text:
    A92A0242.
    DEPARTMENT OF HUMAN RESOURCES v. HEDGEPATH.
    (420 SE2d 638)
   Carley, Presiding Judge.

The facts relevant to the resolution of this appeal are as follows: When appellee-defendant was divorced, the divorce decree provided that his ex-wife was to have custody of their minor daughter and that he was to provide no child support. Thereafter, appellee’s ex-wife sought and obtained public assistance on behalf of the child from appellant-plaintiff Georgia Department of Human Resources (DHR). Pursuant to OCGA § 19-11-1 et seq., DHR filed the instant action, seeking to recover from appellee the benefits it had paid to his daughter and an order providing for appellee’s future support of her. Appellee failed to file an answer within 45 days. When appellee failed to move to open default, the trial court conducted a hearing, which appellee attended, and proceeded “on a default basis.” Despite appellee’s default, the trial court denied DHR the relief sought in its petition and DHR appeals.

1. As to the benefits paid to appellee’s daughter, DHR enumerates as error the trial court’s failure to enter a default judgment against appellee.

A default judgment cannot be entered in an original action for. child support. OCGA § 19-5-8. Likewise, a default judgment cannot be entered in a subsequent action for modification of a previous award of child support. McElroy v. McElroy, 252 Ga. 553, 554 (2) (314 SE2d 893) (1984). However, the instant action is neither. Pursuant to OCGA § 19-11-5, the instant action “is one seeking collection of a debt. . . .” Department of Human Resources v. Johnson, 175 Ga. App. 610, 611-612 (333 SE2d 845) (1985). There is no proscription on the entry of a default judgment in an action wherein collection of a debt is sought.

The amount of appellee’s debt to DHR is specified in OCGA § 19-11-5 as “the amount necessary to meet the total needs of the child or children and the person having custody, if included in the public assistance grant, as determined by [DHR] in conformity with the federal Social Security Act; provided, however, that, where a court has ordered child support incident to a final divorce or in a criminal proceeding for nonsupport or where the responsible parent has entered into a legally enforceable and binding agreement, the debt created shall be equal to the amount set in such decree, order, hearing, or agreement.” (Emphasis supplied.) Appellee urges that, insofar as the divorce decree provided that he was not obligated for any child support for his daughter, the amount of his debt to DHR is zero. This contention is without merit. “[T]he child support waiver provision in question was void, and the trial court erred [if it found that provision] valid and determinative of this case.” Collins v. Collins, 172 Ga. App. 748, 749 (324 SE2d 475) (1984).

In its petition, DHR alleged that it had “provided support in the form of public assistance to [appellee’s daughter] and, pursuant to OCGA [§] 19-11-5, is entitled to reimbursement from [appellee] in the amount of $6,194.00.” “It may be seen from the complaint, the allegations of which must be taken as true because of [appellee’s] default, that the sum of [$6,194] was pleaded as liquidated damages. That being so, [DHR] was entitled to [entry of default judgment in the amount of $6,194].” Fadum v. Liakos, 186 Ga. App. 556, 558 (3) (367 SE2d 843) (1988). It follows that the trial court erred in failing to enter a default judgment in that amount in favor of DHR.

2. The trial court’s failure to enter an award as to appellee’s obligation to provide future child support is enumerated as error.

DHR was entitled to seek a determination as to appellee’s obligation to provide future child support. See OCGA §§ 19-11-2 (a) (3); 19-11-6 (a); 19-11-10 (c); 19-11-12. By his failure to file a timely answer, appellee admitted the allegation in DHR’s petition that he was “obligated to provide for the future support of [his] minor child as (his) ability permits. . . .” Accordingly, the trial court erred in failing to issue an award establishing appellee’s obligation for future child support pursuant to the guidelines of OCGA § 19-6-15, which “are the expression of the legislative will regarding the calculation of child support and must be considered by any court setting child support.” Pruitt v. Lindsey, 261 Ga. 540, 541 (1) (407 SE2d 750) (1991).

3. The judgment is reversed with direction that the trial court enter a default judgment against appellee in the amount of $6,194 and conduct a hearing to determine the amount of future child support that appellee is to provide.

Judgment reversed with direction.

Pope and Johnson, JJ., concur.

Decided July 1, 1992.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Worthy & Associates, Jerry L. Worthy, Jr., for appellee.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A0404.
    HEARD v. THE STATE.
    (420 SE2d 639)
   Pope, Judge.

Defendant Alonzo Lee Heard, Jr. was convicted by a jury of three counts of aggravated assault and one count of armed robbery.

Construed so as to support the verdict, the evidence adduced at trial showed the following: Cynthia Ellison, Vandarel Shackleford and Warren Childs (collectively referred to as the “victims”) went to a Mrs. Winner’s restaurant on Fulton Industrial Boulevard to eat dinner. While they were at the restaurant, defendant, along with his co-defendants Aaron Shealey and Tonnie Willis, drove into the restaurant parking lot and looked at the victims through the restaurant window. Shackleford testified he saw the defendants park next to his brown Volkswagen Jetta prior to entering the restaurant and look at the “rims” on his car. Shackleford testified that the rims on his car were specially manufactured, expensive rims and he thought defendants might be admiring them. Defendant and the co-defendants entered the restaurant for a brief period and then left. The victims finished eating and left the restaurant with the intention of going to Shackleford’s house in Cobb County. Shackleford and Ellison noticed the car behind them was travelling too closely. That car, which contained the defendants, pulled alongside the driver’s side of the Jetta. Heard, who was sitting in the front passenger seat, began firing a gun and hit Shackleford twice in the leg. The victims’ car ran into a ditch and the victims got out and ran into the woods when they saw that the defendants were turning around to come back to where they had run off the road. Shackleford testified that before he ran into the woods he saw the defendants get out of their car and come up to his car. The Jetta, which had been vandalized and from which parts had been taken, was subsequently recovered from the neighborhood where defendants lived.

Defendant Heard testified he was to meet Shackleford at the Mrs. Winner’s for the purpose of “transacting drugs.” According to Heard, the transaction was completed, but Shackleford refused to pay. He testified that after they left the restaurant, he and his co-defendants pulled alongside Shackleford’s car and Shackleford pointed a gun at them so he began firing his gun in self-defense. Heard testified the defendants stopped their car after the Jetta ran into the ditch and co-defendant Willis drove the Jetta away. Heard and Shealey then left the scene in the other car. Heard denied that he was involved with taking items from the Jetta.

Co-defendant Willis testified that as he and the other defendants were leaving the Mrs. Winner’s parking lot, Shackleford almost caused an accident by turning on his left turn signal and then turning right. He stated that after they exited the parking lot Shackleford again almost caused an accident by signalling one way and then turning the other way. Willis testified they pulled alongside the Jetta and Heard started firing his gun at the car. According to Willis, after the victims abandoned the Jetta, Heard got into the Jetta and drove away and he and Shealey left the scene in the other car. Willis denied they went to the restaurant in order to sell drugs to Shackleford.

Heard, Willis and Shealey were tried together. The jury convicted Heard of all charges, acquitted Willis of all charges, and acquitted Shealey of the aggravated assault charges but found him guilty of armed robbery. Heard appeals his conviction.

1. Heard contends the evidence is insufficient to sustain his conviction for armed robbery. In support of this enumeration defendant argues that the State failed to prove the property was taken “from the person or immediate presence of another” as required by OCGA § 16-8-41 (a). Citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), defendant also argues the State failed to prove that he committed the offense of armed robbery beyond a reasonable doubt.

“It has long been recognized . . . that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed. [Cits.] Further, the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant. [Cits.]” Morgan v. State, 195 Ga. App. 732, 734 (1) (394 SE2d 639) (1990). Such was the situation in the case at bar. The evidence shows the victims were not present when the car was stolen because they were forced to flee into the woods after Heard fired shots and wounded Shackleford. Shackle-ford testified he saw the defendants walk down to his car before he ran away. Furthermore, both Heard and Willis testified that the Jetta was immediately driven away by one of them. Consequently, the evidence was sufficient to show a theft from the immediate presence of the victims, and was sufficient to sustain Heard’s conviction for armed robbery. Maddox v. State, 174 Ga. App. 728 (1) (330 SE2d 911) (1985).

2. Defendant next urges that the trial court erred in denying his motion for directed verdict as to Count 2 of the indictment, which charged defendant with the aggravated assault of Warren Childs. Specifically defendant points to his testimony that his intended victim was Shackleford and argues no evidence was presented that the offense of aggravated assault was committed against Childs, who did not testify at trial. We find no merit to this enumeration. The transcript shows that Heard fired shots from a moving vehicle at a moving vehicle while all three victims were in the vehicle. Testimony was presented that Childs stated “they’re shooting at us,” that he directed everyone to jump out of the car and run through the woods, and that he along with the others fled through the woods to escape the defendants. “[P]roof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim’s testimony of his mental state but may be inferred from the conduct of the victim such as when he retreats to secure his safety. [Cits.]” Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981). The trial court did not err in denying defendant’s motion for directed verdict on Count 2 of the indictment.

