author: Deen, Presiding Judge.

text:
    76231.
    DAVIS v. THE STATE.
    (367 SE2d 884)
   Deen, Presiding Judge.

Appellant Nathaniel Davis drove to his ex-wife’s boyfriend’s place of work, ostensibly to talk with the latter. He was waiting in the parking lot adjacent to the work place when the boyfriend, Rhodes, approached afoot. According to the victim and a bystander, Davis made two passes at Rhodes with his automobile in an apparent attempt to run over him. Failing in this attempt, Davis then parked the car, pulled a pistol, and, either just before or just after leaping from his automobile, shot at Rhodes, who by this time was running in the opposite direction. None of the witnesses was certain as to how many shots were fired. The bullets missed, but Rhodes tripped and fell, whereupon Davis overtook his prostrate quarry, aimed the pistol at his head at point-blank range, and pulled the trigger several times. The pistol would not fire.

Davis was arrested, indicted, and tried on three counts of aggravated assault: (1) shooting at another with a pistol, (2) attempting to shoot another with a pistol, and (3) attempting to run over another with an automobile. At trial he denied all charges, asserting that he did not even have a gun. A jury found him guilty on all three counts, and he received three concurrent twenty-year sentences, with eight years to serve and twelve years’ probation. After denial of his motion for new trial on the general grounds, Davis appeals, enumerating as error the sufficiency of the evidence and the imposition of separate sentences for counts 1 and 2, which he alleges should have been deemed to have merged. Held:

1. Our scrutiny of the record convinces us that the evidence was more than sufficient to authorize the rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses of aggravated assault with an automobile and with a pistol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. As to appellant’s contention that the two charges involving the use of a pistol referred to acts that were parts of a single transaction and that he therefore could not properly be convicted on both charges, we are in agreement with appellant. The State asserts that the two (or more) instances of shooting at the victim, which occurred within approximately 60 seconds of one another, were not “the same conduct” and that each was proved with different evidence. Careful study of the trial transcript, along with the rest of the record, reveals no such compartmentalization of the evidence. There is a conflict in the testimony as to whether Davis fired the first shot immediately before or immediately after he left his car, but it is undisputed that he shot at least once while giving chase; that he was running only ten feet or so behind Rhodes; and that he overtook him within seconds of the latter’s fall and attempted to shoot him in the head. Talley v. State, 164 Ga. App. 150 (296 SE2d 173) (1982), is clearly distinguishable in that in Talley appellant contended that his attempt to run over the victim with his truck and his subsequent slashing of the victim’s throat with a knife constituted a single offense. The court held there that the attempt with the truck was a completed crime when the assault with the knife began. Id. at 153. In the case at bar, the assault with the automobile, according to all the testimony, was clearly completed (the car had been stopped and placed in “park”) before the assault with the pistol began. The evidence adduced would not authorize the jury to conclude that the assault with the pistol was “completed” between the time that appellant fired shots while on the run and the time when he caught up with his quarry and attempted to fire additional shots from a stationary position. Cf. Jones v. State, 161 Ga. App. 620 (288 SE2d 795) (1982).

Decided March 18, 1988.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

There being error, this case must be remanded to the trial court for expunction from the record of the conviction and sentence on either Count 1 or Count 2.

Judgment affirmed in part and reversed in part; case remanded with direction.

Carley and Sognier, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    75099.
    WESTBROOK v. THE STATE.
    (368 SE2d 131)
   McMurray, Presiding Judge.

Defendant appeals his conviction for aggravated child molestation. Held:

1. In his first enumeration of error, defendant contends the trial court erred in finding the victim, who was five years of age at the time of trial, competent to testify. “OCGA § 24-9-5 (formerly Code Ann. § 38-1607) provides: ‘Persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.’ In Smith v. State, 247 Ga. 511, 511-12 (277 SE2d 53) (1981), the Supreme Court defined the standard of competency of a child to be a witness as being ‘not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.’

“Once a child’s competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. Sullivan v. State, 162 Ga. App. 297 (1) (291 SE2d 127) (1982); Allen v. State, 150 Ga. App. 605 (2) (258 SE2d 285) (1979). Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as defined in Smith v. State, supra. See Sullivan v. State, supra; Bearden v. State, 159 Ga. App. 892 (1) (285 SE2d 606) (1981); Allen v. State, supra; see also Hurst v. State, 166 Ga. App. 852 (2) ([305] SE2d [663]) (1983). (For a case reversing on this ground, see Pace v. State, 157 Ga. App. 442 (1) (278 SE2d 90) (1981)). A further reason for the hesitation of appellate courts to interfere with competency rulings is that the trial court’s ruling as a matter of law that the child is competent (see OCGA § 24-9-7 (a) (Code Ann. §§ 38-1601, 38-1610)) is followed by the jury’s independent determination of the child’s credibility as a matter of fact. See Hayes v. State, 152 Ga. App. 858 (2) (264 SE2d 307) (1980).” Pope v. State, 167 Ga. App. 328 (1), 329 (306 SE2d 326).

In the case sub judice, defendant argues that the victim’s inconsistent testimony rendered her incompetent to testify. We do not agree. “Inconsistency in a child’s testimony does not render her incompetent to testify. See Pendergrass v. State, 168 Ga. App. 190 (308 SE2d 585) (1983); Thomas v. State, 168 Ga. App. 587 (309 SE2d 881) (1983). . . .” Sprayberry v. State, 174 Ga. App. 574 (1), 576 (330 SE2d 731). Although the victim could not say what an oath was, she demonstrated that she knew the difference between truth and falsehood, that telling a lie was wrong and could result in punishment. Further, the victim was subjected to thorough and sifting cross-examination by defense counsel as well as questions propounded by the court and the State’s attorney. Under these circumstances, we find the requisites of Smith v. State, 247 Ga. 511, 512, supra, satisfied and that the trial court did not abuse its discretion in finding the victim competent to testify. See Sprayberry v. State, 174 Ga. App. 574 (1), supra; and Runion v. State, 180 Ga. App. 440 (2) (349 SE2d 288).

2. In support of his second and third enumerations of error, defendant asserts one convoluted argument challenging the testimony of the State’s expert witness, Ms. Nancy Copeland Aldridge.

(a) First, we address defendant’s third enumeration of error wherein he contends “[t]he Court erred in allowing testimony by the psychotherapist. ”

(1) The only objection raised by defendant at trial regarding Ms. Aldridge’s qualifications to testify as an expert in child therapy was that “[s]he’s only been in practice a year.” “ ‘Nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession, although the special knowledge required to qualify as an expert may be derived from experience as well as study. See Dennis v. State, 158 Ga. App. 142, 143 (3) (279 SE2d 275); Carter v. Marble Products, 179 Ga. 122 (1), 124-125 (175 SE 480). . . .’ Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 76 (1) (286 SE2d 61).” Patterson v. Lanham, 182 Ga. App. 343, 344 (2) , 345 (355 SE2d 738). In the case sub judice, Ms. Aldridge testified that she was formally educated in nursing, psychology and social work and that she gained an expertise in child therapy and abuse primarily through experience, having counseled “[a]round 400” children who have been sexually abused. Ms. Aldridge further testified that she has conducted independent research in the area of child abuse by studying literature pertaining to diagnosis and treatment of sexually abused children, attending seminars on various topics relating to child abuse and communicating with other experts in the field of child therapy. This testimony was sufficient to authorize the trial court’s discretion in allowing Ms. Aldridge to testify as an expert in child abuse and therapy. See Allison v. State, 179 Ga. App. 303, 309 (3) (346 SE2d 380), rev’d on other grounds at 256 Ga. 851 (353 SE2d 805).

(2) The only other argument which appears to relate to defendant’s third enumeration of error and is preserved in the record is his challenge to Ms. Aldridge’s hearsay testimony regarding statements made to her by the victim indicating that defendant had molested her.

OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” In the case sub judice, the five-year-old victim was available to testify and the trial court found the statement admissible under OCGA § 24-3-16 after considering the weight and credibility of the hearsay statements. Consequently, the trial court did not err in allowing such testimony. See Sanders v. State, 182 Ga. App. 581, 584 (3) (356 SE2d 537).

(b) In his second enumeration of error, defendant contends “[t]he Court erred in allowing testimony by the expert that the child had been sexually molested based on the child sexual abuse accommodation syndrome.” Although defendant’s argument in support of this enumeration of error is unclear, it appears the basis of his complaint stems from Ms. Aldridge’s testimony that the victim “fit” the “child sexual abuse accommodation syndrome,” which she described as identifiable phases of behavioral indicators typically displayed by sexually abused children. At trial, defendant objected and argued that this testimony was inadmissible outside the realm of a hypothetical question because the State’s expert witness based her opinion on information derived from sources other than her observations of the victim.

