author: Birdsong, Presiding Judge.

text:
    A95A2348.
    PHILLIPS v. MacDOUGALD et al.
    (464 SE2d 390)
   Birdsong, Presiding Judge.

Appellant/plaintiff Dr. Hugh Johnson Phillips appeals the superior court’s grant of summary judgment to appellees/defendants Dan MacDougald, Jr. et al. Appellant filed notice of direct appeal with the Supreme Court of Georgia asserting that a certain constitutional provision was in issue. The Supreme Court transferred the case to this court for lack of jurisdiction.

This suit is for damages for tortious interference with contract, intentional infliction of emotional distress, and abusive litigation. Appellant Dr. Hugh Johnson Phillips was a professor and chairman of the Criminal Justice Department and director of the Criminal Justice Institute of Albany State College. The Dougherty County Commission hired appellant and his co-researcher to make an evaluation of a certain criminal rehabilitation program developed by appellee MacDougald and others. The commission previously had voted to terminate this program but reconsidered their action. Appellant and his co-researcher evaluated the program, sharply criticized it, questioned MacDougald’s integrity, and concluded the program was not as effective as claimed; however, no recommendation was made whether the commission should continue program funding. Thereafter, the commission chose to reaffirm its earlier action to terminate the program. Subsequently, appellee Dan MacDougald, Jr., filed a defamation action against appellant and others. A local newspaper ran a series of articles about the controversy wherein certain quotes were attributed to appellee Dan MacDougald, Jr. which appellant contends were uttered maliciously and with intent to harm appellant’s professional standing with his employer and peers. The trial court granted summary judgment against appellees on all counts of the defamation action and concluded that “Phillips and [his co-researcher] should not be punished through the vehicle of a lawsuit simply because they rendered an unfavorable report.” During the course of discovery in the defamation suit, appellees apparently obtained information that appellant had in 1962 and 1967 been convicted of two crimes and had not disclosed his criminal record to the college in his employment application. (Appellant asserts that his nondisclosure was the result of legal advice he received that these crimes had been given “first offender” disposition.) Appellee Dan MacDougald, Jr., thereafter filed a quo warranto action, challenging appellant’s right to hold public office as a college professor; he also sent a letter providing information concerning the claimed nondisclosure on appellant’s employment application to Mr. Henry Neal, Executive Secretary of the Board of Regents. The local newspaper ran an article concerning the quo warranto action and again published numerous quotes attributed to appellee Dan MacDougald, Jr. concerning appellant. Appellant’s counsel served appellees with notice that the quo warranto action was abusive and patently flawed and requested suit withdrawal. MacDougald refused to terminate the suit voluntarily, and the trial court granted appellant’s motion to dismiss. MacDougald appealed the dismissal to the Supreme Court of Georgia which affirmed the dismissal. MacDougald v. Phillips, 262 Ga. 778 (425 SE2d 652); for additional appellate history, see MacDougald v. Phillips, 213 Ga. App. 575 (445 SE2d 357) (vacating award of attorney fees). Appellant subsequently was relieved of his administrative responsibilities at Albany State College and was informed his contract would not be renewed. He thereafter commenced this litigation.

Appellant enumerates three errors asserting that the trial court erred in granting summary judgment as to his claims for tortious interference with contract, intentional infliction of emotional distress, and abusive litigation, respectively. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. The trial court erred in part in granting summary judgment to appellees as to the tortious interference with contract claim.

(a) Appellees contend that appellant’s contract of employment was unenforceable having been procured by fraud. Fraud renders a contract voidable at the election of the injured party (OCGA § 13-5-5), but fraud does not render a contract void per se. To allow appellees to prevail in their contention would in effect give the third-party appellees the power of treating the employment contract as being void, notwithstanding that the injured party, Albany State College, had not declared the employment contract void. In fact, Albany State College elected for reasons of policy to continue to treat the employment contract valid and binding while MacDougald’s quo warranto suit was pending. Clearly appellees, not being injured parties to the employment contract, lacked the power to void the contract directly. OCGA § 13-5-5. One cannot do indirectly what the law does not allow to be done directly. Kingsmill Village &c. v. Homebanc &c. Bank, 204 Ga. App. 900, 902 (2) (a) (420 SE2d 771).

(b) An intentional and non-privileged interference by a third party with existing contract rights and relations constitutes a tort for which an action shall lie. Southern Business Machines &c. v. Norwest Financial &c., 194 Ga. App. 253, 258 (3) (390 SE2d 402). Such interference with a contract right or relationship need not result in a breach of a contract to be actionable; it is sufficient if the invasion retards the performance of the duties under the contract or makes the performance more difficult or expensive. Id. As a general rule, it is a question of fact, and thus for the jury, whether a defendant has played a material and substantial part in causing plaintiff’s loss of any benefits of the contract. Id. at 259 (3). However, it is a well-established exception that proximate cause, causation, and related issues can be decided as a matter of law by the court when there exists a plain, palpable, and undisputed case where reasonable minds cannot differ as to the conclusions to be reached. See Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810); see also Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359).

The record establishes without contradiction that an investigation was being conducted, regarding appellant’s prior criminal record, before the letter sent by appellee Dan MacDougald, Jr., was received by the Executive Secretary of the Board of Regents. However, during appellees’ taking of the deposition of Dr. Billy Black, President, Albany State College, the following testimonial colloquy occurred: “[APPELLEES’ COUNSEL]: Dr. Phillips alleges in this lawsuit that Dan MacDougald, Jr., and June MacDougald have caused him to lose his job. You’re the guy who makes the decisions about his job. What do you say about that? [DR. BLACK]: I’ve already testified that, when you raised the question did it have anything to do with it, I answered that yes but it was not the determining factor. . . . But I’ll answer it here again to be absolutely sure. The answer is still the same. This was not the determining factor in making the decision to non-renew Dr. Phillips. . . . [APPELLEES’ COUNSEL]: Did the Board of Regents or any member of its staff have any input in your decision not to renew Phillips’ contract? [DR. BLACK]: No.” There does not exist in this case plain, palpable, and undisputed facts establishing that the conduct of appellees played no part in the non-renewal of appellant’s employment contract. Accordingly, we see no basis to depart from the general rule of Southern Business Machines, supra, that it is for the jury to determine whether a defendant has played a material and substantial part in causing plaintiff’s loss of any benefits of the contract at issue by sending correspondence regarding Dr. Phillips’ criminal record to the Executive Secretary of the Board of Regents. The trial court erred to the limited extent that it inherently granted partial summary judgment on a tortious interference of contract claim based solely upon the sending of this correspondence to the Executive Secretary of the Board of Regents. Whether that act played a material and substantial part in causing plaintiff’s loss of any benefit from the non-renewal of his contract of employment presented a question for jury determination. Moreover, Medlin v. Carpenter, 174 Ga. App. 50, 55 (8) (329 SE2d 159) is distinguishable from the operative facts of this case.

