author: ELDRIDGE, Judge.

text:
    A99A0304.
    CRONAN v. THE STATE.
    (511 SE2d 899)
   ELDRIDGE, Judge.

A Forsyth County jury found Jonathan E. Cronan guilty on all five counts contained in the indictment against him, i.e., Count 1, first degree vehicular homicide — driving under the influence of marijuana; Count 2, first degree vehicular homicide — speeding and following too closely; Count 3, DUI — driving under the influence of marijuana; Count 4, reckless driving; and Count 5, possession of marijuana — less than an ounce. Counts 2 through 5 were merged into Count 1 for sentencing purposes. Cronan appeals, alleging five errors of law. We affirm his conviction.

At approximately 10:20 a.m. on February 1, 1995, 19-year-old Cronan was driving a light truck westbound on Georgia Highway 20 near Hyde Road in Forsyth County. Cronan was traveling in excess of the posted 55-mph speed limit. In front of Cronan, Robert Green slowed his Buick to turn onto Hyde Road. Cronan rear-ended the Buick, pushing it into the eastbound lane. The Buick was struck head-on by a tractor-trailer truck traveling eastbound. The police were called to the scene. Cronan informed the lead officer that “he took his eyes of the road for a split second to look at his brother’s house,” and he hit Green.

Cronan and Green were transported to the hospital. Because of the seriousness of the accident, the lead officer explained to Cronan that a chemical test of his blood and/or urine was required. Cronan sua sponte volunteered that he had smoked marijuana earlier that morning. Implied consent warnings were administered, as well as Miranda warnings. The urine sample obtained from Cronan tested positive for the presence of marijuana. Robert Green lost his life. Held-.

1. In his first enumeration of error, Cronan contends that there was a fatal variance between the allegata of Count 5 of the indictment, i.e., misdemeanor possession of marijuana, and the probata introduced thereon at trial. Cronan contends that while Count 5 specifically alleged he was in possession of marijuana, the probata showed only the presence of tetrahydrocannabinol (“THC”). Cronan maintains that evidence of the presence of THC cannot sustain a conviction for misdemeanor possession of marijuana, because THC is specifically excluded from the statutory definition of “marijuana.” We find that, up to a point, Cronan’s argument is well taken.

In this case, the expert from the Georgia Bureau of Investigation crime laboratory testified that Cronan’s urine sample tested “positive” for the presence of marijuana. However, on cross-examination, the expert testified that Cronan’s urine sample contained the substance THC, without “the morphological[, i.e., physical,] characteristics of marijuana.” The expert testified that she formed her opinion that Cronan’s urine sample was “positive” for marijuana because THC is a derivative of marijuana.

(a) The Controlled Substances Act under which Cronan was indicted, OCGA § 16-13-1 et seq., states in pertinent part that “ ‘Marijuana’ means all parts of the plant of the genus Cannabis . . . and every . . . derivative, . . . but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25.” (Emphasis supplied.) OCGA § 16-13-21 (16). A review of the referenced Code section, OCGA § 16-13-25 (3) (P), shows that the excluded samples include, inter alia, “[a]ny material . . . which contains any quantity of . . . [t] etrahydrocannabinols which shall include . . . [a] 11 synthetic or naturally produced tetrahydrocannabinol samples which do not contain plant material exhibiting the external morphological features of the plant cannabis.”

Essentially, what this means is that a prosecution under the Controlled Substances Act for misdemeanor possession of marijuana cannot be instituted on the basis of a blood or urine test which shows “positive” for marijuana, because such positive showings will be based upon the presence of THC “without the morphological features” of the marijuana plant and are thus excluded from the definition of “marijuana” under the Act. Accordingly, it would appear that such prosecutions for possession of marijuana based upon positive blood or urine samples must be brought as felony prosecutions for possession of a Schedule I drug, i.e., THC, pursuant to OCGA § 16-13-30 (c). See also Osborn v. State, 161 Ga. App. 132, 134-135 (2) (291 SE2d 22) (1982) (under the Controlled Substances Act, “marijuana shall be considered marijuana unless it . . . does not exhibit the external morphological features of the plant cannabis”). Questionable is the wisdom of restraining the State’s discretion to bring either a misdemeanor or felony prosecution based upon such evidence.

(b) However, while Cronan’s point has merit, it does not control under the facts of this case. Cronan was not indicted for possession of the marijuana discovered through an analysis of his urine sample. Here, the indictment alleged that “on the 1st day of February, 1995, [Cronan] did unlawfully then and there possess marijuana, in an amount less than one ounce.” Accordingly, Cronan’s statement to the police that he smoked, and thus possessed, marijuana on the morning of February 1, 1995, admitted the essential elements of the offense as contained in the indictment. Testimony that Cronan’s urine sample was positive for THC and that THC is a derivative of marijuana served to corroborate Cronan’s admission of possession. There was no fatal variance between the allegata and probata of Count 5.

2. In his second and third enumerations of error, Cronan claims a fatal variance existed between the allegata and probata of both Count 1, first degree vehicular homicide — driving under the influence of marijuana; and Count 3, DUI — driving under the influence of marijuana. As to these counts, Cronan alleges that the “allegata of marijuana” was proved only by the “probata of THC,” and thus the statutory definition of marijuana pursuant to OCGA § 16-13-21 (16) precluded conviction.

This issue is controlled adversely to Cronan under Division 1 herein. However, there is another reason why Cronan’s argument fails.

The definition of marijuana contained in OCGA § 16-13-21 (16) applies to those offenses found in the Controlled Substances Act, OCGA § 16-13-1 et seq. The offenses contained in both Counts 1 and 3 were not indicted under the Controlled Substances Act, but were indicted under Title 40 of the Official Code of Georgia, Motor Vehicles & Traffic (“Motor Vehicles Act”). OCGA §§ 40-6-393; 40-6-391 (a) (6).

In that regard, the definition of “marijuana” under the Motor Vehicles Act is “any amount of marijuana . . ., as defined in Code Section 16-13-21, present in the person’s blood or urine . . . including the metabolites and derivatives.” (Emphasis supplied.) OCGA § 40-6-391 (a) (6). Accordingly, such definition under the Motor Vehicles Act includes THC in the definition of “marijuana” for purposes of determining whether one is driving under the influence thereof. Indeed, since THC in the blood or urine is the method by which the presence of marijuana is detected for purposes of determining whether one is driving under the influence thereof, THC must be considered “marijuana” in order for OCGA § 40-6-391 (a) (6) to even be actionable. Obviously, the “morphological features” of the plant, itself, will never be present in the blood or urine. “It is the duty of the court to consider the results and consequences of any proposed [statutory] construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Citations and punctuation omitted.) Proo v. State, 192 Ga. App. 169, 170 (384 SE2d 197) (1989).

3. Count 4 of the indictment charged Cronan with reckless driving, alleging that such offense was committed by speeding, and following too closely, and failing to keep a proper lookout. In his fourth enumeration of error, Cronan claims as error the trial court’s charge to the jury that “[i]f you should find and believe beyond a reasonable doubt that the accused committed the offense of reckless driving based upon one, all three or any combination of speeding, failure to keep a proper lookout, or following too closely, you would be authorized to find the Defendant guilty.” We find no error.

“When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence.” (Citations and punctuation omitted.) Rucker v. State, 177 Ga. App. 779, 781 (3) (341 SE2d 228) (1986). It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form. Stone v. State, 229 Ga. App. 367, 370 (494 SE2d 48) (1997). There was no error in the charge.

4. In enumeration of error 5, Cronan alleges that the trial court erred in permitting victim impact testimony during the sentencing hearing because the State failed to file a notice in aggravation of sentence pursuant to OCGA § 17-10-2 (a). Again, we find no error. Oral victim impact testimony is not controlled by the notice provision of OCGA § 17-10-2 (a) and is not the type of evidence “in aggravation of sentence” contemplated by that statute, e.g., “any prior criminal convictions and pleas of guilty or nolo contendere of the defendant.” OCGA § 17-10-2 (a). Instead, the introduction of oral victim impact testimony is controlled by OCGA § 17-10-1.2, and the introduction of such evidence is solely within the discretion of the trial court. Cronan has neither alleged nor shown an abuse of such discretion.

5. Relying upon this Court’s holdings in State v. Burton, 230 Ga. App. 753 (498 SE2d 121) (1998), and State v. Jewell, 228 Ga. App. 825 (492 SE2d 706) (1997), Cronan contends that, under the language of the implied consent warnings, he consented to give a urine sample only for the purpose of determining whether he was “under the influence” of drugs or alcohol. Thus, Cronan contends that such sample was used improperly to obtain his conviction for: (a) possession of marijuana, and (b) first degree vehicular homicide and driving under the influence as indicted. Under the facts of this case, we disagree.

(a) We have held that the results of a suspect’s blood or urine test obtained pursuant to the language of the implied consent warnings, OCGA § 40-5-67.1 (b) (2), cannot be used as the basis for a possession charge, since, under the language of the warnings, the suspect consented to such tests only for the purpose of determining whether he was under the influence of drugs or alcohol, and thus the use of the tests for any purpose other than showing “under the influence” exceeds the scope of the consent given. State v. Frazier, 229 Ga. App. 344, 345 (494 SE2d 36) (1997). Because a suspect was “not apprised that he was consenting to provide the State with its sole evidence against him supporting a charge of possession of cocaine, but was instead led to believe that he was consenting only to provide information for determining if he was under the influence, . . . consent cannot be considered to be the product of an essentially free and unrestrained choice.” (Citation and punctuation omitted; emphasis supplied.) Id.