“A hypothetical question is not required where a properly qualified expert testifies as to his opinion based on facts within his personal knowledge. McDowell v. State, 239 Ga. 626 (3) (238 SE2d 415) (1977).” Ware v. State, 252 Ga. 90, 91 (3) (310 SE2d 908). “ ‘ “Generally, an expert cannot state his opinion based upon observations or reports which are not admitted in evidence. (Cits.) On the other hand, an expert can give an opinion based upon facts which he personally observes. (Cits.) And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other’s findings. (Cit.)” (Cit.)’ Cochran v. State, 151 Ga. App. 478, 481 (260 SE2d 391) (1979).” Taylor v. State, 174 Ga. App. 900 (2), 901 (331 SE2d 920).

In the case sub judice, Ms. Aldridge’s opinion was not only based on observations and reports made by others, but also upon her observations of the victim during 11 counseling sessions which she conducted with the victim and her observations of videotaped interviews of the victim. Under these circumstances, the trial court did not err in overruling defendant’s objection to Ms. Aldridge’s testimony.

(c) Another assertion found in defendant’s argument in support of his second and third enumerations of error is that the trial court erred in admitting expert testimony of the “child sexual abuse accommodation syndrome.” However, defendant made no contemporaneous objection to this testimony. Consequently, any deficiency urged in this regard is waived. See Allison v. State, 256 Ga. 851 (1)-(7), supra.

3. Defendant next contends the trial court erred in overruling his motion for directed verdict of acquittal.

“A person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). In the case sub judice, the victim testified that defendant sodomized her at her grandparents’ house. This testimony was corroborated by medical evidence which indicated that the victim had been sodomized; expert testimony that the victim displayed behavioral characteristics consistent with those of a child who has been sexually abused; and, testimony of witnesses regarding statements made by the victim that defendant had sodomized her. This and other evidence adduced at trial was more than sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying defendant’s motion for directed verdict of acquittal. Sprayberry v. State, 174 Ga. App. 574, 577 (4), supra.

4. Defendant’s fourth enumeration of error cites as error the denial of his motion for new trial on the ground of newly discovered evidence. “Where a motion for new trial ‘is made on the ground of newly discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.’ Civil Code, § 6086; Penal Code, § 1088 [now OCGA § 5-5-23].” Merritt v. State, 152 Ga. 405, 408 (6) (110 SE 160). The foregoing rule has been restated in the standard for granting a new trial on the basis of newly discovered evidence as follows: “ ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ Emmett v. State, 232 Ga. 110, 117 (205 SE2d 231) (1974); Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971); Burge v. State, 133 Ga. 431, 432 (66 SE 243) (1909); Berry v. State, 10 Ga. 511, 527 (1851); see Code Ann. § 70-204 [now OCGA § 5-5-23]. All six requirements must be complied with to secure a new trial. Offutt v. State, 238 Ga. 454, 455 (233 SE2d 191) (1977); Corn v. State, 142 Ga. App. 798, 799 (237 SE2d 203) (1977).” Timberlake v. State, 246 Ga. 488, 490 (1), 491 (271 SE2d 792).

In the case sub judice, pretermitting the materiality of the newly discovered evidence, the record is void of a showing that this evidence became known to defendant since the trial and that its sooner acquisition was not owing to defendant’s lack of due diligence. “The evidentiary assertions in defendant’s brief provide no factual predicate for a finding in this regard. See Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109) (1980); McFarland v. State, 134 Ga. App. 470 (1) (214 SE2d 721) (1975).” Strickland v. State, 184 Ga. App. 185, 186 (2) , 187 (361 SE2d 207) (1987). Under these circumstances, the trial court did not abuse its discretion in denying defendant’s motion for new trial based on newly discovered evidence. See Strickland v. State, 184 Ga. App. 185, 186 (2), 187, supra.

5. In his final enumeration of error, defendant contends the trial court erred in denying his motion for new trial on the general grounds. For the reasons stated in Division 3 of this opinion, this enumeration of error is without merit.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in all Divisions except Division 1. There the court construes the Child Hearsay Statute, OCGA § 24-3-16, without saying so. Since it is a construction not made in any previous decision, it ought to be recognized.

Appellant enumerates as error that the trial court found the child competent and available to testify, in derogation of the then-new statute. It provides that the child’s hearsay statements are admissible “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The court below, after three hearings on the subject, found the child competent to testify, and this court finds this to be no abuse of discretion.

What is new is that the court concludes implicitly that “available to testify” means competent to testify as well as present to testify. The result is that unless the State proves that the child is competent to testify as a witness under OCGA § 24-9-5, i.e., that the child understands the nature of an oath in the sense that the Supreme Court has construed this in Smith v. Smith, 247 Ga. 511, 512 (277 SE2d 53) (1981), the state cannot introduce the child’s statements to another person describing the sexual conduct or physical abuse, regardless of the indicia of reliability of the statements. The only other exception would be the traditional res gestae statements. See Godfrey v. State, 183 Ga. App. 183, 186 (2) (358 SE2d 264) (1987); Vargas v. State, 184 Ga. App. 650 (2) (362 SE2d 461) (1987).

Such an interpretation of “available to testify” has not yet been given. In Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), the Supreme Court avoided appellant’s arguments attacking the statute as violating the Sixth Amendment right-to-confront witnesses clause by requiring an implementing procedure in which the court would make the child available in front of the jury for both the state and defendant “to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked [by the state].” Id. at 299. Although on its face this would appear to require that as a threshold matter the child be competent under OCGA § 24-9-5, the question was not raised or addressed. Moreover, the Court was careful to state that the child must be available for both sides “to examine and cross-examine,” not that the child must be available as a competent witness. Examination and cross-examination take place also when the issue itself is competency, so the Court’s statement does not necessarily mean “available in the same status as a sworn witness.”

The Supreme Court apparently regards the issue as not judicially resolved. Shortly following Sosebee, the Court decided Grier v. State, 257 Ga. 539 (361 SE2d 379) (1987). The issue was squarely raised. The Court stated that one of appellant’s assertions in claiming a Sixth Amendment violation “is that § 24-3-16 is defective in that it does not require the victim to be ‘available’ for testimony in the sense of being competent to testify.” The Court’s response was not that Sosebee or any other case had decided this, but rather that “this contention has no merit, as appellant’s [four-year-old] daughter was correctly declared competent to testify,” and that “[a]ppellant therefore lacks standing to raise this issue.” Id. at 540.

In several cases utilizing this statute which have reached the appellate courts, “availability” has been found because the child testified, and no issue was made on appeal as to competency. See, e.g., Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987). And while the opinion in Sanders v. State, 182 Ga. App. 581 (356 SE2d 537) (1987), does not show whether the four-year-old victim testified, the court held that no violation of OCGA § 24-3-16 occurred because “the child was available to testify and the trial court found that the circumstances of the statement by the child provided sufficient indicia of reliability.” Id. at 584 (3). The child testified also in Newberry v. State, infra.

The procedural circumstances below show no violation of the Child Hearsay Statute of the nature complained of. Although the court did not follow the procedure set out Sosebee, it was not required because only prospective application is mandated. Eberhardt, supra at 421.

The issue was raised by the state’s pretrial motion to determine the admissibility of the child’s several out-of-court statements under OCGA § 24-3-16. The state did not intend to call this victim but stated that she was and would be available before and at trial. Three hearings were held wherein the child was examined by all parties. The third was conducted on the day of trial, out of the jury’s presence, but a videotape of it was shown as part of the state’s case to the jury without objection. The out-of-court statements were admitted in evidence, including videotaped interviews of the child at the DFACS office and at the sheriff’s office.

The child was not called as a witness by the state but was called by defendant pursuant to the “availability” aspect of the statute. She was examined in chambers, with the judge, a DFACS caseworker, and both counsel present. Defendant and the jury observed through closed-circuit television in the courtroom. Questions concerning understanding of truth and punishment consequences of answering untruthfully, as well as questions relating to the alleged aggravated child molestation, were asked by each counsel. The court also briefly examined the child, having determined at the outset of trial that she was competent.

Appellant’s position is that the record establishes that the child was not competent to testify, so that she was not “available” in the sense used in the statute, and that therefore her non-res-gestae, out-of-court statements were not admissible.

The Supreme Court recognized in Sosebee, supra at 299, that “[t]he statute does not . . . specify all the implications of the phrase ‘if the child is available to testify in the proceedings.’ ” However, neither the statute nor judicial interpretation requires as a prerequisite to the admissibility of the statements that the child be competent as a witness. The statute does not say “available and competent.” Nor does it refer to OCGA § 24-9-5. Nor does it state that before the out-of-court statements may be admitted, it must be proved that the child who made them understands, at the time of trial, the nature of an oath. It does not limit its coverage to statements made by children who are by trial time competent as witnesses. The child need only be available to testify, so that the defendant may confront her or him before the factfinder and show that what the child said earlier was not credible. This construction is called for because “[t]his court cannot add language to a statute by judicial decree.” U. S. Life Credit Corp. v. Johnson, 161 Ga. App. 864, 865 (1) (290 SE2d 280) (1982).