(c) Any statements attributed to appellee Dan MacDougald, Jr. by the press, which were taken from quotes within official court documents, cannot provide a basis for a claim of tortious interference with contract. “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged.” OCGA § 51-5-8. The interference required to support a claim of tortious interference must be both intentional and non-privileged. Southern Business Machines, supra at 258. To the extent the trial court inherently granted partial summary judgment as to any privileged statements contained in court documents filed by MacDougald and thereafter reported by the news media, it did not err.

(d) To the extent that appellees assert defenses based on interpretations of constitutional provisions of the Georgia Constitution of 1983, we conclude that such contentions are without merit. By the transfer of this appeal to this court, the Supreme Court implicitly has ruled there exist no valid contentions by either party that are grounded upon an unsettled interpretation of the constitution of this state. See Johnston v. Atlanta Humane Society, 173 Ga. App. 416, 418 (326 SE2d 585) (physical precedent only), citing Cassells v. Bradlee Mgmt. Svcs., 161 Ga. App. 325, 326 (1) (291 SE2d 48).

(e) We decline to hold that appellant’s contract of employment with Albany State College was void as against public policy. See generally OCGA § 13-8-2 (a). Further, this Court lacks jurisdiction to construe, particularly as to questions of first impression, the scope of Georgia Constitution of 1983, Art. II, Sec. II, Par. III, and its application to the facts of this case. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); Kolker v. State, 193 Ga. App. 306, 307 (1) (387 SE2d 597), aff'd 260 Ga. 240 (391 SE2d 391).

(f) Medlin, supra at 53 (5), cited by appellees, which involved, inter alia, slander and defamation claims, is distinguishable and not controlling as to appellant’s tortious interference with contract claim. Also distinguishable is Stern v. United States Gypsum, 547 F2d 1329, 1342-1343 (7th Cir.) involving a First Amendment defense in a Civil Rights Act suit alleging conspiracy to prevent plaintiff from performing his official federal duties. Moreover, the United States Supreme Court is the only federal court whose opinions this court is bound to follow. Hilton Constr. Co. v. Martin &c. Contractors, 166 Ga. App. 40, 45 (303 SE2d 119).

(g) Further, we hold that, as a matter of law, “a claim for tortious interference with contractual relations cannot be predicated upon an allegedly improper filing of a lawsuit.” Jacobsen v. Garzo, 542 A2d 265, 268 (3) (SC Vt.); see also Aetna &c. Ins. Co. v. Harley, 365 FSupp. 1210, 1214 (7) (N. D. Ga.).

In Jacobsen, supra, the Supreme Court of Vermont observed that tortious interference is a right of action arising from the recognition of broad social policies protecting a citizen’s legitimate interests in reasonable expectations of economic advantage and of the right to pursue one’s business free from undue interference or molestation. The court then acknowledged the existence of a strong public counter-policy, backed by a general state constitutional provision, in favor of free access to the courts. Balancing these rights, the Jacobsen court recognized that to curb the more serious abuses of lawsuit filing, two carefully restricted torts were recognized, that is, abuse of process and malicious prosecution. The Jacobsen court then concluded: “If the well-reasoned balance thereby struck between free access and remedy for serious abuse ‘is really to mean anything then we must not permit . . . circumvention by affording an . . . unrestricted action under a different label.’ [Cit.] . . . [A]s a matter of law, the filing of a lawsuit alone cannot constitute tortious interference with contractual relations.” Id. at 268 (3). In Georgia, there exist the same broad social policies giving rise to recognition of the tort of tortious interference; there also exists, inter alia, the same strong counter-policy, backed by a state constitutional provision (see generally Ga. Const. of 1983, Art. I, Sec. I, Par. XII), giving a general right of access to the courts to prosecute or defend one’s own cause therein. Also, in Georgia, a plaintiff is provided with reasonable access to the courts for serious abuses of lawsuit filing through utilization of the carefully developed torts of malicious prosecution (see generally OCGA § 51-7-40 et seq.) and abusive litigation (see generally OCGA § 51-7-85 et seq.). Also OCGA § 51-7-85 provides: “This article is the exclusive remedy for abusive litigation.” Clearly, the tortious interference claim in the case sub judice is grounded on a contention that the lawsuit at issue was improperly filed being without legitimate legal foundation.

A citizen of this state is not guaranteed any particular form or method of state procedure. Due process is satisfied if the citizen “ ‘has reasonable notice and opportunity to be heard, and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. [Cit.]’ ” (Emphasis supplied.) Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 739 (4) (a) (285 SE2d 913) and cases cited therein. Nor does there exist any known constitutional provision preventing a state from prescribing reasonable and appropriate causes of action, and precluding the chilling proliferation of unnecessary causes of action of a specific kind or class, so long as the basis of distinction is, as here, real and the limitation imposed has reasonable relation to a legitimate object (compare OCGA § 51-7-85). See State of Ga. v. Sanks, 225 Ga. 88, 89 (1) (166 SE2d 19); compare Sneakers &c. v. Cobb County, 265 Ga. 410, 411 (3) (455 SE2d 834). Moreover, proliferation of unnecessary causes of action for the alleged improper filing of lawsuits would have a chilling effect on the exercise by citizens of their right of access to the courts. This state appears to have a compelling governmental interest in encouraging citizens to settle disputes through the court, rather than through self-help which can foster prolonged acrimony and even violence among otherwise peaceable citizens. Therefore, today we establish precedent (see generally Crosby v. Potts, 8 Ga. App. 463, 466 (69 SE 582)) precluding a claim of tortious interference as a remedy for the alleged improper or unwarranted filing of a lawsuit.

