified that the Task Force had constantly been riding up and down the street in front of his house. To rebut appellant’s claim of being set up, the State called a Task Force investigator as a rebuttal witness. He testified that the Task Force did not have concentrated surveillance on the accused’s home prior to September 1, 1989, but during the week before his arrest it had spent one day watching Sams’ home. On cross-examination, the officer was asked about other arrests in the area prior to September 1, 1989, and where they occurred. The investigator then testified as to the arrest of four persons who had left appellant’s residence, where a transaction had been observed. The investigator was asked to describe the pre-September 1 surveillance in detail on redirect. The motion for a mistrial was then made by defense counsel. The door was clearly opened to this testimony and the trial court properly denied the objection.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1700.
    SANTANA v. THE STATE.
    (397 SE2d 629)
   Deen, Presiding Judge.

The appellant, Eduardo Santana, was convicted of trafficking in cocaine, stemming from the discovery of nine kilograms of cocaine in his car when he was stopped for speeding on 1-75. On appeal, Santana contests the legality of the search and seizure, and contends that the trial court should have found that Santana provided substantial assistance in identifying another cocaine trafficker and reduced his sentence accordingly.

On November 29, 1988, a state trooper stopped Santana’s rental car after clocking it on the radar as travelling 71 m.p.h. in a 65 m.p.h zone. The trooper decided to issue only a warning citation, and engaged in conversation as he checked Santana’s Florida driver’s license and the rental agreement on the vehicle. He became suspicious over a discrepancy between Santana’s declared length of his intended visit to Detroit, Michigan, and the earlier return date on the rental agreement, and asked for permission to search the car. A back-up state trooper had arrived by that time and witnessed Santana’s verbal consent to search the vehicle. The trooper immediately found the nine kilograms of cocaine in a piece of soft luggage in the hatchback area of the car. The troopers then placed Santana under arrest and transported him to the Sheriff’s office, where Santana subsequently claimed that the luggage belonged to another man named Favio Gonzales, who had been in the car at the time of the traffic stop and who had apparently exited the car and escaped while the state trooper was checking Santana’s license and rental agreement. The state troopers, however, saw no one else in or running from Santana’s car. Held:

1. Santana concedes that the initial stop of his vehicle for a traffic violation was lawful. See Williams v. State, 187 Ga. App. 409 (370 SE2d 497) (1988). According to the arresting officer, immediately upon advising Santana of the warning, he asked Santana for permission to search the vehicle, twice explaining the intended scope of the search, and Santana responded that “it was fine with him.” Considering the totality of the circumstances, this evidence authorized the trial court’s finding that Santana freely and voluntarily consented to the search of his car. Bruce v. State, 191 Ga. App. 580 (382 SE2d 367) (1989); Beguiristain v. State, 187 Ga. App. 164 (369 SE2d 774) (1988). The initial traffic stop having been lawful, the investigating officer’s lack of probable cause or articulable suspicion that Santana was transporting cocaine, at the time he requested permission to search the vehicle, did not invalidate the consent granted.

2. OCGA § 16-13-31 (e) (2) allows reduction or suspension of the mandatory sentence for trafficking in cocaine, if the trial court finds that the defendant has provided “substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals.” In the instant case, the trial court declined to reduce or suspend Santana’s sentence pursuant to this statute, finding that even if the identified Fabio Gonzales existed, he was not present in the car at the time of the traffic stop, or the state trooper would have seen him. Under these circumstances, the trial court did not err in doing so.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided October 9, 1990.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.