Such a construction is buttressed by its harmony with OCGA § 19-7-5. Teachers, doctors, social workers, and others are required by law to report all cases of child abuse, and expressly sexual assault, which come to their attention. Obviously many of these will involve children below the developmental level of discernment required to be found legally competent to testify under OCGA § 24-9-5. It is at least highly likely that many will arise outside the res gestae setting of OCGA § 24-3-3. The public policy implemented by this statute includes the protection of children and the prevention of further abuse, as set out in section (a). Prosecution of abusers is patently subsumed under the expressed policy.

The statute is an outgrowth of the principles enunciated in Timberlake v. State, 158 Ga. App. 125, 128 (279 SE2d 283) (1981), as recognized in Godfrey v. State, 183 Ga. App. 183, 184, supra. As noted there, it establishes an evidentiary rule, which allows certain hearsay evidence because of its indicia of reliability. These are met even if the child is not competent to testify, because of the circumstances under which the out-of-court statements are made. That is, they satisfy the application of the rule: “ ‘The indicia of reliability required for admissibility are that the statements be non-narrative; that the declarant is shown by the evidence to know whereof he speaks; that the witness is not apt to be proceeding on faulty recollection; and that the circumstances show that the declarant had no apparent reason to lie to the witness ... It is not required that all of the indicia be present for the statement to be admissible.’ ” Timber-lake, supra at 128.

With respect to statements admitted under OCGA § 24-3-16, the child is not a sworn witness and speaks only through a sworn witness. The law is satisfied because a) that witness is subject to sworn cross-examination, b) the child is available to defendant so as to fulfill the right of confrontation and provide the opportunity to test credibility directly, and c) the circumstances of the child’s prior statement indicate reliability, despite the absence of closeness in time which is present in res gestae situations.

If the child’s competency were a predicate requirement for hearsay statements under OCGA § 24-3-16, then the statements of young children made beyond res gestae confines would be inadmissible regardless of the indicia of reliability other than close time proximity. The res gestae exception allows them regardless of the child’s legal competency under OCGA § 24-9-5, for the reason that the factor of spontaneity substitutes for the oath as a measure of reliability. OCGA § 24-3-3; Moseley v. State, 179 Ga. App. 698, 699 (2) (347 SE2d 686) (1986); Fountain v. State, 136 Ga. App. 229, 230 (2) (220 SE2d 705) (1975). C. A. J. v. State, 127 Ga. App. 813, 814-815 (195 SE2d 225) (1973) states: “If the witness’ testimony is admissible as res gestae it is immaterial whether the victim is available as a witness for purpose of cross-examination. Hart v. Powell, 18 Ga. 635; 6 Wigmore on Evidence 138, § 1748.”

The child hearsay exception also allows them regardless of the child’s legal competency, for the reason that the trial court is satisfied that there are “circumstances of the statement [which] provide sufficient indicia of reliability” and the child is available so as to satisfy the confrontation concerns. Such a construction serves “[a] cardinal rule of statutory construction,” which is “that courts must look to the purpose and intent of the legislature and construe statutes so as to implement that intent. [Cit.]” Enfinger v. Intl. Indem. Co., 253 Ga. 185, 186 (317 SE2d 816) (1984).

The court’s construction of the statute, that the out-of-court statements are allowed only upon a showing of trial-time competency of the declarant, imposes an unusual condition upon the hearsay exception not found as to others. The Child Hearsay Statute, on the other hand, adds the condition of the child’s availability at trial as a precaution which is not imposed on other hearsay exceptions. The proper construction of the statute does not compel the addition of another one.

Decided March 11, 1988

Rehearing denied March 22, 1988

Jane Kent-Plaginos, for appellant.

Rafe Banks III, District Attorney, T. Russell McClelland III, Assistant District Attorney, for appellee.

Demonstrating to the jury that the child does not know the difference between truth and untruth, or does not know the consequences of relating untruth, is one way of attacking the credibility of the earlier statements. This opportunity was fully accorded defendant here, who himself called the child. The child was available throughout the trial, and the statute was not violated. Its purpose, to preserve defendant’s right to confront and examine this child who had spoken out against him on previous occasions, was met.

As stated in Mooney v. State, 243 Ga. 373, 390 (3) (254 SE2d 337) (1979), quoting from Mancusi v. Stubbs, 408 U. S. 204, 213 (92 SC 2308, 33 LE2d 293) (1972): “ ‘The focus of the [U. S. Supreme] Court’s concern has been to insure that there are “indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,” Dutton v. Evans, [400 U. S. 74, 89 (91 SC 210, 27 LE2d 213) (1970)], and to “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” California v. Green [399 U. S. 149 (90 SC 1930, 26 LE2d 489)] at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these “indicia of reliability” referred to in Dutton.’ [Emphasis supplied.]”

That is what the statute provides here, without a court-imposed prerequisite of a finding of legal competency. Its protections afford an adequate base for the admission of the child’s out-of-court statements, the truth of which are subject to challenge both indirectly and, by examining the child in front of the jury, directly.

It is when the state calls the child as a witness that threshold competency must be established. As stated in Newberry v. State, 184 Ga. App. 356, 358 (361 SE2d 499) (1987), “OCGA § 24-9-7 contemplates only that a small child be found competent to testify at trial and this code section has no applicability to out-of-court statements.”

Thus I would not construe the statute so as to require a negative answer to the question, “If a child is not legally competent to testify but is available at trial for questioning, can his or her out-of-court statements be admitted in a sexual contact or physical abuse case under OCGA § 24-3-16 if they themselves and the circumstances under which they are made bear sufficient indicia of reliability?”

       An issue of constitutionality under the Fourteenth and Sixth Amendments of a child’s testimony behind a screen pends before the United States Supreme Court in Coy v. Iowa, Docket No. 86-6757, argued January 13, 1988. See 8 “Preview of United States Supreme Court Cases,” Jan. 29, 1988.


author: Deen, Presiding Judge. Beasley, Judge, Sognier, Judge,

text:
    75864.
    WARD v. THE STATE.
    (368 SE2d 139)
   Deen, Presiding Judge.

The appellant, Donald Ward, was convicted of molesting his daughter. On appeal, he contends that the trial court erred in certain evidentiary rulings, and that the evidence did not support the conviction. Held:

1. The trial court found the seven-year-old child victim incompetent to testify. Prior to that finding, however, the trial court had allowed the child’s mother and grandfather to testify about the child’s out-of-court statements relating how her father had molested her. Had the child been a competent witness, and thus “available to testify in the proceedings,” this testimony clearly would have been admissible under OCGA § 24-3-16, and as prior consistent or inconsistent statements. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). When confronted by the dilemma of having this prerequisite foundation crumble, the trial court found the testimony admissible as part of the res gestae.

The alleged molestation occurred on a Friday, when the child did not attend school because of illness and before the appellant went to work early in the afternoon. When the appellant left for work, the child remained at home with the appellant’s mother, who lived with them. The child’s mother returned home later that afternoon from her own job. The next day, the child’s mother took the child (and her other children) to visit the child’s grandfather, and it was during this visit that the child first made remarks indicating that she had been sexually molested by her father.

The child’s grandfather was allowed to testify that after lunch he was bouncing the child in his lap, when he understood her to ask him to stop, because her daddy had “hit” her there and it hurt. He asked her if she had told her mother about this, and she replied that she had not because her daddy had told her not to tell her mother. He immediately told the child’s mother, to whom the child explained that the day before, while in the bedroom, her daddy had licked her “straddle” and had her lick him “on the straddle.” (The grandfather had a hearing problem and had misunderstood the child.)

Under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” The admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. Wallace v. State, 151 Ga. App. 171 (259 SE2d 172) (1979). It is a determination in which very often no precise time when the res gestae ends may be fixed. Kilgore v. State, 177 Ga. App. 656 (2) (340 SE2d 640) (1986); Millwood v. State, 174 Ga. App. 113 (329 SE2d 273) (1985).

In this case, the child’s initial utterance apparently was spontaneous, precipitated by pain when her grandfather bounced her in his lap, and made to the first person she came in contact with who was unconnected with the appellant’s household. Considering the spontaneity of and circumstances around the remark, we are unable to conclude that the trial court abused its discretion in finding, despite the fact that the child’s statement was made a day after the molestation, that the statement was so nearly connected in time with the act of molestation as to be free of device and afterthought. See Kilgore v. State, supra, and Millwood v. State, supra.