To the extent that the trial court’s grant of summary judgment inherently included therein a grant of partial summary judgment to appellees on the issue whether a claim of tortious interference can be predicated upon the filing of a lawsuit (whether or not it be meritorious), such a grant of partial summary judgment was not error.

3. Likewise, “the mere filing of a lawsuit is not the type of humiliating, insulting or terrifying conduct which will give rise to a claim for the intentional infliction of emotional distress.” Rolleston v. Huie, 198 Ga. App. 49, 51 (2) (400 SE2d 349) and cases cited therein. Regarding the mailing of the letter to the Executive Secretary of the Board of Regents, we find as a matter of law, that under the attendant circumstances and based upon the trial record this conduct did not “rise to the requisite level of outrageousness and egregiousness.” Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 226 (369 SE2d 541). The trial court did not err in granting appellees summary judgment as to the intentional infliction of emotional distress claim.

4. Appellees presented evidence that appellant failed to deliver a letter demanding that appellees’ defamation action suit, Dougherty County Superior Court Civil Action File No. 90-V-1612, be withdrawn; appellant offered no evidence establishing such a demand. The written notice required by OCGA § 51-7-84 (a) is a condition precedent to any claim for abusive litigation. Appellant failed to carry his burden under Lau’s Corp., supra, to establish compliance with the condition.

We find, as a matter of law, that at the time the quo warranto suit was prosecuted before the trial court, it was not substantially groundless; the prosecution of this civil action was not “[wjithout substantial justification” within the meaning of OCGA § 51-7-81. The ultimate holding of the Supreme Court in MacDougald, 262 Ga. 778, supra, does not alter this determination. The trial court did not err in granting summary judgment to appellees as to appellant’s abusive litigation claim.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.

Decided November 7, 1995

Reconsideration dismissed November 27,1995

McKee & Barge, Patrick W. McKee, Christopher J. Ramig, for appellant.

McLaughlin, MacDougald, Hendon & Miller, Daniel MacDougald III, Johnson & Montgomery, Harry W. MacDougald, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A2553.
    MADDOX v. WILSON.
    (464 SE2d 226)
   Johnson, Judge.

Frank Maddox brought this action against Lloyd Wilson for money allegedly due on a contract for the construction of a house. Suit was filed on May 17, 1988. On October 24, 1991, Maddox notified the court that he had discharged his attorney. Since that date Maddox has proceeded pro se. On April 12, 1992, Wilson died and his attorney filed a suggestion of death notice with the court on June 1, 1992. In April 1993, Maddox stipulated the case to a trial calendar. At the call of the calendar, counsel for the deceased defendant made a motion to dismiss the action pursuant to OCGA § 9-11-25 (a). The trial court granted the motion, and Maddox appeals.

1. In his first enumeration of error, Maddox asserts the trial court erred in not having a speedy trial. Pretermitting whether this issue was ever raised and ruled on by the trial court in order to secure a right of appellate review, we note that the right to a speedy (and public) trial is a constitutional protection applicable in the criminal context. Ga. Const. of 1983, Art. I, Sec. I, Par. XI; OCGA §§ 17-7-170, 17-7-171. The constitution also requires that rules of the court “provide for the speedy, efficient, and inexpensive resolution of disputes.” Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. The legislature has addressed that goal in the passage of the Georgia Civil Practice Act which “shall be construed to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1. The obligation to move cases to trial in civil matters, however, lies generally with the parties themselves. This lesson Maddox learned himself when, after this action had been pending for five years, his case came to trial seven months after he asked that it be put on a trial calendar. There is no merit to this enumeration.

2. In his second enumeration of error, Maddox contends the trial court erred in dismissing his action. “OCGA § 9-11-25 (a) (1) provides: Tf a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party. . . . Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.’ The procedure set forth in OCGA § 9-11-25 (a) (1) ‘is for the protection of the prospective respondent to the motion for substitution of parties (i.e., the administrator or executor of the decedent’s estate) and is for the purpose of enabling this prospective respondent to place a limitation upon the period of time during which the movant may seek substitution of parties.’ [Cit.]” King v. Green, 189 Ga. App. 105 (375 SE2d 53) (1988). In King, this Court held that confusion about the necessity of filing a motion for substitution of parties after a suggestion of death did not constitute excusable neglect. Id. at 106. In that case, the trial court’s refusal to grant the motion to dismiss was held to constitute an abuse of its discretion and was reversed.

Decided November 9, 1995

Reconsideration denied November 27, 1995.

Frank Maddox, pro se.

Smith, Welch & Studdard, Ben W. Studdard III, for appellee.

A person choosing to represent himself does so at his own risk, and as cited in King: “ ‘The maxim that “ignorance of the law offers no legal excuse” needs no citation.’ [Cit.]” (Punctuation omitted.) Id. at 107. A deceased person cannot be a party to legal proceedings. Mathews v. Cleveland, 159 Ga. App. 616, 617-618 (284 SE2d 634) (1981). Because no valid substitution of parties was made within the 180 days contemplated by the law, we conclude that the trial court was correct in granting Wilson’s motion to dismiss.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A94A0239.
    GORDON COUNTY FARMS et al. v. MALONEY.
    (465 SE2d 731)
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606), our decision in Gordon County Farms v. Maloney, 214 Ga. App. 253 (447 SE2d 623) (1994), is hereby vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed. All the Judges concur.

Decided November 27, 1995.

Shivers, Johnson & Wilson, Edwin G. Russell, Jr., for appellants.

Mundy & Gammage, E. Lamar Gammage, Jr., for appellee.

