author: McMurray, Presiding Judge.

text:
    75881.
    In the Interest of J. D. M.
    (369 SE2d 920)
   McMurray, Presiding Judge.

At 12:50 a.m. on November 8, 1986, J. D. M., who was then 16 years of age, was taken into custody upon the allegations of his having committed the delinquent acts of “hunting from a public road” (two incidents) and also the delinquent act of “hunting deer at night with aid of a light.” J. D. M. was released at 2:15 that morning, after an $800 bond was posted.

On January 8, 1987, a petition was filed in the Juvenile Court of Paulding County alleging J. D. M. committed the delinquent acts of “hunting upon or discharging weapons across a public road,” “hunting at night” and “killing of birds and animals from boats, aircraft, and motor vehicles.” J. D. M. filed a motion to dismiss the petition alleging delinquency, arguing that his “arrest” and detention were illegal and that the petition alleging delinquency was untimely filed. This motion was denied and the juvenile court judge adopted the juvenile court referee’s order, which provided, in pertinent part, as follows: “The above-named child [J. D. M.] came before the Referee on February 18, 1987 on a petition alleging the child to be delinquent. Present with the child was the child’s parents . . . and the child’s attorney. . . .

“The child was advised as to his right to counsel, to remain silent, to a hearing before the Judge and was further advised as to the allegations as stated in the petition. The child was given an opportunity to enter an admission or denial to the allegations against the child.

“The child under advice of his attorney, made an admission to the allegations of delinquency of hunting at night and discharging a weapon across a public road, waived contested hearing, and requested dispositional hearing at that time. The allegation of killing an animal from a motor vehicle was dismissed.

“Upon the child’s admission to the allegations, evidence was heard thereon as to the voluntariness of the admission and as to the particulars of the act upon which the allegations of delinquency were based. After hearing evidence of a clear and convincing nature thereon, it was found that said child and the matter are within the jurisdiction of the Court and that the child was in fact delinquent in that he committed the offenses to which he admitted. It was further found, after clear and convincing evidence, that said child is in need of supervision, treatment and rehabilitation. . . .

“It is recommended that said child be placed on probation for a period of one (1) year in the custody of his parents . . . and the supervision of the Court Service Worker under such terms and conditions as normally prescribed by the Court for probation and on the special conditions: (1) That said child pay a fine in the amount of $150.00; (2) That the child enroll in a GED program promptly or have his driver’s license suspended.” It is from this order that J. D. M. appeals. Held:

1. It is first argued that J. D. M.’s adjudication of delinquency was made without “proof beyond a reasonable doubt.”

An examination of the transcript of the adjudication hearing shows that J. D. M. admitted to committing two of the acts charged in the delinquency petition, explaining in detail the events surrounding his apprehension. It is undisputed that J. D. M.’s admissions were voluntary and that he was aware of the consequences of his admissions. See William W. Daniel’s, Ga. Criminal Trial Practice (1986 ed.) § 16-3. Under these circumstances, we find no basis to consider this enumeration of error.

2. Next, it is argued that the juvenile court erred in failing to dismiss the petition alleging delinquency because of the “improper arrest and detention of [J. D. M.]” and because the petition was not filed within the time prescribed by OCGA § 15-11-21 (b).

(a) First, we address the argument relating to J. D. M.’s “arrest and detention.”

“A child may be taken into custody . . . [b]y a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has committed a delinquent act. . . .” OCGA § 15-11-17 (a) (3). “A child taken into custody shall not be detained . . . prior to the hearing on the petition unless . . . [h]e has no parent, guardian, or custodian or other person able to provide supervision and care for him and return him to the court when required . . .” OCGA § 15-11-18 (3). “A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall .... [forthwith release without bond the child to his parents, guardian, or other custodian upon their promise to bring the child before the court when requested by the court. . . .” OCGA § 15-11-19 (a) (1).

J. D. M. was taken into custody by a law enforcement officer after he was observed committing a delinquent act, detained for less than two hours and released after an $800 bond was posted for his release. Contrary to the contentions of J. D. M.’s brief, there is nothing in the record to indicate that J. D. M.’s parents appeared at the time of his detention and release in order to invoke the provisions of OCGA §§ 15-11-18 (3) and 15-11-19 (a) (1). Consequently, J. D. M.’s “arrest and detention” were not in violation of the Juvenile Court Code. Notwithstanding, it is argued that the petition should have been dismissed because an $800 bond was required to be posted for J. D. M.’s release. We do not agree.

Assuming J. D. M.’s parents appeared for his release and that the release or continued detention provisions of OCGA § 15-11-19 were not followed, we find nothing in the Juvenile Court Code requiring dismissal of the petition as a result thereof. Further, this court has held certain provisions of OCGA § 15-11-19 to be directory and, where no injury appears to have resulted, technical violations of this Code section will not render infirm evidence obtained as a result of such violations. See Paxton v. State, 159 Ga. App. 175, 177 (1), 178 (282 SE2d 912), and Barnes v. State, 178 Ga. App. 205, 206 (2), 207 (342 SE2d 388). Similarly, since there has been no showing that J. D. M. was prejudiced as a result of his alleged illegal “arrest and detention . . .,” the court did not err in failing to dismiss the petition on these grounds. See Thompson v. State, 175 Ga. App. 645, 648 (3) (334 SE2d 312), where this court held that “ ‘the illegality of an arrest neither bars prosecution or affects a conviction.’ ” William W. Daniel’s, Ga. Criminal Trial Practice (1986 ed.) § 2-24, p. 32.

(b) With regard to the contention that the juvenile court erred in failing to dismiss the petition for failure to present the petition within the time prescribed by OCGA § 15-11-21 (b), we note that this Code sub-section provides that “[i]f a child is . . . released[, pursuant to OCGA § 15-11-21 (a),] and the case is to be prosecuted further other than by informal adjustment, a petition under Code Section 15-11-25 shall be made and presented to the court within 30 days.”

“Code Ann. § 24A-1404 (b) [now OCGA § 15-11-21 (b)] has no application unless a juvenile is taken into custody (see Code Ann. § 24A-1301 [now OCGA § 15-11-17]; Ga. L. 1971, pp. 709, 722; 1976, pp. 1066, 1069), not released under Code Ann. § 24A-1402 (a) (1) [now OCGA § 15-11-19 (a) (1)] (Ga. L. 1971, pp. 709, 723, pp. 882, 885), but instead brought before the juvenile court or delivered to a detention or shelter care facility designated by the court (Code Ann. § 24A-1402 (a) (2) [now OCGA § 15-11-19 (a) (2)]) and then released after an investigation under Code § 24A-1404 (a) [now OCGA § 15-11-21 (a)].” D. C. v. State of Ga., 145 Ga. App. 868, 869 (2) (245 SE2d 26). In the case sub judice, there is nothing in the record to indicate that J. D. M. was brought before the juvenile court or delivered to a detention or shelter care facility and then released pursuant to OCGA § 15-11-21 (a). Consequently, there was no basis for application of the 30-day time requirement of OCGA § 15-11-21 (b). The juvenile court did not err in overruling the motion to dismiss the petition.

3. In the third enumeration of error, it is argued that the juvenile court erred in placing J. D. M. on probation for a period of one year.

OCGA § 15-11-35 (a) (2) provides, in pertinent part, that the juvenile court may place a juvenile found to be delinquent “on probation under conditions and limitations the court prescribes. . . .” Although this Code section does not provide a time limitation on the probationary period, OCGA § 15-11-41 (d) provides, in pertinent part, as follows: “Except as otherwise provided by law, any other order of disposition in a proceeding involving delinquency . . . continues in force for not more than two years.” Further, OCGA § 15-11-41 (f) provides, in pertinent part, that “when the child reaches 21 years of age all orders affecting him then in force terminate and he is discharged from further obligation or control.” The one-year probationary period imposed by the juvenile court in the case sub judice does not appear to extend beyond the limitation periods provided in these Code sections. Consequently, the juvenile court was authorized to order J. D. M. to serve on probation for a period of one year “in the custody of his parents.”

4. In the final enumeration of error, it is contended that the juvenile court erred in imposing a $150 fine upon J. D. M.

“There is no statutory authority authorizing a juvenile court to impose a monetary fine on a minor adjudged to be delinquent.” E. P. v. State of Ga., 130 Ga. App. 512 (3) (203 SE2d 757). Consequently, that part of the order imposing a $150 fine is erroneous and must be deleted. The judgment of the juvenile court is affirmed with direction that the $150 fine be deleted.

Decided May 31, 1988.

Robert A. Kunz, for appellant.

William A. Foster III, District Attorney, for appellee.

Judgment affirmed with direction.

Pope and Benham, JJ., concur.

       Allegations of delinquent acts must be proved beyond a reasonable doubt. OCGA § 15-11-33 (c); M. W. W. v. State, 136 Ga. App. 472, 474 (221 SE2d 669). However, a finding at the dispositional hearing that the delinquent child is in need of treatment or rehabilitation must be by “clear and convincing” evidence. OCGA § 15-11-33 (b). See Liston, Ga. Parent & Child, § 12-22. See OCGA § 15-11-32 for option of juvenile court if the charges of delinquency are admitted.


source: Caselaw Access Project

license: Public Domain

text:
    75935.
    JOHNSON et al. v. T G & Y STORES COMPANY et al.
    (370 SE2d 42)
   McMurray, Presiding Judge.

Plaintiff and her husband brought an action against TG&Y Stores Company (“TG&Y”) and others seeking to recover damages resulting from injuries plaintiff wife allegedly sustained after she fell on the sidewalk outside a store owned and operated by TG&Y.