3. Contrary to defendant’s assertions otherwise, the trial court did not err in denying his motion for new trial urged on the basis of the general grounds. Our review of the record and transcript shows that the evidence adduced at trial was sufficient to establish the guilt of defendant Heard of all charges beyond a reasonable doubt.

4. Defendant argues his character was impermissibly placed into issue by testimony from a deputy at the Cobb County Detention Center that the only knowledge he had of the defendants was from where he worked, but that it had been a while since he worked in the “pod” where the defendants were kept. The record shows the response was elicited in response to questioning by defendant and that contrary to defendant’s contention on appeal, the testimony was responsive to the question asked. “ ‘(A) party will not be heard to complain of error induced by his own conduct. . . . (Cits.)’ [Cit.]” Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375) (1990). The record also shows defendant failed to object to the testimony at trial and did not join in the objection urged by counsel for one of his co-defendants. “ ‘It is well established that appellate courts may not consider objections to evidence not raised at trial. (Cit.) “If several parties are entitled to make an objection, and it is made by any number less than all, it does not inure to the advantage of the party or parties not joining in it.” (Cit.) Thus, where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review. (Cits.)’ [Cit.] In the instant case [Heard] waived any objection by failing to adopt the objection made by [Shealey’s] counsel.” Fields v. State, 194 Ga. App. 149, 150 (2) (390 SE2d 71) (1990). Moreover, “ ‘evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence. (Cits.) This enumeration is without merit.’ [Cits.]” Ferrell v. State, 198 Ga. App. 270, 272 (3) (401 SE2d 301) (1991).

Decided July 1, 1992.

Robert H. Alexander III, for appellant.

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

5. Lastly, defendant contends the prosecutor improperly questioned a witness for the State about the defendant’s failure to make a post-arrest statement. The record shows that the witness was called in rebuttal after defendant testified the officer did not give him the opportunity to make a statement following his arrest, and that he did not understand why he was not given this opportunity because his co-defendants were allowed to give their version of events. Consequently, defendant, not the State, first introduced evidence concerning his post-arrest silence and the State was authorized to offer evidence rebutting the defendant’s testimony. Moreover, the transcript shows that defendant failed to object to the testimony of the officer and thus has waived his right to complain about this testimony on appeal. Pryor v. State, 198 Ga. App. 588 (2) (402 SE2d 338) (1991); Fields, 194 Ga. App. at 150 (2). This enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0572.
    VON HOFF v. CARMICHAEL.
    (420 SE2d 643)
   Pope, Judge.

Defendant Christa Von Hoff employed plaintiff Charles Carmichael as a plumber for the expansion and remodeling of her house. Pursuant to the terms of the oral agreement between the parties, defendant was to pay plaintiff on an hourly basis for labor and for the costs of materials. After making several partial payments to plaintiff, she wrote him a check for what was to be the final payment. Several days later, the county building inspector rejected several items of plaintiff’s work and the evidence presented at trial shows plaintiff returned to correct those items and the plumbing was approved. Apparently before the building inspection was made, however, defendant placed a stop payment order on the check written to plaintiff. Although plaintiff corrected the items rejected by the inspector, defendant refused to remit the remaining amount plaintiff claimed was due under the contract. Plaintiff brought this action and a jury verdict was returned in his favor. Judgment was awarded in the amount of $3,652.91 plus pre-judgment interest and $7,000 punitive damages. Defendant appeals.

1. Several of defendant’s enumerations of error relate to alleged errors in the charge to the jury. In response to the trial court’s inquiry about objections at the conclusion of the instructions to the jury, however, the defendant’s counsel responded: “I have no objections, Your Honor. I thought the charge was proper and fair.” Defendant waived her objections to the jury instructions by this specific acquiescence to the charges. A party may not on appeal “complain of a charge specifically acquiesced in by the counsel representing [her] on the trial.” Irvin v. Oliver, 223 Ga. 193, 196 (2) (154 SE2d 217) (1967). Accord Bell v. Samaritano, 196 Ga. App. 612 (2) (396 SE2d 520) (1990), aff’d 260 Ga. 768 (400 SE2d 13) (1991).

2. Among the claims made in plaintiff’s complaint was that defendant fraudulently induced the plaintiff to perform the work by representing she would pay him pursuant to their oral agreement. Defendant argues the trial court erred in failing to grant her motion for new trial because no evidence was presented to show plaintiff justifiably relied upon the allegedly fraudulent representations. The evidence was certainly sufficient to support the conclusion that plaintiff performed the work in reliance upon defendant’s promise to pay him for his services and we find no merit in this argument.

3. A full 30 days after the judgment was entered defendant filed a motion for new trial asserting, inter alia, that the trial judge should have recused himself from the case. She also filed a motion to recuse the trial judge from hearing the motion for new trial. In support of the motion to recuse, defendant filed her affidavit stating that on the second day of the three-day trial, defendant overheard a conversation between the judge and the plaintiff which indicated the plaintiff had performed plumbing work for the judge. According to the affidavit, “The Plaintiff asked the judge if he was pleased with the work he had done. The Judge replied with words to the effect: ‘don’t overcharge me.’ ” Defendant argues the trial court erred in ruling the motion to recuse was untimely and legally insufficient.

According to Rule 25.1 of the Uniform State Court Rules, all motions to recuse must be filed in writing before trial and “not later than 5 days after the affiant first learned of the alleged grounds for disqualification . . . unless good cause be shown for failure to meet sucb time requirements.” In this case, the information relied upon by the defendant was not discovered until after trial began and therefore the motion could not have been brought before trial. While defendant attests that during the trial off-the-record discussions were had with the judge concerning recusal, the record does not show that any motion was filed in writing as required by Rule 25.1 Instead, defendant took her chances on a favorable outcome of the trial and only after an adverse verdict was returned did she file a proper motion to recuse. This is precisely the type of practice which the timeliness requirement of Rule 25.1 is designed to guard against. See Hunnicutt v. Hunnicutt, 248 Ga. 516 (1) (283 SE2d 891) (1981). Moreover, we agree that the affidavit in support of the motion to recuse did not set forth a legally sufficient ground for disqualification. Although Canon 3 (C) (1) of the Code of Judicial Conduct indicates a judge should disqualify himself in any proceeding in which his “impartiality might reasonably be questioned,” the conversation between the judge and plaintiff in this case did not raise a reasonable question of the judge’s impartiality. See Chambliss v. Roberson, 164 Ga. App. 579 (1) (298 SE2d 550) (1982). Thus, the trial court did not err in denying the motion to recuse or the motion for new trial.

Decided July 1, 1992.

James S. Altman, for appellant.

Rosenzweig, Kam, Jones & MacNabb, Douglas L. Dreyer, for appellee.

4. In addition to alleging breach of contract and a claim in quantum meruit, plaintiff’s complaint prayed for a special lien on defendant’s property on which the work was performed. Defendant argues the trial court erred in failing to determine that plaintiff was not entitled to a lien for failure to file notice of the suit with the clerk of the superior court in the county in which the lien was filed, as required by OCGA § 44-14-361.1 (a) (3). Although the complaint prayed for such a lien, the plaintiff made no request for jury instruction on the claim of lien, and neither the verdict nor the judgment awarded such a lien. Consequently, the claim of lien was not an issue in the case and defendant’s enumeration of error in this regard is moot.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0029.
    ITT RAYONIER, INC. et al. v. McLANEY.
    (420 SE2d 610)
   Carley, Presiding Judge.

Alleging multiple claims, appellee-plaintiff filed suit against his former employer, appellant-defendant ITT Rayonier, Inc. (ITT), and his former supervisor, appellant-defendant W. F. Simpson. The case was tried before a jury and a verdict against ITT and Simpson was returned on appellee’s claim for the intentional infliction of emotional distress and a verdict against Simpson was returned on appellee’s claim for slander. After the trial court entered judgments on the jury’s verdicts, ITT and Simpson filed motions for judgment notwithstanding the verdicts. These motions were denied and ITT and Simpson appeal.

1. The denial of the motions for judgment n.o.v. as to appellee’s claim for the intentional infliction of emotional distress is enumerated as error.

The evidence would authorize a finding that, in his supervisory capacity, Simpson was highly critical of appellee’s job performance. Although there is also evidence that Simpson employed crude and obscene language, he did so only in connection with his criticism of appellee’s job performance and not for any non-employment-related purposes. Compare Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 167 (1) (381 SE2d 303) (1989) (sexual harassment in the workplace). There is no evidence that Simpson made any threats, other than in connection with the improvement of what Simpson perceived to be appellee’s poor job performance. Compare Anderson v. Chatham, 190 Ga. App. 559, 566 (8) (379 SE2d 793) (1989) (post-employment threats of a personal and non-employment nature). There is no evidence that Simpson set out to retaliate or punish appellee, other than for appellee’s allegedly poor job performance. Compare Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991) (retaliation and punishment for testifying against employer on behalf of another employee). Simpson did not have sole and complete authority to discharge appellee and, upon its review, ITT determined that appellee’s job performance did, in fact, warrant action. Appellee was offered the option of demotion to another position, but with no reduction in pay or termination. Appellee opted for termination.