(b) In State v. Burton, supra, and State v. Jewell, supra, the prosecution for possession was based on test results that were consensually obtained under the implied consent notice only for the purpose of showing whether a defendant was “under the influence.” Because the test results were the sole evidence of possession, such results were necessarily the basis for the possession charge. Thus, this Court could clearly determine that the prosecution introduced the results for a purpose outside the limited scope for which consent was given, i.e., to improperly show “possession,” rather than “under the influence.”

Decided February 9, 1999.

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Philip C. Smith, District Attorney, for appellee.

Here, however, the result of Cronan’s urine test was not the sole evidence of possession, and thus was not necessarily the basis of the prosecution therefor. Here, there was independent evidence of possession, i.e., Cronan’s admission thereto. Thus, unlike the cases upon which he relies, the result of Cronan’s urine test was admissible to show Cronan was “under the influence,” which in turn served to corroborate the independent evidence of possession. Accordingly, such purpose did not exceed the scope of the consent given pursuant to the implied consent notice.

(c) Cronan contends that the averments in Counts 1 and 3 of the indictment stating that marijuana was present in his urine alleged “the possessory form of DUI rather than an ‘under the influence’ form of DUI.” Thus, he contends that his urine sample, obtained only for the purpose of determining whether he was “under the influence,” was improperly admitted as to these crimes of “possessory DUI.” This contention is meritless. The counts about which Cronan complains charged him specifically with driving under the influence of marijuana pursuant to OCGA § 40-6-391 (a) (6) because marijuana was present in his urine. See also OCGA § 40-6-393 (a), referencing OCGA § 40-6-391 (a). This is not a “possessory” form of DUI so as to make applicable the holdings of State v. Burton, supra, and State v. Jewell, supra.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A0353.
    GRICE v. THE STATE.
    (511 SE2d 909)
   Eldridge, Judge.

On May 15, 1998, defendant-appellant Gerald Grice filed a motion challenging the validity of a guilty plea entered on a 1990 shoplifting charge, Case No. 90C-71111. The State Court of DeKalb County denied such motion on September 3,1998, and Grice appeals.

Decided February 9, 1999.

Gerald Grice, pro se.

Ralph T. Bowden, Jr., Solicitor, for appellee.

“OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced. Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings” in the county in which the defendant is incarcerated. (Citation omitted.) Staley v. State, 184 Ga. App. 402 (361 SE2d 702) (1987). See also Cook v. State, 230 Ga. App. 507 (496 SE2d 785) (1998); Agerton v. State, 191 Ga. App. 633 (382 SE2d 417) (1989); State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985).

In its order, the trial court correctly found that it lacked jurisdiction to address the merits of Grice’s motion. Accordingly, the trial court’s order is affirmed.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Grice was also known as Gerald Price, Derick Arnold, and Gregory Thornton.

       At the time of his motion, Grice was incarcerated in the United States Penitentiary in Leavenworth, Kansas.


author: Smith, Judge.

text:
    A98A1718.
    ARNOLD v. THE STATE.
    (511 SE2d 219)
   Smith, Judge.

Jimmy Arnold was indicted in 1997 on charges of child molestation and aggravated child molestation. A jury found him guilty of child molestation but acquitted him on the charge of aggravated child molestation. Arnold’s motion for new trial, as amended, was denied, and he appeals, raising eight enumerations of error. We find no error and affirm.

Construed to support the jury’s verdict, the evidence presented at trial showed that Arnold lived with his four-year-old daughter and her mother. Arnold’s daughter told a friend of the family, Olivette Moss, that she wanted to go to Moss’s home. Moss often helped the child’s mother care for her, and the child treated her like a grandmother. When Moss picked the child up, she thought the child “didn’t look well”; she appeared “tired, worn, drained,” and Arnold acted strangely toward Moss. At Moss’s home, the child cried hysterically when Moss bathed her, pointing to her vaginal area and saying “it was burning.”

The next day, Moss was watching a movie with the child. In the film, a character mentioned keeping a secret. At that point, the child told Moss she had a secret with her father, “and he told me not to tell you.” Moss made light of this at first, but the child became upset and again repeated that she had a real secret and Arnold told her not to tell either her mother or Moss. The child later told Moss her father had put Vaseline in her anus. Over the next few days, Arnold’s daughter revealed more details to Moss, indicating that she had seen her father’s private parts; that he had made her lick his penis; and that he had fondled her and placed his penis in her anus while watching an adult video. Moss informed the child’s mother. The victim never went back to live with Arnold.

The child’s mother took her to the hospital, where she was examined by a pediatrician. The doctor testified that with the help of anatomically correct dolls, the child informed her that “her mother’s boyfriend” had “put his thing in there,” pointing to her own groin and to the undifferentiated area between the female doll’s legs. The doctor testified that her examination revealed an intact hymen and no rectal lacerations, but that these findings could nevertheless be consistent with the child’s report of molestation. The mother testified that more than a week after telling Moss, her daughter told her that Arnold had put lotion on her bottom and “put his penis in my private.” She testified that her daughter told her that Arnold had shown her videos with “adults naked and all over each other,” and that he threatened to harm the mother if the victim told her. She confronted Arnold, but he denied the molestation. The victim also testified. She said her father had hurt her “by playing with me” and that he “touched me in places that no one should.”

The State presented evidence of a similar transaction in 1983 through that incident’s victim, who testified that the incident occurred when she was 13 years old and Arnold lived with her and her mother. She said that Arnold grabbed her from behind and would not let her go, pulled off her clothes and took off his own, and rubbed his penis between her legs.

1. Arnold first contends the trial court erred in admitting over objection evidence that Arnold made the victim lick his penis and that he put his mouth on her private parts, because this was evidence of “other crimes” against the victim of which the State failed to notify the defense prior to trial as required by USCR 31.1 and 31.3. We do not agree.

These acts were not similar transactions, but were part of the res gestae of the charged crimes, and as such, no prior notice was necessary. “The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” (Citations and punctuation omitted.) Branam v. State, 204 Ga. App. 205, 208 (5) (419 SE2d 86) (1992); see also Bowman v. State, 184 Ga. App. 197-198 (2) (361 SE2d 58) (1987). Although neither Moss nor the mother testified to a definite time when these acts occurred, the State was not required to establish an exact time, because the indictment did not charge the date as an essential element. Branam, supra. A reasonable inference from the testimony was that these acts occurred at the same time as the charged offenses.

Moreover, these actions were testified to several times at trial. Although Arnold objected once, that objection was not made on the ground he raises here. And he failed to object on several other occasions to its admission. He therefore cannot now complain of its admission. Cherry v. State, 230 Ga. App. 443, 446 (4) (496 SE2d 764) (1998).

2. We do not agree with Arnold that the trial court erred in admitting the similar transaction evidence because it was not sufficiently similar. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. Brooks v. State, 230 Ga. App. 846-847 (1) (498 SE2d 139) (1998). We find no such abuse here. Similar transactions need not be identical to be admitted. And in cases involving sexual offenses, that rule is liberally construed. Id. at 847. The trial court did not err.

3. Arnold maintains the trial court erred in permitting a witness to give impermissible opinion testimony regarding the ultimate issue. He refers to Moss’s testimony that the victim told her Arnold “had molested her” and to the victim’s own testimony to the same effect.

First, Moss was not testifying to her own opinion; she was merely stating what the victim told her. But more importantly, Arnold did not object to the victim’s testimony. And Arnold’s objection to Moss’s testimony was not made upon the ground that it was an impermissible expression of the witness’s opinion as to the ultimate issue. Counsel stated only: “I object to that. That ain’t what she said.” And the trial court responded to the objection made by instructing the witness to “try to use, if you can, what the child said to you. . . . Try to use the words that the child gave you.” “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it.” (Citation and punctuation omitted.) Williams v. State, 191 Ga. App. 217, 218 (2) (381 SE2d 399) (1989).

4. Before trial, the State provided Arnold with notice of its intent to present the similar transaction crime as evidence at trial, as required by USCR 31.1. Included in the notice was a copy of his indictment for the similar transaction. Arnold contends the trial court erred in admitting into evidence a certified copy of his conviction in that case because the notice did not include a copy of the conviction, and OCGA § 17-16-4 (a) (3) requires the State to allow inspection and copying at least ten days before trial of any documents it intends to introduce as evidence at trial. We do not agree.

As the trial court aptly pointed out, the purpose of the statute is not to insist upon a technical requirement for its own sake. It was designed to ensure sufficient notice to defend against the charges. Although the notice does not appear in the record, defense counsel admitted at trial that the notice informed him that Arnold had been convicted of the similar transaction because it recited that the State intended to introduce “the following documents pertaining to similar transactions . . . and it’s checked. Indictment A-69332; offense, child molestation; disposition, guilty by trial? (Emphasis supplied.) This notice was adequate. Moreover, counsel admitted that he read the transcript of the former trial and was aware that Arnold had been convicted. No prejudice whatsoever to Arnold has been alleged or shown, and harm as well as error must be shown to warrant reversal. Herrin v. State, 229 Ga. App. 260, 261 (1) (493 SE2d 634) (1997).

5. Relying upon Belt v. State, 227 Ga. App. 425-428 (1) (489 SE2d 157) (1997), Arnold contends that notwithstanding the absence of a request, it was error for the trial court to fail to give a limiting instruction contemporaneously with the admission of the similar transaction evidence. The Supreme Court has reversed Belt, rendering this contention moot. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

6. We find no merit in Arnold’s contention that reversible error exists because the trial court instructed the jury that the State was required to prove that he placed his hands on the victim’s rectum when the indictment alleged that he placed them into her rectum. Arnold argues that this statement violated his due process rights by improperly and materially expanding the indictment.