Kissiah & Richter, Richard C. Kissiah, Davidson & Strain, John M. Strain, Melinda K. Wells, amici curiae.


author: Smith, Judge.

text:
    A94A2085.
    MUSCOGEE IRON WORKS et al. v. WARD.
    (465 SE2d 731)
    Decided November 27, 1995.

      Lowendick, Speed & Donahue, Kenneth B. Donahue, for appellants.

      McNatt, Greene & Thompson, Richard S. Thompson, for appellee.
   Smith, Judge.

This Court entered judgment in the above-styled case at 216 Ga. App. 636 (455 SE2d 363) (1995) reversing the judgment of the superior court. The judgment of this Court having been reversed on certiorari by the Supreme Court, this Court’s judgment is hereby vacated, the judgment of the Supreme Court is made the judgment of this Court, and the superior court’s judgment is affirmed.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1530.
    ROBERSON v. THE STATE.
    (464 SE2d 262)
   Ruffin, Judge.

David Roberson was indicted for rape and kidnapping with bodily injury in connection with an attack on a 15-year-old girl who was babysitting his children. His first jury trial was declared a mistrial, and he appeals from the judgment of conviction entered on the verdict after a second trial. For the reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence shows that the victim fell asleep on a sofa while babysitting Roberson’s children in their mother’s mobile home. Roberson and his wife were separated at the time. After a short time, the victim woke up with a “strange” feeling. She recalled that all of the lights inside the trailer were turned off, she heard a male voice, and she felt someone rubbing her thigh. She soon realized that a male stranger was hovering over her. According to the victim, the man, later identified as Roberson, said to her “You are going to like this,” as he attempted to remove her shorts. As the victim struggled against Roberson and screamed for him to stop, he jerked her up from the couch and took her to the bed in Mrs. Roberson’s bedroom. The victim continued to struggle, but eventually Roberson was successful in removing the victim’s shorts, having placed his knee on her face and neck. He then had intercourse with her. The victim identified Roberson in court as the man who raped her.

A few hours after the attack, the victim was examined by a certified sexual assault nursing examiner whose photographs showed fresh bruises on the victim’s neck, armpits, right arm, and left hip. A forensic serologist who tested vaginal cervical swabs from the victim testified that the samples contained DNA which matched patterns obtained from the victim’s and Roberson’s blood samples.

1. Roberson contends the trial court erred in restricting his cross-examination of the victim on matters related to his defense. “ ‘The trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.’ [Cit.]” Walker v. State, 215 Ga. App. 790, 791 (2) (452 SE2d 580) (1994).

In the first trial, the court sustained the State’s objection to questions Roberson proffered during his cross-examination of the victim as to whether Mrs. Roberson had conspired with the victim to make it appear as though Roberson raped the victim so that Mrs. Roberson would have an advantage in seeking custody of their children. Specifically, Roberson sought to ask the victim whether she and Mrs. Roberson discussed ways to make it appear as though Roberson raped her; whether Mrs. Roberson gave her a condom recently used by Roberson; whether the victim manually placed semen from the condom in her vagina; whether the victim arranged items in the trailer to give the appearance of forcible entry; and whether the two contrived a story implicating Roberson for the police. There was no evidence that any such discussion took place. However, defense counsel argued that he had a good faith basis for asking the questions because on the same evening, witnesses heard Mrs. Roberson threaten to get Roberson “in a mess [he would not] be able to get out of’; Roberson denied having sex with the victim; Roberson left a used condom in the bedroom earlier in the day; and this theory is the only explanation for the presence of Roberson’s DNA in the victim’s vagina. The State objected to the questions on the grounds that they were speculative, argumentative, had no good faith basis, and would solicit answers based on hearsay.

In the second trial, there also was no evidence of a conspiratorial conversation between Mrs. Roberson and the victim, and Roberson was not permitted to ask the questions proffered in the first trial. However, Roberson did ask the victim whether prior to the night of the alleged rape or in the course of discussing what was to happen that evening, she and Mrs. Roberson discussed any “arrangements” which could have been made to prevent Roberson from getting custody of the children. In closing argument, Roberson argued the conspiracy theory, including Mrs. Roberson’s possible motive and the alleged manual planting of the semen. In light of the fact that Roberson was able to argue this defense in spite of the lack of evidence of a conspiratorial conversation between the victim and Mrs. Roberson, we find no abuse of discretion in the trial court’s refusal to allow Roberson to ask the proffered questions.

2. Roberson next enumerates as error the trial court’s denial of his motion for directed verdict on the charge of kidnapping with bodily injury. Roberson argues that in proving the commission of the rape, the State “used up” all of the evidence of bodily injury. Therefore, the charge of kidnapping only should have been submitted to the jury with the rape charge. We disagree because the evidence shows the commission of two separate offenses.

The evidence used to prove kidnapping with bodily injury was the asportation of the victim and the bruises she suffered in her struggle with Roberson; therefore, that offense was completed before the subsequent intercourse which supported the rape charge. See OCGA §§ 16-5-40 and 16-6-1. See also Ferguson v. State, 211 Ga. App. 218 (3) (438 SE2d 682) (1993). Accordingly, the trial court did not err in denying Roberson’s motion for directed verdict and in submitting both charges to the jury.

3. Roberson contends the trial court erred in failing to grant his motion for a mistrial based on an improper comment made by the prosecutor during closing argument. The prosecutor stated that he was prevented from eliciting testimony from the victim concerning certain out-of-court statements made by one of the Roberson children regarding a beeper that was discovered in the trailer after the rape. The child did not testify at trial, and the victim’s testimony relating the statements would have been inadmissible hearsay. The trial court agreed that the comment was improper, and although it denied Roberson’s motion for a mistrial, the court instructed the jury that the comment was improper and should not be considered under any circumstances.

“ ‘(T)he trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.’ [Cit.]” Gordon v. State, 210 Ga. App. 224, 225 (1) (435 SE2d 742) (1993). We do not find this argument so improper as to require a mistrial. Accordingly, the court did not abuse its discretion in denying Roberson’s motion.

Decided November 27, 1995.