Upon defendants’ motion for summary judgment, the undisputed facts revealed that plaintiff wife was walking to defendant TG&Y’s store “between 1:30 and 2:00” during a sunny afternoon on April 13, 1986, when she tripped and fell on a “[s]lick and chipped up . . .” area of the sidewalk. In her deposition, plaintiff wife testified that there “wasn’t no water or no nothing . . .” in the area where she fell, that the “chipped” area was between the edge of the sidewalk and the front entrance of TG&Y’s store and that the sidewalk “was smooth at the door where you went in, but when you walked up to the sidewalk to go in, it was not [smooth].” Describing how she fell, plaintiff wife testified that “[w]hen [she] stepped up on the sidewalk, [she] made one step, started to make another one, that’s when [her] foot slipped out from under [her and she fell].” Plaintiff also testified that she had visited TG&Y’s store several times before her fall, observed the “chipped” area where she fell and affirmed on cross-examination that she had walked over the area “many times . . . [but] had never fallen there before ...” However, plaintiff testified that she had “seen other people fall. . .” in the “chipped” area before her fall. The trial court granted defendants’ motion for summary judgment, and this appeal followed. Held:

In their sole enumeration of error, plaintiffs contend the trial court erred in granting summary judgment in favor of defendants, arguing that a genuine issue of material fact remains as to whether she was distracted by merchandise placed on the sidewalk outside defendant TG&Y’s store and whether these distractions were the proximate cause of her fall.

“The rationale of the ‘distraction’ cases ‘ “lies in the rule that, where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.” ’ Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859 (201 SE2d 634) (1973).” Wright v. Piggly Wiggly Southern, 164 Ga. App. 293 (297 SE2d 75). In the case sub judice, although plaintiff wife testified that she was looking at merchandise “[b]efore [she] stepped up [on the sidewalk],” she did not testify that she was distracted by merchandise on the sidewalk at the time of her fall. Consequently, since there is no evidence in the record to support plaintiff wife’s claim of “distraction,” the merchandise on the sidewalk outside TG&Y’s store was not, as a matter of law, a distraction constituting the proximate cause of plaintiff’s fall. Further, it is abundantly clear from the undisputed evidence that plaintiff wife had as much knowledge of the defective condition of the sidewalk as defendant did. “ ‘Accordingly, [plaintiff] should have been aware that the [condition of the sidewalk was] a hazard to walking and should have exercised ordinary care to avoid [it].’ Backer [v. Pizza Inn, 162 Ga. App. 682, 683 (292 SE2d 562)].” Wright v. Piggly Wiggly Southern, 164 Ga. App. 293, 294, supra. See Inglett v. Winn Dixie, Greenville, 168 Ga. App. 192 (308 SE2d 587). There being no genuine issue of material fact, the trial court properly granted summary judgment in favor of defendants.

Decided May 31, 1988.

W. Ralph Hill, Jr., for appellants.

Henry C. Tharpe, Jr., M. Claire Chason, Thomas E. LeQuire, for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    75955.
    VanLoo v. THE STATE.
    (370 SE2d 44)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of driving under the influence of alcohol. Defendant’s sole enumeration of error raises the denial of his motion in limine and motion to suppress, which sought to exclude from evidence the results of an intoximeter test. Held:

The State’s evidence shows that the arresting officer was on routine patrol when he was flagged down by a security guard at a motel. The security guard informed the officer that two very intoxicated white male subjects had just left in a gray or blue Renault. The officer proceeded in the direction indicated by the security guard and found (in about three-quarters of a mile and in a minute and a half) a Renault with two males in it. The officer stopped the Renault and exited his patrol vehicle. The officer asked the driver of the Renault to exit his vehicle and asked him for his driver’s license. The driver of the Renault was defendant VanLoo. When defendant exited the Renault his eyes were watery and bloodshot, the officer could smell the odor of alcoholic beverage on his breath. The officer asked defendant to submit to sobriety tests and defendant stated he would be willing to do so. (A minute to a minute and a half elapsed between the time of the stop and the time the field sobriety test began.) After failing the field sobriety test defendant was placed under arrest for driving under the influence of alcohol. The officer testified that in his opinion defendant was under the influence of alcohol on the date in question. An intoximeter test of defendant’s breath gave a result of .23 grams percent.

Defendant concedes that the report by the security guard provided a reasonable and articulable basis for a Terry v. Ohio (392 U. S. 1 (88 SC 1868, 20 LE2d 889)) stop of defendant’s automobile. See State v. Noble, 179 Ga. App. 785 (347 SE2d 722). However, defendant contends that the Terry v. Ohio stop became an arrest when the officer ordered defendant to get out of his vehicle and subsequently interrogated him. Defendant argues that this conduct overreached the minimal intrusion authorized by Terry v. Ohio, supra, and that all subsequent questioning, observations and testing provided evidence which was illegally obtained and therefore inadmissible.

“Once a ‘Terry stop’ has been made, the legality of its scope ‘is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced. (Cits.)’ State v. Golden, [171 Ga. App. 27, 30 (318 SE2d 693)]. Balancing the immediacy and importance of the interest in law enforcement sought to be advanced in this case by requiring the defendant to stop and exit his vehicle against the extent of the intrusion into his privacy occasioned thereby, we have no hesitancy in holding that the detention resulted in no violation of his Fourth Amendment rights.” State v. Noble, 179 Ga. App. 785, 786, supra. It follows that the subsequent arrest of defendant and intoximeter test were lawful and that defendant’s “motion in limine and motion to suppress” were properly denied.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided May 31, 1988.

Allan R. Smith, for appellant.

John C. Carbo III, Solicitor, for appellee.


author: Banke, Presiding Judge.

text:
    76272.
    WILLIAMS v. PARADISE MANAGEMENT, INC.
    (370 SE2d 45)
    Decided May 31, 1988.

      Kay Y. Young, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.
   Banke, Presiding Judge.

This is a dispossessory action brought against the appellant by the appellee. On May 1, 1986, the appellant was given 60 days notice of the termination of her tenancy, based on her alleged noncompliance with certain lease provisions prohibiting unclean and unsanitary conditions, damage to the unit, and conduct disturbing to neighbors. This notice specified that the appellee would no longer accept a U. S. Department of Housing and Urban Development (HUD) rent subsidy which had previously paid 100 percent of her rent pursuant to a HUD housing program. Thereafter, on July 17, 1986, an unsuccessful demand was made on the appellant for possession of the premises and for past-due rent. This dispossessory proceeding was initiated on July 22, 1986, on the basis of the sole allegation that the appellant had failed to pay rent. The petition was subsequently amended to allege the lease infractions which had been enumerated in the termination letter. The trial court denied a motion by the appellant to prohibit any reference at trial to her nonpayment of rent, and we granted an interlocutory appeal from that order. Held:

The appellant asserts that because the termination notice did not specify failure to pay rent as a reason for termination of the lease, the appellee is estopped, pursuant to HUD regulations, from asserting this as a ground for eviction. Additionally, she contends that her failure to pay rent cannot be considered relevant to the proceedings because she had no obligation to pay rent under the terms of her lease. We must agree that under the circumstances it would serve no purpose, other than to confuse the issues being tried, to permit evidence regarding the appellant’s non-payment of rent. Consequently, we hold that the trial court erred in denying the appellant’s motion.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.

Edward B. Claxton III, for appellee.


author: Pope, Judge.

text:
    76280.
    DUBOSE v. THE STATE.
    (369 SE2d 924)
   Pope, Judge.

Defendant was indicted for murder for the shooting death of Alfred “Crum Daddy” Crumley. He was convicted of the lesser included offense of voluntary manslaughter. At trial defendant attempted to present evidence to show the shooting was justifiable in self-defense.

1. The trial court gave lengthy instructions on the defense of self-defense, including the instruction that the burden of proof is not on the defendant to prove self-defense. However, the court refused to give the requested instruction that once self-defense is introduced the prosecution has the burden of proving beyond a reasonable doubt the absence of self-defense by the defendant. The charge as given did address the allocation of burden of proof to the extent it made clear the defendant had no burden of proof on the issue and therefore the instruction was not incorrect. Walden v. State, 251 Ga. 505 (3) (307 SE2d 474) (1983). If the defendant had not specifically requested the instruction regarding the state’s burden to disprove self-defense, the charge as given would have been sufficient. Boyd v. State, 253 Ga. 515 (7) (322 SE2d 256) (1984). However, “the trial court erred in failing to give [the] requested charge that where evidence of self-defense is presented the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” State v. Shepperd, 253 Ga. 321 (320 SE2d 154) (1984).

2. At the trial of the case defendant was not permitted to present testimony concerning the bad character and reputation of the victim, the victim’s propensity for violence and carrying a weapon, nor to present evidence of specific prior incidents in which the victim had beaten defendant, cut him with a knife and threatened him with a gun. The judge ruled such evidence was inadmissible because he had not set forth a prima facie case that the defendant acted, at the time of the shooting, in self-defense. Defendant argues the court erred in excluding the testimony he sought to present.

The defendant may present evidence of the victim’s general reputation or character for violence “ ‘only when there has been a prima facie showing (by the defendant) that three elements are present: that the deceased was the assailant; that the deceased assailed defendant; and that defendant was honestly seeking to defend himself.’ Curtis v. State, 241 Ga. 125, 126 (1) (243 SE2d 859) (1978).” Milton v. State, 245 Ga. 20, 22 (262 SE2d 789) (1980). The critical issue in the case now before us is whether the excluded testimony concerning prior specific assaults by the victim upon defendant were admissible for the purpose of establishing a prima facie case of present assault. See id.