Arnold’s argument is incorrect for several reasons. First, anal penetration is not an element of the crime; placing one’s hand “on” the victim’s rectum satisfies the required elements as well as placing one’s hand “into” her rectum. Second, it is well established that the charge must be read in its entirety. Although the trial court did say “on,” shortly before that he read the charge correctly. “A manifest verbal inaccuracy is not reversible error in a charge which could not have confused or misled the jury because of the trial court’s explicit instructions properly stated on the same subject before the inaccurate statement. [Cit.]” Willingham v. State, 268 Ga. 64, 66 (5) (485 SE2d 735) (1997).

7. It was not error for the trial court to charge the jurors they could find Arnold guilty if they found that the offense occurred “at some time within four years of this indictment, the date of the indictment.” Contrary to Arnold’s contention, this did not improperly “expand” the time within which the State alleged the crime took place. When the date alleged in the indictment is not a material element, the State may prove the offense occurred on any date within the statute of limitation, so long as the State meets the requirements set forth in DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969). Whittington v. State, 184 Ga. App. 282, 285 (4) (361 SE2d 211) (1987). Here, those requirements were met: Arnold was sufficiently informed as to the charges against him so that he could present his defense without surprise, and he was protected against another prosecution for the same offense. DePalma, supra.

It is true, as alleged by Arnold, that the trial court misstated the applicable statute of limitation for child molestation. It is seven years, rather than four. OCGA § 17-3-1 (c). But Arnold can show no harm from the trial court’s error. Even had the trial court read the correct limitation period it would not have changed the result, and “an erroneous charge does not warrant a reversal unless it was harmful.” Foote v. State, 265 Ga. 58, 59 (2) (455 SE2d 579) (1995).

8. In charging the jury regarding the similar transaction evidence, the trial court instructed the jury that “as far as you are concerned, that offense took place.” Arnold asserts this was reversible error because it was for the jury to determine whether or not the alleged prior act was committed by the defendant, and this instruction took that determination away from the jury.

But when viewed as a whole, the charge clearly explained that very point. After informing the jury of the particular purpose for which the similar transaction evidence had been presented, the trial court instructed the jury that “[t]he defendant is not on trial for those offenses. As far as you are concerned, that offense took place. If you find that it took place, you should keep in mind he is not here for you to consider whether he should be convicted of it or punished or anything for that. That is not our purpose for looking at it. That is something he’s already been to court for. He was convicted and sentenced. That has already happened. That is not your responsibility to consider for that purpose but only for the limited purpose of trying to show whether or not it shows you evidence of his disposition with respect to young girls and these kinds of acts.” (Emphasis supplied.) This instruction could not have confused the jury or prejudiced Arnold.

Decided January 27, 1999

Reconsideration denied February 10, 1999

John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J, and Senior Appellate Judge Harold R. Banke concur.

       USCR 31.1 requires the State to provide the defendant with written notice of intent to present evidence of similar transactions at least ten days before trial. USCR 31.3 requires that the notice include the transaction, the date, and the place of the similar act.

       We note that the trial court did include a limiting instruction regarding the similar transaction evidence in its concluding charge to the jury. The Supreme Court has stated in Belt that “although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so.” Id. at 765.


author: Blackburn, Judge.

text:
    A97A2488.
    GARRETT v. THE STATE.
    (512 SE2d 315)
   Blackburn, Judge.

Katina Garrett appeals her conviction of no proof of insurance, driving under the influence of alcohol, failure to yield the right of way, and violation of child restraint in the State Court of Troup County. This is the second appearance of this case before us. We previously held in Garrett v. State, 230 Ga. App. 97 (495 SE2d 579) (1998) that the Uniform Traffic Citation (UTC) included in the record was sufficient to establish venue beyond a reasonable doubt. After granting certiorari, the Supreme Court remanded this case for our consideration in light of Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998), which held that “a Uniform Traffic Citation upon which a . . . prosecution is based ... is not evidence and cannot provide the factual predicate necessary to establish venue.”

In this case, Garrett properly challenged venue when she pled not guilty, and the State failed to introduce any evidence that venue was proper in Troup County, other than the UTC. As such, the State failed to carry its burden on the essential element of venue, and the evidence was insufficient to prove Garrett’s guilt beyond a reasonable doubt.

Decided February 10, 1999.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, Marla P. Chambless, Assistant Solicitor, for appellee.

Judgment reversed.

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


author: Pope, Presiding Judge.

text:
    A98A1988, A98A1989.
    RALSTON v. CITY OF DAHLONEGA et al.; and vice versa.
    (512 SE2d 300)
   Pope, Presiding Judge.

Mrs. W. I. Ralston sued the City of Dahlonega and the Georgia Department of Transportation for damages she alleged resulted when the City and the DOT contracted to build a by-pass within the vicinity of her husband’s grave. Just prior to trial, the parties agreed to submit their dispute to binding arbitration. A hearing was held on August 13, 1997 and, on October 14, 1997, the arbitrator issued an award denying Ralston’s claims for trespass, inverse condemnation, diminution of property value and damages due to water run-off. However, the arbitrator awarded $10,000 in damages to Ralston under OCGA § 51-12-6, finding that intentional acts of DOT employees had caused her mental suffering and wounded feelings.

Subsequently, the City and the DOT filed an application with the trial court to modify in part and vacate in part the arbitrator’s award, and Ralston filed an application to modify the award. The trial court granted the portion of the City’s and the DOT’s application seeking to modify the award of costs to bring it in line with the parties’ prior agreement, but denied the remainder of the application. The trial court also denied Ralston’s application. Both sides appeal.

1. “[T]he power of a court to vacate an arbitration award has been severely limited in order not to frustrate the legislative purpose of avoiding litigation by resort to arbitration. [Cit.]” (Emphasis in original.) Haddon v. Shaheen & Co., 231 Ga. App. 596, 597 (1) (499 SE2d 693) (1998). The Georgia Arbitration Code provides that an arbitration award shall be vacated where a court finds that the rights of a party were prejudiced by: “(1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping of the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” OCGA § 9-9-13 (b). The Supreme Court of Georgia has found that this provision must be strictly construed as it is in derogation of common law, and thus has held that these four statutory bases are the “exclusive grounds” for vacating an arbitration award. Greene v. Hundley, 266 Ga. 592, 594-595 (1) (468 SE2d 350) (1996).

The Code also clarifies that an award cannot be vacated merely because the relief granted in the arbitration award “could not or would not be granted by a court of law or equity....” OCGA § 9-9-13 (d). Accordingly, “courts cannot inquire into the merits of an arbitrable controversy”; but must confine their review to the statutory grounds. Haddon v. Shaheen, 231 Ga. App. at 598. “Therefore, a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” Greene v. Hundley, 266 Ga. at 596-597 (3).

2. Similarly, the Code sets out limited and specific grounds for the modification of an arbitration award. Thus, an award shall be modified if “(1) There was a miscalculation of figures or a mistake in the description of any person, thing, or property referred to in the award; (2) The arbitrators awarded on a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or (3) The award is imperfect in a manner of form, not affecting the merits of the controversy.” OCGA § 9-9-14 (b). This provision, too, must be strictly construed, and we find that the statutory bases of OCGA § 9-9-14 provide the exclusive grounds for the modification of an arbitration award. Greene v. Hundley, 266 Ga. at 594-595.

Case No. A98A1988

3. Ralston appeals from the trial court’s denial of her application to modify the arbitration award. In her application, she argued that the award should be modified due to a “palpable mistake of law” and because the award was the result of accident or mistake. Specifically Ralston claimed that the arbitrator’s $10,000 award under OCGA § 51-12-6 should be increased to $1 million and further argued that the arbitrator’s legal and factual findings regarding her claims for damage to her cemetery property were the result of accident or mistake. The trial court correctly found that Ralston’s arguments did not present grounds for modifying an award under Georgia law as they are not among the bases listed in OCGA § 9-9-14.

On appeal, Ralston asserts that the trial court erred in not vacating the award pursuant to OCGA § 9-9-13 (b) (3) because the arbitrator manifestly disregarded the law, overstepped his authority and “made such an imperfect execution of the Arbitration and the award that a final and definite award upon the subject matter submitted was not made because the award did not address every issue presented.” However, Ralston never asked the trial court to vacate the arbitration award and never before raised any argument under OCGA § 9-9-13. Because Ralston never presented this argument to the trial court, we cannot consider it. See Chrison v. H & H Interiors, 232 Ga. App. 45, 50 (2) (500 SE2d 41) (1998); Siegrist v. Iwuagwa, 229 Ga. App. 508, 511 (1) (494 SE2d 180) (1997).

Even if we were to consider Ralston’s enumeration of error, her argument in support of the enumeration is simply a reworking of her argument below. Thus, it is still, in effect, an invitation to reconsider the merits of her claims, which this Court cannot do. See Greene v. Hundley, 266 Ga. at 594-595. Moreover, although she argues that the arbitrators overstepped their authority under OCGA § 9-9-13 (b), we have held: “ ‘Overstepping’ like the other grounds for vacating arbitration awards is very limited in scope.” “‘Overstepping’ has been described as ‘addressing issues not properly before the arbitrator.’ ” (Citations omitted.) Haddon v. Shaheen, 231 Ga. App. at 598 (1) (b). Because it is clear from the record that Ralston submitted all her claims against the City and the DOT to the arbitrator, it cannot be said that he overstepped his authority in ruling upon such issues.

Accordingly, we affirm the trial court’s denial of her motion to modify the arbitration award.