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

Lydia J. Sartain, District Attorney, Lee Darragh, Denise M. Arenth, Assistant District Attorneys, for appellee.

4. Finally, Roberson argues the trial court erred in instructing the jury in its initial charge that if they failed to reach a unanimous verdict, the court would be required to declare a mistrial and try the case before another jury. Roberson contends the charge was coercive. In this respect, the instant case is controlled by Harris v. State, 263 Ga. 526 (435 SE2d 669) (1993), in which the defendant challenged the court’s pre-deliberation instruction of the same charge. In Harris, the court held that a pre-deliberation charge on unanimity is proper but disapproved instructing the jury as to the consequences of failing to reach unanimity. Id. at 528. Nonetheless, the court found no reversible error in giving the charge because the evidence of the defendant’s guilt was overwhelming, and there was no evidence that “the instruction or its timing was coercive in that it caused any juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citations and punctuation omitted.) Id.

Roberson has cited no evidence nor has our review revealed any evidence of coercion or undue pressure. Hence, given the overwhelming evidence of Roberson’s guilt, we find no reversible error.

Judgment affirmed.

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


text:
    A95A1856.
    A95A1857.
    FALICE v. BRIGHTWELL et al. FALICE v. AMERICA’S MORTGAGE SERVICING, INC.
    (465 SE2d 730)
   Birdsong, Presiding Judge.

This appeal and cross-appeal were docketed in this Court on May 17, 1995, and the record in the case was duly forwarded. Neither appellant nor cross-appellant filed a brief and enumerations of error within 20 days after the docketing of the appeal and cross-appeal, pursuant to Rule 26 (a); no extension of time to file briefs and enumerations of error was filed or granted. Accordingly, these appeals are dismissed, and the judgment of the trial court stands as issued.

Decided November 27, 1995.

Reginald A. Falice, pro se.

Frank Brightwell, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Daniel D. Phelan, for America’s Mortgage Servicing.

Appeals dismissed.

Johnson and Smith, JJ., concur.


text:
    A95A2490.
    JOHNSON v. BRUNO’S, INC.
    (464 SE2d 259)
   Birdsong, Presiding Judge.

This is a slip and fall case. Appellant/plaintiff Tony Ray Johnson appeals from the judgment entered in favor of appellee/defendant Bruno’s, Inc. d/b/a Fresh Value No. 174 and from the order of the trial court denying appellant’s motion to set aside the verdict and for new trial. Appellant enumerates that the trial court erred in giving appellee’s Request to Charge No. 9, as modified by the trial court, and erred by denying appellant’s motion to set aside the verdict and for a new trial. In support of this enumeration, appellant has elected to file only the trial record and has not filed a transcript of the proceedings. Appellant asserts that the contentions and outline of the case of appellant/plaintiff and appellee/defendant as contained in the pretrial order are sufficient to support his enumerations of error. Held:

1. The record does not contain a pretrial order signed by the trial court. Appellant has failed even to show that a pretrial order was in effect in this case. Moreover, while a pretrial order may contain stipulations and other evidentiary agreements of the parties, it remains subject to modification at trial, at the trial court’s discretion, to prevent manifest injustice. See generally OCGA § 9-11-16 (b); Ga. Prac. & Proc. (6th ed.), § 16-3. On appeal, a pretrial order is not a substitute for a trial transcript.

2. Appellant’s brief contains certain assertions of unstipulated fact which, as above reflected, are not supported on appeal by the trial transcript or record. Such unsupported factual assertions in briefs cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223). Additionally, appellant has attached to his reply brief certain documents, including two pages purporting to be from the deposition of one Michael Wheeler who apparently was an employee of appellee. “[A] brief or an attachmént thereto cannot be used in lieu of the record or transcript for adding evidence to the record.” Ross v. State, 195 Ga. App. 624, 625 (2) (394 SE2d 418); Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33); see Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893). These attachments to the reply brief will not be considered on appeal.

3. Without access to the trial transcript, this Court cannot effect a proper appellate disposition of appellant’s claim that the trial court erred in denying his motion to set aside the verdict and for a new trial. “Without a transcript to review, this court must assume as a matter of law that the evidence presented at trial supported the court’s findings.” Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500). Access to the trial transcript would be necessary to determine whether the trial court erred in denying appellant’s motion to set aside the verdict and for a new trial, and in the absence of the required transcript, the judgment and ruling of the trial court must be affirmed. Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); compare Brown v. Frachiseur, 247 Ga. 463, 464-465 (277 SE2d 16).

4. Appellant contends that the trial court erred in giving appellee’s Request to Charge No. 9 in a modified form. This charge appears to be based on an interpretation of Foodmax v. Terry, 210 Ga. App. 511 (1) (436 SE2d 725). The record does contain appellee’s Request to Charge No. 9. This request reflects that the words “10 to 15 minutes” were modified to read “a reasonable length in time.” Above the word “reasonable,” there is an unidentified character which appears to be a question mark without a period underneath its curved symbol. The charge request bears an inked notation apparently signed by the trial judge indicating that the charge was “given.” Assuming arguendo that the charge was given as modified by the inked notation on the charge request, we still cannot determine from an examination of the charge request how this charge may have been modified, reinforced or contradicted by other charges to the jury. “ ‘ “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” ’ ” (Citations omitted.) Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). Without access to that portion of the trial transcript pertaining to the charge to the jury and any colloquy pertaining thereto following completion of the charges, this court cannot reach a proper determination of this enumeration of error. When a portion of the transcript or record is not before this Court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result. Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466); compare Jackson v. State, 213 Ga. App. 170, 171 (2) (a) (444 SE2d 126).

