text:
    A92A1586.
    POSS et al. v. CITY OF NORTH AUGUSTA, SOUTH CAROLINA et al.
    (424 SE2d 73)
   Carley, Presiding Judge.

In this wrongful death action, the following relevant facts are undisputed: Appellant-plaintiffs’ 18-year-old son was killed in an automobile crash. At the time of the crash, he was a passenger in an automobile being driven by his unlicensed 15-year-old friend. The friend had taken his mother’s automobile without her knowledge or consent and had removed the rear license plate. While in North Augusta, South Carolina, the boys filled the gas tank át a service station and drove off without paying. This was reported to the police and an officer, having been advised of the crime by the dispatcher, observed the automobile greatly exceeding the speed limits and running traffic signals. The officer gave pursuit with lights and siren activated. This officer followed the car into Augusta, Georgia, where local law enforcement officers joined in the chase, also using lights and sirens. During the chase, the friend lost control of the automobile and both boys died of injuries received in the ensuing crash. Appellants initiated the instant wrongful death action against the City of North Augusta, South Carolina and the City of Augusta, Georgia. After discovery, summary judgment was granted in favor of both appellees. Appellants appeal this grant of summary judgment.

1. In a state law tort action, neither of the appellees can be held vicariously liable for the acts attributed to their police officers. “ ‘A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.’ OCGA § 36-33-3; [cit.]” McDay v. City of Atlanta, 204 Ga. App. 621, 622 (3) (420 SE2d 75) (1992). Accordingly, any factual issue remaining as to whether the negligence of appellees’ police officers was the cause of the death of appellants’ son is immaterial, since appellees cannot be held vicariously liable for that alleged negligence. Therefore, the trial court correctly granted summary judgment as to appellants’ state law tort claim.

Decided October 22, 1992.

Bonner & Jones, G. Larry Bonner, for appellants.

Nixon, Yow, Waller & Capers, Ziva P. Bruckner, Surrett, Walker, Creson & Colley, Edward, J. Coleman III, for appellees.

2. Liability also was predicated upon 42 USC § 1983. In order to state a claim pursuant to 42 USC § 1983, however, it is necessary to allege that the plaintiff was deprived of a constitutional right by one who was acting under color of state law or custom. Davis v. City of Roswell, 250 Ga. 8, 9 (1) (295 SE2d 317) (1982). “[A] local'government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dept. of Social Svcs. of N. Y., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). 42 USC § 1983 creates “a cause of action, cognizable in the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right. Such a policy may be formal or informal, acknowledged or vigorously denied, persistent or intermittent, or implemented by but one single act. What is required to be proved, directly or circumstantially, is that a governing body has worked [a due process] deprivation of a citizen [’s constitutionally protected right] pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Emphasis in original.) City of Cave Spring v. Mason, 252 Ga. 3, 4-5 (310 SE2d 892) (1984). “ ‘(A)utomobile negligence actions (against a policeman acting in the line of duty) ... do not rise to the level of a constitutional deprivation.’ ” (Emphasis supplied.) Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300, 305 (4) (357 SE2d 569) (1987).

It is undisputed that each appellee had promulgated guidelines which defined and regulated the circumstances and manner under which a high speed chase would be authorized. The very existence of these regulations is sufficient to rebut any unsubstantiated allegation that appellees were “ ‘deliberately indifferent or grossly negligent in respecting citizens’ rights or (that [they]) tacitly authorized constitutionally offensive conduct. . . . [Cit.]’ [cit.] . . . [T]he trial court correctly granted summary judgment as to [appellants’] 42 USCA § 1983 claims.” Martin v. Ga. Dept. of Pub. Safety, supra at 305 (4).

Judgment affirmed.

Pope and Johnson, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A92A1594, A92A1595.
    TMS INSURANCE AGENCY, INC. v. GALLOWAY (two cases).
    (424 SE2d 71)
   Beasley, Judge.

This case is before the court pursuant to direct appeal and our grant of plaintiff/counter-defendant TMS Insurance Agency’s application for discretionary appeal, from an order denying its motion to set aside a judgment under OCGA § 9-11-60 (d). OCGA § 5-6-35 (a) (8) “makes it clear that an application must be filed to appeal from an order denying a motion to set aside a judgment.” State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989). The appeal in Case No. A92A1594 is accordingly dismissed. The issue is whether TMS’ failure to receive notice either of a hearing on defendant/counterclaimant Galloway’s motion to impose sanctions or of a damages trial resulting in an award on Galloway’s counterclaim, constituted a nonamendable defect on the face of the record which required setting aside the judgment under OCGA § 9-11-60 (d) (3).

TMS sued Galloway, its former employee, for commissions allegedly paid based upon premiums never received by the agency. Galloway counterclaimed for additional commissions allegedly owed upon termination of her employment and for expenses of litigation and attorney fees under OCGA § 9-15-14. Simultaneously, she served TMS with a notice to produce, request for production of documents and first interrogatories. Two months later, TMS filed responses to the discovery requests, which Galloway claims were incomplete. Despite further requests for more complete discovery responses, none was forthcoming.

Galloway moved to compel discovery, OCGA § 9-11-37, and requested sanctions under OCGA § 9-11-37 (b) (2) (C), serving TMS’ counsel of record. By order of November 8, 1990, the trial court denied the motion for sanctions but ordered TMS to fully respond to discovery requests within 21 days.

Later in November, the trial court granted TMS’ counsel permission to withdraw from the case based on an asserted conflict of interests. The court also ordered that “all further notices in this action be directed to [TMS].”

On December 31, Galloway again sought to impose sanctions for TMS’ failure to timely respond to the court’s November 8 order compelling discovery. In that motion, Galloway represented to the court that her attorney had mailed a service copy of the November 8 order both to TMS’ former counsel and to “TMS Insurance Agency, Inc.” The certificate of service attached to the motion reflects this service. Although a response was filed by former counsel in his individual capacity, none was received on behalf of TMS.

After a hearing on April 29, 1991, the court granted Galloway’s motion to impose sanctions, ordered dismissal of the complaint and entered default judgment for her on the counterclaim “in an amount to be determined at a later date.”

On July 8, after hearing evidence, the court entered judgment for Galloway on her counterclaim for $99,349 plus attorney fees of $2,450.28. TMS was thereafter served with post-judgment interrogatories, notice to produce and request for production of documents.

TMS filed a “motion to set aside judgment and order, for issuance of a protective order, and for stay of post-judgment proceedings,” under OCGA § 9-11-60 (d) (2) and (3), in which it claimed to have received no notice of motion from the State Court of Cobb County scheduling the April 29 hearing on the motion to impose sanctions or notice of the non-jury trial resulting in the entry of default judgment to Galloway on her counterclaim. Notice of the April 29 hearing had been sent by the clerk of court to Galloway’s counsel and to TMS’ former counsel of record. TMS’ president averred by affidavit that the corporation had not received notification of the hearing from either the court or from its former counsel. Former counsel confirmed that he did not notify TMS of the April 29 hearing.

As to the June 8 non-jury trial, the record shows that it appeared on a “civil non-jury calendar” in the official legal organ of the county showing that “default” proceedings were to take place in this case on the following day. The publication notice listed TMS’ former counsel as counsel of record; however, he did not learn of the pendency of the proceedings until the morning of the trial when he was contacted by Galloway’s counsel. He neither notified TMS nor attended the trial. TMS was unaware of the proceedings and was unrepresented.

The court denied the motion to set aside.

TMS contends that the trial court erred because there was a nonamendable defect on the face of the record, OCGA § 9-11-60 (d) (3), to wit: the absence of notice of the April 29 hearing on the motion to impose sanctions or the July 8 non-jury trial awarding default judgment to Galloway on her counterclaim. Our ruling is confined to notice of the April 29 motion hearing.