The only evidence concerning the shooting was the testimony of a witness who, on the night of the shooting, saw defendant “laying” up against a truck parked beside an apartment building near the victim’s house. The witness saw the victim step out the side door of his house and walk across a field toward defendant. As the victim approached defendant he fumbled in his back pants pocket with his right hand as if he were drawing a weapon. The witness then heard defendant say, “Man, why don’t you leave me alone.” The witness heard shots fired and then saw both men running in opposite directions. The trial court would not permit defendant to present testimony by deposition of another witness who, two to three weeks before the shooting, witnessed a fight in which the victim had defendant backed up against a parked truck and was swinging at him with a knife. Although it would have been inadmissible as hearsay, the deposition witness also testified he had heard of other incidents in the two weeks prior to the shooting in which the victim allegedly beat or threatened defendant. Defendant’s attorney stated on the record that he was prepared to call eyewitnesses to these other fights but the court ruled such testimony inadmissible for failure to make a prima facie case of assault by the victim. However, in this case the excluded facts would, themselves, have established the prima facie case and should have been admitted for that purpose.

At the time he ruled to exclude the testimony in question, the trial judge indicated he might allow the evidence if he heard evidence from the defendant establishing a prima facie case. However, defendant exercised his right to remain silent and did not testify at trial. Is the defendant required to testify in order to make a prima facie case? We think not. “[F]acts from which apprehension might reasonably be inferred ... are relevant when stated or shown by third parties.” (Punctuation and cit. omitted.) Baker v. State, 142 Ga. 619, 622 (83 SE 531) (1914). Each element of the prima facie case may be established by the testimony of other witnesses or by circumstantial evidence.

The mere fact that the victim reached toward his pocket would not establish the victim was the assailant. In Cooper v. State, 249 Ga. 58 (287 SE2d 212) (1982), where the only evidence concerning the shooting showed the victim verbally threatened to kill the defendant before touching the outside of his pants pocket, the Supreme Court ruled, “We cannot say this evidence, standing alone, is sufficient to establish prima facie that the victim was the aggressor or that the defendant was honestly seeking to defend himself.” (Emphasis supplied.) Id. at 61. Thus, in the case now before us, the mere fact that the victim reached toward his pocket would not establish the prima facie case necessary before character evidence could be admitted. However, the victim’s gesture toward his pants pocket did not “stand alone” as the only evidence in this case. In this case, defendant proffered evidence of an almost identical earlier incident in which the victim assaulted the defendant with a knife. Defendant claims to have been prepared to offer evidence of other similar incidents. Evidence of specific similar assaults by the victim against the defendant can, itself, establish the threshold elements of a prima facie case by illustrating the basis for defendant’s contention he reasonably believed the victim was about to use a weapon on him and that it was necessary for him to harm the victim before the victim harmed him. Milton v. State, supra. In Milton, the only evidence that the victim assailed the defendant was defendant’s proffered testimony that the victim threatened to kill him, told him she had a gun in her purse and started reaching for her purse before defendant shot her. If this had been the only evidence, as in Cooper v. State, supra, a prima facie case of present assault would not have been shown. However, in Milton the reasonableness of defendant’s belief that it was necessary to act in self-defense was further supported by testimony the victim had shot him and cut him with a knife on earlier occasions. The same sort of evidence was sought to be presented by defendant in the case now before us.

Even after a prima facie showing of self-defense, evidence of other specific acts of violence by the victim would not be admissible for the purpose of corroborating the testimony that the victim was violent on the occasion in question. Only general reputation for violence or a specific type of violence (such as stabbing or shooting) can be presented to corroborate the likelihood the victim was violent on the occasion in question. Henderson v. State, 234 Ga. 827 (218 SE2d 612) (1975). The only purpose for admitting evidence of specific prior acts of violence by the victim against the defendant would be to establish the “reasonableness of defendant’s apprehension of danger at the time of the homicide.” (Punctuation and cit. omitted.) Milton v. State, supra at 24. The law of Georgia decidedly favors the admission of evidence of previous incidents or threats by the victim against the defendant which supports defendant’s contention he reasonably feared it was necessary to kill in order to save his own life. Smith v. State, 128 Ga. App. 777 (197 SE2d 866) (1973). The reasonableness of defendant’s apprehension of danger is one of the threshold elements for establishing a prima facie case of self-defense. It follows that evidence of other threats or assaults by the victim against the defendant should have been admitted in this case for the purpose of establishing the prima facie case of self-defense. “This evidence was crucial to his defense, and its exclusion of necessity damaged, if not totally deprived him of, the benefit of his sole defense.” Milton v. State, supra at 25-26.

3. Once a prima facie case of self-defense has been made, defendant may present evidence of the victim’s character and reputation for violence. Testimony of a witness concerning another’s character and reputation cannot be based entirely on the witness’ personal opinion. Gravitt v. State, 220 Ga. 781 (141 SE2d 893) (1965). However, references to the impeaching witness’ “personal knowledge” or “association” with the individual whose character is at issue “serve [s] only to develop a foundation upon which to base the witness’ statement as to reputation.” Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 437 (274 SE2d 786) (1980).

In deposition testimony which defendant attempted to present at trial, the witness was asked several questions concerning the victim’s character and general reputation. Each question posed asked the witness to respond based upon his personal knowledge of the victim and what he had heard others in the community say about the victim. For example, the witness was asked:

“Q.: [D]uring both the 20 years that you have known Crum Daddy, and the two years that you have known and seen him . . . have you heard other people that live in that area that know Crum Daddy, talk about him?
A.: Yes.
Q.: And based upon your personally knowing Crum Daddy, and having heard other people in that community talk about him, are you familiar with his general character and reputation?
A.: Yes.
Q.: And is that character and reputation a good one or a bad one?
A.: I think it is bad.”

The questions posed in the deposition were proper questions. They did not request the witness’ personal opinion of the victim but his knowledge of the victim’s general reputation. Thus, the witness’ testimony concerning the victim’s general reputation was erroneously excluded.

4. Defendant objects to that portion of the jury charge in which the judge instructed, “[Wjhenever a homicide is neither justifiable or malicious, it is manslaughter and, if intentional, it is voluntary manslaughter.” Said portion of the jury charge is an accurate reflection of the law, is a direct quote from Washington v. State, 249 Ga. 728, 730 (292 SE2d 836) (1982), and is therefore not in error.

5. Defendant also objects to the instructions given in explanation or supplementation to the standard charge concerning the defendant’s right to remain silent and not to testify. The additional comments instructing the jury they should not be prejudiced by the defendant’s choice not to testify were, if anything, favorable to the defendant and certainly not harmful. We find no merit in this enumeration of error.

Decided May 31, 1988.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

6. Given the account of the incident by the eyewitness, we find sufficient evidence was adduced at trial from which the jury could find defendant guilty beyond a reasonable doubt of voluntary manslaughter. However, for reasons set forth in Division 2 of this opinion, on retrial defendant may present additional evidence in support of his defense of self-defense.

7. The purpose of a preliminary probable cause hearing is to dismiss at the earliest possible date those charges for which no probable cause is shown. See Rule 26.2 (A) (7) of the Uniform Superior Court Rules. Once there has been an indictment on a charge, probable cause has, by definition, been shown. Failure to hold a preliminary probable cause hearing pursuant to Rule 26.2 provides no ground for appellate review once there has been an indictment and conviction. McClendon v. State, 256 Ga. 480 (1) (350 SE2d 235) (1986); State v. Middlebrooks, 236 Ga. 52 (2) (222 SE2d 343) (1976).

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    76311.
    FLAGG v. THE STATE.
    (370 SE2d 46)
   Beasley, Judge.

Defendant appeals his conviction of armed robbery, OCGA § 16-8-41. He contends the court erred in admitting evidence of other crimes as testified to by three witnesses and in imposing a sentence of ten years to serve based upon a misconstruction of OCGA § 16-8-41 (b).

1. Before evidence of an independent crime is admissible to show motive, intent, plan, identity, bent of mind or course of conduct, two principal conditions must be met: 1) there must be evidence that defendant was the perpetrator; 2) there must be sufficient similarity or logical connection between the independent crime and offense charged so that proof of the former tends to prove the latter. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980); Thompson v. State, 178 Ga. App. 723, 724 (2) (344 SE2d 696) (1986). See Devane v. State, 183 Ga. App. 60, 63 (2) (b) (357 SE2d 819) (1987). This does not violate OCGA § 24-9-20 (b) or § 24-2-2. Defendant does not question the purpose for which the evidence was admitted nor does he argue that he was not the malefactor but contends that the State failed to establish the second prong, that the other offenses and the charged offense were similar or logically connected.

The victim, an elderly white female, had just returned to her home from shopping and had gone inside. She answered the doorbell and found defendant standing there. He grabbed and threw her to the floor, demanding the jewelry she was wearing and her pocketbook. He rummaged through her house and forced her at gunpoint into a closet. He then fled after taking some $15,000 to $20,000 in jewelry and money.

The other crimes were robberies and were related by three victims. The differences which defendant points out are: two of the victims had not been shopping; two were robbed at later hours; one was robbed on Friday; defendant did not enter the homes of two of the victims.

The alleged differences are not decisive when the similarities are considered. In all instances, the crimes were committed against elderly white females who had just returned to their premises by automobile and who were forcibly pushed to the ground or floor and robbed of their jewelry and money by a single individual. Two of the other offenses were committed within a week either way of the indicted offense and the third was seven months earlier, one involved the use of a gun and another occurred when defendant gained access into the victim’s home. Considered as a whole, each of the instances of robbery were sufficiently like the indicted crime to meet the threshold for admission. Nelson v. State, 181 Ga. App. 481, 483 (2) (352 SE2d 804) (1987). Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986), notes that “there is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” The court properly allowed the evidence of other offenses. Dudley v. State, 179 Ga. App. 252, 255 (4) (345 SE2d 888) (1986).