Appellant also asserts that “during the course of the charge conference, [he] strenuously objected” to the Request to Charge No. 9; and that, during the charge conference, the trial court ruled again, over appellant’s objection that Request to Charge No. 9, as modified, would be given to the jury. However, appellant fails to assert and has not shown by the available record that following the charge to the jury, he timely excepted to the modified Request to Charge No. 9 and, if so done, on what specific grounds he excepted. Incidentally, appellant merely asserts in his brief that he preserved his enumerated errors for appellate review by filing a timely motion to set aside the verdict and. for a new trial and filing a timely notice of appeal. See, e.g., Court of Appeals Rule 27 (a) (1). In a civil case, an exception or objection to a charge must be made after the jury is charged and before the verdict; an objection made at a charge conference before the charge is given does not preserve a charging issue for appellate review. Bruno v. Evans, 200 Ga. App. 437, 441 (4) (408 SE2d 458); Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532). Moreover, we do not find by our examination of appellee’s Request to Charge No. 9, as purportedly modified, that it establishes on its face “substantial error” within the meaning of OCGA § 5-5-24 (c); accordingly, to prevail on appeal appellant must also establish affirmatively by the record and transcript that a specific exception to Request to Charge No. 9, as modified, was entered timely after the jury was charged and before the verdict was received. Bruno, supra; Sims, supra. Without access to the trial transcript we cannot conclude that appellant properly preserved a charging error for appellate review, and for this additional and independent reason, we must affirm the trial court’s rulings. Atlanta Cas. Ins. Co., supra. In this regard, we would not reverse the correct ruling of a trial court regardless of the reason, if any, given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); compare Malin Trucking, supra at 273 (1).

Additionally, assuming arguendo a charging error occurred as contended by appellant, nevertheless it is well recognized that charging errors can, under certain circumstances, be rendered harmless and not result in reversible error. See, e.g., Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756); Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271 (2) (404 SE2d 121); Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376); Ross v. State, 192 Ga. App. 850, 851 (4) (386 SE2d 721). Without access to a trial transcript, we would be unable to determine accurately whether any resulting charging error was harmless, and for this separate and independent reason, we also would be compelled to affirm the judgment and the trial court’s ruling denying appellant’s motion to set aside the verdict and for a new trial. Atlanta Cas. Ins. Co., supra.

Decided November 27, 1995.

Van C. Wilks, for appellant.

Tisinger, Tisinger, Vance & Greer, J. Branson Parker, Glenn M. Jarrell, for appellee.

Appellant contends that appellee waived any right to have a trial transcript presented to this Court on appellate review. However, it is not the right of appellee that is at issue here; at issue is whether it is this Court’s duty to affirm the judgment and rulings of a lower court when on appellate review the appellant, by election or conduct, fails to file a record or transcript adequate in content to enable this court to dispose judiciously of those appellate issues properly raised and preserved for appeal. In view of the precedent above cited, this rhetorical question need not be further addressed. Appellant has failed to carry his burden of establishing that his enumerations of error have merit and necessitate case reversal.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2597.
    WILLIAMS v. THE STATE.
    (464 SE2d 404)
   Birdsong, Presiding Judge.

Michael Williams a/k/a Michael Hartsfield appeals his conviction of armed robbery, aggravated assault, kidnapping, and possession of a firearm by a felon. He enumerates as error that his conviction was contrary to law and inadequacy of counsel in violation of his rights under the Sixth Amendment. Held:

1. Appellant asserts his conviction was contrary to law because the evidence, particularly his alibi evidence, shows he is innocent of the charges of which he was convicted. Thus, in essence, appellant is claiming insufficiency of the evidence. Appellant, in addition to asserting the strength of his own alibi defense, attacks the adequacy of the in-court identification of appellant by the victims of the crimes averred. However, appellant concedes that, with the exception of Ms. Russell, the victims identified appellant from their recollection of the criminal incident; further, appellant’s trial counsel posed no objection to the identification testimony of the State’s witnesses. “ ‘All evidence is admitted as a matter of course unless a valid ground of objection is (timely) interposed.’ [Cit.]” Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328). Moreover, a fingerprint expert testified that he was 100 percent certain that specific fingerprints found at the crime scene were the left thumb print of appellant.

The claims asserted in appellant’s brief in support of this enumeration are the sole claims preserved for appellate review as to this matter. “Any issue reasonably contained within an enumeration of error as to which there has not been any argument or citation of authority made in appellant’s brief is deemed abandoned on appeal.” Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 158 (1) (447 SE2d 122) and cases cited therein.

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 reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s contention that his conviction was contrary to law is without merit.

2. Appellant’s enumeration of error that his Sixth Amendment rights were violated by inadequacy of counsel is without merit. The proper test to be applied to this issue is a two-part test; that is, “a showing must be made that counsel was deficient, and that the deficient performance prejudiced the defense.” Timberlake v. State, 200 Ga. App. 64, 69 (5) (406 SE2d 537), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674).

Appellant makes a general assertion that his trial defense counsel had inadequate time to prepare before trial. “There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity.” Datz v. State, 210 Ga. App. 517, 518 (3) (a) (436 SE2d 506). This case was not complex. Further, there was no total failure of trial preparation as in Cochran v. State, 262 Ga. 106 (414 SE2d 211). Appellant claimed an alibi defense, and a vigorous alibi defense was presented at trial; during motion for new trial, appellant reaffirmed that had he testified, he would have asserted the same alibi defense as presented in his behalf by his seven alibi witnesses. Appellant’s counsel’s representation was not deficient merely because of the amount of time spent in pretrial preparation.

Appellant contends that his counsel was deficient in failing to file any pretrial motions; however, appellant makes no showing how he was prejudiced by such failure. Suffice it to say that appellant has the burden to demonstrate that his counsel was deficient in any particular phase of representation. See Rachell v. State, 210 Ga. App. 106, 108 (3) (a) (435 SE2d 480). We will not presume a deficiency resulted merely from counsel’s failure to file standard pretrial motions. For example, it is not deficient to fail to file a motion which is frivolous. See Watkins v. State, 206 Ga. App. 575, 577 (3) (426 SE2d 26); compare Wheeler v. State, 212 Ga. App. 638 (2) (442 SE2d 906).