“The failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of the judgment under OCGA § 9-11-60 (d) (3).” Housing Auth. of Atlanta v. Parks, 189 Ga. App. 97, 98 (374 SE2d 842) (1988). Accord Coker v. Coker, 251 Ga. 542 (307 SE2d 921) (1983).

The trial court concluded that notice of the motion hearing through publication in the Marietta Daily Journal, the official county organ, constituted proper service. It predicated its ruling on Carson v. Morris, 164 Ga. App. 732 (297 SE2d 513) (1982), in which we stated that publication was sufficient notice under OCGA § 9-11-40 (c). However, that statute controls notice of trial, and “refers only to notice. Notice of a hearing on a motion, however, is required by OCGA § 9-11-6 (d) to be served. Service of such notice is controlled by OCGA § 9-11-5 (b), which provides specific means by which service may be accomplished and does not make provision for service by publication . . . . [P]ublication of notice of a motion hearing date is not, by itself, sufficient compliance with § 9-11-6 (d).” (Emphasis in original.) Goodwin v. Richmond, 182 Ga. App. 745 (356 SE2d 888) (1987). Since TMS carried its burden of showing that it did not receive notice of the hearing, we must conclude that the denial of the motion to set aside constituted error. Compare Housing Auth. of Atlanta, supra. The hearing on the motion having been flawed for lack of notice to TMS, the question of notice of trial is moot.

Decided October 22, 1992.

Friedman & Montalto, Steven Montalto, David J. Salome, for appellant.

Manko & Lyle, J. Stephen Manko, for appellee.

TMS’ remaining enumerations of error are also rendered moot by the foregoing.

Appeal dismissed in Case No. A92A1594; judgment reversed in Case No. A92A1595.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A92A1018.
    ROSS v. THE STATE.
    (424 SE2d 308)
   Johnson, Judge.

Charles Ross was convicted of the sale of cocaine, trafficking in cocaine, and possession of marijuana. Ross appeals from the convictions and the denial of his motion for a new trial.

1. Ross contends that the trial court erred in allowing an inculpatory statement allegedly made by him to be admitted into evidence prior to holding a Jackson v. Denno hearing outside the presence of the jury. This enumeration is without merit.

An undercover agent who bought cocaine from Ross testified that Ross told her that he lived in the apartment where she bought the cocaine. Ross objected to this testimony on hearsay grounds. The trial court properly overruled his objection. Ross then requested that the court determine whether Ross’ statement was voluntarily given, but did not request that this determination be made outside of the jury’s presence. Testimony was elicited from the agent that Ross spoke freely and voluntarily after being advised of his Miranda rights. The agent then repeated Ross’ statement at which point Ross requested a hearing outside of the jury’s presence to determine the voluntariness of the statement. The court excused the jury, held a Jackson v. Denno hearing, and determined that Ross’ statement was made voluntarily. At the close of the hearing, the jury returned to the courtroom and heard the statement allegedly made by Ross for the third time.

We note at the outset that Ross’ statement did not require a Jackson v. Denno hearing as it was not a confession, rather it was merely a statement which indicated that he lived in the apartment where the agent purchased cocaine. Further, Ross made the statement after being advised of his Miranda rights. Nevertheless, Ross claims that the court erred in allowing the statement to be heard in front of the jury.

The record shows that Ross never requested a hearing outside of the jury’s presence until after the agent made the statement a second time. While it would have been better practice for the trial court sua sponte to have held a hearing outside of the jury’s presence to determine the voluntariness of Ross’ statement, its failure to do so did not constitute harmful error because it was ultimately determined that the statement was given freely and voluntarily. Harm as well as error must be shown to authorize a reversal by this court. Abdsharafat v. State, 195 Ga. App. 837, 840 (395 SE2d 61) (1990).

2. In his second enumeration of error, Ross contends that the trial court erred in allowing the state to present testimony that he forfeited his appearance bond by failing to appear at a calendar call. Ross argues that this testimony was improperly admitted as evidence of flight.

In Renner v. State, 260 Ga. 515 (397 SE2d 683) (1990), the Supreme Court of Georgia ruled that giving a jury instruction on flight in a criminal case constitutes error. However, it is permissible for counsel to present evidence of and argue flight to the jury. Id. at 518. We have previously ruled that evidence that an accused forfeited his appearance bond is admissible as tending to show flight. Johnson v. State, 148 Ga. App. 702, 703 (252 SE2d 205) (1979); see also Morris v. State, 163 Ga. App. 118, 119 (293 SE2d 866) (1982). Accordingly, we find no error.

3. Ross further contends that there was insufficient evidence presented at trial to support his convictions.

Ross’ wife testified that Ross had sold drugs from his apartment. An undercover agent testified that Ross had sold cocaine to her while in his apartment. Additional evidence presented at trial showed that Ross had in his possession and control more than twenty-eight grams of cocaine of greater than ten percent purity (see OCGA § 16-13-31) and less than one ounce of marijuana (see OCGA § 16-13-30) at the time of his arrest. Reviewing the evidence in the light most favorable to the verdict of the jury, we find that a rational trier of fact could have found Ross guilty beyond a reasonable doubt of trafficking in cocaine, sale of cocaine and possession of marijuana. Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in entering judgment on the verdict.

Decided October 23, 1992.

Robert A. Maxwell, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Nancy A. Grace, Joseph F. Buford, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

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


text:
    A92A1636.
    FAULKNER et al. v. THE STATE.
    (424 SE2d 287)
   Johnson, Judge.

Ronald and Tommy Faulkner were convicted of burglary. A motion for a new trial was denied, and they appeal.

1. The Faulkners allege that the trial court erred in admitting similar transaction evidence. The state introduced into evidence certified copies of two indictments bearing guilty pleas, one for an offense committed by Tommy Faulkner only, the other involving both Ronald and Tommy Faulkner. The officer who proffered the documents was not employed by the sheriff’s department at the time of either offense and therefore had no personal knowledge regarding details of either incident. Presentation of evidence of similar crimes solely by introducing certified copies of guilty pleas was held to be reversible error in Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496) (1991). In Little, this court relied on the procedures for admission of prior criminal transactions outlined recently in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), which place an affirmative burden on the state to establish the similarity between the former transaction and crime being prosecuted. The mere recitation of the nature of the crime stated on the face of the indictment does not establish a nexus with the crime being tried to satisfy the requirements of Williams and Stephens, supra. Accordingly, we reverse.

2. The Faulkners contend that the trial court erred by refusing to instruct the jury on the lesser included offense of theft by receiving. This enumeration is wholly without merit. As in Faust v. State, 189 Ga. App. 426 (375 SE2d 889) (1988), the Faulkners were indicted for burglary only. “Theft by receiving stolen property is not a lesser included offense of burglary. [Cits.]” Id. at 427. “A defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending. [Cit.]” Ford v. State, 201 Ga. App. 382 (1) (411 SE2d 334) (1991). The trial court correctly refused to charge the jury on the offense of theft by receiving stolen property.

Decided October 7, 1992 —

Reconsideration denied October 26, 1992.

David C. Jones, Jr., for appellants.

Timothy G. Madison, District Attorney, for appellee.

Judgment reversed.

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


author: Sognier, Chief Judge.

text:
    A92A1392.
    DUPREE v. THE STATE.
    (424 SE2d 316)
   Sognier, Chief Judge.

Jeffery Luke Dupree was convicted of aggravated child molestation, statutory rape, incest, cruelty to a child, enticing a child for indecent purposes, and two counts of aggravated sodomy in connection with offenses against his eight-year-old stepdaughter. He appeals from the denial of his motion for new trial.