2. The appellant also contends that the trial court erred in allowing a child psychologist, called by the State as an expert witness, to testify about the child’s identifying her father as the one who committed the act of molestation. If the psychologist’s testimony had been offered solely under OCGA § 24-3-4, regarding statements made for purposes of medical diagnosis or treatment, admission of that portion of the testimony identifying the appellant as the molester would have been improper. Johnson v. State, 149 Ga. App. 544 (254 SE2d 757) (1979); see also Butler v. State, 256 Ga. 448 (349 SE2d 684) (1986). However, this testimony was also offered as expert opinion testimony, which generally may also include the facts upon which the expert’s opinion is based. See Keri v. State, 179 Ga. App. 664 (347 SE2d 236) (1986).

In this case, the expert stated that in her opinion the child had been sexually molested. In part, the expert’s opinion was based upon the child’s drawings in which she indicated what her father had done to her and what her father had her do to him. In view of Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), it is not at all clear that the expert’s opinion did not impermissibly invade the province of the jury; but that was not enumerated as error on appeal. Concerning the psychologist’s testimony recounting the child’s identifying her father as the one who had molested her, that evidence, even if objectionable, was cumulative and therefore insufficient to warrant reversal. See Johnson v. State, supra.

3. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., and Banke, P. J., concur. Banke, P. J., also concurs specially. Beasley, J., concurs specially. Carley, Sognier, Pope, and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur fully in Division 3 and in the judgment. As to Divisions 1 and 2, I agree that the evidence of the child’s statements to the grandfather, mother, and child psychologist were admissible but upon a different basis.

They are authorized by OCGA § 24-3-16, which was adopted to avoid the res gestae limitations with which the court grapples here. Admissibility under OCGA § 24-3-16 is not governed by a judicial ruling of the child’s competency to testify as a witness. It is predicated instead on the child’s availability at trial to be questioned by defendant, primarily so as to fulfill his constitutional right to confrontation. See Westbrook v. State, 186 Ga. App. 493 (368 SE2d 131) (special concurrence) (1988).

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

Sognier, Judge,

dissenting.

I respectfully dissent. Whether statements fall within the res gestae exception to the hearsay rule is within the discretion of the trial court; however, this does not mean that such discretion is not subject to appellate review. The standard for review set forth by our Supreme Court is that “a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982). In my view, the trial court’s ruling, admitting into evidence the victim’s statement to her mother, was just such an erroneous determination.

“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. The statement to the victim’s mother was made some twenty-four hours after the offense allegedly occurred, and during that period the victim was alone with her mother and grandmother and had ample opportunity to talk to either or both of them during the absence of appellant. While contemporaneousness does not require precise concurrence in time, the declaration must not be “suspected or extracted and thus . . . truly spontaneous and voluntary, made at a time near enough and under circumstances reasonably to preclude any suggestion of deliberate design . . . .” (Emphasis supplied.) Walls v. State, 166 Ga. App. 503, 505 (3) (304 SE2d 547) (1983). In the instant case the victim’s statement to her mother was neither spontaneous nor voluntary, but was elicited by the mother’s questions. In fact, the mother testified that because the victim did not want to talk about the incident, she (the mother) stopped talking to the victim and let it go. Under such circumstances, I do not find the victim’s statement to her mother to be admissible as part of the res gestae. Id.; see also Sanborn v. State, 159 Ga. App. 608 (1) (284 SE2d 110) (1981).

I agree that the victim’s statement to her grandfather set forth in the majority opinion could be construed as part of the res gestae and would be admissible, because even though a child is incompetent as a witness, the child’s declarations as part of the res gestae are admissible. Williams v. State, 144 Ga. App. 130, 132 (1) (240 SE2d 890) (1977). However, this statement is not incriminatory under the charge as drawn.

Although in this case there is an oral confession, it must be corroborated by other evidence to support a conviction. OCGA § 24-3-53, Chapman v. State, 90 Ga. App. 845, 849 (84 SE2d 485) (1954). Since the victim’s statement to her grandfather was not incriminatory, and the mother’s statement did not meet the res gestae requirements for admissibility, they could not have constituted sufficient corroboration. The only other testimony which could corroborate appellant’s confession was the testimony of a child psychologist. I find her testimony equally inadmissible. Such testimony clearly was not part of the res gestae, since the interviews with the psychologist were instigated by the prosecuting attorney. Nor was such testimony admissible under the provisions of OCGA § 24-3-16. This is true because the trial court found that the victim was incompetent as a witness and unavailable to testify. Thus, testimony by the psychologist as to what the child did and said during interviews was clearly hearsay. To admit such testimony by the psychologist deprived appellant of his right to confront the witnesses against him, since the psychologist was allowed to identify pictures drawn by the victim and give a demonstration with anatomically correct dolls as to what the victim had demonstrated with such dolls to the psychologist, and she testified as to what the victim said in connection therewith. As the pictures were introduced into evidence and the demonstration with the dolls was in front of the jury, such hearsay testimony was extremely damaging and prejudicial to appellant, particularly when he had no opportunity to question the victim. Hearsay evidence is not admissible to prove the truth of the fact asserted, unless the evidence constitutes a recognized exception to the general rule excluding hearsay. Eubanks v. State, 180 Ga. App. 355, 356 (2) (349 SE2d 244) (1986). The only exception applicable to cases such as this is found in § 24-3-16, supra, and that exception is applicable only if the child victim is available to testify. Since the victim, having been declared incompetent, was not available to testify, the psychologist’s testimony as to what the victim did and said was not admissible, and her testimony could not be used to corroborate appellant’s confession.

Moreover, I find another reason compelling reversal here. In addition to testifying as to what the victim said and did, the psychologist was allowed to state her opinion that the victim was sexually abused. Appellant objected vehemently to this testimony, but his objections were overruled. However, he asked for, and received, a continuing objection to the entire testimony of the psychologist. The Supreme Court has set forth the following rule: “an expert may not testify as to [her] opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves.” Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987). In the instant case the jurors had before them pictures drawn by the victim showing sexual abuse, and had seen a demonstration of what the victim did with the dolls, which also demonstrated sexual abuse. Under such circumstances the jurors were fully capable of deciding, on their own, whether the victim was, in fact, abused. For that reason, since appellant voiced objection to such testimony, the admission of the psychologist’s opinion was error demanding reversal. Id. at 853 (6) and (7).

The majority states that it will not consider Allison because appellant did not enumerate this error specifically on appeal. However, this court has held: “ ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” [Cit.]’ [Cits.]” (Emphasis supplied.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986); Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) (1987). I find that this case fairly begs for the application of this rule. In my opinion, it would be unconscionable to affirm a conviction based entirely on inadmissible evidence. To do so would seriously affect the fairness and integrity of the judicial system. While I find appellant’s conduct reprehensible, I share Justice Smith’s view, set forth in a dissenting opinion as follows: “As a result of this being such an emotion-filled area of the law at this time, we are ignoring the time-honored rules of evidence and are creating new rules for child abuse and molestation cases in order to obtain convictions of those who are perceived guilty of those heinous crimes .... Those accused of other crimes should not be provided greater evidentiary protection than those accused of child molestation.” State v. Butler, 256 Ga. 448, 454-455 (349 SE2d 684) (1986). Accordingly, I would reverse appellant’s conviction.

Decided March 18, 1988.

Gilbert H. Deitch, for appellant.

Robert E. Keller, District Attorney, Deborah Benefield, Assistant District Attorney, for appellee.

I am authorized to state that Judge Pope and Judge Benham join in this dissent.


author: Beasley, Judge.

text:
    75203.
    LEVCO WOOD, INC. et al. v. HUDSON et al.
    (367 SE2d 823)
   Beasley, Judge.

We granted “employer” Levco Wood, Inc. and insurer American Mutual Liability Insurance Company discretionary appeal from the lower court’s affirmance of an award of the State Board of Workers’ Compensation which adopted findings of fact and conclusions of law holding Levco and American Mutual liable for payment of benefits to claimant Hudson.

Hudson owned a truck which he used in his business of procuring and selling pulpwood to dealers. Over a period of time he sold wood to both Levco and Navco Timberlands, Inc. His sales to Levco accounted for 75 percent of his income and his sales to Navco, 25 percent. In the pulpwood trade, workers’ compensation coverage is provided to vendors by the deduction of a set amount of money per cord of wood from each load purchased by the lumber company. Hudson’s truck was struck by a pickup truck while Hudson was turning into the Navco lumber yard to check a mechanical problem, on his way to fill his gas tank before delivering a second load of wood that day to Levco, whose yard he had passed. He had decided to get gas while waiting for traffic to clear in the Levco yard. After the accident, in which he was injured, the loaded wood which Hudson was to deliver to Levco fell at the edge of the highway in front of the Navco wood yard. Navco decided to purchase it and deducted from the sales price a premium for workers’ compensation insurance. Levco had already deducted a premium for workers’ compensation insurance.