Appellant contends trial counsel erred in failing to object to the pretrial and in-court identification testimony of the victims. Our examination of the record reveals that the questioned evidence was admissible. We find that each of the victim’s, including Ms. Russell’s, in-court identification of appellant had an “independent origin” within the meaning of Munn v. State, 208 Ga. App. 674, 676 (5) (d) (431 SE2d 447), and that there exists no affirmative showing on the record that it was error to admit the victims’ testimony as to their pretrial identification of appellant from various photographs presented to them by the police. We note that at the motion for new trial hearing, trial counsel testified that he did not find anything impermissible in the photographic process by the sheriff which would warrant challenge at trial. Additionally, during the motion for new trial hearing, appellant’s appellate counsel did not attempt to ascertain the availability of the photographs exhibited by the police and to have them appended to the record as an appellate exhibit. We will not conclude that the photographic display was unduly suggestive when appellant’s counsel elected not to attempt to supplement the record by attaching the photographs thereto for appellate consideration or to establish that through State misconduct such evidence was no longer available. The record before us is completely silent as to the physical characteristics of the person or persons depicted in the photographs. Error will not be presumed from a silent record. Compare Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281).

Appellant contends that his trial counsel was professionally deficient in refusing to allow him to testify notwithstanding his desire to do so. Trial counsel testified that he presented seven alibi witnesses whose testimony he considered to be more believable than the appellant’s; counsel concluded that the jury would either acquit appellant based on its belief of appellant’s seven alibi witnesses or would not believe the defense at all even with appellant testifying as the eighth alibi witness. Trial counsel “did not feel [appellant] was a good witness.” As a result, trial counsel “merely advised [appellant] that [counsel] did not think that it was to [appellant’s] advantage for him to testify, and [appellant] agreed with that.” Trial counsel further testified that he does not make the ultimate decision whether a client will testify. Appellant made an in-court concession (compare Hargroves v. State, 179 Ga. 722, 725 (4) (177 SE 561); Lamb v. Decatur Federal &c., 201 Ga. App. 583, 588 (411 SE2d 527)) that he wanted to testify, but trial counsel said it would not be in his favor to do so; appellant wanted to testify, but he agreed with the advice of his counsel whom he thought was doing the right thing; and trial counsel did not do anything to prevent appellant from testifying. Trial counsel’s advice to appellant not to testify was a legitimate trial tactic or trial strategy; appellant has failed to establish that counsel’s professional conduct was deficient in the rendering of this advice. Compare Datz, supra at 518 (3) (c); see Barron v. State, 264 Ga. 865, 866 (2) (452 SE2d 504); Weldon v. State, 202 Ga. App. 150, 152 (2) (413 SE2d 466); see also Etheridge v. State, 210 Ga. App. 96, 98 (1) (435 SE2d 292) (no showing testimony would be of benefit or relevant).

Decided November 27, 1995.

Lawrence F. Klar, for appellant.

Appellant’s remaining assertions of deficient professional representation by trial counsel fail to meet the first prong of the Strickland test. “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citation and punctuation omitted.) Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741). Appellant has the burden to establish that he has received ineffective assistance of trial counsel. Rachell, supra at 108 (3) (a). Appellant has failed to carry this burden as to any of these contentions of inadequacy of counsel and has failed to overcome the broad presumption of effective assistance of counsel. Id. We will not conclude trial counsel’s professional assistance was deficient in the absence of adequate proof of such claim.

Assuming arguendo that appellant had established his trial counsel’s professional representation was deficient in one or more ways asserted on appeal, he has nevertheless failed to carry his burden to establish how his defense was prejudiced thereby. Notwithstanding his aggressive alibi defense, our exhaustive examination of the record and transcript establishes that “appellant’s conviction resulted not from any deficiency in his legal representation but from the overwhelming evidence of his guilt.” Norris v. State, 176 Ga. App. 164, 168 (8) (335 SE2d 611). “ ‘The evidence of appellant’s guilt is overwhelming. He has failed to demonstrate that there is a reasonable probability that, absent the alleged errors, the verdict of the jury would have been different.’ Johnson v. State, 761 P2d 484, 490 (Okl. 1988).” Hite v. State, 208 Ga. App. 267, 270 (2) (430 SE2d 125) (physical precedent only). Appellant has failed to demonstrate that his representation by trial counsel prejudiced his defense within the meaning of the second prong of Strickland, supra.

Judgment affirmed.

Johnson and Smith, JJ., concur.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.


author: Pope, Presiding Judge.

text:
    A95A0954.
    GEORGIA BAPTIST MEDICAL CENTER v. MOORE.
    (464 SE2d 265)
   Pope, Presiding Judge.

Georgia Baptist Medical Center applied for discretionary review of the Superior Court of DeKalb County’s affirmance of a workers’ compensation award to Moore. We granted Georgia Baptist’s application, and now reverse the superior court’s decision to the extent that it allowed Moore to recover the medical expenses she incurred while being treated by an unauthorized physician. We also affirm that portion of the superior court’s decision which upheld the Board’s finding that Moore was entitled to weekly income benefits for the period beginning March 16, 1993 and ending April 26, 1993.

Moore worked for a nursing home owned and operated by Georgia Baptist. On March 15, 1993, while walking to work, she was injured when she slipped and fell on some ice in front of the nursing home’s entrance. Moore reported the incident to her supervisor on March 16, 1993, and was sent to the emergency room at Georgia Baptist. Dr. Wheatley examined Moore, and after placing her on one day of bed rest, released her to return to regular work. Wheatley also referred Moore to a panel physician, Dr. McMahan, for follow-up treatment, as necessary. Moore scheduled an appointment with Dr. Mc-Mahan for March 29, 1993, but she failed to keep this appointment. She also failed to keep two other March appointments that were scheduled with other panel physicians. Moore did, however, begin seeing an unauthorized chiropractor on March 23, 1993. This chiropractor subsequently submitted a statement to Georgia Baptist and indicated that Moore was disabled.

Although Georgia Baptist paid all of Moore’s medical bills associated with any treatment she received from authorized panel physicians, Georgia Baptist refused to pay for Moore’s treatment by the unauthorized chiropractor. It also disputed the chiropractor’s claim that Moore was disabled. On April 1, 1993, Georgia Baptist filed a Notice To Controvert “[controverting any and all lost time benefits as not authorized by the treating physician,” and pursuing “[a]ny and all defenses.”