1. Appellant contends in two enumerations that the trial court’s decision to admit certain evidence of the victim’s statements pursuant to OCGA § 24-3-16 was error because the circumstances of the statements did not provide sufficient indicia of reliability.

(a) The State was permitted to play for the jury two videotapes of interviews with the victim. Although appellant did object at trial to the admission of the videotapes, he did not raise at trial the ground now asserted on appeal. “ ‘Issues raised for the first time on appeal will not be considered by this court. (Cits.)’ [Cit.]” Cooper v. State, 200 Ga. App. 560 (1) (408 SE2d 797) (1991). Nonetheless, our review of the record persuades us that the indicia of reliability outlined in Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991) were present in this case. Moreover, as in Gregg, supra at 241 (3) (c), the victim testified at trial and was subject to cross-examination, thereby providing an additional safeguard of appellant’s rights.

(b) Liberally construed, appellant’s objection at trial to the admission of the victim’s mother’s testimony concerning statements made to her by the victim did encompass the reliability issue raised -on appeal; therefore, we will address this enumeration. Before the State questioned the mother about the victim’s statements concerning appellant’s conduct, the trial court conducted a hearing outside the presence of the jury to ascertain whether the circumstances of the statements provided sufficient indicia of reliability. This inquiry established that the victim raised the issue of appellant’s molestation of her when she was alone with her mother; that she appeared sad and was crying; that the victim stated she had not told her mother of the abuse earlier because appellant had threatened to “beat her brains out” if she told anyone; that she explained she was breaking her prior silence because appellant had hurt her so badly recently that she wanted him to stop; and that there was no evidence of improper inducement of this statement or coaching by others. We note also that this description of the abuse was consistent with subsequent statements made by the victim and with her trial testimony. Given these circumstances, the trial court did not err by admitting the testimony. See Gregg, supra at 240-241 (3) (b).

2. In his remaining enumeration, appellant contends the trial court erred by precluding him from asking his niece, Robin Massengale, about statements the victim and her mother allegedly made to Massengale about alleged sexual advances made by the victim’s teenaged cousin, Ralph Norton.

At trial, appellant proffered this testimony to impeach the credibility of the victim and her mother by showing they had made prior false allegations of molestation against Norton. Appellant repeated this argument in his motion for new trial, and the trial court responded by conducting a post-trial hearing pursuant to Shelton v. State, 196 Ga. App. 163, 164 (4) (395 SE2d 618) (1990) to determine whether there existed a reasonable probability of a false allegation. At this hearing, Norton denied having made any improper advances of a sexual nature toward the victim. Massengale testified that the victim and her mother once told Massengale that Norton had tried to “mess with” the victim, but Massengale also acknowledged that she “[did not] know if it had anything to do with sex.” Concluding that Massengale’s testimony was too vague and equivocal to establish a reasonable probability of falsity, the court denied the motion for new trial.

On appeal, appellant now contends that under the authority of Hall v. State, 196 Ga. App. 523, 524-525 (2) (396 SE2d 271) (1990), he was entitled to present Massengale’s testimony concerning the allegations against Norton to establish other possible causes for the victim’s physical manifestations of molestation. In addition to raising a ground not presented below and thus not preserved for appeal, see Cooper, supra, this argument is wholly inconsistent with both the rationale appellant advanced at trial and also with the testimony of Norton, appellant’s witness at the motion for new trial. At trial and in his motion for new trial, appellant contended the allegations against Norton were false, but on appeal he now contends he should have been allowed to raise the issue because the allegations were or may have been true. Under these circumstances, we hold the trial court’s ruling was correct and the argument raised on appeal presents nothing for review.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided October 26, 1992.

Howard & Delaney, Stephen A Delaney, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.


text:
    A92A1534.
    BOWLES v. CSX TRANSPORTATION, INC.
    (424 SE2d 313)
   Johnson, Judge.

Robert M. Bowles appeals from the grant of CSX Transportation, Inc.’s motion for summary judgment. Bowles initiated this action under the terms of the Federal Employers’ Liability Act (FELA), 45 USCA § 51, to recover for personal injuries sustained by Bowles during the performance of his duties as a railroad worker for CSX. Count 1 of the complaint alleges that Bowles sustained an injury to his back while going up two stairs to enter the yard office to check his work assignment. Count 2 of the complaint alleges that Bowles has sustained hearing loss as a result of violations of the Locomotive Boiler Inspection Act, (BIA), 45 USCA § 23.

1. In his deposition Bowles stated that while going up the steps he heard a “pop” in his back. Although alleged in the complaint, there is no evidence in the record that Bowles fell. He admitted that he has never complained about the condition of the stairs and has gone up them many times. The record contains Bowles’ statements that he was not carrying anything when the incident occurred nor was it dark or wet.

“While the FELA does provide for a cause of action against the employer for negligent conduct which causes an injury to an employee, the Act does not make the employer an insurer of the employee for any injury he receives. [Cit.] Nevertheless, the employer has a duty to provide the employee a reasonably safe workplace which includes safe conditions, tools, facilities, and supervision. [Cit.]” Currin v. Seaboard System R., 187 Ga. App. 751, 752 (371 SE2d 142) (1988).

CSX argues that no evidence was presented which would establish that Bowles’ back injury was the result of its negligence. In support of its position CSX relies on an unpublished fourth circuit case, Aliberti v. National R. Co. Passenger Corp., 936 F2d 567 (4th Cir. 1991). This rara avis among FELA cases granted summary judgment to the railroad in a case in which the plaintiff injured his back while exiting a van which had stopped on uneven ground. In affirming the summary judgment entered by the district court, the court held that the event was unforeseeable. Factually, Aliberti is distinguishable from the case at bar. The railroad in Aliberti had no control over where the driver of the van would stop to discharge the workers. Here, an inspection of the yard might have revealed a potential danger in the stairs which are a readily apparent, static feature of the workplace.

Bowles has submitted the affidavit of a professional engineer who opined that the stairs violated numerous codes and industry standards and could have contributed to Bowles’ injuries. “An affidavit may be considered even if conclusions are intermingled with facts. Furthermore, opinion evidence by the nonmoving party can be sufficient to preclude an award of summary judgment.” (Citations omitted.) Hepner v. Southern R. Co., 182 Ga. App. 346, 349 (356 SE2d 30) (1987).

“ ‘Under (the FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes. . . .’ [Cits.]” (Emphasis supplied.) Gilbert v. CSX Transp., 197 Ga. App. 29, 31 (2) (397 SE2d 447) (1990). Despite the paucity of evidence in this case, the áffidavit creates issues of fact which prevent us from concluding as a matter of law that the condition of the stairs did not contribute to Bowles’ injury. Summary judgment as to that claim must be reversed.

2. Summary judgment was proper with regard to Bowles’ claim for hearing loss under BIA. Bowles has not offered any medical evidence of the etiology of his complaint. Expert testimony is required where the disposition of a “medical question” controls the resolution of a case. Eberhart v. Morris Brown College, 181 Ga. App. 516, 518 (1) (352 SE2d 832) (1987); Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (2) (345 SE2d 904) (1986). The same standard applies in FELA cases. See Hines v. Consolidated Rail Corp., 926 F2d 262 (3rd Cir. 1991); Moody v. Main Central R. Co., 823 F2d 693 (1st Cir. 1987).

Bowles’ claim for hearing loss is based entirely on his testimony that he was exposed to noise from engines and horns from which we are being asked to extrapolate a causal link. Bowles has offered no evidence of any defect in CSX’s equipment, or any violation of BIA or FELA, nor has he alleged that his injury was the result of any negligence of CSX with regard to that equipment. See Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601 (356 SE2d 548) (1987); Parrot v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978). In the absence of any evidence of causation, this claim must fail.

Decided October 26, 1992.