Case No. A98A1989

4. The City and the DOT appeal from the trial court’s denial of their application to modify in part and vacate in part with regard to the portion of the arbitrator’s award granting Ralston $10,000 in damages under OCGA § 51-12-6. They do not argue, however, that the award should have been vacated under any of the grounds contained in OCGA § 9-9-13. Rather, they assert that the trial court erred in denying their application because the award is contrary to public policy and also demonstrates the arbitrator’s manifest disregard of the law. In light of the Supreme Court’s holding in Greene v. Hundley, 266 Ga. at 594-595 (1), that the statutory grounds are the exclusive bases upon which an award can be vacated, it is unclear whether the City’s and the DOT’s arguments state any ground to vacate the award in this case. However, we need not decide that issue because we find that the City and the DOT have failed to establish either a breach of public policy or a manifest disregard of the law. See Haddon v. Shaheen, 231 Ga. App. at 599 (1) (b).

5. The City and the DOT first argue that the $10,000 award violated public policy because it constitutes an impermissible award of punitive damages against a governmental entity. In support of this argument, they rely upon cases holding that such an award of punitive damages is a violation of public policy. See MARTA v. Boswell, 261 Ga. 427, 428 (405 SE2d 869) (1991); Hosp. Auth. of Clarke County v. Martin, 210 Ga. App. 893 (438 SE2d 103) (1993). They also cite a case in which the Supreme Court stated that OCGA § 51-12-6 damages are, “at least in part, punitive damages.” (Punctuation omitted.) Westview Cemetery v. Blanchard, 234 Ga. 540, 545 (B) (216 SE2d 776) (1975). Thus, the City and the DOT reason that if it is against public policy to award punitive damages against a governmental entity, and if damages awarded under OCGA § 51-12-6 are, at least in part, punitive, then it must also be against public policy to award § 51-12-6 damages against a governmental entity. We disagree.

The Supreme Court has never addressed the issue of whether an award of § 51-12-6 damages against a governmental entity would violate public policy. However, this Court has considered the issue and determined that such an award does not violate public policy. “Since there are several respects in which the damages allowable under OCGA § 51-12-6 are analogous to the punitive damages allowable under OCGA § 51-12-5, damages may not be awarded under both sections, lest a double recovery be permitted. The damages awarded under OCGA § 51-12-6 are in part punitive, but also serve to compensate for the extent of the injury. Thus, as OCGA § 51-12-6 also provides for compensatory damages, the prohibition against awarding punitive damages against a municipality does not bar plaintiff’s claim.” (Citations omitted.) Radford v. Mayor &c. of Savannah, 194 Ga. App. 839, 840 (392 SE2d 23) (1990), rev’d on other grounds, Mayor &c. of Savannah v. Radford, 261 Ga. 129, 131 (1) (401 SE2d 709) (1991).

We agree with this holding and find that the award of $10,000 to Ralston under OCGA § 51-12-6 did not violate public policy.

6. The City and the DOT also assert that the arbitrator manifestly disregarded the law of sovereign immunity when he awarded $10,000 in damages for what they argue were discretionary acts by DOT employees. OCGA § 50-21-24 (2). They also point to OCGA § 50-21-24 (10), which absolves governmental entities of liability resulting from “the plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” However, the City and the DOT never raised this argument before the trial court in connection with their application to vacate or modify the arbitration award. Where an argument is neither raised nor ruled upon below, we will not consider it for the first time on appeal. Chrison v. H & H Interiors, 232 Ga. App. at 50 (2); Siegrist v. Iwuagwa, 229 Ga. App. at 511.

Even if we were to consider the issue, we find that the City and the DOT have failed to establish that the arbitrator manifestly disregarded the law. The manifest disregard of the law argument dates back to a 1990 decision in which this Court noted its agreement with the general rule under federal arbitration law that “an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law.” Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (3) (395 SE2d 64) (1990), overruled on other grounds, Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 439 (450 SE2d 828) (1994). See French v. Merrill Lynch &c., Inc., 784 F2d 902 (3), (4) (9th Cir. 1986).

The federal decisions have held that if a court is to vacate an arbitration award because arbitrators manifestly disregarded the law, “there must be some showing in the record, other than the result obtained, that the arbitrators knew the law and expressly disregarded it.” O.R. Securities v. Professional Planning Assoc., 857 F2d 742, 747 (6) (11th Cir. 1988). Therefore, “[t]o manifestly disregard the law, one must be conscious of the law and deliberately ignore it.” Montes v. Shearson Lehman Bros., 128 F3d 1456, 1461 (7) (11th Cir. 1997). To establish a manifest disregard of the law, then, “a party must show (1) that the error is so obvious that it would be readily and instantly perceived by [the] typical arbitrator, and (2) that the arbitrator was subjectively aware of the proper legal standard but proceeded to disregard it in fashioning the award.” (Citation and punctuation omitted.) Raiford v. Merrill Lynch &c., Inc., 903 F2d 1410, 1412 (2) (11th Cir. 1990). Accordingly, merely objecting to the results of an arbitration is not sufficient under this ground. O.R. Securities v. Professional Planning Assoc., 857 F2d at 747. Nor can arbitrators be reversed for errors or misinterpretations of the law. Montes v. Shearson Lehman Bros., 128 F3d at 1460 (6).

Decided February 10, 1999.

Allen W. Bodiford, John L. Watson, Jr., for appellant.

McClure, Ramsay & Dickerson, John A. Dickerson, Elizabeth F. Moore, James D. Parks, for appellees.

In this instance, not only did the City and the DOT fail to raise the issue of sovereign immunity before the trial court, there is no evidence that they even argued the issue before the arbitrator. No transcript exists of the arbitration proceeding, and nothing in the arbitration record indicates that the City and the DOT argued the issue of sovereign immunity before the arbitrator or cited the pertinent Code sections to him. Accordingly, where no indication exists that the parties presented this issue to the arbitrator, there can be no finding that the arbitrator “knew the law[, but] expressly disregarded it.” O.R. Securities v. Professional Planning Assoc., 857 F2d at 747. Compare Montes v. Shearson Lehman Bros., 128 F3d at 1461-1462 (9) (where party cited controlling statutory law, but urged arbitrator to ignore it).

Therefore, we affirm the trial court’s denial of the City’s and the DOT’s application to vacate the $10,000 award to Ralston.

Judgments affirmed in Case Nos. A98A1988 and A98A1989.

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

       OCGA § 51-12-6 provides, “In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened conscience of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.”

       In fact, Ralston’s argument that a palpable mistake of law will support the modification of an arbitration award is taken from language found in former OCGA § 9-9-11 to which Ralston cited, but which was repealed in 1988. Ga. L. 1988, p. 903.

       We note that Ralston argued below that the arbitrator “disregarded” certain legal concepts in support of her application to modify. On appeal, she has modified this language to argue a “manifest disregard of the law.” This slight consistency in terminology does not change the fact that the relief she sought below is different from that she argues on appeal.

       OCGA § 51-12-6 was later amended to codify this principle. Ga. L. 1987, p. 915, § 6.

       While page 2 of the parties’ pre-trial order does indicate that the City and the DOT had a motion pending before the trial court on the issue of sovereign immunity, nothing in the record indicates that they presented a similar motion to the arbitrator.


author: Andrews, Judge.

text:
    A98A2249.
    KIMBLE v. THE STATE.
    (512 SE2d 306)
   Andrews, Judge.

James Kimble III was tried before a jury on a ten-count indictment for charges stemming from the armed robbery of a pawn shop during which two employees of the shop, Jones and Elkins, were present.

The State presented evidence that Jones and Elkins were robbed at gunpoint by Kimble and two other men, all of whom wielded guns. In support of kidnapping charges, the State showed that, during the robbery, Kimble and the other robbers moved Jones and Elkins at gunpoint and against their will from one room of the shop to another. There was also evidence that, during the kidnapping of Jones, one of the robbers sexually assaulted Jones by inserting his finger into her vagina. Additional evidence showed that Kimble and the other robbers used an automobile in the robbery which had been stolen in South Carolina.

The jury found Kimble: guilty of the armed robbery of Jones (Count 1); not guilty of possession of a firearm during the commission of the armed robbery of Jones (Count 2); guilty of the armed robbery of Elkins (Count 3); guilty of possession of a firearm during the commission of the armed robbery of Elkins (Count 4); guilty of the kidnapping with bodily injury of Jones (Count 5); not guilty of possession of a firearm during the commission of the kidnapping with bodily injury of Jones (Count 6); guilty of the kidnapping of Elkins (Count 7); guilty of possession of a firearm during the commission of the kidnapping of Elkins (Count 8); not guilty of aggravated sexual battery against Jones (Count 9); and guilty of theft by receiving property stolen in another state, to wit: a 1987 Chevrolet automobile (Count 10). Kimble appeals from the judgment entered on the convictions.

1. Kimble contends that the verdicts on Counts 2 and 6 finding him not guilty of possession of a firearm during the commission of the armed robbery of Jones and during the kidnapping with bodily injury of Jones are mutually exclusive of the verdicts in Counts 4 and 8 finding him guilty of possession of a firearm during the commission of the armed robbery of Elkins and during the kidnapping of Elkins.

Since these charges arose from events which all occurred during the same period of time and during which all three men involved, including Kimble, possessed firearms, the verdicts acquitting Kimble of the possession of a firearm charges in Counts 2 and 6 are logically inconsistent with Kimble’s conviction on the possession of a firearm charges in Counts 4 and 8. However, this inconsistency does not require reversal of the convictions on Counts 4 and 8.