“ ‘ “[Pjlaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” ’ A false accusation ... in connection with one’s employment conduct is undoubtedly a distressful, even ‘horrifying’ and traumatizing insult, but it is a common vicissitude of ordinary life.” Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991). See also Crowe v. J. C. Penney, 177 Ga. App. 586, 588 (1) (340 SE2d 192) (1986). Some of “the language used by [Simpson] consisted either of expressions of dissatisfaction with [appellee’s] job performance or suggestions that if [appellee] did not improve his job performance he might be terminated. . . . Claims for intentional infliction of emotional distress have been upheld by this court when the threats on which those claims were based were outrageous and egregious. . . . [Considered individually or collectively, the statements made to [appellee] could not have forseeably resulted in the mental distress of which [appellee] complains because they do not rise to the requisite level of outrageousness and egregiousness. [Cit.]” Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772-773 (324 SE2d 593) (1984). See also Moses v. Prudential Ins. Co. of Amer., 187 Ga. App. 222 (369 SE2d 541) (1988). Compare Yarbray v. Southern Bell Tel. &c. Co., supra; Coleman v. Housing Auth. of Americus, supra; Anderson v. Chatham, supra. “An employee’s ongoing frustration in the work place, born of a personality conflict with a co-employee, does not give rise to an action for intentional infliction of emotional distress. Such a conflict between employees is a matter to be resolved by the mutual employer. It should not be litigated in a court of law.” Kornegay v. Mundy, 190 Ga. App. 433, 435 (1) (379 SE2d 14) (1989).

The conflict between Simpson and appellee was submitted to and resolved by their mutual employer. That ITT may have resolved that conflict in favor of Simpson does not give rise to a claim by appellee for intentional infliction of emotional distress. “Since, under applicable provisions of state tort law, at-will employment can be terminated for any or no reason, that [ITT determined to demote or discharge appellee] for whatever reason, without more, gives rise to no claim for the intentional infliction of emotional distress. [Cit.]” Borden v. Johnson, 196 Ga. App. 288, 290-291 (2) (395 SE2d 628) (1990). “We find as a matter of law that [Simpson’s] conduct ... is not the intentional infliction of emotional distress for which the law allows a recovery. Accordingly, the trial court did ... err in [not] granting judgment n.o.v. to [Simpson] on this claim.” Peoples v. Guthrie, supra at 122 (2).

“The only basis for a recovery against [ITT] would be [ITT’s] vicarious liability for the tortious actions of [Simpson] as its employee. Where the liability of a party is premised solely upon his vicarious liability for the tortious actions of an agent and judgment is entered for the agent, the party alleged to be vicariously liable is also entitled to judgment. [Cits.] Accordingly, our holding [as to Simpson] mandates the reversal of the trial court’s denial of [ITT’s] motion for [judgment n.o.v. as to appellee’s claim for intentional infliction of emotional distress].” Kornegay v. Mundy, supra at 435-436 (2).

2. The denial of Simpson’s motion for judgment n.o.v. as to appellee’s claim for slander is enumerated as error.

“ ‘[W]hen the communication is intra-corporate, . . ., and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander.’ Kurtz [v. Williams, 188 Ga. App. 14,] 15 [(3) (371 SE2d 878) (1988)]; [cits.]. Of the statements proven by admissible evidence, most were either made directly to [appellee] in one-on-one conversations, and therefore not published, or made in meetings with [appellee] and[/or] . . . supervisory personnel and[/or] a personnel department representative. These were all intra-corporate communications under Kurtz.” Green v. Sun Trust Banks, 197 Ga. App. 804, 809 (4a) (399 SE2d 712) (1990). “ ‘Publication of allegedly defamatory information in the course of an [intra-corporate] investigation of an employee’s job performance, when made to persons in authority, is not “publication” within the meaning of the law. (Cits.)’ [Cits.]” Lepard v. Robb, 201 Ga. App. 41, 43 (1) (410 SE2d 160) (1991).

Those remaining incidents wherein a lack of proof of Simpson’s publication would not otherwise bar a recovery by appellee for slander fall into two categories. In one category, appellee offered no proof of the particular words or statements made by Simpson. Obviously, these incidents afford no basis for a recovery. “Damage to [appellee’s] reputation would be actionable only if it was the result of [Simpson’s] non-privileged publication of false words regarding [the] disciplining of [appellee] or the termination of [appellee’s] employment.” (Emphasis in original.) Brewer v. MARTA, 204 Ga. App. 241 (2) (419 SE2d 60) (1992). If there is no evidence of any specific words or statements uttered by Simpson, there can be no finding that he published a slander. See Tomblin v. S.S. Kresge Co., 132 Ga. App. 212, 216 (5) (207 SE2d 693) (1974). The second category, consisting of instances wherein appellee did offer proof of Simpson’s publication of particular words or statements, likewise affords no basis for a recovery. In this regard, the most that the evidence shows is that Simpson was of the general opinion that appellee’s job performance was unsatisfactory and that, in expressing this opinion, Simpson would often use crude and profane language. The expression of such opinions does not constitute an actionable defamation. See Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 746 (3) (337 SE2d 770) (1985).

Accordingly, the trial court erred in denying Simpson’s motion for judgment n.o.v. as to appellee’s slander claim.

3. A review of the record clearly demonstrates that if appellee had any claim at all based upon his former employment with ITT, it would be a claim against Simpson for tortious interference. See Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (2) (250 SE2d 442) (1978). That claim was submitted to the jury and a verdict in favor of Simpson was returned.

Judgments reversed.

Pope and Johnson, JJ., concur.

Decided June 23, 1992

Reconsideration denied July 2, 1992

Mack & Bernstein, Curtis L. Mack, Kathleen J. Van Detta, for appellants.

Sutton & Associates, Berrien L. Sutton, for appellee.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A0299.
    BURGESS v. THE STATE.
    (420 SE2d 590)
   Andrews, Judge.

Ronald Burgess was indicted and convicted for selling and distributing a noncontrolled substance representing it to be a controlled substance and for attempting to elude a police officer and appeals. Evidence at trial was that Burgess sold a substance which he represented to be methamphetamine (“crank”) to an undercover agent. The substance was not methamphetamine, but was a mixture containing niacinamide, a vitamin, and a decongestant.

At trial, Burgess admitted that he sold the undercover agent the substance; his defense was entrapment. There was conflicting testimony as to whether Burgess expressly represented to the agent that the substance for which she paid $700 was methamphetamine.

In his first enumeration of error, Burgess contends that the trial court erred in failing to give the jury his written request to charge on OCGA § 16-13-30.2 because that offense is a lesser included offense of OCGA § 16-13-30.1, on which the jury was charged.

The indictment charged that Burgess unlawfully did “sell, and distribute a noncontrolled substance upon the express representation that the substance was a controlled substance, the same being Methamphetamine, commonly known as ‘crank.’ ” There was no indication from the indictment as to which Code section Burgess was charged with violating.

At the conclusion of the trial, the jury was charged on OCGA § 16-13-30.1 (a) (1) which provides: “It is unlawful for any person knowingly to manufacture, deliver, distribute, dispense, possess with the intent to distribute, or sell a noncontrolled substance upon either:

“(A) The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance;

“(B) The express or implied representation that the substance is of such nature or appearance that the recipient of said delivery will be able to distribute said substance as a controlled substance; or

“(C) The express or implied representation that the substance has essentially the same pharmacological action or effect as a controlled substance.”

The trial judge failed to charge the jury on OCGA § 16-13-30.2 (a), which provides: “[a]ny person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.” Paragraph 12.1 of OCGA § 16-13-21 defines an “imitation controlled substance” as:

“(A) A product specifically designed or manufactured to resemble the physical appearance of a controlled substance, such that a reasonable person of ordinary knowledge would not be able to distinguish the imitation from the controlled substance by outward appearances; or

“(B) A product, not a controlled substance, which by representations made and by dosage unit appearance, including color, shape, size, or markings, would lead a reasonable person to believe that, if ingested, the product would have a stimulant or depressant effect similar to or the same as that of one or more of the controlled substances included in Schedules I through V of Code Sections 16-13-25 through 16-13-29.”

We are unable to find any cases which address the relationship between OCGA §§ 16-13-30.2 and 16-13-30.1. Nonetheless, “it is a basic law that a defendant in a criminal case is entitled to have the jury consider every lesser offense which the evidence authorizes which is includable in the crime for which he was indicted. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” (Citations and quotations omitted.) Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990). “The correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. ‘The state or the accused may, by written application to the trial judge at or before the close of the evidence, request him (or her) to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his (or her) failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.’ ” (Emphasis omitted.) State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

At the outset, we note that apart from the different definitions of the substances which the statute seeks to regulate, OCGA § 16-13-30.2 does appear to be a lesser included offense of OCGA § 16-13-30.1, since it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of OCGA § 16-13-30.1. See Sims, supra.