The ALJ held that “normally the purchase of pulpwood with deductions of workers’ compensation premiums would give rise to liability on the part of Navco. However, in this instance pulpwood purchased after the accident where claimant had initially intended to sell to another company would not give rise to liability on the part of Navco because of the normal course of business. If it was claimant’s intention to sell the wood from (sic) Levco from the beginning, and I find that this was his intention, it would make Levco liable as opposed to Navco.”

1. Appellants maintain that there is no legal theory or basis for the ALJ’s conclusion that an intention on the part of an independent contractor is enough to set up workers’ compensation responsibility in the intended receiver of the goods or services. They argue that under the authority of Hill-Harmon Pulpwood Co. v. Walker, 237 Ga. 736 (229 SE2d 607) (1976), Navco should be held responsible for the payment of benefits inasmuch as it actually purchased the wood and did withhold workers’ compensation premiums. They further maintain that the award was not supported by the facts of record and the ALJ’s findings.

To begin with, appellants mischaracterize the ALJ’s conclusion. The award did not set out a new legal theory or basis for the award as being the intention of the claimant. The ALJ’s determination was that Levco was responsible because claimant was in the process of delivering wood, which it would have bought, to it at the time of the accident.

Hill-Harmon does not assist appellants. It held that an insurer was estopped to deny coverage on the ground that the claimant was an independent contractor rather than an employee when the insurer had issued a policy of workers’ compensation insurance to cover vendors of the dealer pulpwood company. Navco’s workers’ compensation policy does not provide coverage for its vendors. Levco’s does. See OCGA § 34-9-124 (b). Cf. Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535 (203 SE2d 742) (1974). The circumstances of Hudson’s accident coupled with his relationship with Levco and its coverage plus the lack of Navco’s insurance coverage render Levco and its insurer liable.

This is not a situation in which both pulpwood companies had policies covering vendors and in which claimant had been laboring for both dealers, which would give rise to proportional responsibility for payment of benefits. See United States Fidelity &c. Co. a. Murray, 140 Ga. App. 708 (231 SE2d 502) (1976); Georgia Cas. &c. Co. v. Moore, 142 Ga. App. 191 (235 SE2d 591) (1977).

2. The subject award is supported by the evidence which sustains the ALJ’s findings as adopted by the board. OCGA § 34-9-105 (a); Spalding County Commrs. v. Tarver, 167 Ga. App. 661, 662 (1) (307 SE2d 58) (1983). See also Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216, 217 (348 SE2d 586) (1986).

Judgment affirmed.

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

Decided March 8, 1988

Rehearing denied March 22, 1988

E. Harold Stone, for appellants.

John G. Shumaker, for appellees.


author: McMurray, Presiding Judge.

text:
    75676.
    STONE v. McMICHEN et al.
    (367 SE2d 839)
   McMurray, Presiding Judge.

Laurence M. Stone brought an action against John E. McMichen, Kobe Farms Beef, Inc. (Kobe Farms) and East Coast Engineering, Inc. (East Coast), seeking, in pertinent part, damages for alleged defamatory statements made by defendant McMichen. The evidence adduced at trial showed that McMichen is the president of Kobe Farms and East Coast. Kobe Farms was in business as a wholesale beef producing and processing company and East Coast is an electrical engineering company. Plaintiff began work as the general manager of Kobe Farms in September 1982. By November 1982 McMichen planned to close Kobe Farms as a result of financial difficulties. Upon receiving information that Kobe Farms was to be closed, plaintiff began planning with Hugh Bullock, another Kobe Farms employee, to open a wholesale beef business in Brunswick, Georgia. Around December 16, 1982, plaintiff ordered a shipment of Kobe Farms beef to Brunswick to be stored at “B and B Ship Chandlers” until he and Mr. Bullock “could set up [business] in Brunswick.” Michael Fairman operated “B and B Ship Chandlers” and, in consideration of storing the inventory, Mr. Fairman was given some of the Kobe Farms beef.

Plaintiff led McMichen to believe that the beef was sold in Brunswick on “consignment.” McMichen later discovered that Mr. Fairman had not purchased the beef on “consignment,” but was “ ‘just doing Bullock a favor by storing it.’ ” McMichen later “sent a truck to Brunswick and picked up what product was left at B & B Ship Chandler[s] . . .” and filed a claim for the loss with Kobe Farms’ insurance carrier.

By the end of December 1982 Kobe Farms was closed and all employees of Kobe Farms were terminated. Plaintiff was unable to open a wholesale beef business in Brunswick due to financial difficulties and, despite his efforts, plaintiff was unable to secure employment in the beef business for some time after his termination with Kobe Farms. (Plaintiff alleged that his difficulties in obtaining employment after his termination with Kobe Farms were due to defamatory statements made by McMichen regarding his character.) From this and other evidence adduced at trial, the jury returned verdicts in favor of defendants. Plaintiff’s motion for new trial was denied and this appeal followed. Held:

1. Plaintiff asserts the general grounds as to the jury’s verdict on his action for oral defamation and points to evidence showing that defendant McMichen slandered him by imputing to others that he was a “crook,” a “thief’ and other such disparaging words which were calculated to injure plaintiff in his trade or profession. See OCGA § 51-5-4 (a).

Although witnesses testified that defendant McMichen uttered words to them which were disparaging to plaintiff’s character, defendant McMichen testified and denied these accusations. “Where there is some evidence to support the [jury’s] verdict, we will not disturb it. Thompson v. Hill, [143 Ga. App. 272 (4), 276 (238 SE2d 271)].” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3) (278 SE2d 689). In the case sub judice, defendant McMichen’s testimony was sufficient to create a jury question as to whether he slandered plaintiff.

2. Next, plaintiff contends the trial court erred in failing to grant his motion for new trial on the question of libel, arguing that the verdict for defendants “was contrary to law because it was unsupported by any evidence.” In this regard, plaintiff points to correspondence authored by defendant McMichen and published to others, wherein defendant charged plaintiff with misappropriation of Kobe Farms beef.

“ ‘A libel is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual and exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery.’ Code Ann. § 105-701 [now OCGA § 51-5-1].” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3), supra. In the case sub judice, the contents of one of the letters authored by defendant McMichen could reasonably be construed to characterize plaintiff as being guilty of the offense of theft. A charge that a person is guilty of a crime is libelous per se and requires no proof of special damages. Georgia Power Co. v. Busbin, 159 Ga. App. 416, 421 (7) (283 SE2d 647), reversed on other grounds at 249 Ga. 180 (289 SE2d 514). However, defendants contend that the contents of the letters were not libelous because they were not false.

“While the truth of the charge made may always be proved in justification, Code Ann. § 105-708 [now OCGA § 51-5-6], nevertheless, truthfulness is a question of fact for the jury. Lester v. Trust Co. of Ga., 144 Ga. App. 526, 528 (241 SE2d 633) (1978).” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3), supra. In the case sub judice, the evidence adduced at trial regarding the truth or falsity of the contents of the letters was sufficient to create a jury question and we will not disturb the jury’s verdict where there is some evidence to support it.

Decided March 11, 1988

Rehearing denied March 22, 1988

L. Daniel Butler, Lawrence E. Maioriello, for appellant.

Michael W. Millions, for appellees.

3. In his final enumeration of error, plaintiff contends the trial court erred in excluding as hearsay testimony which was offered to explain the conduct of the witnesses. In this regard, plaintiff cites two portions of the trial transcript which allegedly contain the trial court’s erroneous rulings. However, an examination of these parts of the record reveals that the trial court either made no ruling as to the testimony offered or plaintiff failed to preserve the record by offering proof concerning what the excluded testimony would have revealed. See Halm v. State, 125 Ga. App. 618, 619 (4) (188 SE2d 434), and Segars v. Printing Svc. Co., 170 Ga. App. 345, 346 (2) (317 SE2d 322). Consequently, there is nothing for this court to review on appeal.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    75705.
    WREGE et al. v. COBB COUNTY.
    (367 SE2d 817)
   Sognier, Judge.

Douglas and Julia Wrege appeal from the denial of their motion for a new trial as to the order of the Superior Court of Cobb County overruling their exceptions to the award of the special master in the condemnation of a sewer easement across their property.