Burge & Wettermark, Michael J. Warshauer, for appellant.

Alston & Bird, Jack H. Senterfitt, for appellee.

Bowles’ hearing loss claim is barred by a three-year statute of limitation, in any event. 45 USCA § 56. In 1983, Bowles was informed by Dr. Ronald Watson, an otolaryngologist, that tests revealed a bilateral high frequency hearing loss. As in Robb v. CSX Transp., 204 Ga. App. 690 (420 SE2d 370) (1992): “[A] plaintiff cannot avoid the statute of limitation by choosing to ignore the early signs and symptoms of his disease ... a plaintiff has a duty to investigate an injury and the cause of the injury when he experiences symptoms of an injury. Thus, it has been held that a claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known.” (Citations and punctuation omitted.) 45 USCA § 56 provides that “[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.” The date of. accrual of the claim was the date that Bowles was told of his condition. This action was filed on June 1, 1990, over five years after learning that he had sustained some hearing loss, and over two years after the applicable statute of limitation had run. The trial court correctly granted summary judgment to CSX on the hearing loss claim.

Judgment affirmed in part and reversed in part.

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

       In Pehowic v. Erie Lackawanna R. Co., 430 F2d 697 (3rd Cir. 1970) the third circuit adopted a “zero probability” test with respect to summary judgment in FELA cases. The court held: “[A] trial court is justified in withdrawing . . . issues from the jury’s consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee.” Id. at 699-700.


author: McMurray, Presiding Judge.

text:
    A92A1723.
    FULLER ENTERPRISES, INC. v. HARDIN CONSTRUCTION GROUP, INC.
    (424 SE2d 311)
   McMurray, Presiding Judge.

Fuller Enterprises, Inc. (plaintiff), a South Carolina corporation, filed a petition against Hardin Construction Group, Inc. (defendant), seeking entry of a judgment on an arbitration award entered in favor of plaintiff and against defendant. More specifically, plaintiff alleged that it entered into a contract with defendant to provide defendant with labor, materials and equipment on a construction project in Stone Mountain, Georgia; that the parties resolved a dispute under the construction contract pursuant to a contractual provision providing for binding arbitration; that the arbitration award has not been vacated or modified and that the arbitration award directs defendant to pay plaintiff “$29,115.00 on its claims and $1,050.32 for administrative fees and expenses of the American Arbitration Association.”

The parties filed opposing motions for summary judgment and evidentiary material. Defendant also filed a motion to dismiss, arguing that the plaintiff’s petition is subject to dismissal for failure to comply with the registration and bonding requirements of the Nonresident Contractors Act. See OCGA § 48-13-37. The trial court granted defendant’s motion to dismiss. This appeal followed. Held:

1. “A nonresident contractor desiring to engage in the business of contracting in this State must register with the State Revenue Commissioner ‘for each contract when the total contract price or compensation to be received amounts to more than $10,000.00. . . .’ OCGA § 48-13-31. [Further, before] entering into the performance of the contract, a contractor must execute a bond in an amount equal to 10% of the contract price or compensation to be received, OCGA § 48-13-32 (c) (1); when this is impracticable, a blanket or master bond is to be executed. OCGA § 48-13-32 (c) (2). . . . Under OCGA § 48-13-37, a party’s failure to register a general contract, a subcontract, or a sub-subcontract prohibits the maintenance of an action to recover payment for performance on such contract in the courts of this State. Cf. Sherman Stubbs &c., Inc. v. American Institute of Marketing Systems, 117 Ga. App. 829 (1) (162 SE2d 240) (1968).” Clover Cable of Ohio v. Heywood, 260 Ga. 341, 343 (2, 3) (392 SE2d 855).

In the case sub judice, there is no question that plaintiff is subject to the registration and bonding requirements of the Nonresident Contractors Act. (Plaintiff is a nonresident contractor and plaintiff entered into a construction contract in the State of Georgia for more than $10,000.) However, the Director of the Sales and Use Tax Division of the Georgia Department of Revenue executed an affidavit and deposed that plaintiff “has not registered and posted a bond with the Department of Revenue for ...” the contract between plaintiff and defendant. The Director of the Sales and Use Tax Division of the Georgia Department of Revenue also deposed that plaintiff filed “no blanket or master bond . . .” for the construction contract with the Georgia Department of Revenue. Nonetheless, plaintiff contends the trial court erred in dismissing its petition, arguing that it “substantially complied” with the Nonresident Contractors Act by paying all accrued State and local taxes resulting from the construction contract.

Decided October 26, 1992.

Sonja L. Salo, for appellant.

Smith & Fleming, Robert O. Fleming, Jr., for appellee.

It is true that late registration and payment of all taxes and revenues due the State and its political subdivisions constitute “substantial compliance” under the Nonresident Contractors Act so as to avoid dismissal of a nonresident contractor’s claim against another private party. Clover Cable of Ohio v. Heywood, 260 Ga. 341, 343 (3), 344, supra. However, in the case sub judice, plaintiff never registered the construction contract it entered into with defendant with the State Revenue Commissioner. Under these circumstances, we cannot say that plaintiff has “substantially complied” with the Nonresident Contractors Act so as to avoid dismissal of its claim against defendant. Consequently, the trial court did not err in dismissing plaintiff’s petition.

2. Plaintiff contends the trial court erred in dismissing its petition for confirmation of the arbitration award with prejudice. This contention is not supported by the record.

The trial court did not distinguish whether plaintiff’s petition was dismissed with or without prejudice. However, in order to quiet any confusion, it is noted that a dismissal of an action for non-compliance with the Nonresident Contractors Act (OCGA § 48-13-37) “should be without prejudice.” Clover Cable of Ohio v. Heywood, 260 Ga. 341, 343 (3), supra. Consequently, assuming compliance with any applicable statutes of limitation and any other procedural and substantive hurdles, the dismissal of the case sub judice in the trial court does not preclude plaintiff from refiling its petition against defendant after “substantial compliance” with the Nonresident Contractors Act.

Judgment affirmed.

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


text:
    A92A1837.
    CLARK v. THE STATE.
    (424 SE2d 310)
   Johnson, Judge.

Thelmon Clark pleaded guilty to the offenses of voluntary manslaughter, possession of a firearm by a convicted felon and possession of a firearm during the commission of a crime. Clark was sentenced to a term of 12 years to serve in prison on the manslaughter count. On the two other counts he received sentences of five years each to serve concurrently, to run consecutive to the twelve-year term, seventeen years total time to serve. Clark appeals from the trial court’s denial of his motion for concurrent sentences.

1. In his first enumeration of error, Clark asserts that the trial court erred in failing to allow all of the sentences to run concurrently. He argues that ordering two of the sentences to run consecutively violates his constitutional protection against double jeopardy. Although his argument is not completely clear, he appears to assert that the offenses of possession of a firearm by a convicted felon and possession of a firearm during the commission of a felony are both lesser included offenses of voluntary manslaughter. Therefore, they should merge, and also merge with the manslaughter offense. This issue was decided adversely to Clark in Scott v. State, 190 Ga. App. 492 (379 SE2d 199) (1989). “Georgia courts have held that the offense of possession of a firearm by a convicted felon does not merge with an offense charging possession of a prohibited weapon. The conduct prohibited by OCGA § 16-11-131 (b) is the receipt, possession, or transportation of ‘any firearm’ by ‘(a)ny person . . . who has been convicted of a felony.’ The conduct prohibited by OCGA § 16-11-106 (b) is having ‘on or within arm’s reach of (one’s) person a firearm . . . during the commission of, or the attempt to commit’ certain enumerated felonies. Under these statutes, an essential element of the former crime, but not of the latter, is the status of the accused as a convicted felon, whereas an essential element of the latter crime, but not the former, is the commission of a felony while in possession of a weapon. One crime is not ‘included’ in the other, nor do they merge factually, because each involves proof of distinct essential elements.” (Citations omitted.) Id. at 495.