In Milam v. State, 255 Ga. 560, 562 (341 SE2d 216) (1986), the Supreme Court of Georgia abolished the rule in this State against inconsistent verdicts in criminal cases and adopted the rule as to inconsistent criminal verdicts set forth by the United States Supreme Court in United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984) and Dunn v. United States, 284 U. S. 390, 393-394 (52 SC 189, 76 LE 356) (1932).

In Powell, the defendant was indicted on four counts of “using the telephone in committing and in causing and facilitating certain felonies — conspiracy to possess with intent to distribute and possession with intent to distribute cocaine — in violation of 84 Stat. 1263, 21 U.S.C. § 843(b).” (Punctuation omitted.) United States v. Powell, 469 U. S. at 60. On the same underlying facts supporting the telephone facilitation counts, the defendant was also indicted for one count of conspiracy to possess with intent to distribute cocaine and one count of possession with intent to distribute cocaine. Id. at 59-60. The jury found the defendant guilty on three of the four telephone facilitation counts, but found the defendant not guilty on the two counts charging the predicate felonies on which the telephone facilitation counts were based. Id.

The defendant argued that, because the jury could not logically acquit her of the predicate felonies and also convict her of facilitating the predicate felonies by use of a telephone, the verdicts were inconsistent, and she was entitled to reversal of the telephone facilitation convictions. The U. S. Supreme Court rejected this argument and reaffirmed its earlier holding in Dunn v. United States, 284 U. S. 390, that inconsistent verdicts in criminal cases need not be set aside. Powell, 469 U. S. at 65. The Court reasoned that “inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense — should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.” Id. The Court concluded that: “The fact that the inconsistency may be the result of lenity, coupled with the Government’s inability to invoke review, suggests that inconsistent verdicts should not be reviewable. We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake.” (Footnote omitted.) Id. at 66.

The decision in Powell dealt with a multi-count indictment with inconsistent verdicts convicting on some counts and acquitting on others. The Powell Court was careful to distinguish cases involving mutually exclusive multiple convictions, pointing out that “[n]othing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.” Id. at 69, n. 8; compare Thomas v. State, 199 Ga. App. 586-587 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992) (setting forth the rule against mutually exclusive guilty verdicts).

Because Milam, 255 Ga. at 562, explicitly adopted the above inconsistent verdict analysis set forth by the U. S. Supreme Court in Powell, it follows that there is no merit to Kimble’s claim that the not guilty verdicts in his favor on Counts 2 and 6 require that the guilty verdicts against him on Counts 4 and 8 be reversed.

It also follows that this Court’s decision in Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996) is contrary to the rule adopted in Milam, 255 Ga. at 562, and must be overruled. In Strong the defendant was indicted on two counts of aggravated assault and on one count of possession of a firearm during the commission of a felony. Strong, 223 Ga. App. at 434. As Strong notes, “[t]he indictment charging [the defendant] with possession of a firearm during the commission of a felony clearly specified that this charge was predicated upon the two alleged aggravated assaults with which [the defendant] was also charged.” Id. at 434. The jury found the defendant not guilty on the two aggravated assault counts but, nevertheless, found the defendant guilty of possession of a firearm during the commission of a felony. Id. at 434.

On appeal in Strong, this Court agreed with the defendant’s contention that, “because she was acquitted on the aggravated assault charges, her felony conviction of possession of a firearm during the commission of a felony is void and must be reversed.” Id. at 434. In support of this conclusion, Strong reasoned that, “[b]ecause the jury acquitted [the defendant] of an essential element of the felony firearm charge, the aggravated assault charges upon which [the defendant’s] felony firearms indictment was predicated, the jury’s verdict on the felony firearms charge is not merely inconsistent within the contemplation of Milam, it is mutually exclusive and therefore contrary to law.” Id. at 434-435. Accordingly, Strong found that “[t]he abolition of the inconsistent verdict rule in Milam v. State, supra, [was] inapplicable . . .” and that the decision was controlled by the rule as to mutually exclusive convictions set forth in Thomas v. State, 199 Ga. App. 586-587. Strong, 223 Ga. App. at 435.

In concluding that the inconsistent verdict rule in Milam was inapplicable, Strong misunderstood the inconsistent verdict analysis in Powell adopted by Milam, and wrongly applied the mutually exclusive multiple conviction rule set forth in Thomas v. State, 199 Ga. App. at 586-587. See Strong, 223 Ga. App. at 435-438 (Beasley, C. J., and McMurray, P. J., joined by Andrews, J., dissenting).

The inconsistent verdict issues presented in Strong and Powell are indistinguishable. The decision reversing the conviction in Strong was based on the conclusion that the defendant’s acquittal on the predicate aggravated assault offense eliminated an essential element necessary to conviction on the charge of possession of a firearm during the commission of a felony. The situation was no different in Powell, where the defendant’s acquittal on the predicate offenses of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine also eliminated an essential element necessary to convict on the charge that the defendant used the telephone to facilitate the commission of the predicate offenses. Nevertheless, Powell concluded that, despite the inconsistent verdicts, the conviction for telephone facilitation should be affirmed.

As the Court in Powell stated: “[The] argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper — the one the jury ‘really meant.’ This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. . . . For the reasons previously stated, however, there is no reason to vacate [the defendant’s] conviction merely because the verdicts cannot rationally be reconciled. [The defendant] is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.” Powell, 469 U. S. at 68-69. As the Supreme Court of Georgia has made clear, in light of the abolition of the inconsistent verdict rule in criminal cases in Milam v. State, 255 Ga. 560, the issue is not whether an acquittal on one charge would logically necessitate acquittal on another charge on which the jury convicted the defendant; rather the sole question is whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict. White v. State, 268 Ga. 28, 29 (486 SE2d 338) (1997).

Powell also made clear that the inconsistent verdict rule applies to inconsistencies between verdicts of acquittal and verdicts of conviction and has no application to cases involving mutually exclusive multiple convictions. Powell, 469 U. S. at 69, n. 8. Reiterating this distinction, Dumas v. State, 266 Ga. 797, 799 (471 SE2d 508) (1996) held that the inconsistent verdict rule adopted in Milam, 255 Ga. at 562, applies to jury verdicts of guilty on one count and not guilty on a different count, whereas the rule against mutually exclusive verdicts, as stated in Thomas, 199 Ga. App. at 586-587, applies to multiple guilty verdicts.

Because Strong, 223 Ga. App. 434, erroneously applied the rule against mutually exclusive guilty verdicts and failed to properly apply the Milam rule abolishing inconsistent criminal verdicts, Strong is overruled.

As to Kimble’s claim that any of the verdicts on Counts 2 and 6, on which he was acquitted, or on Counts 4 and 8, on which he was found guilty, are mutually exclusive, this claim could apply only as between the guilty verdicts in Counts 4 and 8. Dumas, 266 Ga. at 799. Since nothing in the guilty verdicts in Counts 4 or 8 logically excludes a finding of guilt on the other, these verdicts are not mutually exclusive. Compare Thomas, 199 Ga. App. at 586-587. This claim is without merit.

2. Kimble claims that the jury’s verdicts finding him guilty of kidnapping with bodily injury of Jones (Count 5), but not guilty of aggravated sexual battery against Jones (Count 9) are mutually exclusive, and the conviction for kidnapping with bodily injury must be reversed.

The charges in Counts 5 and 9 arose from the same events. In support of the count for kidnapping with bodily injury against Jones, the State produced evidence that, during the robbery, Kimble and the other two robbers kidnapped Jones by forcing her at gunpoint against her will to move from one room of the shop to another. There was also evidence that Jones suffered bodily injury during the kidnapping when one of the men sexually assaulted her by inserting a finger into her vagina. Culver v. State, 230 Ga. App. 224, 232 (496 SE2d 292) (1998); OCGA § 16-5-40. The aggravated sexual battery count was based on the same evidence that one of the men inserted his finger into Jones’ vagina during the kidnapping. OCGA § 16-6-22.2. Jones could not identify which of the three men inserted the finger.

On these facts, the jury’s verdict finding Kimble not guilty of aggravated sexual battery was not necessarily logically inconsistent with the verdict finding him guilty of kidnapping with bodily injury. The jury could have concluded that one of the other two robbers, not Kimble, committed the offense of aggravated sexual battery by inserting his finger into Jones’ vagina, and that Kimble did not commit nor was he a party to the offense of aggravated sexual battery. The jury could also have logically concluded on the same evidence that Kimble was guilty of committing or being a party to the kidnapping of Jones during which Jones was bodily injured when one of the other two robbers inserted a finger into her vagina. Brown v. State, 224 Ga. App. 241, 242 (480 SE2d 276) (1997).

Even though the evidence could also have been viewed by the jury in a manner which would render the verdict acquitting Kimble of aggravated sexual battery logically inconsistent with Kimble’s conviction for kidnapping with bodily injury, as held in Division 1, supra, this inconsistency would not require reversal of the kidnapping with bodily injury conviction. Accordingly, this claim is without merit.

3. Kimble contends that the verdicts acquitting him of the possession of a firearm charges in Counts 2 and 6 were mutually exclusive of the verdicts in Counts 1 and 3 finding him guilty of the armed robberies of Jones and Elkins.

Once again, under the facts of this case, the verdicts acquitting Kimble of the possession of a firearm charges in Counts 2 and 6 may be viewed as logically inconsistent with Kimble’s conviction on the armed robbery charges in Counts 1 and 3. However, as held in Division 1, supra, this inconsistency is no impediment to affirming the convictions. This claim is also without merit.

4. Kimble contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of kidnapping with bodily harm (Count 5) because the State failed to produce sufficient evidence that Jones sustained bodily harm as required by OCGA § 16-5-40.