2. OCGA § 16-8-41 provides that defendant shall be punished by imprisonment for not less than ten years for a second or subsequent offense or if defendant inflicted serious bodily injury on a victim. Defendant argues, and the State concedes, that neither of these two ag-. gravating factors were present in this case. That being so the trial court was not mandated by law to impose a sentence of imprisonment for at least ten years, as was done. The predicate “offense” must be one for which there is a conviction; it may not simply be a proved incident. Curtis v. State, 102 Ga. App. 790, 801 (9) (118 SE2d 264) (1960); Johnson v. State, 118 Ga. App. 448, 450 (2) (164 SE2d 353) (1968). See also Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109) (1987).

Decided May 31, 1988.

William M. Bristow, for appellant.

Thomas J. Charron, District Attorney, William R. Pardue, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Where the sentence is within the limits established by law, this court may not control the discretion of the trial court in imposing punishment. Clark v. State, 141 Ga. App. 257, 258 (3) (233 SE2d 246) (1977); Wilkinson v. State, 18 Ga. App. 330 (4) (89 SE 460) (1916); Reese v. State, 3 Ga. App. 610, 613 (4) (60 SE 284) (1907). But an equally well established principle of law is that where the trial court has a legal discretion to exercise but fails to do, instead resting the decision upon an erroneous point of law, then reversal must follow. Ray v. Dept. of Human Resources, 155 Ga. App. 81, 85 (1) (270 SE2d 303) (1980); Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975). Although the conviction stands, the sentence, having been entered under a misapprehension of law, is reversed and the case is remanded to the trial court for resentencing. See Taylor v. State, 186 Ga. App. 113, 115 (3) (366 SE2d 422) (1988).

Judgment affirmed in part and reversed in part; case remanded for resentencing.

Birdsong, C. J., and Banke, P. J., concur.

       An incident which would constitute another offense, established by evidence at the trial, may be considered by the court in its discretion in determining the appropriate sentence. Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985).


text:
    76335.
    In the Interest of A. T. et al.
    (370 SE2d 48)
   McMurray, Presiding Judge.

On November 12,1987, the juvenile court entered an order terminating the parental rights of the natural parents of A. T., a female child born on January 4, 1984, and D. T., a male child born on December 12, 1982. It is from this order that the natural mother appeals. Held:

1. The appellant mother’s first and second enumerations of error address the sufficiency of the evidence to support the order terminating her parental rights. ‘““[T]he appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is ‘whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” (Cits.)” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984).’ ‘The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.’ In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). ‘ “ ‘(I)t is not proper to consider the question of termination of parental rights based solely upon a “welfare of the (child)” test, without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the (child), or by what is tantamount to physical or mental incapability to care for the (child).’ (Cit.)” (Cit.)’ In the Interest of T. A. L. & L. I. L., 177 Ga. App. 846, 847 (341 SE2d 496) (1986).” In re A. N. Y., 181 Ga. App. 499 (353 SE2d 8).

There was clear and convincing evidence in the case sub judice that in January 1985 appellant had physically abused A. T. by burning and bruising her, as well as by withholding medical care after the injuries. A. T.’s injuries included extremely painful first, second and possibly third degree burns to the head and chest from a hot liquid. Although these burns were inflicted at 2:30 a.m. and, according to expert testimony, would have been obvious as a serious injury within a short period of time, A. T. was not presented for treatment until 10 p.m. Other, older burns, could not have been caused by hot fluid but were consistent with a hot round object being placed on the skin of the child’s underarm area and the child’s arm being pulled down on the hot object. The final serious injury consisted of bruises to the child’s buttocks caused by a linear object such as a belt. Based on the hot liquid burns and withholding of medical treatment, appellant and her husband were tried and convicted of two counts of cruelty to children and appellant was sentenced to seven years confinement. On February 27, 1986, appellant was placed at the Macon Transitional Center. From this facility appellant was allowed 12-hour passes. Appellant visited her children twice, the last visit being in December 1986. Afterwards, appellant made no further effort to visit her children prior to the hearing date, October 7, 1987. (Appellant was released July 2, 1987.) Appellant did not write or send gifts to the children.

The severe physical abuse of A. T. shown by clear and convincing evidence, is undoubtedly that detrimental and egregious parental misconduct which justifies the termination of parental rights. In the Interest of S. G. & T. G., 182 Ga. App. 95, 100, 101 (354 SE2d 640); In the Interest of B. M., 184 Ga. App. 291 (361 SE2d 269). Although D. T. has not been the object of such abuse, the severe nature of the abuse of A. T. combined with the lengthy and continuing neglect of both children, is sufficient to authorize the termination of appellant’s parental rights in regard to D. T. The juvenile court did not err in considering appellant’s conduct toward both of her minor children when deciding whether to terminate her parental rights to each child. See In the Interest of D. S., 176 Ga. App. 482 (336 SE2d 358); Madray v. Dept. of Human Resources, 146 Ga. App. 762 (247 SE2d 579).

Decided May 31, 1988.

Jack E. Carney, Jr., for appellant.

Benjamin P. Brinson, Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol A. Cos-grove, Senior Assistant Attorney General, for appellees.

2. In her final enumeration of error, appellant contends the juvenile court erred in predicating its decision solely on the best interest of the children. OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, “[i]f there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, . . .” OCGA § 15-11-81 (a). The juvenile court carefully followed the procedure provided by this statute. Therefore, this enumeration of error is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    76582.
    WHITE v. THE STATE.
    (370 SE2d 50)
   Deen, Presiding Judge.

The appellant, Benny White, was convicted of burglary. On appeal, he contends that the trial court erred in denying his motion for a continuance and his motion to suppress both the pre-trial and in-court identification evidence. Held:

1. White moved for a continuance at the beginning of the trial, on the ground that a key defense witness, who would corroborate his alibi defense, was not present. This witness had been subpoenaed, but at the time of trial she was hospitalized in the psychiatric ward of Grady Hospital. The trial court did order the sheriff to pick up this witness at the hospital, unless she was medically unable to testify, which turned out to be the case.

Concerning applications for continuances based on the absence of a witness, OCGA § 17-8-25 requires, among other things, a showing “that the applicant expects he will be able to procure the testimony of the witness at the next term of the court . . .” As noted by the state in objecting to the motion, and as found by the trial court, White did not even attempt to show that this witness would be able to testify by the next term of the court; accordingly, denial of the motion was not an abuse of discretion. Cf. Frost v. State, 91 Ga. App. 618 (86 SE2d 646) (1955).

2. In this case, the victim arrived home in the afternoon and discovered White backing out of his driveway; White’s car was filled with various appliances from the victim’s home. The victim held White in check with his pistol for a few minutes and called the police; White, however, fled on foot before the police arrived. A few days later, the police showed the victim a photo line-up, and the victim picked out White’s photo in approximately five seconds. At trial he also positively identified White as the burglar he stopped.

White contends that the photo line-up was impermissibly suggestive, thus tainting both the photo and the in-court identifications, because (1) there was a discrepancy between the testimony of the victim and the police officer as to whether the victim was standing or sitting at the time of the photo line-up; (2) White’s photo was in the front and center position in the photo array; and (3) the victim assumed that the photo array contained the photograph of a suspect. We find that these circumstances, either singly or in combination, did not render the photo line-up impermissibly suggestive.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Carley, Judge,

concurring specially.

I agree fully with Division 1 of the majority opinion. With regard to Division 2, the majority opinion deals only with the issue of whether the photo line-up was impermissibly suggestive. However, the actual enumeration of error in this case is that the trial court’s denial of the motion to suppress in-court identification and in allowing the pre-trial identification in evidence at trial violated appellant’s constitutional due process rights under Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972). It is true that under the holding of Neil v. Biggers, supra, a determination that the pre-trial identification is not impermissibly suggestive ends the inquiry. Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425) (1987). However, even if the pre-trial procedures in this case were impermissibly suggestive, the trial court would not have erred in denying the motion to suppress unless, as a result of such procedures, there was also a substantial likelihood of irreparable misidentification. Goswick v. State, 150 Ga. App. 279, 281-282 (257 SE2d 303) (1979). “The factors to be considered in determining whether there was a substantial likelihood of irreparable misidentification are: ‘(1) opportunity to view the defendant at the time of the offense . . .; (2) the witness’ degree of attention . . .; (3) the accuracy of the witness’ prior description . . .; (4) level of certainty demonstrated . . .; (5) the length of time between the crime and the identification. . . .’ [Cit.] Applying these factors in the case sub judice, there was no substantial likelihood of irreparable pre-trial misidentification of [appellant] by the [victim], even assuming that the procedures may have been suggestive. . . . Accordingly, the trial court did not err in allowing the [victim’s] pre-trial identification of [appellant] into evidence.” Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987). See also Robinson v. State, 180 Ga. App. 248 (348 SE2d 761) (1986); Curtis v. State, 183 Ga. App. 6 (357 SE2d 849) (1987).

Decided May 31, 1988.

Alan C. Manheim, for appellant.

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

I believe the trial court did not err in denying the motion to suppress.

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


author: Carley, Judge.

text:
    76048.
    GILBERT v. JONES.
    (370 SE2d 155)
   Carley, Judge.

Appellant-plaintiff and appellee-defendant are both attorneys. Appellant was originally employed to serve as Ms. Susan Edmond-son’s lawyer with regard to certain matters. However, Ms. Edmond-son subsequently discharged appellant and retained appellee to represent her in the legal matters.