Therefore, in order to determine whether it was necessary for the trial judge to charge on OCGA § 16-13-30.2, we must determine whether the substance which Burgess sold fell within the definition of that statute. OCGA § 16-13-30.1 applies to “non-controlled substances” which are represented to be controlled substances; OCGA § 16-13-30.2 applies to “imitation controlled substances.” The State argues that it was not necessary for the trial court to charge on the latter statute because the substance here was not an imitation controlled substance since § 16-13-30.2 concerns pills, tablets, and products which are created solely to imitate controlled substances. The State argues that § 16-13-30.2 does not apply to substances which coincidentally resemble controlled substances.

We find the State’s argument unconvincing in this case. Despite the possible esoteric distinctions between the two types of substances, both statutes apply to counterfeit controlled substances. OCGA § 16-13-30.2 applies to products which by representations made and by appearance appear to be controlled substances. In the instant case, evidence at trial was that the primary substance in the mixture Burgess sold, niacinamide, resembled methamphetamine in appearance. This fact combined with evidence that Burgess represented that the substance was methamphetamine indicates that the substance fit within the definition of § 16-13-30.2. Because of the fact that the substance here was an imitation controlled substance, it was necessary for the trial judge to charge the jury on OCGA § 16-13-30.2 and his failure to do so was error. Although we concede that these two statutes are ambiguous, we are mindful that the clarification of this area is a matter for legislative determination.

Because of our determination that the jury should have been instructed according to OCGA § 16-13-30.2, it was also necessary for the judge to instruct the jury according to OCGA § 16-13-21 (12.1) as claimed in Burgess’ second enumeration. Accordingly, we reverse Burgess’ conviction for violation of OCGA § 16-13-30.1 because of the trial court’s failure to charge on OCGA § 16-13-30.2, and affirm his conviction of eluding a police officer. Because of our conclusion we need not specifically address Burgess’ motion for a supersedeas bond.

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope and Cooper, JJ., concur. Carley, P. J., Beasley and Johnson, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to the reversal of conviction for a violation of OCGA § 16-13-30.1. The evidence would not support a conviction of OCGA § 16-13-30.2, so defendant was not entitled to a charge on it.

The evidence showed that the substance involved was '26 grams, just under one ounce, of a brown powder which the undercover buyer thought from appearance and taste was methamphetamine, a controlled substance which is commonly known as “crank.” It was sold to her as crank for $700. Laboratory testing revealed that the main ingredient in the powder was niacinamide, also known as nicotinamide, a vitamin which is regarded as a “dangerous drug” in Georgia. See OCGA § 16-13-71 (b) (640.3). It is to be sold only by prescription and costs about $10-$15 for a fairly large bottle. This ingredient is commonly used as a cutting agent in illegal methamphetamine and sometimes it is used to cut cocaine. The powder also “possibly” contained a little ephedrine, an over-the-counter decongestant.

In 1982 the General Assembly amended certain portions of the controlled substances law by redefining “counterfeit substance,” by adding a definition for “noncontrolled substance” and by adding a new crime, i.e., certain activities with respect to the “noncontrolled substance.” Ga. L. 1982, p. 2370; OCGA §§ 16-13-21 (6) & (29); 16-13-30.1. Accordingly:

“Noncontrolled substance” means “any drug or other substance other than a controlled substance as defined by paragraph (4) of this Code section.”

Paragraph (4) defines “controlled substance” as “a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308.” Any substance which contains any quantity of methamphetamine is a Schedule II controlled substance. OCGA § 16-13-26 (3) (B).

In 1988 the General Assembly again amended the controlled substances law to add a crime, i.e., certain activity involving “an imitation controlled substance,” and to define that term. Ga. L. 1986, p. 1065. It focuses on certain substances which are “noncontrolled substances” and puts them in a lesser crime category and affords them a less severe punishment. OCGA §§ 16-13-21 (12.1) and 16-13-30.2. (For some reason it leaves out “deliver,” “dispense,” and “sell” from the list of expressly prohibited activities.) We do not have before us the legitimacy of the disparate treatment.

The definition of “imitation controlled substance,” which, is quoted in the majority opinion, is what is important here. There was no evidence, nor could it reasonably be inferred, that the niacinamide was “specifically designed or manufactured to resemble the physical appearance of” methamphetamine. See OCGA § 16-13-21 (12.1) (A). Nor can it reasonably be inferred that the noncontrolled niacinamide powder was “a product . . . which ... by dosage unit appearance, including color, shape, size, or markings, would lead a reasonable person to believe” it would have a “similar” or “same” effect as methamphetamine. The powder was not shown to be a “dosage unit.” It had no particular “shape, size, or markings.” It simply was the cutting agent for methamphetamine which, together with the representations made by defendant, led the buyer to believe it was methamphetamine. It is clear that the description contained in OCGA § 16-13-21 (12.1) (B) means pills and capsules and other products which mimic controlled substances.

Decided June 3, 1992

Reconsideration denied July 2, 1992

Murphy, Murphy & Garner, Stephen E. Garner, for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

If the majority’s construction is accepted, then OCGA § 16-13-30.2 would always, or nearly always, be a lesser included offense in violation of OCGA § 16-13-30.1. In effect this would leave up to the jury whether to convict of a felony or of a misdemeanor of a high and aggravated nature, under the same set of facts. I do not interpret the legislature’s intent to be this, but rather to be to treat less severely activities involving imitations of the real thing. The substance here was not an imitation of methamphetamine but rather the cutting agent without the methamphetamine ingredient.

I would agree with the trial court and affirm the conviction.

I am authorized to state that Presiding Judge Carley and Judge Johnson join in this opinion.


author: Pope, Judge. Carley, Presiding Judge,

text:
    A92A0456.
    GORDON COUNTY FARMS et al. v. EDWARDS.
    (420 SE2d 607)
   Pope, Judge.

We granted the application for discretionary appeal of the employer in this workers’ compensation case to review the judgment of the superior court. That judgment affirmed the order of the Board of Workers’ Compensation denying the employer’s defense controverting the claimant employee’s right to collect benefits. The pertinent facts of the case are as follows: In 1975, several years before being employed by the employer, the claimant suffered a work-related back injury which necessitated back surgery for a diskectomy at the L4-L5 level of the spine. The claimant received workers’ compensation benefits but his medical records indicate he was ultimately released for return to work with no restrictions.

After working at several other jobs with no physical problems, including a temporary job with the employer, in 1983 the claimant applied for a permanent job with the employer. The record contains a written job application in which the claimant did not list as a previous employer the employer for whom he worked when he was previously injured. It also shows a check mark by the “no” response to the question “Have you ever been hurt on the job?” Before offering claimant the job, the employer had a physician perform a physical examination on the claimant. The written report of the examination, signed by both the physician and the claimant, indicated no back injury or disability. That portion of the report presumably filled out by the physician contained check marks in the “normal” column for the cervical, dorsal and lumbar spine and contained the notation “none” in a space for listing disqualifying factors. After working at his permanent position with the employer for approximately two years, the claimant sustained a back injury which necessitated a hemilaminectomy at L4-L5 and L5-S1 and a subsequent lumbar laminectomy.

It is uncontroverted that the injury arose out of the claimant’s employment and the employer commenced voluntary payment of benefits. In 1989, however, the employer suspended payment of benefits on the ground that it had discovered evidence of the claimant’s previous work-related back injury and a hearing was held on the employer’s claim that compensation should be retroactively denied on what it claimed was newly discovered evidence of the claimant’s misrepresentation. The administrative law judge denied the employer’s defense, finding no causal connection between the previous injury and the present injury, as required by the test adopted by the Georgia Supreme Court for determining when the employee’s misrepresentation of a previous work-related injury serves as a bar to compensation in Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989). The board adopted the findings of the ALJ, also adding the conclusion that the alleged misrepresentation of the employee in this case did not constitute newly discovered evidence which would permit the employer to controvert benefits pursuant to OCGA § 34-9-221 (h).

We agree that the facts of this case do not establish that the alleged misrepresentation is newly discovered evidence pursuant to OCGA § 34-9-221 (h). Where the employer is thwarted in its opportunity to discover the evidence supporting its defense of the claim by the claimant’s own misrepresentation of facts, then evidence of noncompensability which is discovered after the expiration of the 60-day period for controverting a claim, as set forth in OCGA § 34-9-221 (h), is newly discovered evidence which gives the employer a ground for controverting benefits. Carpet Transport v. Pittman, 187 Ga. App. 463 (2) (370 SE2d 651) (1988). For evidence to qualify as newly discovered, however, “[i]t must be shown that the evidence was not known to the party at the time of the original hearing, and that, by reasonable diligence, this new evidence could not have been secured.” (Citation and punctuation omitted.) Georgia Power Co. v. Pinson, 167 Ga. App. 90, 91 (305 SE2d 887) (1983). In this case, the employer, by and through a physician it hired for the purpose, conducted a physical examination of the claimant, including an examination of the lumbar spine. The record contains the claimant’s uncontroverted testimony that a scar was visible on his lower back from the earlier surgery. Yet the physician concluded the claimant’s spine was normal and found no disqualifying factors in the claimant’s physical condition. Thus, even if the claimant misrepresented his physical condition on his application for employment, in this case the employer was not prevented, through the exercise of ordinary diligence, from discovering his previous back surgery and thus discovering the cause for it.