Appellants, the owners of property abutting Little Willeo Road in Cobb County, granted an easement across the northern end of their property to service a private subdivision then being developed. Appellee subsequently condemned a second easement across appellants’ property following an alternate route which zigzagged across appellants’ property for approximately 505 feet before connecting with an existing manhole. Appellee used the condemnation procedure provided for in OCGA § 22-2-100 et seq. and a special master was appointed to hear the petition. The hearing was scheduled for October 7, 1986 but appellants were not served until one or two days before. An order from a superior court judge was obtained by appellee which authorized the special master to continue the hearing for a period in excess of five days. The hearing was finally held on November 24-25, 1986. During the hearing, appellants raised and litigated their contention that the condemnation was the result of bad faith, and arbitrary and capricious behavior on appellee’s part, as well as their contention that by accepting the easement pathway recommended by the developer of the private subdivision, appellee had abdicated its condemning powers to the private developer. For varying evidentiary reasons, most of the evidence supporting these contentions was excluded. The special master rendered an oral ruling on appellants’ non-value issues and filed his award on the issue of value pursuant to OCGA § 22-2-110 (c). Appellants timely filed exceptions to the award of the special master as to the non-value issues and sought a jury trial on the value issues. OCGA § 22-2-112. The trial court, after deciding its role was limited to an appellate review of any errors of law in the special master’s hearing, found appellants’ exceptions on the non-value issues to be without legal merit or not supported by the evidence before the special master. A jury subsequently heard the value issues and returned a verdict, which is not in issue here. The trial court denied appellants’ motion for a new trial on all issues and this appeal ensued.

1. Appellants contend the trial court erred by failing to declare the hearing of the special master void under OCGA § 22-2-108 because the hearing was continued in excess of five days. OCGA § 22-2-108 provides, in pertinent part, that “[t]he special master shall not be authorized to continue or delay the hearing [provided for in OCGA § 22-2-102] . . . except upon the written order of the judge of the superior court; and such a continuance shall be granted only for good cause shown to that judge. When it shall be necessary for the judge to grant a continuance, the continuance shall be for not more than five days from the date of the order granting the continuance.” (Emphasis supplied.) The attorney for appellee admitted before the trial court that the order extending the continuance in excess of five days had been drafted thusly in a deliberate attempt to avoid the time restraints in OCGA § 22-2-108.

It is well established that in proceedings under statutory authority, whereby a person may be deprived of property, the statute must be strictly pursued and compliance with all statutory prerequisites must be shown. D’Antignac v. City Council of Augusta, 31 Ga. 700 (2) (1861). “The power of eminent domain should never be exercised unless and until there has been a strict compliance with the provisions of the law by the condemnor.” Thomas v. City of Cairo, 206 Ga. 336, 338 (57 SE2d 192) (1950). “The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression.” Frank v. City of Atlanta, 72 Ga. 428, 432 (2) (1884). See also Sims v. City of Toccoa, 256 Ga. 368, 369 (349 SE2d 385) (1986).

The express purpose of the Special Master Act, OCGA § 22-2-100 et seq., being “to provide a simpler and more effective method of condemnation in those cases where a judicial supervision of the proceedings is desirable by reason of the necessity for a quick determination of the just and adequate compensation to be paid the owner of the property,” OCGA § 22-2-101, we agree with appellee that the language in OCGA § 22-2-108 restricting the duration of continuances benefits the condemning authority by expediting the condemnation process. However, “[t]he condemnor chooses its method of procedure, and it need not use [OCGA § 22-2-100 et seq.] unless it so desires . ... If the condemnor elects to use the Special Master Law . . . then it is bound by the provisions of law following its own election.” Johnson v. Fulton County, 103 Ga. App. 873, 876 (1) (121 SE2d 54) (1961). Thus we do not agree with appellee that the strict statutory requirements mandated by the Legislature before an authority, such as appellee, can exercise this “high power” can be ignored or deliberately sidestepped with impunity by the condemning authority. Nor do we agree with appellee that the fact that appellants arguably benefited from the excessive continuance justified appellee’s deliberate actions here. The language of the statute mandates that no continuance be granted in excess of five days. The statute did not denominate one rule for condemnors and another rule for condemnees. Since appellee failed to abide by the clear language of the statutory method it elected to follow, and since the record is clear that appellants at no time acquiesced in or waived strict compliance with the statute, the trial court erred by not declaring the hearing of the special master void for violation of OCGA § 22-2-108.

2. An alternate ground for reversing the trial court’s order must be addressed especially in view of the possibility of it recurring after the recommencement of these proceedings. Appellants contend that the trial court erred by failing to hold a de novo hearing on the exceptions raised by appellants from the award of the special master. The record reveals that appellants raised all legal issues relating to the condemnation in the special master proceeding and that the special master, by oral ruling on the non-value issues and by written order complying with OCGA § 22-2-110 on the value issues, accordingly made his determination thereon. See Nodvin v. Ga. Power Co., 125 Ga. App. 821, 822-823 (189 SE2d 118) (1972). After properly raising and attempting to litigate all issues and objections concerning the condemnation, see generally Hendley v. Housing Auth. of Savannah, 160 Ga. App. 221, 224 (2) (286 SE2d 463) (1981), appellants timely filed exceptions to the special master’s rulings on the non-value issues to the trial court. OCGA § 22-2-112. The trial judge, however, determined that he was not going to conduct the proceedings de novo, but instead decided to review the decision of the special master as though occupying an appellate position in the proceedings, thereby addressing only whether there was any evidence to support the special master’s findings of fact and whether there were any errors of law in the special master’s conclusions of law.

We agree with appellants that the trial court erred in this decision. “[T]he only method of correcting any errors ... a special master may have made in the original hearing and award is not by recommittal to that body but by an appeal in the superior court, which begins again the process of adjudication. On such appeal issues of fact relating to value will be decided by the jury; if there are issues of law erroneously decided by the special master, objections may be made to and readjudicated by the superior court judge.” (Emphasis supplied.) City of Savannah Beach v. Thompson, 135 Ga. App. 63, 65-66 (2) (217 SE2d 304) (1975). See also Leach v. Ga. Power Co., 228 Ga. 16, 21-22 (4) (183 SE2d 755) (1971) (affirming a judgment in which the trial court had “considered and passed upon . . . the objections and motions passed upon and not passed upon by the special master”); City of Atlanta v. Turner Advertising, 234 Ga. 1, 3 (214 SE2d 501) (1975) (holding as error the trial court’s failure to enter a final judgment of condemnation without first passing upon the timely filed exceptions to the award of the special master as to non-value issues).

In support of its decision to review the special master’s award on a strictly appellate basis, the trial court cited MARTA v. Central Parking System, 167 Ga. App. 649 (307 SE2d 93) (1983). In that case, we noted that the trial court, in an appeal from an award of a special master, “sits as the trier of fact” and thus the “any evidence” rule applied in reviewing the judgment rendered. Id. at 652 (3). We noted that “[b]ecause the special master’s findings of fact and conclusions of law were adopted by the trial court by its affirmation of the special master’s decision, we speak of the rulings and findings of the special master as being those of the trial court.” Id. The case sub judice is not an instance in which the award of the special master was made the award of the trial court or was otherwise adopted by the trial court. MARTA v. Central Parking System, supra, is thus distinguishable and accordingly provides no authority to support the decision by the trial judge, to whom an appeal from the special master’s award was made, to review the award merely by ascertaining whether reversible errors of law were committed and whether some evidence existed to support the findings of fact therein. Since we cannot say that the trial court’s application of the incorrect standard of review did not constitute harm to appellants, the judgment of the trial court must therefore be reversed. See generally Dept. of Transp. v. Livaditis, 129 Ga. App. 358, 362 (199 SE2d 573) (1973); MARTA v. Gould Investors Trust, 169 Ga. App. 303, 307 (312 SE2d 629) (1983).

3. Since upon readjudication of this matter before the special master and, if necessary, before the trial court upon proper appeal, any evidentiary inadequacies of appellants’ videotape and other documents may be remedied, we need not address appellants’ enumerations in regard to these matters.

Decided March 7, 1988

Rehearing denied March 22, 1988

Reid W. Kennedy, for appellants.

Richard W. Calhoun, for appellee.

Judgment reversed.

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


author: Carley, Judge.

text:
    75768.
    WILLIAMS v. MAG MUTUAL INSURANCE COMPANY et al.
    (367 SE2d 815)
   Carley, Judge.

Appellant-plaintiff brought this suit in the State Court of Fulton County against numerous defendants. As against appellee-defendant MAG Mutual Insurance Company, appellant alleged claims for tortious interference with her relationship with her doctors and for the intentional infliction of mental and emotional distress. These claims were predicated upon the acts of Dr. Charles Hollis, which acts appellant alleged that Dr. Hollis had taken in his representative capacity as appellee’s chairman of the board and for which acts appellee was alleged to be vicariously liable. Appellee answered, denying the material allegations of the complaint. Appellee subsequently moved for summary judgment, supporting its motion with the affidavit of Dr. Hollis and other evidence. In his affidavit, Dr. Hollis averred that his alleged actions had been taken in his individual capacity and not in his representative capacity as appellee’s agent. After conducting a hearing, the trial court entered an order granting appellee’s motion for summary judgment. Because appellee was the only resident of Fulton County, the trial court also transferred the case as against the remaining defendants to the State Court of Dougherty County. Appellant appeals from the order granting summary judgment in favor of appellee and transferring the case.