Thereafter, appellant brought this suit, alleging that appellee had intentionally and maliciously interfered with the contractual relationship that he had with Ms. Edmondson. Appellee answered, denying the material allegations of the complaint, and he subsequently moved for summary judgment. The trial court granted appellee’s motion. Appellant appeals from the trial court’s order granting summary judgment in favor of appellee.

1. Appellant enumerates the grant of appellee’s motion for summitry judgment as erroneous because, he asserts, a genuine issue of material fact remains as to whether there was a tortious interference with his contractual relationship with Ms. Edmondson.

“The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. [Cits.]” McDaniel v. Green, 156 Ga. App. 549, 550 (275 SE2d 124) (1980). “ ‘ “It is actionable maliciously and without justifiable cause to induce one to break his contract with another to the damage of the latter. The term ‘maliciously’ means any unauthorized interference or any interference without legal justification or excuse. . . .” ’ [Cit.]” Steele v. Cincinnati Ins. Co., 171 Ga. App. 499, 500 (2) (320 SE2d 203) (1984). The undisputed evidence of record shows that, several months prior to her hiring of appellee, Ms. Edmondson had already become dissatisfied with appellant’s legal services and had begun an active search for new counsel. According to the affidavit of Ms. Edmondson, which was filed in support of the motion for summary judgment, appellee did not “in any way interfere with any contractual relations then existing between me and [appellant]. My decision to replace [appellant] with another lawyer or law firm had been made before I ever met [appellee].” In opposition to this evidence, there is nothing to show that appellee undertook to induce Ms. Edmondson to discharge appellant.

Appellant contends, however, that appellee advised Ms. Edmond-son not to pay the amount which she allegedly owed to appellant for his past legal services. This, according to appellant, shows that appellee tortiously interfered with appellant’s contract with Ms. Edmond-son. Our review of the record shows, however, that the evidence is undisputed that appellee never advised Ms. Edmondson to disregard her financial obligation to appellant. Instead, appellee merely advised Ms. Edmondson of her legal rights in the matter of the attorney’s fees that she allegedly owed to appellant. Since it is undisputed that appellee was acting within the scope of his employment as Ms. Edmond-son’s attorney, his advice to Ms. Edmondson concerning possible defenses to appellant’s claim for attorney’s fees could not possibly constitute tortious interference with appellant’s contractual relationship with Ms. Edmondson. The contention that appellee’s compensation from Ms. Edmondson was dependent upon the fee that Ms. Edmondson ultimately paid to appellant is refuted by the evidence of record. The evidence shows that the amount of compensation which appellee was to receive from Ms. Edmondson had no relation to any amounts that Ms. Edmondson may have been obligated to pay appellant.

“The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.] [Appellee] has met this burden. Where the movant has pierced the allegations of the pleadings and shown the truth to the court, he may receive a grant of summary judgment where there is no genuine issue of material fact considering the pleadings and available evidence. [Cit.]. . . . Once [appellee] carried his burden to show the absence of any genuine issue of fact . . . [appellant] was required to offer refuting evidence.” Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983). As appellant failed to produce refuting evidence, the trial court’s grant of summary judgment was proper.

Decided April 11, 1988

Rehearing denied April 28, 1988

Scott A. Halpern, for appellant.

A. Paul Cadenhead, E. Clayton Scofield III, for appellee.

2. Appellee’s motion for summary judgment was filed on June 24, 1986. The motion was orally argued and supplemental briefs were filed in the trial court as late as September 29, 1986. On October 1, 1986, while appellee’s motion for summary judgment was under advisement, appellant filed a motion wherein he sought to add another party-defendant to the action. The trial court did not make a formal ruling on appellant’s motion prior to the entry of the order which granted appellee’s motion for summary judgment on October 20, 1986. Appellant enumerates as error the trial court’s failure to consider and to grant his motion to add a party-defendant.

“The adding or dropping of parties requires the exercise of the discretion by the trial court. [Cits.] Further, the motion must be timely, otherwise there is no abuse of discretion to deny it. [Cit.]” Cartin v. Boles, 155 Ga. App. 248, 254 (5) (270 SE2d 799) (1980). See generally Jenkins v. Chambers, 127 Ga. App. 200, 202 (2) (193 SE2d 222) (1972). The trial court, in effect denied appellant’s motion when it granted summary judgment in favor of appellee, who was the only defendant in the case. Considering both the timing of appellant’s motion to add a party-defendant and the substance thereof, we find that the trial court did not abuse its discretion in denying it. See generally Cartin v. Boles, supra; Jenkins v. Chambers, supra.

3. Appellant’s remaining enumeration of error concerns a discovery ruling by the trial court. We have considered the enumeration, but find it to be without merit.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs in judgment only.


text:
    76198.
    JOHNSON v. ATLANTA CASUALTY COMPANY et al.
    (370 SE2d 157)
    Decided April 11, 1988
    Rehearing denied April 28, 1988

      Charles W. Cook, W. L. Salter, Jr., for appellant.

      Edward M. Hughes, Luhr G. C. Beckmann, Jr., Walter W. Bal

      lew III, for appellees.
   Carley, Judge.

Appellant-plaintiff was injured when he was allegedly struck by a hit-and-run-driver. Appellant had no automobile insurance of his own. He did, however, reside with his father and brother, each of whom was afforded coverage under an automobile insurance policy. Appellant filed a “John Doe” complaint and served appellee-defendants in their capacities as the insurers of his father’s and brother’s automobile. Appellant sought to recover uninsured motorist benefits from appellees by virtue of his status as a resident of the household of appellees’ insureds. Each appellee answered in its own name and each subsequently moved for summary judgment. Both motions were based upon the failure of appellant to comply with the notice provision contained in the applicable policy. The trial court granted appellees’ motions for summary judgment, and appellant appeals.

It is undisputed that each policy contained a provision which required that written notice of any claim for coverage involving a hit- and-run incident be given to the respective insurer within thirty days of the incident. Appellant concedes that no attempt was made to give notice to either appellee until more than two months after the alleged incident. With regard to this lack of notice, the present case is, therefore, factually indistinguishable from Adams v. Doe, 182 Ga. App. 269 (355 SE2d 471) (1987), wherein we held that, as the result of the failure “to trigger coverage under the 30-day notice provision of the policy, the trial court properly entered summary judgment in favor of the insurer. [Cit.]” Supra at 270. Appellant asserts, however, that Adams v. Doe, supra, is not controlling authority here because he, unlike the plaintiff in that case, is not the named insured in the policies. Appellant contends, in effect, that he should be legally excused from compliance with a notice requirement which is contained in an insurance policy issued to another. However, compliance with the thirty-day notice provision for hit and run incidents is required by all who claim to be insureds under an insurance contract, not just to the policy holder himself. See Flamm v. Doe, 167 Ga. App. 587 (307 SE2d 105) (1983). Accordingly, the trial court correctly granted appellees’ motions for summary judgment.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    75845.
    WEEKS v. THE STATE.
    (370 SE2d 344)
   McMurray, Presiding Judge.

Via three count indictment, defendant was accused of molesting three children (all under the age of 14 years) by touching them in the vaginal area with the intent to satisfy his sexual desires. The indictment stemmed from an investigation which began when a neighbor’s child (the victim in Count 1) told her mother that defendant bothered her. Asked to elaborate, the child said defendant “sticks his finger in me.” Defendant was convicted of molesting two of the children (his stepdaughter, the victim in Count 2, and the neighbor’s child, the victim in Count 1) and he appeals. Held:

1. Error is enumerated upon the general grounds. Defendant’s evidence at trial shows the following: Defendant is confined to a wheelchair as a result of a diving accident. He is paralyzed from the upper chest down and must be helped with his day to day activities. He cannot open his fingers or straighten his thumbs without assistance and he has no tactile sensation whatsoever below the wrists. Using two hands, however, defendant can drink from a cup and write his name. He can also drive a vehicle which has been adapted to his condition.

Defendant married his nurse and he became a father figure to her three children. He admitted that he assisted his stepdaughter when she showered by drying her vaginal area with a towel. He also stated that he doctored his stepdaughter’s vagina with baby oil when she had a rash. Conceding that his conduct may have been inappropriate, defendant denied any sexual intent. He also denied that he ever touched the vaginal area of the neighbor’s child.

Defendant’s stepdaughter testified that defendant never touched her vagina. She denied telling the police that he did. A police detective testified, however, that when he first interviewed the stepdaughter she told him that defendant used baby oil to rub her vagina when she had a rash and that she had a rash about once a week. The detective testified further that the stepdaughter said defendant put his finger inside her vagina; that she told defendant to stop doing that because it hurt her; and that defendant did not stop even though she wanted him to. Finally, the detective testified that the stepdaughter said that defendant sometimes helped her friend (the neighbor’s child, the victim in Count 1) with a rash.

The neighbor’s child (the victim in Count 1) averred that defendant touched her on the vagina “a lot.” She said defendant did that when she napped or slept at his house. In this regard, the neighbor’s child (the victim in Count 1) testified that she slept in defendant’s room with defendant’s stepdaughter; that defendant told her to sleep on the right side of the bed; that defendant would enter the room in his wheelchair when she slept or pretended to be asleep; that he would put his right hand inside her pants and panties; and that he would put his finger inside her vagina.

Several health care professionals called on behalf of defendant opined that defendant was practically incapable of molesting the neighbor’s child (the victim in Count 1) in the way she described. And defendant’s physician testified that defendant could not be gratified sexually by touching someone with his hands. (He did concede, however, that defendant could be stimulated sexually by using his other senses.)