We do not intend to imply that an employer may not rely upon an employee’s representations concerning his physical condition or medical history and thus may never claim that discovery of misrepresentations constitutes newly discovered evidence to controvert benefits. As noted in the specially concurring opinion, the Georgia Supreme Court has held that the “employee cannot hide behind the argument that the employer has not engaged in extensive and expensive physical examinations and investigations in order to ascertain the potential employee’s health history.” Rycroft, 259 Ga. at 159. In this case, however, when the employer undertook to conduct a physical examination from which the true facts were discoverable through the exercise of ordinary diligence, then it was precluded from later claiming that the true facts were newly discovered after benefits had already been paid.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur specially.

Carley, Presiding Judge,

concurring specially.

I reluctantly concur with the majority that the judgment of the superior court affirming the full Board should be affirmed. However, I do so only on the basis that, under the “any evidence rule” the superior court and this Court are bound by the determination of the full Board that there was not a sufficient causal connection between the false representation and the injury. This is the third element of the Rycroft defense as enunciated by the Supreme Court in Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989).

However, I strongly disagree with the majority’s conclusion that the employer was precluded from relying upon the Rycroft defense because the alleged misrepresentation was not “newly discovered” evidence. A review of the record shows the application for employment by the claimant wherein he clearly and unequivocally denied any prior injury to his back and any prior work injury at all. Based upon the severity of the current injury, the employer in good faith paid all medical expenses and commenced income benefits. It was only in 1989 when the employer learned that there had been a prior serious back injury and this knowledge came from the employer’s discovery that claimant settled that prior claim for $30,000.

The majority incorrectly relies upon the fact that at the time of the commencement of employment of claimant by employer, a physician engaged by employer conducted a physical examination of the claimant. It is clear that the physician conducted the examination and submitted his report based upon claimant’s application wherein he asserted that he had no previous back problems or injury. “Since there is a presumption that an employer takes an employee as he finds him, the courts cited above have found it persuasive that an employer be able to rely on the employee’s description of his physical condition. Thus, the defrauding employee cannot hide behind the argument that the employer has not engaged in extensive and expensive physical examinations and investigations in order to ascertain the potential employee’s health history.” Georgia Elec. Co. v. Rycroft, supra at 159. The mere fact that an ordinary and usual pre-employment physical examination was done in which the examining physician relied upon the fraudulent misrepresentation of the employee should not preclude assertion of the Rycroft defense in a proper case.

It is true that the majority does limit its preclusion of the assertion of a Rycroft defense to the situation where, as in this case, the “employer undertook to conduct a physical examination from which the true facts were discoverable. . . .” (majority opinion, page 772.) However, the effect of this holding is to penalize an employer for requiring a pre-employment physical exam if that examination does not uncover the fact that the employee has made blatantly false statements and misrepresentations. I respectfully submit that the situation would be different if the examining physician had discovered that the employee’s statement concerning his medical history was untruthful and the employer had hired the applicant. Here no such discovery was made.

Accordingly, I concur in the judgment of affirmance only because we are bound by the finding of fact that there was no causal connection between the misrepresentation and the compensable injury.

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

Decided June 17, 1992

Reconsideration denied July 2, 1992

Kinney, Kemp, Pickell, Sponcler & Joiner, Maurice Sponcler, Jr., for appellants.

Mundy & Gammage, John M. Strain, for appellee.


author: Johnson, Judge.

text:
    A92A0556.
    RIGGIO v. LAWSON.
    (420 SE2d 613)
   Johnson, Judge.

We granted Jaye Riggio’s application for interlocutory appeal in order to review the record related to the trial court’s denial of her motion to dismiss Robin Lawson’s complaint against her for lack of personal jurisdiction, improper venue, and insufficient service of process.

The case arises out of an accident which occurred in Jamaica while the parties were there on vacation. Lawson alleges in her complaint that she was injured while riding as a passenger on a motor-scooter being driven by Riggio.

At the time of the accident, Riggio was a citizen and resident of the State of New York. Subsequently, she moved to Toronto, Ontario, Canada. Lawson, a citizen and resident of Fulton County, Georgia, sued Riggio in the Superior Court of Fulton County seeking to recover for her injuries.

After the suit was filed but before she had knowledge of it, Riggio came through Atlanta briefly as a crew member for a rock band which was performing a concert in the city. An agent for service of process attempted but was unable to serve Riggio during the concert. However, the following day another private investigator succeeded in locating and serving Riggio in Naples, Florida.

Riggio filed an answer and counterclaim in which she asserted defenses of lack of personal jurisdiction, improper venue, and insufficient service of process. She pursued these defenses by filing a motion to dismiss Lawson’s complaint for lack of personal jurisdiction, improper venue and insufficient service of process. After a hearing, the trial court denied Riggio’s motion to dismiss. We reverse.

1. Riggio contends that the trial court erred in refusing to dismiss Lawson’s complaint for lack of personal jurisdiction since the claims arise from an accident occurring in Jamaica, West Indies, against a United States citizen residing in Toronto, Ontario, Canada who has never been a resident of Georgia, owns no property in Georgia, and who never engaged in substantial or continuous business in Georgia. We agree.

The United States Constitution limits the power of a state over nonresidents. “The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. [Cit.]” World Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (100 SC 559, 62 LE2d 490) (1980); Straus v. Straus, 260 Ga. 327, 328 (393 SE2d 248) (1990); see also Smith v. Smith, 254 Ga. 450, 453 (330 SE2d 706) (1985). In order for a state court to have jurisdiction over a person, there must be notice to the defendant and “a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum. [Cit.]” Kulko v. Superior Court of Cal., 436 U. S. 84, 91 (98 SC 1690, 59 LE2d 132) (1978); see also Smith v. Smith, supra; Humphrey v. Langford, 246 Ga. 732, 734-735 (273 SE2d 22) (1980). A state may not exercise jurisdiction over a person unless the person has “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Cits.]” International Shoe Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945); Smith v. Smith, supra; Girard v. Weiss, 160 Ga. App. 295, 297 (287 SE2d 301) (1981). It is clear from the record that Riggio lacks sufficient minimum contacts with Georgia to subject her to suit here; requiring Riggio to defend Lawson’s suit in Georgia would be contrary to the notions of fair play and substantial justice.

Lawson asserts that Riggio waived the defense of lack of personal jurisdiction by filing a compulsory counterclaim. Compulsory counterclaims, as well as affirmative defenses, must be asserted in a defendant’s answer or responsive pleading. Blount v. Kicklighter, 125 Ga. App. 159, 160 (186 SE2d 543) (1971). Riggio asserted the defense of lack of personal jurisdiction in her answer, pursuant to OCGA § 9-11-12 (b) (2), and included within her answer a separate section establishing a counterclaim. Riggio properly excepted to the court’s jurisdiction over her person by raising the defense in her answer. We find that the filing of the counterclaim did not serve as a waiver of the defense of lack of personal jurisdiction. To hold otherwise would be to subject litigants in Riggio’s situation to a “Catch 22,” because it would require them to choose either to waive a legitimate compulsory counterclaim in order to test the trial court’s jurisdiction over their person or waive the right to contest the issue of lack of personal jurisdiction in order to avoid the risk of not properly and timely asserting a compulsory counterclaim. Lawson has not cited, nor can we find, a case that holds otherwise.

We likewise reject Lawson’s assertion that Riggio’s participation in discovery acted as a waiver of her properly asserted objection to personal jurisdiction in this state. See this Court’s recent decision in Williams v. Willis, 204 Ga. App. 328 (419 SE2d 139) (1992); see also Garrett v. Godby, 189 Ga. App. 183, 185 (375 SE2d 103) (1988).

Decided June 23, 1992

Reconsideration denied July 2, 1992

Drew, Eckl & Farnham, G. Randall Moody, William T. Mitchell, for appellant.

D. Chris Jensen, Jr., N. Lee Presson, for appellee.

Accordingly, the trial court erred in denying Riggio’s motion to dismiss.

2. In view of our holding in Division 1, we need not address the remaining enumerations of error.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0589.
    COFIELD v. THE STATE.
    (420 SE2d 597)
   Pope, Judge.

Defendant Luther Charles Cofield was convicted of aggravated assault on a peace officer. He appeals from the denial of his motion and amended motion for new trial.