Similarly, the offense of possession of a firearm during the commission of a crime is an offense separate and apart from voluntary manslaughter. “We recently wrote the following in Wiley v. State, 250 Ga. 343 (6) (296 SE2d 714) (1982): ‘The offense of possession of a firearm during the commission of a felony does not merge into the felony upon convictions for both. In 1976, the General Assembly amended Ga. Code Ann. § 26-9908a, the Code section which defines the offense of possession of a firearm during the commission of a felony. The amendment provides: “Notwithstanding any prior court decision to the contrary, any crime committed in violation of this section shall be considered a separate offense.” Ga. L. 1976, pp. 1591, 1592. “Thus, there is express legislative intent to impose double punishment for conduct which violates both Code Ann. § 26-9908a and other felony statutes.” Wilson v. Zant, 249 Ga. 373, 380 (290 SE2d 442) (1982). Such double punishment is not constitutionally prohibited, nor is it violative of our double jeopardy statutes to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution.’ ” Miller v. State, 250 Ga. 436, 437 (298 SE2d 509) (1983). The imposition of sentences to run consecutively on discrete offenses was not error. See also Moore v. State, 140 Ga. App. 824 (232 SE2d 264) (1976).

Decided October 26, 1992.

Thelmon Clark, pro se.

Michael J. Bowers, Attorney General, Robert E. Wilson, District Attorney, Elisabeth G. Macnamara, Stacy Y. Cole, Assistant District Attorneys, for appellee.

2. In his second enumeration of error Clark contends that the trial court erred when it allowed the assistant district attorney to propose that the court run the five-year sentence consecutive to the twelve-year sentence. A review of the transcript reveals that no objection was made following the state’s suggestion to the court regarding sentencing. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991). Even had an objection been timely raised, this enumeration is without merit.

Judgment affirmed.

Corley, P. J., and Pope, J., concur.


author: Cooper, Judge.

text:
    A92A1113.
    YEBRA v. THE STATE.
    (424 SE2d 318)
   Cooper, Judge.

Appellant challenges his conviction for child molestation on several grounds.

The victim, the twelve-year-old daughter of the woman appellant had lived with for two years, testified that one day while her mother was at work appellant fondled and sucked on her breasts and licked and inserted his finger into her vagina. Immediately after the second incident of this nature, the victim went to a friend’s house and told her friend and her friend’s mother what had happened. The friend’s mother noticed a bruised area on the victim’s breast and called the county sheriff’s department. The responding officer took the victim to the hospital, where a nurse also noticed the bruise on her breast and a doctor noted a redness in her vaginal area. When the responding officer and another officer went to arrest appellant, they found him with his bags packed, and although the victim’s mother denied it at trial, the officer testified that she said at the time of the arrest that appellant was getting ready to leave town. Appellant testified and denied having any sexual contact with the victim, and presented evidence indicating that the victim was having emotional problems at the time of the alleged incident. Appellant also introduced evidence that the victim had accused several other males of sexual misconduct toward her on several other occasions.

1. Appellant first contends that the victim’s testimony must be disregarded because she lied under oath, and that without her testimony the evidence against him is insufficient to support the verdict. OCGA § 24-9-85 (b) provides that “[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” Outside the presence of the jury but under oath, the victim was asked about three separate occasions on which she allegedly accused three different males of engaging in improper sexual conduct toward her. She denied making any of the accusations. The victim’s mother then testified, still outside the presence of the jury, that the victim had made such accusations on three prior occasions and that one of the accusations was made to a caseworker from the Department of Family & Children’s Services (“DFACS”). At that time, the trial court determined that the daughter was at least as credible as the mother and ruled that evidence of the previous accusations would not be admitted because appellant had not shown a reasonable probability that prior false accusations had been made. See Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) (1989). After a recess, however, a DFACS document confirming the mother’s testimony with respect to at least one of the prior accusations was produced; and the trial court reversed its earlier ruling, allowing in evidence all the prior allegations. Confronted with the DFACS report of her previous accusation, the victim said she did not remember the earlier incident.

“ ‘In order to make [OCGA § 24-9-85 (b)] applicable “it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.” [Cit.]’ ” Warnock v. State, 195 Ga. App. 537, 538 (1) (394 SE2d 382) (1990). Furthermore, ‘““[t]he rule [that testimony of a falsely swearing witness should be entirely disregarded] does not extend to situations where it is shown to be reasonably possible that the discrepancy was occasioned by ‘mistake or the failure of memory.’ ” (Cit.)’ [Cit.]” Abrams v. State, 157 Ga. App. 609, 610 (1) (278 SE2d 37) (1981); see also Williams v. State, 195 Ga. App. 376 (1) (393 SE2d 506) (1990). Because at the time of trial approximately five years had elapsed since the time of the earlier accusation to DFACS, it is plausible that the victim, who had been only eight or nine years old at the time of the accusation to DFACS, did not remember the earlier incident. Moreover, the victim’s testimony was corroborated by the testimony of others regarding the bruise on her breast and the redness in her vaginal area, as well as appellant’s apparent intention to flee. Thus, OCGA § 24-9-85 (b) did not require that her testimony be entirely disregarded. Viewing all the evidence, including the victim’s testimony, in the light most favorable to the verdict, it was sufficient to support the jury’s conclusion beyond a reasonable doubt that appellant was guilty of child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, appellant argues that the trial court improperly restricted the scope of his cross-examination of the victim. Using a diary the victim kept during the period of the molestation, appellant’s counsel successfully impeached the victim on a number of points. In particular, he was able to force the victim to admit that she skipped school and lied to her mother about it, and that she thought lying to her mother was “pretty funny.” He then asked the victim, “What else have you lied to your mother about?” The State objected, and the objection was sustained. This exchange occurred before the DFACS report confirming the mother’s testimony about prior allegations was produced and before the court decided to allow testimony regarding the victim’s prior allegations of sexual misconduct. After the court ruled the testimony about allegations made by the victim to her mother and others admissible, appellant was permitted to recall the victim for additional cross-examination and was able to thoroughly explore what the victim told her mother about what other males had done to her. Appellant makes no showing of any other incidents of lying he wished to bring out but could not, or of how he was harmed. See Walls v. State, 161 Ga. App. 625 (2) (288 SE2d 769) (1982). Under these circumstances, we hold that any restriction of appellant’s first cross-examination of the victim was cured and rendered harmless by his opportunity for further cross-examination of her after the mother’s testimony regarding prior accusations was confirmed.

3. Appellant also contends that the trial court erred in allowing the State to ask the victim’s mother whether she had believed her daughter’s earlier allegation that she was molested by her natural father. Contrary to appellant’s argument, this question did not elicit opinion evidence inadmissible under OCGA § 24-9-65 because it did not ask for the mother’s opinion as to the existence of a fact but instead asked the mother whether she believed a particular thing her daughter told her at a particular time. Nor did this question constitute impermissible bolstering of the victim’s credibility, because it did not solicit the mother’s opinion regarding the truthfulness of the victim’s testimony in this case. Compare Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991). Thus, the trial court did not err in overruling appellant’s objection to this question.

4. Appellant’s contention that the trial court improperly restricted the scope of his closing argument is also without merit. “ ‘[T]he range of comment which is proper in a case is in the discretion of the trial judge, and unless it can be shown that such discretion has manifestly been abused and some positive injury done, we will not interfere. (Cits.)’ [Cit.]” Towns v. State, 191 Ga. App. 229, 230 (2) (381 SE2d 405) (1989). Here, the trial court sustained the State’s objection to the following argument by appellant’s attorney: “Being accused of something like this is terrible. How do you think Clarence Thomas felt, whether or not he did it? How do you think Mr. Kennedy felt down in Florida?” How appellant or others felt about being accused of sexual offenses was irrelevant to any issue being tried. Thus, even if we were to assume the argument should have been allowed, any error which may have resulted was harmless. See Reeves v. State, 192 Ga. App. 12 (2) (383 SE2d 613) (1989).