“Any physical injury, however slight, constitutes the requisite bodily harm within the meaning of [OCGA § 16-5-40].” Culver v. State, 230 Ga. App. at 232. Evidence that one of the robbers inserted a finger into Jones’ vagina during the kidnapping was sufficient to show that Jones sustained the requisite bodily harm.

5. The trial court did not err by refusing to grant a directed verdict of acquittal on the charge that Kimble committed theft by receiving a 1987 Chevrolet automobile stolen in another state.

Under OCGA § 16-8-8, “[a] person commits the offense of theft by receiving property stolen in another state when he receives, disposes of, or retains stolen property which he knows or should know was stolen in another state, unless the property is received, disposed of, or retained with intent to restore it to the owner.” There is no merit to Kimble’s contention that the State failed to show he knew or should have known the automobile was stolen.

The State produced evidence that the Chevrolet automobile was stolen in South Carolina, and that Kimble gave a statement to police stating that he knew the automobile was stolen in South Carolina by his brother. The State also produced evidence that the automobile was used by Kimble and the other robbers in the robbery, that it was found after the robbery with an item stolen in the robbery a few feet from the automobile, and that Kimble’s fingerprints were found on the automobile. This evidence was more than sufficient to allow the jury to conclude that Kimble was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. Kimble contends the State failed to prove any of the charges beyond a reasonable doubt because the evidence was insufficient to show that he was present or participated in the robbery.

This contention is devoid of any merit. Jones and Elkins identified Kimble in court as one of the men who robbed them at gunpoint. There was ample evidence to support the jury’s verdicts finding that Kimble was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307.

Decided February 10, 1999

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., McMurray, P. J, Pope, P. J., Beasley, P. J., Blackburn, Smith, Ruffin, Eldridge and Barnes, JJ, concur.


author: Ruffin, Judge.

text:
    A98A2370.
    McBURNETTE v. THE STATE.
    (512 SE2d 298)
   Ruffin, Judge.

A jury found Andrew McBurnette guilty of simple battery and the trial court sentenced him to 12 months in the Cherokee County Detention Center. McBurnette appeals, contending that the trial court erred in failing to instruct the jury on the defense of accident. For reasons which follow, we reverse.

“When there is a timely written request for an instruction on an affirmative defense that is supported by evidence, it is reversible error to fail to give the instruction, whether verbatim or in substance.” Sapp v. State, 179 Ga. App. 614, 615 (2) (347 SE2d 354) (1986). “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).

In this case, the evidence shows that on May 25, 1997, McBurnette and the victim, McBurnette’s girlfriend, were arguing. As McBurnette walked away from the victim, she grabbed his arm. According to the victim, McBurnette then turned and slapped her across the face, causing her nose to bleed. However, the victim admitted that she had previously stated that McBurnette struck her with his elbow, not an open hand. See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982) (prior inconsistent statement admissible as substantive evidence).

McBurnette, testifying on his own behalf, denied hitting the victim. On cross-examination, he stated that “I turned around to grab her to keep [her] from hitting me and she said I hit her with my elbow then. I don’t recall hitting her with my elbow, that’s what she said.”

Decided February 10, 1999.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Although McBurnette submitted a written request for a jury instruction on the defense of accident, the trial court refused to give this instruction. In addition, the trial court specifically instructed the jury that “[t]here is no evidence here in this case of an accident occurring. The reason I say that is if you swing your hand or you swing your elbow in the immediate proximity of someone else’s face and come in contact with them, then that’s not an accident.”

McBurnette contends that the trial court committed reversible error in refusing to charge the jury on the defense of accident. We agree. “The evidence necessary to justify a jury charge need only be enough to enable the trier of fact to carry on a legitimate process of reasoning.” Koritta v. State, 263 Ga. 703, 704-705 (438 SE2d 68) (1994). Here, McBurnette’s testimony was sufficient to raise a jury question. “Regardless of the belief of this court as to the viability of that defense, and regardless of what the trial judge thought of the credibility of [McBurnette’s] defense, the jurors are the exclusive finders of fact and judges of credibility of witnesses.” Kimbrell v. State, 148 Ga. App. 302, 305 (250 SE2d 883) (1978).

We cannot say that the failure to give the charge was harmless, particularly in light of the trial court’s affirmative instruction to the jury that there was “no evidence” of accident in this case. “Accident is an affirmative defense whereby a defendant must establish that [he] acted without criminal intent and was not engaged in a criminal scheme, and that [his] actions did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.” (Citations and punctuation omitted.) Davis, supra at 279. The trial court apparently concluded that by turning quickly and swinging his hand or elbow, McBurnette showed utter disregard for the victim’s safety. However, this is not a case in which criminal intent must necessarily be inferred by McBurnette’s act of turning around quickly to keep the victim from hitting him, as he claimed. Compare Davis, supra at 279-280 (3) (instruction on accident not warranted where defendant fatally stabbed victim); Stewart v. State, 261 Ga. 654 (2) (409 SE2d 663) (1991) (charge on accident not required where defendant fatally shot victim); New v. State, 260 Ga. 441-442 (1) (396 SE2d 486) (1990) (defense of accident inapplicable where defendant shot victim). Accordingly, since there was some evidence to support McBurnette’s claim of accident, the trial court erred in failing to charge the jury on this defense.

Judgment reversed.

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

G. Channing Ruskell, Solicitor, Barry W. Hixson, Assistant Solicitor, for appellee.


text:
    A98A2378.
    KEHINDE v. THE STATE.
    (512 SE2d 311)
   Ruffin, Judge.

On October 18, 1997, Gwinnett County police officers arrested Ayodji Kehinde for driving under the influence of marijuana, possession of less than one ounce of marijuana and driving with expired tags. The trial court denied Kehinde’s motion to suppress the results of his urine test, and we granted Kehinde’s application for interlocutory appeal. Since the results of the urine test are admissible, we affirm.

“This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous.” Roberson v. State, 230 Ga. App. 179 (495 SE2d 643) (1998).

The evidence reveals that two Gwinnett County police officers stopped Kehinde for having an expired tag. As the police approached Kehinde’s car, one officer smelled marijuana. After being asked about the smell of marijuana, Kehinde admitted that he had eaten a marijuana cigarette that was in his ashtray because he was scared. Kehinde consented to a search of his car, and the police officer discovered a small bag of marijuana. The officer arrested Kehinde, placed him in the rear of a police car, and read him the Georgia implied consent warnings. The officer testified that he did not read Kehinde his Miranda rights. After the officer asked him for a urine sample, Kehinde agreed to submit to a urine test.

In his sole enumeration of error, Kehinde argues that the trial court erred in failing to suppress results of his urine test because the arresting officer failed to read him his Miranda rights prior to requesting a urine sample. Kehinde cites State v. Warmack, 230 Ga. App. 157 (495 SE2d 632) (1998) and State v. O’Donnell, 225 Ga. App. 502 (2) (484 SE2d 313) (1997) for the proposition that such testing in the absence of Miranda warnings violates his constitutional rights.

In Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966), the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Contrary to Kehinde’s contention, “[t]he choice afforded a suspect under OCGA § 40-5-55 . . . either to agree or refuse to take a . . . test, is not protected by the privilege against self-incrimination.” State v. Mack, 207 Ga. App. 287 (2) (427 SE2d 615) (1993). See also Lankford v. State, 204 Ga. App. 405-406 (1) (419 SE2d 498) (1992). “In Georgia, the state may constitutionally take a blood sample from a defendant without his consent.” (Punctuation omitted.) State v. Highsmith, 190 Ga. App. 838, 839 (380 SE2d 272) (1989).

Decided February 10, 1999.

Sexton & Sexton, James D. Sexton, Giles D. Sexton, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellee.

Both this Court and the Supreme Court “have routinely held that under Georgia law Miranda warnings must precede a request to perform a field sobriety test only when the suspect is ‘in custody.’ ” (Emphasis supplied.) Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998); see also Warmack, supra; O’Donnell, supra. In O’Donnell, we acknowledged that such testing violates Georgia’s statutory and constitutional prohibitions against compelling an arrestee from performing an act which is incriminating. Id. at 504-505. However, Georgia courts have long drawn a distinction between compelling an arrestee to perform some act such as a field sobriety test versus requiring the arrestee to submit to the collection of evidence from his person such as providing a urine sample. See Green v. State, 260 Ga. 625, 626-627 (2) (398 SE2d 360) (1990) (urine sample); see also Nawrocki v. State, 235 Ga. App. 416 (510 SE2d 301) (1998) (breath test). Here, the officer’s failure to read Kehinde his Miranda rights prior to requesting and obtaining a urine sample does not render the results of the test inadmissible. See Highsmith, supra. Accordingly, the trial court properly denied Kehinde’s motion to suppress this evidence. See Lankford, supra.

Judgment affirmed.

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


text:
    A98A2382.
    FRANKLIN v. THE STATE.
    (512 SE2d 304)
   Blackburn, Judge.

In this discretionary appeal, Marcus Terrell Franklin contends the trial court erred in failing to give him credit for time served when it revoked his probation. For the reasons discussed below, we agree and vacate Franklin’s sentence with direction that he be accorded credit for time he successfully completed on probation.

In 1996, Franklin pled guilty to first degree forgery and was sentenced under the first offender act to two years probation. In 1998, after notice and a hearing, the trial court determined that Franklin had violated the terms of his probation by possessing marijuana. The trial court then found Franklin guilty of the offense for which he had received first offender probation, forgery, and sentenced him to serve ten years, the maximum sentence for forgery in the first degree. See OCGA § 16-9-1. The trial court further instructed that such ten-year sentence was to be served “over and above time already served on First Offender probation.”