In light of the foregoing testimony, we find that the evidence was sufficient to enable any rational trier of fact to find defendant guilty of molesting the neighbor’s child (the victim in Count 1) and his stepdaughter beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The convictions stand properly upon the testimony of the neighbor’s child (the victim in Count 1) and the prior inconsistent statements of the stepdaughter. Scales v. State, 171 Ga. App. 924 (321 SE2d 764); Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124). Corroboration is not required for a conviction of child molestation. Scales v. State, 171 Ga. App. 924 (2), supra.

Relying upon Brown v. State, 175 Ga. App. 246, supra, defendant argues that his conviction for the molestation of his stepdaughter cannot pass muster because a conviction cannot rest upon prior inconsistent statements alone. In Brown, this court stated that the victim’s prior inconsistent statements “coupled with the other evidence adduced at trial” was sufficient to authorize appellant’s conviction. Brown did not hold, however, that corroborative evidence must be adduced at trial in order to sustain a conviction based on prior inconsistent statements. Indeed, such a holding would fly in the face of Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717), in which the Supreme Court held that prior inconsistent statements of a witness constitute substantive evidence which the jury can credit or not as it sees fit.

2. After the neighbor’s child (the victim in Count 1) took the stand, a juror handed a note to the court which read: “I do not know [the neighbor’s child]. However, my son is in first grade at [her school]. I do not feel this would prejudice me in this case. My concern is for future contact I or my son may have with her.” Questioned by the court, the juror stated that she did not know the neighbor’s child and never heard her son speak about the child. She said her only concern was with the feelings she might have towards the child if she came into contact with her. Repeatedly, the juror stated that she could remain fair and impartial and that her concern would not affect her ability to try the case justly.

Following the court’s inquiries, defense counsel objected to the juror and asked that she be excused. He opined that the juror could not be fair in view of her concern about contact with the child. The court overruled the objection and stated that unless defendant was willing to accept an 11 member jury, the juror would remain on the panel. Defense counsel insisted on defendant’s right to have his case heard by 12 jurors. The court reiterated its ruling: The juror was fair and impartial, and therefore, the jury was composed of 12 unbiased jurors. Thereupon defense counsel stated: “[I]f that’s the holding of the Court, then we’re going to ask the Court to excuse this juror and allow us to go with eleven.” The court responded: “I’m going to proceed on with these twelve jurors. ... I don’t think you can have it both ways. I don’t think you can say we want twelve and then say now the Court has given me my right to twelve fair and impartial jurors; now I want eleven and I don’t like what she says and so forth and other matters. . . . Now, if you want to come back and re-evaluate your position and withdraw any objection to the juror as we have discussed earlier, then that’ll be a different posture ...”

At that point, defendant counsel withdrew his objection to the juror and announced that defendant would “proceed with eleven.” The trial court replied: “Yes, sir. Well, again, for the record, if you withdraw an objection, that’s a waiver of this ... as far as this Court is concerned, it’s a waiver of your twelve-person jury; and again, I do not feel the trial Court should be put in this situation. So, if you waive it, you waive it; and that’s fine, Mr. Garner. We’ll proceed on with eleven, but I do want the record to clearly show that as far as the Court is concerned, this is affirmative, knowing, intelligent and voluntary waiver by counsel and by the accused to a twelve-person jury. Is that correct, Mr. Garner?” Defense counsel agreed with the trial court’s assessment.

Thereupon, the State expressed its concern that defendant would raise the issue on appeal and the following colloquy ensued: “THE COURT: Well, Mrs. Turner, I’m satisfied, that he has made an affirmative waiver here in the record of a twelve-person jury and now seeks to have [the juror] excused after an affirmative waiver of a twelve-person jury knowingly and intelligently. Is that correct, Mr. Garner? . . . MR. GARNER: Judge, we are satisfied to go forward at this time with eleven people. We understand that we have a right to hold out for twelve. We are satisfied to go forward with eleven. THE COURT: . . . Do you waive any objection to proceeding now with eleven jurors in the absence of [the juror]? Yes or no, Mr. Garner? MR. GARNER: We waive the objection, Judge. THE COURT: Thank you ... All right, I’m going to bring the jury back in and go ahead and excuse [the juror] by consent of the accused and counsel. Do you consent to this juror being excused, Mr. Weeks? THE DEFENDANT: I’ll have to go along with what my counselor says. THE COURT: All right, sir. So you do then, is that correct sir? MR. WEEKS: I’ll go along with what my counselor says. THE COURT: The Court is going to rely on statements of counsel in this matter. You waived it, Mr. Garner, on behalf of your client here in open court.”

In his second enumeration of error, defendant contends the trial court erred in proceeding with eleven jurors in the absence of a personal, knowing, intelligent and voluntary waiver by defendant. We disagree.

Defendant was present when his counsel waived his right to be tried by a jury of twelve and he clearly acquiesced in his counsel’s decision. Although it may have been better for the trial judge to have questioned defendant to determine whether he recognized the effects of a waiver, it was unnecessary for him to do so. Hudson v. State, 250 Ga. 479, 482 (299 SE2d 531). “Counsel for the accused may validly waive this right [to a jury of twelve] for him if (1) the waiver is made, without objection, in the accused’s presence or (2) the accused otherwise acquiesces in the waiver.” Id. at 484.

3. During the trial, the assistant district attorney posed several hypothetical questions to a social worker on cross-examination. Defense counsel objected to the questions on the ground that they did not accurately set forth the facts adduced at trial. The objections were overruled and the questions were answered. In his third enumeration of error, defendant now argues the trial court erred in permitting the social worker to answer the hypothetical questions because they called for legal opinions which were not within the social worker’s field of expertise. Inasmuch as this argument was not presented in the trial court, it cannot be considered on appeal. King v. State, 139 Ga. App. 246, 248 (2) (228 SE2d 172); Davis v. State, 172 Ga. App. 787, 789 (4) (324 SE2d 767).

4. On direct examination, the State asked an expert witness whether there were any statistics concerning the percentage of children who lie in child molestation cases. Defendant’s objection to the question was sustained. Thereafter, on cross-examination, defendant asked the expert to agree that no empirical evidence supported the view that “children never lie about sexual abuse.” The expert would not agree — she averred that there were a number of studies to the contrary. Then, on redirect, the State asked about the statistical data to which the expert made reference. Over objection, the expert was permitted to testify that, according to one study, no more than two or three children per thousand have been found to fabricate child molestation claims.

Defendant contends the trial court erred in allowing the expert to testify about the results of the study. This contention is without merit. Defendant opened the door to this testimony when he questioned the expert about empirical studies on cross-examination. Thus, if the admission of this testimony was error, defendant has no grounds for complaint. Cargill v. State, 255 Ga. 616, 637 (22) (340 SE2d 891); Perryman v. State, 244 Ga. 720 (2) (261 SE2d 588). See also Lamb v. State, 171 Ga. App. 350, 351 (1) (319 SE2d 520).

Decided April 20, 1988

Rehearing denied May 10, 1988

Donald F. Samuel, for appellant.

Thomas C. Lawler III, District Attorney, Debra Turner, Assistant District Attorney, for appellee.

5. The trial court did not err in permitting the State to cross-examine defendant’s character witnesses by the use of hypothetical questions which were based on facts admitted in evidence. Mathis v. State, 175 Ga. App. 127 (4) (333 SE2d 10). Defendant’s fifth enumeration of error is not meritorious.

6. The investigating officer testified that after defendant was advised of his constitutional rights he “declined to make a statement without an attorney being present.” Defendant contends it was error to allow the investigating officer to so testify. We are unable to consider this contention since no objection to the testimony was interposed at trial. Merritt v. State, 157 Ga. App. 34 (2) (276 SE2d 258).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    75926.
    WRIGHT v. THE STATE.
    (370 SE2d 160)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery and sentenced to life imprisonment. His motion for new trial was overruled and he appeals. Held:

1. In his first enumeration of error, defendant contends the victim’s in-court identification testimony was admitted improperly because the pre-trial photographic identification procedure was impermissibly suggestive. In this regard, defendant points out that his name was written on the back of his photograph. This enumeration is without merit. The victim viewed 11 photographs of males of the same race and appearances similar to defendant. She did not know defendant’s name and did not turn the photographs over. She identified defendant as the perpetrator after looking at the photographs for about five minutes. It cannot be said that the photographic lineup was impermissibly suggestive. See Thomas v. State, 176 Ga. App. 53, 57 (7) (335 SE2d 135).

Decided April 20, 1988

Rehearing denied May 10, 1988

William H. Newton III, F. Larry Salmon, for appellant.

Stephen F. Lanier, District Attorney, Deborah D. Haygood, As sistant District Attorney, for appellee.

2. The investigating officer was asked on direct examination whether he received a name to match the description of the perpetrator. Over a hearsay objection, the officer was permitted to testify that he received defendant’s name. The evidence was admitted to explain the conduct of the officer in the procurement of defendant’s picture for the photographic lineup. While the testimony may have been admitted erroneously, Teague v. State, 252 Ga. 534 (314 SE2d 910), we find it highly probable that its admission did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). After all, viewed in context, the officer simply testified that someone thought defendant matched the perpetrator’s description, nothing more. Compare Hart v. State, 174 Ga. App. 134 (1) (329 SE2d 178). The victim gave similar testimony; and the jury could make such a determination for itself. See Teague v. State, 252 Ga. 534, 537 (2), supra.

3. Following the jury’s verdict, the trial court inquired whether it could proceed with the sentencing of defendant. Thereupon, defendant was brought forward and asked if he had anything to say before sentence was pronounced. When defendant simply stated he wanted to appeal, the trial court imposed sentence.