1. In support of her enumeration of the grant of appellee’s motion for summary judgment as error, appellant urges that a question of fact remains as to whether or not Dr. Hollis was acting within his representative capacity as appellee’s agent when he purportedly committed the acts which appellant attributes to him.

“ ‘It has long been the Georgia rule that one who is a party to the . . . relationship (the principal or agent) may testify as a fact as to the existence or non-existence of the relationship and that such testimony would not be subject to the objection that the statement was a conclusion or the ultimate fact.’ [Cit.]” Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 792 (2a) (359 SE2d 920) (1987). Here, both appellee’s secretary and Dr. Hollis submitted affidavits wherein they stated that, as to the acts relied upon by appellant, Dr. Hollis had not been acting in his representative capacity as appellee’s agent. In addition, there was other evidence which would show that Dr. Hollis was acting totally in his individual capacity with regard to the relevant acts. This shifted the evidentiary burden to appellant to show that a genuine issue remained as to the capacity within which Dr. Hollis had acted. “When the uncontradicted testimony of the defendant and/or the employee shows that the employee was not acting within the scope of his employment at the time of the [incident complained of], the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment.” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979). “Where the other party attempts to controvert this fact by circumstantial evidence ‘it must be evidence sufficient to support a verdict.’ [Cit.] ‘The circumstantial evidence . . . must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.’ [Cit.]” Guernsey Petroleum Corp. v. Data Gen. Corp., supra at 792.

In opposition to appellee’s evidence, appellant did not produce sufficient evidence, either direct or circumstantial, which would show that Dr. Hollis had acted in his representative capacity. Dr. Hollis’ identity as appellee’s chairman of the board is undisputed. The issue is whether Dr. Hollis’ alleged acts had been taken in his representative capacity. That Dr. Hollis was appellee’s chairman of the board does not mean that he could not act in any other capacity. The evidence is undisputed that, insofar as the circumstances surrounding this litigation are concerned, Dr. Hollis acted in his individual capacity. Accordingly, summary judgment was properly granted to appellee.

2. Venue in Fulton County was dependent upon appellee’s status as a party defendant in this action. For the reasons discussed in Division 1, the trial court correctly granted appellee’s motion for summary judgment. It follows that the trial court’s transfer of the case to Dougherty County, the county of residence of the remaining defendants, was proper. Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 898 (4) (354 SE2d 632) (1987).

3. Appellant’s remaining enumerations of error are moot as the result of our disposition of the case for the reasons discussed in Division 1.

Decided March 3, 1988

Rehearing denied March 22, 1988

James E. Butler, Jr., C. Frederick Overby, Paul E. Schlam, B. T. Edmonds, for appellant.

Hunter S. Allen, Jr., G. Conley Ingram, Robert D. McCallum, Jr., Robert P. Riordan, Darryl Love, Robert P. Monyak, for appellees.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    75495.
    REBEIRO v. THE STATE.
    (367 SE2d 857)
   Benham, Judge.

In a bench trial in which the parties stipulated to the evidence adduced at the motion to suppress hearing, appellant was found guilty of trafficking in cocaine. On appeal, he asserts as error the denial of his motion to suppress.

Investigator Noe of the Clayton County Sheriffs Department and Special Agent Neeley, both assigned to the Drug Enforcement Agency Airport Task Force, observed appellant, “a real short slender Hispanic,” deplane at Atlanta’s Hartsfield International Airport from a flight from Fort Lauderdale, Florida. Appellant spoke to “a big, tall, . . . very heavyset, white guy” who exited the plane at appellant’s side. Appellant carried an overnight bag that appeared to be very light or empty. The two men walked down the concourse toward the gate from which their connecting flight to Little Rock was to leave. Noe and Neeley, accompanied by DEA agent Markonni, also went to the Little Rock departure gate, where Markonni was unsuccessful in determining the identities of the appellant and his companion from the passenger list. He was able to ascertain that two or four of the six people making the Fort Lauderdale-Little Rock flight had made “late” reservations. The three law enforcement officers observed appellant go to the rest room, and upon his return, Noe and Neeley approached appellant to conduct an interview. As he observed appellant returning from the rest room, Markonni noticed an “unnatural bulge” protruding from appellant’s left calf. Markonni attempted to convey by pantomime his suspicions to Noe and Neeley, but he caught only the eye of Neeley, who did not communicate anything to Noe. During his conversation with appellant, Noe was given appellant’s ticket and saw that it was a one-way fare that had been paid for in cash, and that the name on the ticket matched that on appellant’s driver’s license. Noticing that appellant was nervous, Noe asked appellant to consent to a search for drugs, which appellant refused.

Sensing that Noe and Neeley were about to terminate their interview with appellant and realizing that Noe was not aware of the bulge on appellant’s left calf, Markonni approached the threesome. He heard appellant refuse to consent to a search and observed that appellant appeared nervous. Markonni identified himself as a law enforcement officer and asked if appellant had anything in his socks. When appellant responded affirmatively, Markonni asked what it was ánd was told it was money. When Markonni asked to see it, appellant refused. Markonni informed appellant that he was not interested in money but wanted to be sure appellant was not carrying drugs, and reiterated his request to see the money. When appellant again refused his request, Markonni took appellant into custody and escorted him approximately 150 feet to a back room off the concourse in order to search him. Markonni patted down appellant and felt what he thought was a pliable, powdery, chunky substance under his trouser leg. Believing it to be cocaine, Markonni removed the bulge as well as two other bags he discovered in his pat down search of appellant. In all, approximately 461 grams of white powdery substance were removed from appellant’s person.

“The constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense. [Cits.]” Reid v. State, 179 Ga. App. 144, 146 (345 SE2d 635) (1986). Markonni testified that he arrested appellant because “he arrived from a well-documented drug source city, ... he was nervous at my part of the interview, ... he had a bulge . . . [where] other folks have carried drugs, . . . [and] after explaining it was a legal object, he declined to show it to me.” Markonni admitted that “[i]t was possible but not probable” that the bulge could have been money; that the majority of legal bulges have been money; and that had he thought the bulge was currency, he “would not have gone ahead and done what [he] did [arrest and search appellant].”

The State characterizes this appeal as another “Markonni leg bulge case.” While this appeal does involve Markonni and a leg bulge, it is distinguishable from the bulge cases previously before this court. Here, appellant admitted he had something in his boot. Compare Le-Blanc v. State, 184 Ga. App. 789 (363 SE2d 37) (1987); Clark v. State, 183 Ga. App. 838 (360 SE2d 447) (1987); Chappell v. State, 183 Ga. App. 706 (359 SE2d 686) (1987); Miller v. State, 183 Ga. App. 702 (359 SE2d 683) (1987); Reid v. State, supra. In those earlier cases, the evidence was such that a direct conflict arose between the defendant’s denial of the presence of something in his boot or sock, and the law enforcement officer’s observation of something in the defendant’s boot or sock. Clark, supra; Miller, supra. Such a direct conflict is not present in the case at bar since appellant never denied having something in his boot. The conflict that arises herein is a subjective one: appellant said the bulge was money, and the officer, while acknowledging that the bulge could have been currency, made the subjective evaluation that it was contraband, and that subjective evaluation became an integral part of the officer’s decision to arrest appellant. In the past, we have approved of law enforcement officers basing probable cause on observations that can be objectively evaluated (the criteria that make up the drug courier profile; giving a false name; denying the presence of a bulge). However, we have not approved of using observations that require extensive subjective evaluation to serve as a basis for probable cause. It is this venture into the realm of subjectivity that we disapprove of as being offensive to the guarantees of the Fourth Amendment.

Decided March 15, 1988

Rehearing denied March 23, 1988.

Joseph J. Saia, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Because the law enforcement officer did not have probable cause to arrest appellant, appellant’s motion to suppress the evidence uncovered in the ensuing search should have been granted. Without that evidence, appellant’s conviction for trafficking in cocaine must be reversed.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


text:
    75601.
    HAND et al. v. PELHAM BANKING COMPANY et al.
    (368 SE2d 129)
   Benham, Judge.