Decided October 27, 1992.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A1384.
    BANKSTON v. THE STATE.
    (424 SE2d 321)
   Cooper, Judge.

Appellant was convicted by a jury of robbery by use of force, intimidation, threat or coercion and giving a false name to a police officer. He appeals from the denial of his motion for new trial.

The evidence adduced at trial reveals that the victim was walking to her car after leaving work at a local mall and was approached by two men as she opened the door to her car. One of the men demanded her purse, and the other man, subsequently identified by the victim as appellant, ordered the victim to give him her car keys. Appellant then shoved the victim and told her to get into her car, and the two men ran away while the victim screamed for help. A man hearing the victim’s screams chased the men until the man with appellant pulled out a gun. Appellant and the man got into a car driven by a female who drove away. Several police officers who had been alerted about the incident began to follow the car, and the occupants of the car subsequently abandoned the car and fled on foot into an office park. An officer saw one of the male suspects throw a shiny object into some brush. All of the suspects were subsequently captured, arrested and charged with robbery. At the police station, each of the suspects was charged with giving a false name to a police officer. The victim’s purse was found inside the car the suspects abandoned, and a gun and the victim’s checkbook were found in the area where the suspects were chased. Both co-defendants entered guilty pleas to the charges.

1. Appellant first contends that the trial court erred in denying his motion for directed verdict of acquittal on the robbery charge because there was no evidence that he used force during the commission of the robbery. “The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the ‘essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Garmon v. State, 192 Ga. App. 250 (384 SE2d 278) (1989). The victim testified that she was intimidated by the men who demanded her purse and that she gave them the purse because she believed she would be physically hurt if she did not comply. “ ‘Intimidation is constructive force, “and where property is extorted by fear, it is robbery. . . .” [Cit.]’ ” Studdard v. State, 185 Ga. App. 319, 320 (1) (363 SE2d 837) (1987). A rational trier of fact could have found appellant guilty of robbery by force and intimidation beyond a reasonable doubt, and the trial court did not err in denying appellant’s motion for directed verdict of acquittal.

2. Appellant objected to the admission of the ammunition removed from the gun found by police officers and photographs showing the area where the victim’s checkbook was found. Specifically, appellant argues that the ammunition was not relevant to the State’s case against him because it was taken from a gun belonging to the co-defendant and the photographs were not relevant because appellant was not arrested in the area where the victim’s checkbook was found. The State’s theory was that appellant and his co-defendants acted in concert to commit the robbery. The ammunition proved that the co-defendant was armed during the robbery, and the photographs showing the stolen checkbook in the vicinity of the arrest of one of the co-defendants was circumstantial evidence of appellant’s guilt. “ ‘ “[I]t is well settled that all of the circumstances connected with an accused’s arrest ... are admissible as evidence at trial. . . .” [Cit.]’ [Cit.]” Thompson v. State, 168 Ga. App. 734, 735 (2) (310 SE2d 725) (1983). We find no merit to appellant’s argument that the evidence was not relevant.

3. Appellant enumerates the general grounds. As noted in Division 1, the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided October 27, 1992.

Boykin & Cobham, Jerry Boykin, for appellant.

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


text:
    A92A1405.
    SCOTT v. THE STATE.
    (424 SE2d 325)
   Cooper, Judge.

Appellant was charged with driving under the influence of alcohol and appeals the trial court’s denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170.

Appellant filed a demand for trial within the current term or next succeeding term of court in the State Court of Baldwin County on September 12, 1991. He was not tried at the September term of court or at the next succeeding term of court which commenced in November 1991, nor was he tried in January 1992. The case was called for trial on February 2, 1992. Appellant moved for discharge and acquittal, and the motion was denied.

“[OCGA § 17-7-170] provides that when a person makes a demand for trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.” Dean v. State, 177 Ga. App. 678 (340 SE2d 647) (1986). The State contends that no jury trials were held in the State Court of Baldwin County during the September and November terms; therefore, no juries were impaneled and qualified to try appellant. The State concedes and the record demonstrates that civil and criminal juries were impaneled in Baldwin County Superior Court during those terms and January and that both courts summon jurors from the same jury pool. However, the State argues that neither the clerk of the court nor the judge of the state court specifically drew a jury panel for any jury trials in state court during the relevant terms of court.

OCGA § 15-12-130 (a) provides: “In any county of this state where there is located any court or courts having county-wide jurisdiction concurrent with the superior courts of this state to try any, all, or any type of case not within the exclusive jurisdiction of the superior courts of this state, any trial juror drawn, selected, and summoned for service in the trial of civil and criminal cases in the superior court of such county shall be legally competent and qualified to serve as a juror in any such other court or courts located in the county for the same period of time as he is competent and qualified to serve as a trial juror in the superior court of the county.” “Since jurors were impaneled and qualified to try appellant during the term in which his demand for trial was made and the next succeeding term, and appellant was not tried during either of those terms, it was error to deny his motion for discharge and acquittal of the charge against him. [Cits.]” Dean, supra at 679.

Decided October 27, 1992.

Thomas J. Phillips, Jr., Shane M. Geeter, for appellant.

James M. Watts, Jr., Solicitor, for appellee.

Judgment reversed.

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


text:
    A92A1918.
    BAKER v. THE STATE.
    (424 SE2d 324)
   McMurray, Presiding Judge.

Defendant was indicted for violating Georgia’s Controlled Substances Act, selling cocaine. The case was tried before a jury and the evidence revealed the following: At about 5:50 in the afternoon on September 5, 1991, Agents Craig Treadwell and Jennings White of the Georgia Bureau of Investigation were working undercover in Monroe, Georgia when a “male [wearing] a black . . . sailor-type hat . . . walked toward ...” the vehicle occupied by the undercover agents and sold Agent Treadwell “one dosage unit of crack cocaine. ...” The drug deal was captured by a surveillance camera concealed in the agents’ patrol car and the videotape was later viewed by Investigator Joseph Lewis Moon, Jr. of the Walton County Juvenile Court, who identified defendant as the suspect drug dealer.

The jury found defendant guilty of selling cocaine. This appeal followed. Held:

In his sole enumeration, defendant contends Investigator Moon’s testimony identifying him as the suspect depicted on the surveillance camera’s videotape is an unauthorized conclusory opinion. This enumeration provides no basis for reversal.

It is highly probable that admission of Investigator Moon’s conclusion that defendant is the man depicted on the surveillance camera’s videotape did not prejudice the minds of the jurors so as to contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Morgan v. State, 181 Ga. App. 150, 151 (351 SE2d 497). Agents Treadwell and White testified that it was daylight during the drug buy and that they had a clear view of the suspect who sold Agent Treadwell the “one dosage unit of crack cocaine. . . .” Further, both agents testified and positively identified defendant as the perpetrator of the crime charged. This evidence was more than sufficient to support the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided October 27, 1992.

Hearn & Childers, Eugene M. Benton, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A1940.
    NEWTON v. PORTER.
    (424 SE2d 323)
   McMurray, Presiding Judge.

Alleging that defendant, Cedric E. Porter, M.D., “committed a battery” upon her, Debra A. Newton brought suit against defendant in the Superior Court of Emanuel County. She alleged that the “battery” took place when defendant performed a bilateral tubal ligation. In this regard, plaintiff alleged that, during the performance of the tubal ligation procedure, defendant punctured her duodenum without her permission.