1. In a long line of cases this Court and the Supreme Court of Georgia have held that “probation time must be credited to any [subsequent] sentence received, including cases involving first offender probation.” Stephens v. State, 245 Ga. 835, 837 (268 SE2d 330) (1980). See also Burney v. State, 165 Ga. App. 268 (299 SE2d 756) (1983); Tallant v. State, 187 Ga. App. 138, 140 (369 SE2d 789) (1988); State v. Boyd, 189 Ga. App. 617, 619 (377 SE2d 11) (1988).

The State argues that because Franklin was informed, by way of the original sentencing form, that if his probation was revoked he could receive “the maximum sentence authorized by law with or without credit for time served on probation,” the new sentence is lawful. The State’s argument is without merit for two reasons. First, if Franklin is not given credit for time served on probation, he will receive a sentence exceeding the maximum allowed by law. See OCGA § 16-9-1. See also Stephens, supra (“[a] defendant who is serving a term on probation is subject to specified terms and conditions. . . . While he is not incarcerated, he is nevertheless suffering some loss of liberty”). And, second, the law specifically requires that the probationer receive credit for time served on probation. See OCGA § 42-8-38 (c) (“[a]fter the hearing, the court may revoke, modify, or continue the probation. If the probation is revoked, the court may order the execution of the sentence originally imposed or of any portion thereof. In such event, the time that the defendant has served under probation shall be considered as time served and shall be deducted from and considered a part of the time he was originally sentenced to serve”). Furthermore, OCGA § 42-8-60 (b) allows the trial court, upon a violation of probation to “enter an adjudication of guilt and proceed as otherwise provided by law.” “[A]s otherwise provided by law,” refers back to OCGA § 42-8-38 (c) which requires that credit be given for time served on probation, as noted above. Therefore, the trial court erred in failing to give Franklin credit for time served on probation and must so be credited upon remand.

2. We have reviewed Franklin’s additional enumerations of error and find them to be without merit.

Decided February 10, 1999.

Manchel, Johnson & Wiggins, Howard J. Manchel, Kam & Ebersbach, Michael G. Kam, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Judgment affirmed; sentence vacated with direction.

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


text:
    A98A1946.
    HARCROW v. STRUHAR et al.
    (511 SE2d 545)
   Andrews, Judge.

John and Marellen Struhar sued their next door neighbor, Aaron Harcrow, for damages allegedly caused by the trespass of Harcrow’s dog and cats on their property, and for libel and slander. A jury rendered a verdict in favor of the Struhars on the trespass and libel claims and awarded the Struhars attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. On appeal, Harcrow claims the evidence did not support the libel verdict and that, if the libel verdict falls, so must the award of attorney fees and expenses of litigation.

In support of their libel claim, the Struhars produced evidence that Harcrow published a writing which he delivered to residences throughout the neighborhood. The writing stated in relevant part: “NEIGHBORHOOD ALERT. SOMEONE HAS SHOT MY CAT!! Hello, Friends and Neighbors. Well, it used to be that your neighbors were your friends, but that is apparently not always true. On Thursday, I had to rush my bleeding kitty to the emergency vet clinic where the Veterinarian diagnosed my cat as being the victim of a gunshot wound. Now, the only people in the neighborhood who have expressed hatred for cats are John and Mary Ellen Struhar, and I’m not saying that they are responsible for this atrocious act, that will be determined by the Smyrna Police, but they are the prime suspects. . . . And, really, such an act of violence would be in character for someone driven by hatred.”

The Struhars testified this writing was false in that they did not shoot or otherwise harm Harcrow’s cat and that they have never expressed hatred for cats. Harcrow testified that he had no evidence as to who shot his cat, that he did not call the police until after the writing had been published, that he did not tell the police he suspected the Struhars shot his cat, and that no police investigation was conducted.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery.” OCGA § 51-5-1. Harcrow’s writing states, if not directly then by strong implication, that the Struhars are the “prime suspects” of the Smyrna police in a determination as to who shot his cat. Moreover, the writing as a whole could be reasonably construed to imply that the Struhars shot Harcrow’s cat and were therefore guilty of the crime of cruelty to animals. OCGA § 16-12-4.

Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a person is guilty of a crime or has a criminal case pending against him. Mead v. True Citizen, Inc., 203 Ga. App. 361, 362 (417 SE2d 16) (1992); Melton v. Bow, 241 Ga. 629, 630-631 (247 SE2d 100) (1978); Witham v. Atlanta Journal, 124 Ga. 688 (53 SE 105) (1906); Southland Corp. v. Garren, 135 Ga. App. 77, 79 (217 SE2d 347) (1975), rev’d on other grounds, 235 Ga. 784 (221 SE2d 571) (1976). The fact that Harcrow included in the writing a statement that, “I’m not saying that they are responsible for this atrocious act,” does not negate other portions of the writing that the jury was entitled to conclude were the equivalent of imputing a crime to the Struhars.

Contrary to Harcrow’s contention, the writing was not merely an expression of his opinion for which he could not be held liable. “There is no wholesale defamation exemption for anything that might be labeled ‘opinion.’ To say otherwise would ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact. . . . The pivotal questions are whether [Harcrow’s] statements can reasonably be interpreted as stating or implying defamatory facts about [the Struhars] and, if so, whether the defamatory assertions are capable of being proved false.” Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992).

Harcrow does not dispute that the above writing was published. The evidence was clearly sufficient for the jury to conclude that the writing published by Harcrow was false and malicious defamation tending to injure the Struhars’ reputation or expose them to public hatred, contempt, or ridicule. Southland Publishing Co. v. Sewell, 111 Ga. App. 803, 807 (143 SE2d 428) (1965); Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (278 SE2d 689) (1981). The trial court correctly denied Harcrow’s motion for judgment notwithstanding the verdict or for a new trial.

We need not address Harcrow’s additional contention that the award of attorney fees and expenses of litigation must be reversed because of lack of evidence to support the libel verdict.

Judgment affirmed.

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

Decided January 27, 1999

Reconsideration denied February 11, 1999

Christopher J. McFadden, David T. Lashgari, John Matteson, for appellant.

Ted B. Herbert, for appellees.


text:
    A99A0043.
    HOUSE v. THE STATE.
    (512 SE2d 287)
   Eldridge, Judge.

The defendant, Ronald Dewayne House, appeals his December 1997 conviction for the offenses of aggravated child molestation, child molestation, and rape of a seven-year-old girl. Finding no error, we affirm the convictions.

“On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Jackson v. Virginia, supra at 319.

Viewed in such light, the evidence in this case showed that, in 1997, the 33-year-old defendant lived for several weeks in Thomas County with a co-worker and his family. The co-worker’s son, who was age 12 at the time of the 1997 trial, notified his mother that he had looked through a “crack” between the bathroom door and the wall of his home and that he had seen the defendant with the seven-year-old victim. At trial, the boy testified that “I seen Dewayne sitting on the bathtub with his clothes over here beside the bathtub and then my sister would have her clothes off. ... I seen my sister going up and down.” The boy also testified that he heard his mother tell the defendant to leave a few days later after she found the defendant lying on the couch next to the victim “and her [the victim’s] legs was like this and then the sheet was throwed over and my mom thought that Dewayne had been messing with her.”

The victim’s mother confirmed this version of events during her testimony. The mother testified that she talked to the victim about the defendant and that the victim reported that the defendant “touched her on her vagina and her rectum and made her suck him.” The mother claimed that she did not do anything about the reported abuse at that time because the defendant was her “friend and I didn’t think that he would do me like that.” She also testified that she had been married to the victim’s father for 13 years and that she did not report the child’s abuse by either the defendant or her husband because the father had “already choked me down one time and he told me that if I said anything he would hurt me. And I’m scared of him.” However, the mother told a friend, who reported the abuse to the Department of Family & Children Services (“DFCS”) on July 15, 1997.

Early the next morning, DFCS arrived at the victim’s home and questioned the victim regarding the alleged abuse. During the interview, and subsequently at trial, the victim was “embarrassed,” “shy,” and reluctant to answer questions, and referred to her genitalia as her “coochie” and to the defendant’s external genitalia as his “private” or his “weiner.” The victim told DFCS caseworkers that she had had sexual contact with both the defendant and her own father, although she was equivocal regarding her father’s abuse during her trial testimony. On a diagram of a girl’s body, the victim marked x’s where the defendant had placed his “private”; these areas included the mouth, hand, genitalia, and buttocks. According to the DFCS caseworkers, the victim reported that, on at least two occasions, the defendant had taken her hand and placed it on his penis and that he had rubbed her genitalia. At trial, the victim stated that the defendant made her touch his penis. The victim testified that she did not want to do so and did not like it.

The victim also told the caseworker that the defendant “made her suck his private part one time and she said that it was just for a little while. And I asked her was it small or was it big and she said that it was big. And I asked her, could she describe it to me and she. say [sic] it was big with [red] sores.” (Emphasis supplied.) The victim then drew a picture of the defendant’s penis with circles which represented sores. According to the victim, the defendant also took the victim into the bathroom “lots and lots of times,” and she told DFCS caseworkers that he “made her lean over the tub . . . and he was on his knees and he stuck his private in her private.” (Emphasis supplied.)

However, when the victim told her mother about the abuse, her mother did not believe her, even though the mother admitted that she knew that the victim “was going into the bathroom with [the defendant] whenever he came over to their home.” Instead, the mother simply told the victim not to go into the bathroom with the defendant again. She also instructed the victim not to tell anyone else about the father’s sexual abuse.