Construed so as to support the verdict, the evidence adduced at trial showed the following: On May 10, 1990, defendant and his wife had an argument. During the argument, defendant knocked over a portion of the fence in his backyard with his van and broke out a window in the van with a liquor bottle. Defendant was sitting in the van when Officer Belflower from the Eastman Police Department arrived. Officer Belflower pulled into defendant’s driveway, opened his car door and asked defendant what was the matter. According to Belflower, defendant then stuck a gun out the door of the van and told the officer that he would shoot him if he got out of the car. Officer Belflower radioed Officer Harden, who had pulled his car behind Belflower’s car in defendant’s driveway, that defendant had a gun and to back out of the driveway. The officers pulled out of the driveway and positioned their cars in such a way as to block off the street. Defendant exited the van and walked across the yard with his hands up saying “I give up, I give up.” The officers ordered defendant to lie down on the ground but he refused. At that point Alfonso Stephens, an employee of the sheriff’s department who knew the defendant, arrived and was able to take the defendant into custody without incident.

Defendant testified and gave a slightly different version of events. Defendant admitted that he drank several shots of liquor on the day in question and that he and his wife had argued. Defendant also admitted he had knocked over a portion of his fence and had broken out the window in his van. Defendant said he was sitting in his van with the door open when Officer Belflower arrived. According to defendant the officer put his hand on his gun and then reached back into the patrol car as if to get something out. Defendant testified he thought the officer was reaching into his car to get out his shotgun. Defendant said he then stuck his gun out the passenger window of the van and shook it so the officer could see it. Using profanity, he ordered the officer to leave his yard. Defendant testified he never pointed the gun at the officer and he never threatened to shoot the officer but that he did want the officer to know he had a gun. According to defendant, he showed the officer his gun in hopes of preventing the officer from taking his shotgun out of the car because he was afraid if the officer started shooting, his wife and daughter, who were standing in the carport, might accidentally get shot. Defendant admitted he refused to lie down on the ground when the officers ordered him to but stated that he refused to obey the officers because he wanted to avoid causing further embarrassment to his daughter. Defendant’s wife also testified that the defendant shook his gun out the window and told the officer to get out of the driveway, but that he never pointed the gun at the officer.

1. Defendant first contends the trial court erred in denying his amended motion for new trial on the basis that his trial counsel was ineffective. Specifically, defendant argues his appointed trial counsel failed to interview and subpoena certain witnesses. In related enumerations, defendant posits that such failure deprived him of his federal constitutional right to present a defense, his right to compulsory process for witnesses in his favor and his right to a fundamentally fair trial.

In support of his amended motion for new trial, defendant presented the affidavits of four of his neighbors who averred that they observed the events giving rise to the charges against the defendant, but that defendant’s trial counsel did not contact or interview them prior to trial. The neighbors also testified at the hearing on the motion for new trial. A review of this affidavit and hearing testimony reveals that none of the neighbors observed the gun in defendant’s hand after the police arrived, although several had seen the gun prior to that time. Several of the neighbors testified that they could hear but not understand the conversation between the defendant and the officer. Turning to the individual testimony of the neighbors, the record reveals that Ms. Coffee testified she was unaware the defendant was in the van. Another neighbor, Ms. Thompson, testified that she did not see the defendant do anything. One witness testified he was unaware the police had arrived, although he could hear the defendant talking to someone. Lastly, Mr. Thompson testified that he heard the defendant order the officer to get out of his driveway and saw the defendant shake his hand at the officer, but that he did not see a gun in defendant’s hand.

“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, (466 U. S. 668) (104 SC 2052, 80 LE2d 674) (1984). In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (466 U. S. at 687, 694). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567) (1985); Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988).” (Punctuation omitted.) Johnson v. State, 199 Ga. App. 67, 69 (404 SE2d 139) (1991).

Pretermitting the question of whether defendant has shown that counsel’s performance was deficient under the first prong of the test, we find that defendant has failed to show any prejudice resulting from the failure of counsel to discover the potential witnesses and call them as witnesses at trial. Defendant and his wife both admitted that defendant had a gun and that he shook it in such a manner so that the officer would see it. All of defendant’s neighbors testified that they did not see defendant with a gun after the officers arrived, and only one neighbor could actually hear the conversation between the defendant and the officer. Although the testimony of the neighbors may have contradicted the officer’s testimony on some particulars, such as where he parked his car and whether or not he actually exited the vehicle, defendant has failed to show, under the circumstances described in this case, that the outcome of the trial would have been different but for counsel’s failure to interview the defendant’s neighbors and call them as witnesses at trial. Mason v. State, 199 Ga. App. 691 (2) (405 SE2d 747) (1991); Yearby v. State, 195 Ga. App. 757 (395 SE2d 29) (1990). Accordingly, and inasmuch as a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous, we find defendant’s enumerations relating to his ineffectiveness claim to be without merit. See, e.g., Garrett v. State, 196 Ga. App. 872 (1) (397 SE2d 205) (1990).

2. Defendant also sought a new trial on the basis that the testimony of the neighbors constituted newly discovered evidence. A defendant seeking a new trial based on newly discovered evidence must satisfy the court as to six requirements, including that the evidence is so material that it probably would produce a different outcome. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). “Failure to show one requirement is sufficient to deny a motion for a new trial.” Id. As stated in Division 1, the testimony of the new witnesses would not have changed the outcome in this case. Consequently, defendant is not entitled to a new trial on this basis.

Decided June 4, 1992

Reconsideration denied July 2, 1992

Larsen & West, W. Washington Larsen, Jr., for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

3. We have examined the defendant’s enumeration concerning the court’s charge to the jury on the offense of aggravated assault of a peace officer and find it also to be without merit.

4. Defendant also contends that the trial court erred in refusing to give his request to charge on justification. Although defendant’s requests do not appear in the record on appeal and apparently were never filed in the court below, it is apparent from the transcript of the charge conference that defendant did in fact request such a charge, although the exact language requested does not appear. However, to the extent we can consider defendant’s enumeration based on what does appear in the transcript, we agree with the trial court that a charge on justification was not proper in this case, inasmuch as defendant never admitted aiming his gun at the officer in a threatening manner or with the intent to cause him harm. Defendant could not have been “justified” in doing acts which he never admitted committing.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0741.
    WESTERN WATERPROOFING COMPANY, INC. et al. v. ROGERS.
    (420 SE2d 606)
   Carley, Presiding Judge.

The facts relevant to this workers’ compensation case are as follows: Appellee-employee was in a business meeting with a fellow employee, Jeff Johnson. This meeting was interrupted by Stewart Gallagher, a sales representative for one of appellant-employer’s materials suppliers. Gallagher initially stated that he had come to “settle a score” with Johnson. This “score” involved a personal matter between Gallagher and Johnson and was not business-related. Although Gallagher did briefly inquire about one business project, he moved on to personal matters. After appellee made a comment to Gallagher regarding these personal matters, Gallagher began to manhandle appellee. As appellee attempted to leave, he was assaulted by Gallagher and injured.

On this evidence, the Administrative Law Judge (ALJ) awarded appellee workers’ compensation benefits and attorney’s fees. On its de novo review, the Full Board adopted the findings and conclusions of the ALJ. On appeal to the superior court, the award of the Full Board was affirmed. Appellants, employer and insurer, appeal to this court pursuant to the grant of their application for a discretionary appeal.

1. It is undisputed that appellee was not injured as the result of voluntary participation in “horseplay.” See American Mut. Liability Ins. Co. v. Benford, 77 Ga. App. 93 (47 SE2d 673) (1948). He was the victim of an unprovoked assault perpetrated by Gallagher. However, the mere fact that this unprovoked assault occurred during business hours and on business premises does not necessarily entitle appellee to workers’ compensation benefits. Appellee would not be entitled to workers’ compensation benefits if his injuries were “caused by the willful act of [Gallagher] directed against [appellee] for reasons personal to [appellee]. ...” OCGA § 34-9-1 (4).

“In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, his injuries will nevertheless be considered compensable under the [Workers’ Compensation] Act if it is shown that the animosity arose from reasons related to the employee’s performance of his work-related duties. [Cits.] Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of his work, then his injuries will not be considered compensable under the Act. [Cits.]” (Emphasis supplied.) Lindsey v. Winn Dixie Stores, 186 Ga. App. 867, 868 (1) (368 SE2d 813) (1988). “A careful review of the record reveals no evidence that the dispute between appellee and [Gallagher] was anything other than a personal one. . . . We recognize that we are bound to affirm an award of the Board if there is any evidence to sustain it. [Cit.] However, because there is no evidence that appellee’s injuries arose out of and in the course of [his] employment . . ., the superior court erred by affirming the Board’s award of compensation to appellee. [Cit.] Therefore, the judgment of the superior court is reversed. . . .” City of Atlanta v. Shaw, 179 Ga. App. 148, 149 (345 SE2d 642) (1986). Compare Commercial Constr. Co. v. Caldwell, 111 Ga. App. 1 (140 SE2d 298) (1965).

2. As a result of our holding in Division 1, the remaining enumerations are moot.

Judgment reversed.

Pope and Johnson, JJ., concur.

Decided June 16, 1992

Reconsideration denied July 2, 1992

Donald M. Shivers, for appellants.

Saveli & Williams, Mark S. Gannon, Grant G. Morain, for appellee.


author: Sognier, Chief Judge.

text:
    A91A0506.
    WIDEMAN et al. v. DeKALB COUNTY et al.
    (420 SE2d 824)
    Decided July 2, 1992.

      Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Wayne D. McGrew III, Davis & Sissel, Kenneth M. Sissel, for appellants.

      Greene, Buckley, Jones & McQueen, John D. Jones, J. Russell Phillips, for appellees.
   Sognier, Chief Judge.

In DeKalb County v. Wideman, 262 Ga. 210 (416 SE2d 498) (1992) the Supreme Court affirmed in part and reversed in part our decision in Wideman v. DeKalb County, 200 Ga. App. 624 (409 SE2d 537) (1991), in which we reversed the judgment of the trial court. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this court, and the case is remanded for proceedings consistent with that opinion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A0766.
    SINKFIELD v. THE STATE.
    (420 SE2d 824)
   McMurray, Presiding Judge.

The Supreme Court of Georgia in Sinkfield v. State, 262 Ga. 239 (416 SE2d 288), having reversed this Court’s prior judgment in this case as to defendant’s sentence, the judgment of this Court in Sinkfield v. State, 201 Ga. App. 284 (411 SE2d 68), in which this Court affirmed the trial court, is vacated in part, and the judgment of the trial court is reversed as to the sentence. This case is remanded to the trial court for resentencing in compliance with OCGA § 17-10-2.

Decided July 2, 1992.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Anne C. Allen, for appellant.

William G. Hamrick, Jr., District Attorney, David P. Oliver, Assistant District Attorney, for appellee.

Judgment reversed as to the sentence and case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A92A0374.
    MARTIN v. THE STATE.
    (420 SE2d 645)
   Andrews, Judge.

Martin was tried by a jury and convicted of possession with intent to distribute cocaine and misdemeanor possession of marijuana.

1. In his first enumeration of error, Martin argues the trial court erred in overruling his motion to suppress. In reviewing a ruling on a motion to suppress, the evidence is viewed in a light most favorable for upholding the trial court’s findings, which will be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

The evidence here was that on September 15, 1988, two undercover officers first observed defendant driving his car and drinking a quart-sized beer. Later that day, the police saw Martin in another place talking to a man with a beer in his hand.

The same afternoon, the officers saw Martin for a third time when he was parked in an area to the side of the road where drug deals were known to take place. Martin was talking with a man in a different car when the police drove by and recognized him. Martin got out of the car and into his own car. In the meantime, the other vehicle drove away and the police officers parked their vehicle where the previous car had been, which was not blocking Martin’s vehicle, and walked up to Martin. He got out of his car, with a quart of beer in his hand, as the officers approached. Although one of the officers initially pulled his weapon, by the time he was close to Martin’s vehicle, he had put his weapon away and neither officer had his weapon ready.

The officers saw a small, yellow bag of the type used to contain drugs at Martin’s feet, picked it up, and discovered 1/10 gram of marijuana. Martin denied that it was his. The officers asked Martin for his driver’s license and insurance card and he said that he did not have either. The officers noticed that Martin’s eyes were glassy and that he smelled of alcohol. One of the officers asked Martin for consent to search his car. Martin consented and began to hand the officer his keys.

The other officer found a pill bottle underneath a towel on the front seat and asked Martin what it was. At this point, Martin turned and ran before handing over the keys. The officers conducted a search of the vehicle and found a pill bottle, to which a label with a name by which Martin was known was affixed. The pill bottle contained nine small plastic baggies each of which was filled with about $10 worth of cocaine and a manila envelope containing marijuana. This evidence formed the basis of the instant charges against Martin and of his motion to suppress.

Pretermitting the issue of whether a “stop” was involved here, we note that “merely observing a can of beer in the hand of one who is otherwise driving a car or operating a boat in a safe manner does, in and of itself, constitute an articulable suspicion that a violation of OCGA § 40-6-391 or OCGA § 52-7-12 may be occurring so as to authorize a brief investigatory stop.” (Emphasis deleted.) State v. Baker, 197 Ga. App. 1, 2 (397 SE2d 554) (1990). Martin’s argument that the investigatory inquiry made by the police was unauthorized is without merit given that they had observed him drinking and driving.

The trial court’s finding that Martin’s consent to search was freely and voluntarily given was supported by the record. See generally Arena v. State, 194 Ga. App. 883 (1) (392 SE2d 264) (1990). Although Martin testified at trial, he did not contradict the officers’ testimony regarding the voluntary nature of his consent. The evidence was that Martin consented to the search, the officer found the cocaine and Martin fled. Martin’s argument that his consent was invalidated since it was predicated on an illegal detention is meritless. See Baker, supra. Martin’s initial consent combined with the fact that once the officers began talking with Martin they learned that he had no driver’s license or insurance, observed that he appeared to have been drinking, and saw the bag of marijuana at his feet, authorized the search and the trial court did not err in denying Martin’s motion to suppress. See generally Freeman v. State, 195 Ga. App. 357 (393 SE2d 496) (1990).

2. In Martin’s second enumeration of error, he argues that the trial court erred in refusing to reveal the identity of a confidential informer with regard to evidence of similar transactions. Evidence regarding the confidential informant was that on April 5, 1989, several months after the incident outlined above, for which Martin was on trial, a confidential informer rode with an undercover agent in an unmarked car. When they saw Martin, the informer introduced the agent as his cousin and asked Martin if he had any drugs. Martin admitted that he had drugs. The undercover officer then spoke with Martin and bought cocaine from him.

The undercover officer also encountered Martin on April 27, when the agent, unaccompanied by the informer, met Martin at a liquor store. At that time, the officer gave Martin money for cocaine. The same officer saw Martin at a party on April 29 when he delivered the drugs to him. The officer identified Martin in a photographic lineup and testified at trial that he was certain of Martin’s identity.

Martin claimed that the officer misidentified him and that the informer’s testimony was material to this defense. Martin, who admitted that he was a cocaine addict, also claimed that he saw the undercover agent using cocaine and that the officer performed homosexual acts in exchange for the drug.

Pretermitting the question of whether the law regarding confidential informants applies to their identity when the issue involved is evidence of similar transactions, and pretermitting the issue of whether any alleged error was properly preserved, we find no error here. Even if the identity of the informer had been involved in the charges for which Martin was on trial, the nondisclosure of identity was not erroneous. “Where an informant is a mere tipster, disclosure of his identity is not required. [Cits.] But where the informer is a witness or participant, a request for disclosure requires the trial court to balance the benefits of disclosure to the defendant against the resulting harm to the government. [Cits.] Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Citations and punctuation omitted.) Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534) (1989).

Here, after this trial had concluded, the court held, a hearing regarding the informer, apparently in the case involving other charges against Martin, to inquire into the discoverability of the informant’s identity. During the hearing, the court questioned the agent regarding the extent of his knowledge of the informer’s identity and the role the informer played in the cocaine purchase on April 5. From the transcript of that hearing which is included here, the evidence appeared to be that only one of the three collateral transactions occurred in the presence of the informant and that even that one transaction was conducted largely by the undercover agent. See generally Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988).

“Where a person merely takes an undercover agent to a location and identifies or introduces the agent to a seller of drugs, with all arrangements for the sale being wholly made by the agent, even if the sale is witnessed by the introducer, such introducer is nothing more than an informer and acts as a tipster only. Under the facts before the trial court, there were no discovery rights in the tipster mandated by Brady v. Maryland, and thus the disclosure rested within the sound discretion of the trial court. We discern no abuse of that discretion in this case.” (Citations and punctuation omitted.) Brinson v. State, 188 Ga. App. 214, 215 (372 SE2d 487) (1988); see also Josey v. State, 199 Ga. App. 780 (1) (406 SE2d 125) (1991).

3. Martin’s third enumeration of error asserts that the trial court erred in admitting evidence regarding the cocaine sales he allegedly made to the undercover agent in April 1989 for which he has been subsequently indicted. He argues first that he did not commit the subsequent crimes and secondly that it was improper for the subsequent crimes to bear on the issue of the intent in the intent to distribute cocaine charge from September 1988. Martin admitted that he had a cocaine problem and that the cocaine found in the car was his, but claimed that the drug was for his own personal use.

“[BJefore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Punctuation and citations omitted.) Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

These criteria were met here. Although the defendant denies the subsequent offenses, there was sufficient evidence regarding his identity and sufficient similarity regarding the independent crimes to allow introduction of them. “In deciding whether to admit evidence of independent crimes, it is not necessary for the state to prove beyond a reasonable doubt that the defendant was the perpetrator or that the crime occurred. Wallace v. State, 246 Ga. 738 (5) (273 SE2d 143) (1980).” Kilgore v. State, 251 Ga. 291, 297 (3) (b) (305 SE2d 82) (1983); Martin v. State, 198 Ga. App. 488 (402 SE2d 95) (1991). We are satisfied that sufficient evidence was adduced at trial to show that Martin was the perpetrator in that the undercover agent testified regarding his three separate encounters with Martin and subsequent identifications of him. In fact, Martin himself testified that he had seen the undercover agent one night at a crack cocaine house. See State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980). The subsequent crimes involving the sale of cocaine were also sufficiently similar to the crimes at issue to allow this evidence. Furthermore, the jury was instructed that the evidence of the other crimes was introduced for the limited purpose of establishing the mental state, identity, or intent of the defendant as it related to the charge of possession of cocaine with intent to distribute. See Johnson, supra at 656.