Defendant moved to dismiss the complaint, pointing out that plaintiff failed to file an expert’s affidavit pursuant to OCGA § 9-11-9.1. The trial court granted the motion and plaintiff appeals. Held:

OCGA § 9-11-9.1 (a) provides: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify,, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Plaintiff recognizes that an expert’s affidavit must be filed with the complaint in a medical malpractice action. She asserts, however, that such an affidavit need not be filed in this case because it involves battery, not medical malpractice.

In Joiner v. Lee, 197 Ga. App. 754, 755 (1), 756 (399 SE2d 516), plaintiffs sued Drs. Rottenberg and Lee for battery and loss of consortium claiming they removed her right ovary and fallopian tube without permission. In so doing, plaintiffs stipulated that they were not bringing a medical malpractice action. The trial court granted defendants’ motion for summary judgment, ruling, inter alia, that plaintiffs’ suit was “in reality a medical malpractice case and the failure of plaintiffs to submit an expert’s affidavit in opposition to the defendant-doctors’ affidavits and deposition testimony was fatal.” Id. at 756. This Court disagreed and reversed, ruling that insofar as plaintiffs sought damages for a battery, they “need not meet the requisites of a medical malpractice case.” Id. We find this holding to be applicable in this case and conclude that it was not incumbent upon plaintiff to file an expert’s affidavit pursuant to OCGA § 9-11-9.1. Of course, having alleged battery, and not negligence, plaintiff must provide that defendant intentionally punctured her duodenum. See generally Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264 (1) (387 SE2d 593).

Decided October 27, 1992.

Watkins & Watkins, John D. Watkins, for appellant.

Oliver, Maner & Gray, Robert L. Persse, William P. Franklin, Jr., for appellee.

Pointing to OCGA § 9-11-8 (a) (1) (A), defendant urges that this “claim for damages” must be construed as a “medical malpractice case” and that, therefore, plaintiff must comply with the requirements set forth in OCGA § 9-11-9.1. This we cannot do. By its own' terms, the “medical malpractice” definition set forth in OCGA § 9-11-8 applies only to that Code section; it does not apply to OCGA § 9-11-9.1.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A92A0802.
    CANNON v. THE STATE.
    (424 SE2d 331)
   Andrews, Judge.

Cannon, convicted of unlawful possession of ten pounds of marijuana with intent to distribute, appeals, contending that the admission of “a plastic bag containing the alleged controlled substance” was error because there was no reliable chain of custody proven.

The charges resulted from an undercover buy made by officers at a motel. Viewed in favor of the verdict, the evidence was that, after an informant arranged the introduction, two officers met with co-defendant Stewart at one location in a motel complex and were led by him to Room 131. Co-defendants Hunt and Godina were sitting on a car in front of the room and defendant Cannon was standing off to the side.

After being frisked, the officers and the defendants, including Cannon, entered the motel room. Godina then told defendant Cannon to “go get it.” He and Hunt left the room and returned with defendant Cannon carrying a large garbage bag and Hunt a box containing scales. Officer Voltker identified State’s Exhibit 2, a large brown garbage bag, as the “bag that . . . Cannon did bring into the room and it’s a bag with individually wrapped ziplocked bags of marijuana. And it has my initials on it with the case number on it.”

Decided October 28, 1992.

Wynn, Pelham & Associates, Nelson H. Turner, for appellant.

Thomas C. Lawler III, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

The enumeration here contends that, because the local police evidence custodian read from a report that the brown garbage bag contained a green garbage bag which contained the smaller bags containing the marijuana, and the green bag was not produced nor its absence explained, there has been a fatal break in the chain of custody. This contention is without merit.

“The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. [Cits.] The state met this burden, and it was not error to admit the exhibits. Any confusion about the exhibits goes to its weight, not its admissibility, as the Georgia rule is that if the admissibility of evidence is doubtful, it should be admitted and its weight and effect should be left to the jury. [Cit.]” Phillips v. State, 167 Ga. App. 260, 263 (2) (305 SE2d 918) (1983). See Cunningham v. State, 255 Ga. 35, 38 (5) (334 SE2d 656) (1985), citing Rucker v. State, 250 Ga. 371, 373 (1) (297 SE2d 481) (1982), and Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815) (1968).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A1333.
    EDWARDS v. VANSTROM et al.
    (424 SE2d 326)
   Birdsong, Presiding Judge.

Betty Edwards appeals the dismissal of her action for failure to comply with OCGA § 9-11-9.1. The record shows that on May 30, 1991, Edwards filed a complaint against two dentists, Dr. Peter V. Vanstrom and Dr. Suhayl Rafeedie, alleging professional negligence in June 1989, which she contends caused the wrongful death of her husband, Warren T. Edwards. Although she did not attach to her complaint the affidavit required by OCGA § 9-11-9.1, within the time ail-lowed by OCGA § 9-11-9.1 (b), she amended her complaint on July 9, 1991, to attach an affidavit from a dental expert. The affidavit stated that the expert was qualified to testify in the field of dentistry and had attached, a statement of the expert’s qualifications. The expert stated that the affidavit was based upon his personal knowledge and identified the documents concerning Warren T. Edwards that he had reviewed. The final paragraph of the affidavit stated the following:

“Upon reviewing the aforementioned medical and dental records it is the expert opinion of the affiant that the defendants breached the requisite degree of care and skill required of the dental profession generally by . . . lack of adherence to procedures expected of a dentist licensed to practice his profession.”

Thereafter, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted because the affidavit did not set forth at least one negligent act or omission claimed to exist or state the factual basis for this allegation as required by OCGA § 9-11-9.1 (a). Although Edwards subsequently filed an amended affidavit which stated specific acts or omissions, the trial court granted the defendants’ motion to dismiss. Edwards now appeals contending that her expert’s affidavit satisfied the requirements of OCGA § 9-11-9.1 and that her complaint also alleged acts of ordinary negligence for which no affidavit under OCGA § 9-11-9.1 was required. Held:

1. An affidavit under OCGA § 9-11-9.1 which does not state specifically at least one negligent act or omission is fatally defective. Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865). As the affidavit of Edwards’ expert merely stated that the defendants did not follow the procedures expected of a licensed dentist, it did not state, specifically a negligent act or omission. Consequently, it did not satisfy the requirements of OCGA § 9-11-9.1 (a), and the trial court did not err by so finding. Moreover, Edwards’ attempt to amend the affidavit to satisfy the requirements of OCGA § 9-11-9.1 was not authorized as it is apparent from the date of this second affidavit that it was not prepared and in Edwards’ possession prior to the date the first affidavit was filed. OCGA § 9-11-9.1 (e); St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 155 (377 SE2d 847). Accordingly, the failure to file this affidavit was not a mistake, and no amendment was authorized. Cheeley v. Henderson, supra.

2. Edwards’ argument that no OCGA § 9-11-9.1 affidavit was required is also without merit. Examination of her complaint shows she alleges that defendant Vanstrom was negligent because he gave her husband inappropriate medication, did not properly monitor his condition, and did not use the proper technique to resuscitate him after he was in distress. As these claims would require an expert witness to prove that Vanstrom was negligent (General Hospitals of Humana v. Bentley, 184 Ga. App. 489, 490-491 (361 SE2d 718)), these are not allegations of simple negligence. Jones v. Bates, 261 Ga. 240, 242 (403 SE2d 804); Brown v. Durden, 195 Ga. App. 340 (393 SE2d 450). Therefore, the trial court did not err by finding that an OCGA § 9-11-9.1 affidavit was required to maintain this action.

Decided October 28, 1992.

Paul S. Weiner, for appellant.

Smith, Gambrell & Russell, David A. Handley, Matthew S. Coles, for appellees.