Defendant asserts the trial court erred in imposing a life sentence without hearing mitigating circumstances. We find no error in this regard. There is no indication in the record that defendant sought an opportunity to present mitigating evidence or that defendant objected to going forward with the sentencing proceeding. See Bradshaw v. State, 145 Ga. App. 664, 665 (1) (244 SE2d 600).

4. Defendant was first tried on June 2, 1987, and a mistrial was declared because the jurors could not reach a verdict. A retrial commenced two days later. In his final enumeration of error, defendant contends the retrial should not have been held during the same term of court as the mistrial. We cannot accept this contention. In the first place, no such objection was raised in the trial court. Daniels v. State, 183 Ga. App. 222, 223 (1) (358 SE2d 637). In the second place, defendant has not affirmatively demonstrated harm. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    75971.
    HERNDON v. THE STATE.
    (370 SE2d 164)
   Sognier, Judge.

Appellant was convicted of driving with .12 percent or more by weight of alcohol in his blood. In his sole enumeration of error appellant contends the trial court erred by denying his request to charge the definitions of direct and circumstantial evidence.

There was no record of trial made in this case, but it was stipulated that appellant was driving an automobile on a public highway at 1:52 a.m., April 30, 1987, and a test administered by police on an Intoximeter 3000 at 2:24 a.m. the same date registered an alcohol content of .15 percent. It was also stipulated that the officer administering the test testified that the Intoximeter measured alcohol in the defendant’s breath and did not directly measure alcohol in the defendant’s blood. It was further stipulated that the same officer testified that the test indicated the percent of alcohol in the breath at the time of the test, and not at the time the defendant was driving, and depending upon when the alcohol was consumed, the alcoholic content of a person’s blood could be increasing or decreasing.

Appellant argues that the evidence relating to the percent of alcohol in his blood at the time he was driving is circumstantial for two reasons. First, the Intoximeter measures the percentage of alcohol in a person’s breath, rather than the percentage of alcohol in the blood, as specified in OCGA § 40-6-391 (a) (4). Second, the test measures the percent of alcohol at a time subsequent to the violation. Appellant’s first argument has been decided adversely to him in Fudge v. State, 184 Ga. App. 590, 592 (5) (362 SE2d 147) (1987), wherein we held that OCGA § 40-6-392 (a) makes it clear that a breath test is used to determine the amount of alcohol in a person’s blood.

In regard to appellant’s second argument, there was direct evidence that appellant was driving an automobile on a public highway at 1:52 a.m., and direct evidence that thirty-two minutes later the Intoximeter test registered a blood alcohol content of .15. Thus, whether or not the evidence that appellant was driving with .15 percent alcohol in his blood was circumstantial is immaterial, because where there is some direct evidence involved in the case, it is not error to fail to charge on circumstantial evidence. Walker v. State, 162 Ga. App. 173, 174 (2) (290 SE2d 502) (1982). Hence, appellant’s enumeration of error is without merit.

Judgment affirmed.

Corley, J., concurs. Deen, P. J., concurs specially.

Decided April 25, 1988

Rehearing denied May 10, 1988.

James A. Chamberlin, Jr., for appellant.

Lloyd E. Thompson, Jr., Solicitor, for appellee.

Deen, Presiding Judge,

concurring specially.

While concurring with the judgment of affirmance, I cannot agree with the majority opinion’s matter-of-fact declaration that in Fudge v. State, 184 Ga. App. 590 (362 SE2d 147) (1987), “we held that OCGA § 40-6-392 (a) makes it clear that a breath test is used to determine the amount of alcohol in a person’s blood.” Fudge simply did not determine that issue, because it was a one-judge decision, two judges having concurred in the judgment only, and thus was without any binding precedential value. Nevertheless, I do agree with that construction of OCGA § 40-6-392 (a), and believe that we should specifically endorse it so as to determine this issue in a binding manner.


author: Sognier, Judge.

text:
    75979.
    FIRST GEORGIA INSURANCE COMPANY v. GOODRUM et al.
    (370 SE2d 162)
   Sognier, Judge.

First Georgia Insurance Company sought a declaration of its rights under an automobile insurance policy after Joyce Goodrum, the driver of the vehicle insured by it, had First Georgia served as the uninsured or underinsured motorist carrier in a personal injury suit she brought against Craig Delaney. First Georgia appeals from the trial court’s grant of summary judgment against it and the denial of its motion for summary judgment.

Delaney collided with Joyce Goodrum while she was transporting two of her co-employees, Emma Dowell and Diane Petty, home from their jobs as kettle workers, or bell ringers, for the Salvation Army. Goodrum’s duties as a Salvation Army employee included driving the kettle workers to and from their job sites, for which Goodrum received an hourly wage of $4. Although the Salvation Army owned several vehicles used to transport kettle workers, for reasons contested in the record Goodrum was driving the insured vehicle on the day of the accident and was receiving 20 cents a mile as reimbursement for gasoline and wear and tear on the automobile.

Appellant sought a declaration of its obligations under the policy in view of exclusionary language in the policy providing: “We do not provide Uninsured Motorists Coverage for property damage or bodily injury sustained by any person: ... (3) When your covered auto is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool.” (Emphasis in original omitted.) Appellant asserts this exclusion as its defense against the claims made by Goodrum under the policy.

“The insurer in preparing its policy has the burden of using language that is clear and precise.” Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 440 (287 SE2d 226) (1981). “ Tf a policy of insurance is so drawn as to require an interpretation, and is fairly susceptible of two different constructions, the one will be adopted most favorable to the insured. Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.’ ” Davis v. United &c. Life Ins. Co., 215 Ga. 521, 527 (111 SE2d 488) (1959). See also Simmons v. Select Ins. Co., 183 Ga. App. 128, 130 (358 SE2d 288) (1987). “ ‘Any exclusion sought to be invoked by the insurer . . . will be liberally construed in favor of the insured and strictly construed against the insurer unless same is clear and unequivocal.’ ” Gulf Life Ins. Co. v. Brown, 181 Ga. App. 72, 75 (351 SE2d 267) (1986). See also OCGA § 13-2-2 (5): “If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.”

In the absence of Georgia authorities construing a like exclusionary provision under circumstances similar to the one sub judice, appellees cite Travelers Ins. Co. v. State Farm Mut. Auto. Ins. Co., 175 FSupp. 673 (E.D. La. 1959), a case involving a driver of a private vehicle who was receiving mileage reimbursement for transporting his co-employees when he collided with another vehicle. In that case, State Farm relied upon an exclusion which provided that the policy in question would not apply while the vehicle was being “used for carrying persons for a charge” but which also provided that the “for a charge” exclusion did not apply to the transportation on a share-the-expense basis of fellow employees. Judge Skelly Wright stated: “Obviously, the carrying of coemployees in itself would not exclude coverage on the policy. As far as the risk is concerned, there would be no difference whether the mileage was paid by the common employer or prorated among the coemployees. Under the circumstances, and particularly in view of the limitation on the exclusion, it would appear that coverage was not excluded while the employees in suit were passengers in the car. This ‘carrying persons for a charge’ exclusion was apparently added to the company’s printed policy form to cover situations where the insured vehicle was being used as a taxi on a temporary basis, several courts having held that such use was not within the ‘public or livery conveyance’ exclusion which is generally found in private automobile policies. It was not intended to cover a situation where fellow employees of the owner were being carried to work, irrespective of the fact that the employer, rather than the employees, was paying the mileage. Certainly exclusions similar to the one in suit have no application where an employee is using his own car in the course of his employment and is being reimbursed by his employer for such use on a mileage basis. That, in effect, is the situation here.” Id. at 675-676. Judge Wright noted that the mileage received by the driver “is in the usual amount, sufficient only to cover expenses and perhaps upkeep of the car,” adding, as in the case sub judice, that the sum was almost precisely the amount “the Government allows to its employees for use of their own cars for travel purposes.” Id. at 676. After citing other courts that have interpreted similar provisions and reached varying results, Judge Wright concluded: “If the courts cannot with any degree of assurance, or unanimity, interpret exclusion provisions of this kind, that fact alone weighs heavily against the insurer because the fine print of the policy, where ambiguous, is construed in favor of the assured.” Id. at 676. (Footnotes and indentations omitted.)

Decided April 21, 1988

Rehearing denied May 10, 1988

Stanley M. Karsman, David Russell Smith, for appellant.

Thomas R. Herndon, Daryl J. Walker, Jack K. Berry, Jr., for appellees.

We find the reasoning in Travelers Ins. Co. persuasive and agree with the conclusion reached by the able trial judge, Perry Brannen, Jr., that “[i]n the case at hand it is ambiguous whether the exclusion for carriage of persons ‘for a fee’ covers only the situation where passengers pay an amount for their own transport or whether the exclusion also covers the situation where, as here, an employee is being paid by his employer to carry other employees and receives only an hourly rate plus mileage reimbursement. As the language of the exclusion is ambiguous, the policy must be construed so as to provide coverage.” Thus, we affirm the judgment of the trial court granting summary judgment in favor of appellees and denying appellant’s motion for summary judgment.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs in the judgment only.


text:
    76002.
    SMITH v. RUBLOFF, INC.
    (370 SE2d 159)
   McMurray, Presiding Judge.

This is an action by plaintiff Smith, a licensed real estate agent and former independent contractor of defendant Rubloff, Inc., a real estate brokerage firm. Plaintiff alleges that working under an independent contractor agreement with defendant, he, along with Griffiths, procured an agency for a law firm for the purpose of finding office space for the law firm. Plaintiff further alleges that he, along with Griffiths, successfully negotiated and concluded a lease for the law firm for which the defendant Rubloff, Inc. was paid a commission. Plaintiff contends that he was entitled to a larger compensation from defendant in connection with this transaction than was paid to him and demands judgment for the balance due.