In an attempt to produce a low-interest loan from the Mitchell County Development Authority (Authority) to Fred Hand III, the following steps were taken: Hand deeded four tracts of land to the Authority; the Authority gave a note and deed to secure debt to appellee Pelham Banking Company (Pelham); the Authority leased the property to Hand; and the Authority assigned the lease to Pelham to secure payment from Hand. The lease agreement required Hand to pay $5,083.33 per month and provided, inter alia, that the lessee (Hand) could assign or sublease the property without Pelham’s consent, and that the assignee or sublessee assumed the obligation of the lessee to the extent of the interest assigned. Several months after the initial transactions, Hand subleased a portion of one of the properties to B. C. Moore and Sons, Inc. (Moore) for a ten-year term with a five-year option on the property at a monthly rental of $1,750. Pelham consented to the sublease agreement and subordinated its lien of the security deed to that agreement, but retained priority in all other liens and agreements. Hand later assigned all his interest in the main lease and sublease to Hand Properties, Number One, Inc., and Pelham also agreed to that assignment. Hand Properties in turn assigned its rights in the sublease agreement to appellants Frances K. H. Hand and L. H. Hays, Jr. for $25,000 consideration. In the same month in which that assignment was recorded, Hand defaulted on his lease obligations. Pelham instituted foreclosure proceedings in accordance with the security deed, and notified Moore that future rental payments should be made to Pelham and not to Hand or his designee. Appellants also claimed entitlement to the rental payments, and Moore filed an interpleader action to have the court decide to whom the payments should go. Appellants brought an action against Pelham for the rental proceeds. By stipulation of the parties, the actions were consolidated for determination at the trial level, and the trial court decided that appellants had no claim to the escrowed or future rental proceeds from Moore, and that those funds belonged to Pelham. Appellants here contest that determination. We affirm.

Although appellants set out six enumerations of error, we find, as did the trial court, that “the only issue in contention is whether or not the subordination agreement of the lender [Pelham] [in] the ‘Addendum to Lease Agreement’ ... is a release of the lender’s claim to the rentals accruing under the B. C. Moore & Sons, Inc., sublease. ...” Our review of the record reveals that in deciding that Pelham did not release its claim to the Moore rentals, the trial court considered all of the necessary information and properly resolved the dispute.

Ordinarily, if a lessee subleases his property to a third party after a security deed has been executed between the lessee and lessor, and the lessor exercises his power of sale under the security deed, the sub-lessee becomes a tenant at sufferance of the lessor by operation of law and the lessor is entitled to evict the sublessee. Filsoof v. Chatham, 144 Ga. App. 464 (241 SE2d 582) (1978); First Fed. Savings &c. Assn. v. Shepherd, 131 Ga. App. 692 (1) (206 SE2d 571) (1974). In the case before us, however, the lessor consented to the sublease agreement between Hand and Moore and elected to subordinate its lien of the previously executed security deed, thereby relinquishing its right to evict the sublessee. Cf. Filsoof, supra. Appellants, Hand’s assignees, were subject to that agreement. “With respect to [a sublessee], the effect of the election is to establish a privity of contract between the landlord and the [sublessee] so as to render the latter liable to the landlord as tenant under the terms of the original lease. [Cit.]” Leftwich v. Liberty Loan Corp., 116 Ga. App. 799, 800 (159 SE2d 142) (1967). When Hand defaulted on his monthly rental payments to Pelham and Pelham foreclosed on the property, Hand’s assignees, whose rights under the assignment can be no more than the assignor’s (Healey v. Morgan, 135 Ga. App. 915 (219 SE2d 628) (1975)), lost their right to receive the rental proceeds from Moore. Hand was dispossessed from the property and his leasehold relationship with Pelham was thereby terminated, which in turn terminated Hand’s leasehold relationship with Moore. Therefore, the rents payable by Moore for the sublease of the property were owed to Pelham as landlord, and not to appellants, notwithstanding the fact that appellants had given consideration to Hand for the assignment of the rents to them. The trial court did not err in its decision.

Decided March 9, 1988

Rehearing denied March 23, 1988

Fred B. Hand, Jr., for appellants.

James C. Brim, Jr., Frank C. Vann, for appellees.

Judgment affirmed.

Banke, P. J., and Parley, J., concur.


text:
    75674.
    JOHNSON v. MORRIS et al.
    (367 SE2d 841)
   Benham, Judge.

Mr. and Mrs. Morris applied for medical assistance benefits, but their claims were denied at the local level. After a hearing, the first ruling was reversed, but appellant, Commissioner of the Georgia Department of Medical Assistance, reinstated the ruling that the Morrises were not eligible. On appeal to the superior court, that ruling was reversed, and we granted appellant’s application for discretionary review.

As appellees note, the issue of eligibility turns on the question of «the existence or not of excess resources. That question, in turn, depends on whether a three-party transaction between the Morrises, a funeral home, and an insurance company involved a pre-need funeral service contract as defined in OCGA § 43-18-92 (6). In that transaction, the Morrises each purchased from the insurer a single premium annuity policy with a death benefit, then executed a document purporting to be an irrevocable assignment of the policy to the funeral home. In consideration of that assignment, the funeral home agreed to provide burial services for the Morrises.

The parties agree that under federal regulations, pre-need funeral service contracts which are revocable are to be counted as resources of applicants for medical assistance, and that Georgia is listed therein as a state in which all such contracts are made revocable by OCGA § 43-18-101. Appellees, however, do not agree that the contract in this case comes within the statutory definition.

“ ‘Pre-need funeral service contract’ means any contract, other than a contract of insurance, under which, for a specified consideration paid in advance in a lump sum or by installments, a person promises or otherwise obligates himself to furnish funeral services or burial supplies and equipment upon the death of the beneficiary or beneficiaries named or implied in the contract.” OCGA § 43-18-92 (6). Appellees first contend that the contract in this case does not come within the statute because no funds were paid by the Morrises to the funeral home. We do not read the statute so narrowly.

We are fortunate in this case to be dealing with a statutory scheme which includes a clear indication of the intent of the legislature in enacting it. “This article shall be construed as a limitation upon the manner in which a licensed funeral director ... is permitted to accept funds in prepayment of funeral services to be performed in the future, to the end that at all times members of the public may have an opportunity to arrange for and pay for funerals for themselves and their families in advance of need while at the same time providing all possible safeguards whereunder such prepaid funds cannot be dissipated, whether intentionally or not, so as to be available for the payment of funeral services so arranged for.” OCGA § 43-18-90. Considering the statutory definition of “pre-need funeral service contract,” and especially the use of the word “paid” in that definition, in light of the legislature’s statement of intent, we conclude that so long as the consideration for a contract which otherwise is within the statute is something of value which is negotiable, and therefore capable of being dissipated, then that consideration brings the contract fully within the statute.

The consideration here was the assignment of insurance policies. Although the assignment provided some protection against dissipation of the consideration by withholding from the assignee the right to surrender the policy to the insurer for its cash value prior to the death of the insured, there is no provision in the assignment limiting the right of the assignee to make a further assignment of the policy. In fact, such a right is expressly granted by the assignment. The assignee, therefore, could assign the policy to another for cash, and dissipate that cash. We hold, therefore, that the assignment of the insurance policies here was such consideration as the legislature contemplated in its definition of pre-need funeral service contract.

There can be no doubt that the consideration was “paid in advance,” since the assignments were made before the funeral home was called upon to perform its half of the bargain. Since the whole consideration was delivered to the funeral home at the time the contract was made, we find it beyond question that the payment of the consideration was a “lump sum” payment.

Appellees also contend that because a policy of insurance is “involved,” the contracts between the Morrises and the funeral home do not come within the statute. However, the statute defines a particular type of contract, and excludes insurance policies from that definition; it does not exclude those contracts which are executed as a part of a transaction involving insurance policies. The contracts between the Morrises and the funeral home are not insurance policies, and the parties do not suggest otherwise; they are simple contracts in which one party gives a stated consideration in exchange for the other party’s promise to perform a certain service.

In short, we reject the assertion that the contract between the Morrises and the funeral home did not come within the ambit of the statute. It did, and the contract is revocable as a matter of law. OCGA § 43-18-101.

Appellees also make much of the argument that since the assignments of the policies are irrevocable, the money the Morrises paid is beyond their reach and should not be counted as a resource. However, the purchaser of a pre-need funeral service contract is given by statute an absolute right to revoke the contract. When that is done, the funeral home is obliged to return “the entire amount actually paid on such contract. . . .” OCGA § 43-18-101. In the present case, the “amount paid” was the assignments. To refund it, the funeral home need only execute an assignment back to the assignors. Once that was accomplished, the policies could be surrendered in accordance with the provisions therefor in the policies themselves. The money would then be in the hands of the purchasers of the contracts.

In sum, it is apparent from the record of this case that there has been an attempt to circumvent the intent of the legislature in enacting Article 2 of Chapter 43-18 of our Code. See OCGA § 43-18-90. We will not support such efforts. The trial court’s holding that the contracts at issue here do not constitute pre-need funeral service contracts within the meaning of OCGA § 43-18-92 (6) was erroneous, as was the concomitant holding that the value of those contracts was not a resource of the Morrises for purposes of eligibility for medical assistance.

Judgment reversed.

Banke, P. J., and Carley, J., concur.

Decided March 11, 1988

Rehearing denied March 23, 1988.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, William, C. Joy, Senior Assistant Attorney General, Kathryn Allen, Assistant Attorney General, for appellant.

Robert H. Sullivan, J. Thomas Vance, for appllees.

Joseph M. Fever, amicus curiae.