Accordingly, the trial court did not err by dismissing the complaint.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1522.
    SCOTT v. THE STATE.
    (424 SE2d 328)
   Birdsong, Presiding Judge.

Robert D. Scott appeals from his judgment of conviction of burglary and the sentence.

Mr. Daniel heard a car engine running outside, looked out of his window, and saw a small blue car, with two people inside. The car was parked near a stop sign and “right next to Earl Scheib [body shop] on the side of the road at the curb.” “The car was sitting still, but the motor was running.” Windows on the driver’s side were broken, though the driver’s side window was patched with a “see-through” piece of plastic. After a minute or two passed, the passenger exited the car. He broke out a window of the shop, opened the window, and crawled inside the shop building. The driver did not move the vehicle; he “waited” until the passenger crawled inside the shop building and then “took off.” The driver knew the passenger had entered the building, “because he watched him go in.”

After entering the premises, the passenger repeatedly cracked open the shop door and peeped out. A short time later, the passenger ran from the shop carrying a bag containing unknown objects. Daniel, who was then standing on his front porch, observed the passenger run across a vacant lot and throw a pair of rubber gloves onto the ground.

The blue car did not return to the crime scene for 5-7 minutes; except for the blue car, no other cars drove past the shop after the passenger left the building. The blue car returned and was driven slowly by the crime scene while the driver was “looking in over there.” Daniel could tell the driver was “looking for something at Earl Scheib’s.” Daniel wrote down the tag number of the vehicle and walked down the street to use a pay phone to call the police. As he was walking, the blue car circled and drove by Daniel again. By happenstance, a police cruiser was stopped at a red light, so Daniel immediately informed the police of what he had observed. At this time, he also gave them the vehicle tag number and a description of the person driving the car. The police went to the body shop, saw a blue car matching the exact description given near the shop, stopped the vehicle, and arrested appellant who was driving. Daniel also testified as to the general description of the vehicle driver that he had given the police when he reported the incident.

After Daniel returned home, he noticed two or three police cars at the body shop. He voluntarily approached the crime scene and saw the blue car; at that time, he also recognized the man sitting on the side of the road as the vehicle driver. Daniel identified the car at the crime scene. He walked to the vacant lot with the police and showed them the rubber gloves which the passenger had thrown on the ground. At trial, Daniel testified he did not know appellant.

The arresting officer testified that after the crime was reported, he went to the scene and observed a “white male attempting to get into the vehicle.” The man was placed under arrest. The arresting officer made an in-court identification of appellant as the man who was arrested at the crime scene entering the blue car with plastic on the driver’s side. The detectives “found a glove, a surgical-type glove, [lying] over in a field” in the vicinity where the passenger had run; they brought it to the arresting officer. The arresting officer also discovered and observed bout 8-10 of “the same type surgical gloves” in the glove compartment of the car. The glove which the detective brought back “matched up with the gloves that were in the glove compartment”; “the gloves were identical.”

Appellant testified denying any complicity in the burglary, and claiming that after a neighborhood acquaintance had helped him start his car, he agreed to take him to obtain some marijuana. Thereafter, the passenger told appellant he did not have anyone in the area who would sell to him, to let him out, and to come back in a few minutes and pick him up. Appellant pulled over by Earl Scheib’s and let the passenger out; he did not see the passenger break and enter the Earl Scheib building, nor did he conspire in any way with the man to burglarize the building. Appellant rode around the block a couple times, but the passenger did not return. Appellant’s car subsequently had mechanical trouble, and as he got out of the car and closed the door, the police arrived. Held:

1. Appellant asserts the trial court erred in admitting in evidence the photograph of the glove found in the field and the photograph of the gloves in the open glove compartment of appellant’s car.

(a) Appellant objected when the State attempted to introduce a photograph of the glove found in the vacant lot; the actual glove was not produced at trial. The objection was on the specific ground that “there is no foundation laid for who took these pictures and as to when they were taken and how they were taken.”

“An objection on a specific ground [or grounds] 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). Accordingly, all other grounds for objection, other than the specific foundation grounds posed at trial, are not preserved for appeal.

“A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. [Cit.] Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the fitness have been present when the photograph was taken.” Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316). Although no witness uttered the magic words that the photograph of the glove found in the field was “a fair and accurate representation of the scene depicted,” the record reveals that an adequate foundation was nevertheless established through the testimony of Daniel for the admission of this photograph. Daniel testified without objection that he personally led the detectives to the spot on the field where the glove was dropped; he recognized that the scene depicted in the photograph, State’s Exhibit No. 4, was “the vacant lot with the rubber gloves [lying] there”; that the glove was lying (in the photograph) the same way the other one was lying — all wadded up; and that he was positive that the glove in the photograph was the glove that was there that night. We find this testimony at least substantially complies with the foundation requirement of Isaacs, supra, and that the trial court did not abuse its discretion in admitting this photograph in evidence (Freeman v. State, 196 Ga. App. 343, 344 (2) (396 SE2d 69)); see OCGA § 24-1-2 (rules of evidence framed with view to discover truth).

(b) The same “original objection” was made to the introduction of State’s Exhibit No. 5, the photograph of the gloves in the open glove compartment of the vehicle. Likewise, all other objections were waived. Norman, supra. The arresting officer testified, without objection, that he had personally discovered and observed the same type of surgical gloves in the glove compartment of appellant’s car; that he recognized “what’s in that photograph,” State’s Exhibit No. 4; that he recognized what was depicted in the photograph, State’s Exhibit No. 5; that the photograph showed “several surgical gloves inside the glove compartment of the vehicle that [he] observed at the scene”; that the gloves were “of a surgical type, and [he] did discover them when [he] opened the glove compartment of the vehicle”; that the gloves in the glove compartment matched the glove brought from the lot by the detectives — “in looking at one and looking at the other, they were perfectly matched”; and, although he did not know if the glove from the field came out of that particular glove compartment, “the gloves were identical.” The trial court did not abuse its discretion in admitting the photograph, State’s Exhibit No. 5. Isaacs, supra; Freeman, supra.

Decided October 28, 1992.

Gwyn P. Newsom, for appellant.

Douglas C. Pullen, District Attorney, Jerry G. Croley, Jr., Assis tant District Attorney, for appellee.

(c) Assuming arguendo the trial court had failed to lay an adequate foundation for the admission of the photographs, the error would have been harmless. Both Daniel and the arresting officer were allowed to testify without objection to the significance of the scene depicted in each photograph. “All evidence is admitted as a matter of course unless a valid ground of objection is [timely] interposed.” (Citations and punctuation omitted.) Smarr v. State, 199 Ga. App. 572, 573 (2) (405 SE2d 561). At most, the photographs would be only cumulative of the testimony of these two witnesses concerning the sig-> nificance of the scene therein depicted. Evidence is harmless where admissible evidence of the same fact is before the jury. Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642); see Glass v. State, 235 Ga. 17, 19 (218 SE2d 776).

2. Appellant enumerates as error the general grounds. Based on our holding in Division 1 above, we find the existence of no error of law necessitating case reversal.

Regarding the sufficiency of the evidence to sustain the burglary conviction, appellant asserts that as the evidence against appellant was circumstantial, the standard of review is that if this court finds that the proved facts did not exclude every other reasonable hypothesis save that of guilt of the accused then appellant’s conviction must be reversed. See generally OCGA § 24-4-6. We disagree. The evidence is not wholly circumstantial in that there was introduced in evidence certain direct evidence from an eyewitness, Daniel. In cases such as this, the proper standard for appellate review is that of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Humphrey v. State, 252 Ga. 525 (314 SE2d 436).

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). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, supra.

Judgment affirmed.

Beasley and Andrews, JJ., concur.