Defendant Rubloff, Inc. moved to stay litigation and to compel arbitration as to all of plaintiff’s claims. The state court, “finding that the transaction underlying this litigation was in interstate commerce pursuant to the United States Arbitration Act, 9 USC § 1 et seq., and that Plaintiff’s contract with Defendant contains a valid and mandatory arbitration provision covering the issues raised by Plaintiff,” granted defendant’s motion. We granted plaintiff Smith’s application seeking interlocutory review of the state court’s grant of defendant’s motion to stay litigation and compel arbitration. Held:

The independent contractor agreement between plaintiff and defendant incorporates by reference the arbitration provisions of defendant’s associates’ manual. The arbitration provisions are applicable where a dispute arises between an associate (independent contractor) and any other associate or other person affiliated with defendant which cannot be settled by and between the parties involved. The arbitration provisions do not address a conflict between an independent contractor such as plaintiff and the defendant.

The larger part of the alleged shortfall in plaintiff’s compensation arises from a rebate by defendant in excess of $81,000 to the law firm tenant. Thus, while plaintiff seeks compensation based upon the sum originally received by defendant, defendant has calculated plaintiff’s compensation based on the net after rebate. This portion of plaintiff’s claim, as well as another involving the percentages to be used in the division of commissions between plaintiff and defendant, clearly do not involve any dispute between plaintiff and a person affiliated with defendant. Such claims arise from a dispute between plaintiff and defendant, thus are not governed by the arbitration provisions relied upon by defendant.

Defendant contends plaintiff’s disputes with it have been waived due to a failure on the part of plaintiff to provide notice of the dispute in compliance with a provision contained in the independent contractor’s agreement between the parties. However, there has been no ruling by the state court on this contention and the effect of the state court’s grant of defendant’s motion to stay litigation and compel arbitration, is to submit plaintiff’s disputes with defendant to arbitration. The scope of arbitration is set by the parties’ contract and plaintiff’s disputes with defendants are clearly beyond the scope of the arbitration agreement between the parties. Additionally, even if contractually applicable, the panel of arbitrators designated under the provisions of defendant’s associates’ manual (an employee and two associates (independent contractors) of defendant) would render the arbitration provision invalid as to a controversy between plaintiff and defendant. Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U. S. 145 (89 SC 337, 21 LE2d 301). The state court erred in granting defendant’s motion to stay litigation and compel arbitration. However, we express no opinion as to whether the state court may divert some limited portion of the issues in the case to arbitration.

Decided April 19, 1988

Rehearing denied May 10, 1988

Martin H. Rubin, for appellant.

J. Kirk Quillian, H. Carol M. Saul, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76368.
    HAMM v. THE STATE.
    (370 SE2d 158)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery and moved for a new trial. The motion was denied and defendant appeals. Held:

1. The following evidence was adduced at trial: On January 6, 1986, two men entered a convenience store and asked for change. The store clerk turned and opened the cash register. She was hit on the head with a rod and fell to the floor. The money was taken from the register and the robbers fled.

Within minutes of the robbery, defendant was spotted by a police officer who knew him. Defendant was only a few blocks from the convenience store and was running hurriedly. He looked over his shoulder in the direction of the approaching patrol car and did not stop; “he turned northbound and fled over the tracks.” The police officer was unable to catch him.

Based on information gleaned by the police, a lookout was posted for defendant and two others, King and Allen. Two days later, defendant turned himself in. After he was advised of his rights, defendant stated that on the night in question, he went to the convenience store with King and Allen; that, on the way, King picked up a rod; and that King and Allen entered the store while he stayed outside. Defendant also stated that after the robbery, the trio ran, split up for awhile, and then got back together to divide the money; and that his (defendant’s) share of the proceeds was approximately $200.

Decided April 18, 1988

Rehearing denied May 10, 1988

James David Dunham, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

In his first enumeration of error, defendant contends the trial court erred in failing to grant his motion for a directed verdict of acquittal. We disagree. A directed verdict of acquittal will lie only where there is no evidence to support a contrary verdict. Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228). See OCGA § 17-9-1. In the case sub judice, the evidence was sufficient to support the jury’s finding that defendant was guilty of armed robbery beyond a reasonable doubt. Kimbro v. State, 152 Ga. App. 893 (264 SE2d 327). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends that the prosecution used its peremptory strikes in contravention of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), and that the trial court erred in ruling otherwise. This contention is without merit. The prosecution used five of its strikes to remove black jurors from the venire. (One black juror remained on the panel and served on the jury.) Legitimate, race-neutral reasons were presented by the assistant district attorney for the exercise of each strike. Giving “great deference” to the trial court, it cannot be said its conclusion that the strikes were not motivated by intentional discrimination was “clearly erroneous.” McCormick v. State, 184 Ga. App. 687, 689 (362 SE2d 472).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    74112.
    GODFREY v. THE STATE.
    (370 SE2d 183)
   Birdsong, Chief Judge.

On certiorari of our decision in Godfrey v. State, 183 Ga. App. 183 (358 SE2d 264), a majority of the Supreme Court held that “because of the lack of information regarding the fundamental nature of sleep talk,” the record in this case does not provide “sufficient indicia of reliability” in the circumstances of the statement to render it admissible under OCGA § 24-3-16, as a “later statement” about the event that would otherwise be hearsay. Godfrey v. State, 258 Ga. 28 (365 SE2d 93).

However, we do not reverse the conviction. We also held in Division 2 of our decision (183 Ga. App. at 186) that the child’s statements under the peculiar circumstances of the case, qualify as an “outcry” arguably so near to the event and so free of afterthought and forethought, connivance or “reflective thought,” as to be part of the res gestae, and so as to be evidence of the crime itself, and not merely a later statement by the child about the crime, as it might have been under § 24-3-1. These outcries occurred the night the child returned home after his mother picked him up at his grandfather’s house. See Taylor v. State, 176 Ga. App. 567, 573-574 (336 SE2d 832). According to the mother, the boy’s usual habit was to “tell you all about what he’s done that day . . . after he goes to sleep.” These res gestae outcries were original evidence. As such, in the jury’s estimation in light of the mother’s explanation of the child’s habits (see Godfrey, 183 Ga. App. 183-184), they may have had a “special trustworthiness” for having occurred in the child’s sleep the first night he returned home, insofar as they were determined to be a spontaneous declaration made in response to a startling event (see House v. State, 252 Ga. 409, 410-411 (314 SE2d 195)), lacking in connivance or contrivance and concerning an event and details about which a child is not likely to fantasize, involving a person about whom he is not likely to fantasize in that particular fashion. See Keri v. State, 179 Ga. App. 664, 665 (347 SE2d 236).

As for the fact that this res gestae erupted while he was asleep, the Georgia Supreme Court, in a case where a defendant’s statements were made while he was asleep or in a drunken stupor, conscious or unconscious, held the statements were admissible and that “[sjuch matters [including necessarily their credibility and weight] lie within the province of the jury to decide.” Sutton v. State, 237 Ga. 418 (2), 419 (228 SE2d 815).

In the recent case of Johnson v. State, 182 Ga. App. 154, 155 (354 SE2d 858), Presiding Judge Deen said, in sustaining the conviction for simple battery by Johnson of his since-deceased wife: “The allegedly ‘hearsay’ testimony of the victim’s sisters as to what she said while hospitalized would more properly be characterized as res gestae, inasmuch as her semi-comatose condition would preclude the possibility of engaging in conscious thought'proceeding from free will. The weight of the evidence and the credibility of witnesses are jury questions. [Cit.]”

To say otherwise in this case would be to say the child’s utterances had no reliability as a matter of law and we, like the Supreme Court in Sutton, supra, cannot make such a statement. If the slightest utterance of a drunken or sleeping defendant is sufficient to raise an issue for the jury (Sutton, supra) and cannot as a matter of law be rejected by the trial court and appellate court (Spradlin v. State, 151 Ga. App. 585, 586 (260 SE2d 517)), and the murmurings of a semi-comatose victim of a beating may be deemed so free of conscious contrivance as to be part of the event as res gestae, then the res gestae sleeping utterance of this victim ought to have the same value, and certainly no less. “[Njothing is more firmly settled in the law than the principle that, in a jury trial, the jurors are the sole judges of the credibility of witnesses. [OCGA § 24-9-80].” Walker v. State, 250 Ga. 230, 231 (297 SE2d 33).

Decided May 13, 1988

Rehearing denied June 1, 1988

William L. Reilly, for appellant.

Roger G. Queen, District Attorney, for appellee.

The Supreme Court held this evidence does not contain sufficient “indicia of reliability” to be admitted under OCGA § 24-3-16, “because of the lack of information regarding the fundamental nature of sleep talk.” Godfrey v. State, 258 Ga. 28, supra. For precisely the same reason, it is impossible for any court to say that as res gestae it is unreliable as a matter of law, even though, viewed as a later statement about the event, it may be hearsay. It is very well-settled that wherever the competency of evidence is doubtful, it should be admitted and its weight left for the jury, for the policy of Georgia courts is to admit such evidence, “because it is more dangerous to suppress the truth than to allow a loophole for falsehood. [Cit.]” Whidby v. Columbine Carrier, 182 Ga. App. 638, 645 (356 SE2d 709).

Accordingly, we examine the case afresh, without considering the evidence of the sleep-talk as a child’s later statement to another as an exception to hearsay under OCGA § 24-3-16, but considering the utterances as part of the res gestae, or original evidence of the event itself, and thus, in the jury’s estimation, bearing an even greater trustworthiness than it might have had under § 24-3-16. On this independent reflection, we affirm the conviction and find it meets the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Been, P. J., and Pope, J., concur.