4. In appellant’s fourth enumeration of error, he argues that the trial court erred in not declaring a mistrial, or at least replacing a juror, after the judge noticed one of the jurors apparently sleeping during the jury charge. The record reveals that the court stated: “[L]et the record show, as far as I can tell they were all awake and heard what I said. Unless you all have some complaint on it, gentlemen, I’m going to go ahead with it.” No objections were raised and Martin is barred from asserting this argument. Barnwell v. State, 197 Ga. App. 116 (4) (397 SE2d 717) (1990).

5. In his fifth enumeration, Martin contends that there was insufficient evidence of misdemeanor marijuana possession to sustain the verdict against him. Martin denied that the marijuana found at his feet outside the car was his, but admitted that the pill bottle found in the vehicle was his. There was ample testimony that the pill bottle contained a second manila envelope which contained marijuana. In fact although Martin was uncertain as to whether the marijuana was inside the pill bottle he testified: “I think I had already rolled them up into joints, just rolled.” The evidence was sufficient to convict and this enumeration is without merit. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. In his sixth enumeration of error, Martin argues that his counsel at trial was not effective. Martin claims he was denied a fair trial because his appointed trial counsel failed to make several motions or objections at critical points in the trial.

At the outset, we must determine whether this enumeration is properly before the court. Martin filed a motion for new trial through his trial counsel on October 12, 1989, but did not raise the issue of ineffective assistance of counsel. On June 13, 1990, the court entered an order allowing defense counsel to withdraw from the case based on defense counsel’s potential conflict of interest. On that same date an order was entered ordering present counsel to handle the appeal. On July 26, 1991, 13 months after appellate counsel was appointed, a rule nisi was entered in the case setting the motion for a hearing on October 2, 1991. A hearing was held on the motion, and although there is no transcript of the hearing before us, the motion was denied on October 2, 1991. The notice of appeal was filed on October 17, 1991.

Decided July 2, 1992.

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

There is no indication from the record before us that the issue of ineffective assistance of counsel was ever raised in the trial court. Claims relating to the effectiveness of trial counsel must be raised at the earliest practicable moment. See Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991); Battle v. State, 195 Ga. App. 542 (6) (394 SE2d 788) (1990). “[0]ur Supreme Court, through a series of cases, has fashioned a procedure whereby the appellate court, in deciding whether it should remand the case, should look to whether the issue of ineffectiveness was raised at the earliest practicable moment.” (Punctuation and citations omitted.) Weems v. State, 196 Ga. App. 429, 430 (3) (395 SE2d 863) (1990).

Here, appellate counsel had ample opportunity to raise this issue before the trial court. Over 15 months elapsed between the appointment of appellate counsel and the hearing on the motion for new trial during which appellate counsel could have raised this argument. Having failed to do so, appellant is barred from asserting this argument here. Compare Wallace v. State, 199 Ga. App. 817 (406 SE2d 140) (1991), and In the Interest of G. G. L., 199 Ga. App. 357 (405 SE2d 100) (1991).

7. Finally, appellant asserts that the trial court erred in failing to grant a new trial. This enumeration is without merit.

Judgment affirmed.

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


text:
    A92A0679.
    COOLER v. BAKER.
    (420 SE2d 649)
   Pope, Judge.

Appellant/plaintiff Cindy A. Cooler was employed from June 1986 to January 1990 at M. C. Anderson Construction Company as secretary to Thad Ackerman. Although plaintiff only worked for Ackerman, she occasionally did small tasks for appellee/defendant Robert Baker. Baker is the son-in-law of M. C. Anderson, the owner of the company. After plaintiff was involuntarily separated, she filed an intentional infliction of emotional distress claim against Ackerman, Baker and M. C. Anderson, individually and d/b/a M. C. Anderson Construction Company. Defendant Baker moved for summary judgment and the trial court granted his motion. Plaintiff appeals.

In her complaint, plaintiff alleges that Baker used foul and abusive language to her in the presence of others and that she was offended by that language. During plaintiff’s deposition the following colloquy took place concerning Baker’s conduct that was offensive to her: “[Defendant’s attorney:] Is Robert Baker a major part ,of this suit? [Ms. Cooler:] Robert Baker used foul and abusive language to me. He called me a name every time he walked into the office, every time he saw me, “hi, wench, how you doing,” regardless of who was around or whatever. . . . [Defendant’s attorney:] How would you react then? [Ms. Cooler:] I just carried on like, you know, this is the boss’ son-in-law, and you know, you don’t say don’t call me that name, because you might be fired for something like that. [Defendant’s attorney:] So you are saying you never told him not to call you that? [Ms. Cooler:] I never said anything to him to let him know because I was afraid that could cost me my job.”

1. We hold that the trial court did not err in granting Baker’s motion for summary judgment. “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.]” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (409 SE2d 835) (1991). “[I]t is not enough that [Baker’s] conduct in [this] situation is intentional or that it is wilful and wanton. In order to warrant recovery . . . the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. [Cits.] The Restatement (Second) of Torts, [Ch. 2, Emotional Distress,] § 46 (1), comment d, after discussing the generally recognized requirement for extreme and outrageous conduct as a prerequisite for liability in emotional distress tort cases observes that: ‘(t)he liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of . . . filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.’ ” (Emphasis supplied and omitted.) Moses v. Prudential Ins. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

Baker’s use of the word “wench” to refer to plaintiff does not arise to the level of outrageousness necessary to support a claim against Baker.. Furthermore, plaintiff’s own testimony shows that she was not severely offended by Baker’s use of the term “wench” to refer to her — she never asked him to stop using the term to refer to her nor was she concerned enough about the negative implications of the term to discover its meaning before she was terminated by M. C. Anderson Construction Company. Thus, considering the totality of circumstances of this case, we hold that Baker’s conduct did not rise to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress.

Decided July 2, 1992.

Clark & Clark, Fred S. Clark, for appellant.

Oliver, Maner & Gray, James P. Gerard, for appellee.

2. Plaintiff further contends that the trial court erred by not giving due consideration to plaintiff’s “delicate” personality. As we recently recognized in Williams v. Voljavec, 202 Ga. App. 580, 582 (415 SE2d 31) (1992) “[a] defendant’s knowledge of a plaintiff’s particular susceptibility to injury from emotional distress is often critical in weighing the extreme and outrageous character of conduct. . . .” Plaintiff failed to show that Baker had any knowledge of her particular susceptibility. Although there is evidence that plaintiff was sexually and otherwise harassed by Ackerman at work and also had family problems, there was no evidence presented that Baker had knowledge of Ackerman’s conduct or of plaintiff’s family problems. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1270.
    KELLY v. THE STATE.
    (420 SE2d 651)
   McMurray, Presiding Judge.

Defendant Kelly appeals his conviction of the offenses of armed robbery and aggravated assault. Held:

1. In his first two enumerations of error, defendant attempts to assert issues which were not preserved by defendant’s objections at trial. “ ‘If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.’ [Cits.] An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal.” Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395).

Defendant’s first enumeration of error relates to the State’s use of a witness’s prior inconsistent statement. The only objection at trial was that the prosecuting attorney was reciting the entire statement without breaking it into segments, while the issues argued on appeal are that the State did not lay a proper foundation to introduce the prior statement and that the trial court erred in allowing the State to read the statement with the jury present.

Decided July 2, 1992.

E. Ronald Garnett, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Katherine F. Bond, Assistant District Attorneys, for appellee.

The second enumeration of error deals with the admission into evidence of one of the State’s exhibits, the bloodstained shirt which the victim was wearing at the time of the aggravated assault. Defendant’s only objection at trial was to the relevance of the exhibit, while on appeal he contends that the exhibit was presented to inflame and prejudice the jury, and was improperly admitted during re-direct examination of a witness.

2. Defendant’s final enumeration of error contends that the evidence presented at trial was not sufficient to authorize his conviction. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).” Williams v. State, 202 Ga. App. 650, 651 (1) (415 SE2d 67).

The evidence stated in the light most favorable to supporting the verdict shows that the victim was home alone when a neighbor, having trouble with an overheating automobile, arrived accompanied by defendant. The victim had never seen defendant before that day. After putting some water in the car, the neighbor and defendant left. Approximately 15 minutes later the defendant returned alone. Defendant requested a loan of $20 from the victim. After the victim refused to make such a loan, defendant threatened the victim with a knife, cutting a chair and then stabbing the victim and striking him about the head with a pot. Defendant continued stabbing the victim with various utensils even after he surrendered his wallet containing $82. The victim received over 50 stab wounds and was blinded in one eye. There was ample evidence from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Williams v. State, 202 Ga. App. 650, 651 (1), supra.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.