Following the DFCS interview, police officers took the victim to the hospital for a physical examination on July 17, 1997. Although the victim resisted a pelvic examination by a male physician, the physician was able to perform a rectal examination. The physician noted that the victim’s anus “would barely admit one finger.” The next day, a female emergency room physician conducted a pelvic examination of the victim. The physician had extensive experience in emergency medicine and was specially trained in treating victims of sexual assault. The physician testified that the examination was limited to an external exam of the victim’s genitalia. The physician testified that she did not conduct an internal examination “because [children’s] vagina’s [sic] are fairly small and it’s very hard to look at the internal organs with [a] speculum.” The physician testified that the victim’s hymen had been torn away in the past and that, in “prepuberty” girls, is often caused by “some sort [of] sexual exploration or abuse.” She then stated that the victim had an area at the entrance to her vagina “that was very indurated and hypertrophy that could really be best described as a callus,” which was caused by “[rjepeated rubbing or manipulation of the area.” The physician further described the vaginal area as “exactly what you would expect that she had been assaulted over a period of time where there was time for an injury to sort of build up on that little area that I referred to as a callus to form and her hymen was not showing any signs of any fresh injury. That was something that had happened in the past and had had time to heal, also.” (Emphasis supplied.) When asked whether the physician had ever seen such injury in a “grown woman,” she replied “No.” The physician also testified that, at 44 pounds, the seven-year-old victim was a “little on the small size for her age.”

Police officers arrested the defendant, who was questioned by the officers on the same night. Following Miranda warnings, the defendant wrote out a statement denying his involvement in any drug-related activity in the victim’s home. The defendant did not mention any sexually-oriented contact with the victim in this statement. Id. During this interview, police officers requested the defendant to expose his penis. The officers later testified that they observed several red spots, which appeared to be similar to scars or a rash, on the defendant’s penis. During a subsequent interview, following a waiver of his rights, the defendant admitted that he had had sexual contact with the victim, but alleged that the seven-year-old victim had attempted to seduce him by touching his “crotch” and “balls” about ten to fifteen times, pulling down her pants, telling him she wanted to have sex, and sitting on his lap and moving around until he got an erection. According to the defendant, this usually occurred when no one else was around.

On October 23, 1997, the Thomas County Grand Jury indicted the defendant on two counts of child molestation and one count each of aggravated child molestation and rape. A jury trial was conducted which resulted in guilty verdicts on all four counts. The defendant was sentenced to concurrent terms of twenty years in prison, ten to serve. The trial court denied the defendant’s motion for new trial, and the defendant appeals. Held'.

1. In his first enumeration of error, the defendant claims that the trial court erred when it denied his motion for new trial as to the rape charge. The defendant asserts that the State failed to prove beyond a reasonable doubt the element of force. We disagree.

Under OCGA § 16-6-1 (a), “[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” In State v. Collins, 270 Ga. 42 (508 SE2d 390) (1998) (“Collins”), the Supreme Court of Georgia recently reiterated that the terms “forcibly” and “against her will” are two separate elements of proving rape. See also Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977). “The term ‘against her will’ means without consent; the term ‘forcibly’ means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. . . . [T]he state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age. . . . [However,] the quantum of evidence to prove force against a child is minimal, [since] [p]hysical force is not required. Intimidation may substitute for force” (Citations and punctuation omitted; emphasis supplied.) Collins, supra at 43. Further, “‘[f]orce may be proved by direct or circumstantial evidence.’ Daniel v. State, 194 Ga. App. 495, 496 (391 SE2d 128) [(1990)].” Gibbins v. State, 229 Ga. App. 896, 898 (1) (495 SE2d 46) (1997). “Lack of resistance, induced by fear, is force, and may be shown by the prosecutrix’ state of mind from her prior experience with appellant and subjective apprehension of danger from him.” (Citations and punctuation omitted; emphasis supplied.) Calloway v. State, 199 Ga. App. 272, 273 (1) (404 SE2d 811) (1991). See also Collins, supra at 43; Gibbins, supra. In her dissent to Collins, supra at 49, Justice Hunstein noted that a young child may also be “rendered psychologically incapable of dissenting to intercourse as a result of her prior sexual abuse by a third party.” See also Gibbins, supra. This is precisely the fact pattern this case presents.

In this case, the seven-year-old victim weighed a mere 44 pounds. She suffered numerous episodes of severe sexual abuse at the hands of both her father and the defendant, a 33-year-old adult who frequently was left alone with the victim and/or her brother. Prolonged sexual abuse resulted in observable physical injuries to her vaginal area. The victim repeatedly stated that the defendant “made” her perform and accommodate sexual acts, including leaning over the side of the bathtub while the defendant sexually assaulted her from behind. The victim’s outcries to her mother were ignored and she was warned not to tell anyone about her father’s abuse. Under these circumstances, the jury was authorized to determine that, from the victim’s perspective, further resistance was futile.

Accordingly, the evidence was sufficient for a rational trier of fact to find that the State proved the element of force beyond a reasonable doubt. See Jackson v. Virginia, supra.

2. However, in contrast to its handling of rape cases, the Supreme Court has reiterated that it is not necessary to prove force in cases of incest (OCGA § 16-6-22), sodomy (OCGA § 16-6-2 (a)), and aggravated sodomy (OCGA § 16-6-2 (a)). Collins, supra at 43; Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987); Cooper v. State, supra; see also Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997). “Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts are, in law, forcible and against the will of the child.” (Citations and punctuation omitted; emphasis supplied.) Collins, supra at 43.

In this appeal, the defendant challenges the sufficiency of the evidence as to his aggravated child molestation conviction. However, aggravated child molestation requires only proof of child molestation that either physically injures a child or involves an act of sodomy. OCGA § 16-6-4 (c). Under OCGA § 16-6-4 (a), a prosecution for child molestation does not require proof of force. But see Brown v. State, supra. Further, no demonstration of force is required to prove sodomy. OCGA § 16-6-2 (a).

Accordingly, it follows that, under the facts as presented in the record, the evidence clearly was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of aggravated child molestation. See OCGA § 16-6-4 (a), (c); Jackson v. Virginia, supra.

3. The defendant also asserts that the trial court erred when it refused to allow defense counsel to question the victim’s brother or mother about alleged sexual abuse of the boy by his father, who was also the victim’s father. The defendant claims that such evidence would demonstrate that the victim may have had the opportunity to learn about sexual abuse by witnessing the abuse of her brother. Under the circumstances of this case, this argument has no merit.

In 1997, immediately prior to the defendant’s trial, the victim’s father pled guilty to child molestation of the victim and to aggravated sodomy involving the victim’s brother. The molestation of the brother occurred in 1991, when the brother of the victim was six years old and the victim was only one year old. The victim’s mother testified that the victim was a baby that could not talk and could “barely” walk at the time of her brother’s abuse. According to the victim’s mother, the father made the victim’s brother “suck him.”

The cases cited by the defendant in support of his attempt to bring in evidence of past sexual abuse of the victim’s brother by someone other than the defendant were cases in which defense counsel was allowed to introduce evidence of past sexual abuse by third parties of the young victims at issue in those cases. This evidence was utilized to demonstrate that the victims, who might normally be unaware of sexual practices and abuse, may have had the opportunity to learn about sexual abuse from a source other than the defendants, or that the victims may be exhibiting “Child Abuse Accommodation Syndrome,” i.e., behavioral symptoms of abuse that were caused by sexual abuse by a third party See Marion v. State, 206 Ga. App. 159 (424 SE2d 838) (1992); Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). The defendant cites to no cases which support his proposition that he should be allowed to question a child other than the victim about sexual abuse by a non-defendant in order to demonstrate that the victim may have learned about sex by witnessing such abuse. This Court expressly disapproves of such questioning and finds that, under the circumstances of this case, such questioning is violative of the witness’ privacy interests, unduly speculative, and irrelevant to the issue of whether the defendant molested this specific victim. This is particularly true when the molestation of the brother occurred when the victim was only one year old. There is no evidence in the record that the victim was aware of the brother’s past sexual abuse, and it is extremely unlikely that a rational juror would find that the victim may have learned about sex from incidents which occurred when she was a mere infant. Accordingly, there was no error.

Decided January 25, 1999

Reconsideration denied February 11, 1999.

Whitehurst, Cohen & Blackburn, Catherine M. Williams, Steven B. Kelley, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J, concur.

       In December 1997, the victim’s father pled guilty to two counts of child molestation involving the victim, as well as one count of aggravated sodomy involving the victim’s brother. He was incarcerated at the time of the defendant’s trial, but testified for the defense and admitted his abuse of his daughter.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694) (1966).

       The Supreme Court stated that, because “the crime of rape is unlike any other crime” since it “may, under [some] circumstances, be desirable to the victim[,] ... the uniqueness of [rape] justifies treating it differently from related sexual offenses.” (Citation and punctuation omitted.) Collins, supra at 44. Further, the Court reasoned that, because forcible rape has a strict liability counterpart in the crime of statutory rape, the elements of force and lack of consent must he proven in forcible rape. However, this argument ignores the fact that both sodomy (OCGA § 16-6-2 (a)) and aggravated child molestation (OCGA § 16-6-4 (c)), are, in fact, strict liability versions of aggravated sodomy, a crime for which force and lack of consent are implied by law when it involves underage victims. See OCGA § 16-6-2 (a); Collins, supra at 51-52 (Hunstein, J., dissenting); Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987).

       In addition, “constructive force,” i.e., the force necessary to accomplish penetration, is implied in cases involving the forcible rape of an incapacitated adult. See Drake v. State, supra at 234-235.

       “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

       “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a).