Following a hearing on December 15, 1993, an administrative law judge determined that Georgia Baptist had controverted Moore’s entire claim and that Moore was entitled to disability benefits and compensation for the unauthorized chiropractor’s treatment. Upon de novo review, the full State Board of Workers’ Compensation adopted the ALJ’s findings of fact and conclusions of law. Georgia Baptist appeals from the superior court’s affirmance of the Board’s decision.

1. In its first and third enumerations, Georgia Baptist contends that the superior court erred in affirming the ALJ and Board’s determination that Moore was entitled to seek treatment from an unauthorized physician, and thereafter be compensated for the services the physician rendered, pursuant to Rule 201 (b) of the Rules and Regulations of the State Board of Workers’ Compensation. We agree. Board Rule 201 (b) applies to those claims where an employee is cut off from receiving medical treatment by her employer. See Pritchard Svcs. v. Lett, 183 Ga. App. 298 (358 SE2d 842) (1987); Ga. Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984). In this case, Georgia Baptist never cut off Moore’s entitlement to medical treatment. In fact, it unsuccessfully tried on several occasions to get Moore to see a panel doctor. Under such circumstances, Moore was not entitled to seek treatment from an unauthorized physician without first petitioning for the Board’s approval under OCGA § 34-9-200 (b). See Holcombe v. Brown Transp. Corp., 253 Ga. 719 (324 SE2d 446) (1985).

Additionally, Georgia Baptist did not fully controvert Moore’s claim so as to entitle her to seek treatment from a non-panel physician as allowed by Rule 201 (b). “When an employer [fully] controverts a claim, it informs the employee that in its view the injury is not compensable. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533, 535 (2) (356 SE2d 267) (1987). When an employer refuses to pay for treatment by a physician not on the approved panel, it does not controvert the compensability of the claim as contemplated by Rule 201 (b); it simply asserts its rights under OCGA § 34-9-201 (c).” Nu Skin Intl. v. Baxter, 211 Ga. App. 32, 33 (438 SE2d 130) (1993).

In the instant case, the record demonstrates that from the beginning Georgia Baptist treated Moore’s claim as a compensable medical only claim. In its controversion, it only sought to deny responsibility for the expenses Moore incurred from the unauthorized chiropractor, and to deny any claim Moore made for loss of time benefits based on the chiropractor’s determination that Moore was disabled. Based on the above, we conclude that the superior court erred in affirming that portion of the Board’s decision which awarded Moore compensation for the cost of her treatment by the unauthorized chiropractor. See OCGA § 34-9-201 (c).

2. In its second enumeration, Georgia Baptist contends that the superior court erred in its determination that there was evidence to support the Board’s finding that Moore was entitled to weekly income disability benefits. We disagree. A review of the unauthorized chiropractor’s records demonstrates some evidence that Moore was disabled from work from March 16, 1993 to April 26, 1993. Although such evidence was not provided by an authorized treating physician, Georgia Baptist has failed to cite any case or statutory authority which would lead us to conclude that such evidence is not competent or admissible. Accordingly, because there was some competent evidence to support the award of income disability benefits to Moore, the superior court did not err in affirming the Board’s decision on this matter under the “any evidence” rule. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65) (1976).

Decided November 28, 1995.

Goldner, Sommers, Scrudder & Bass, Marci R. Weston, Tiffany T. Norman, for appellant.

Donald W. Johnson, for appellee.

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Ruffin, J., concur.


author: Beasley, Chief Judge.

text:
    A95A1533.
    CROTTS ENTERPRISES, INC. v. JOHN PAYNE COMPANY, INC.
    (464 SE2d 844)
   Beasley, Chief Judge.

Crotts manages a variety of real estate properties, including the Montreal office park. Payne is a heating, ventilation, and air conditioning contractor which serviced HVAC systems at various Crotts sites and had installed some of them, including the one at Montreal. Payne sued on account and for breach of contract for $21,429.26 representing unpaid invoices. Crotts counterclaimed for breach of contract, later amending it to assert passive concealment of construction defects.

At trial, Crotts contended that Payne improperly installed the Montreal HVAC system, did not reveal this after it became apparent during service calls, but billed for repairs and blamed most of the problems on lightning strikes or electric surges. Payne denied the system was installed contrary to the manufacturer’s specifications and pointed out that others had worked on the system. It also maintained that lightning strikes and surges did cause the problems and that Crotts had rejected preventive equipment. A jury awarded Payne $14,459.56, and Crotts appeals.

1. Several enumerations address jury charges. We note that the trial judge absented herself from the courtroom while the parties placed their objections on the record. This practice defeats a primary purpose of requiring counsel to object to the court’s charge after it has been given, which is “ ‘to insure that the trial judge is afforded an opportunity to (determine if a charging error in fact has occurred and to) correct any error in the instructions prior to verdict so that the necessity of an appeal will be obviated.’ [Cit.]” Benton v. Chatham County, 206 Ga. App. 285, 287 (2) (425 SE2d 317) (1992). The purpose is not simply to “perfect the record” for appeal. See OCGA § 5-5-24 (a).

2. The court refused to give Crotts’s requested jury charge on passive concealment, which it enumerates as error. See Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986). The doctrine is clearly limited “ ‘to controversies between residential homeowners and residential builder/sellers as an exception to the doctrine of caveat emptor.’ [Cits.]” Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538, 539 (1) (458 SE2d 481) (1995). As in Armstrong, the doctrine is inapplicable because the case involves commercial property.

3. Crotts contends the collateral source rule should have prevented the court from charging the jury that, as to the counterclaim, the jury “must” reduce any amount awarded Crotts by the amount Crotts had received from its insurer. First, despite Crotts’s statements here, its counterclaim sounded only in contract; as discussed above, the court properly did not present any tort theory to the jury. The collateral source rule does not apply in contract cases because to do so would give the contract claimant more than his actual damages and more than he would have received if the contract had been fully performed. Amalgamated Transit Union &c. v. Roberts, 263 Ga. 405, 406-408 (1) (434 SE2d 450) (1993).

Second, if the court erred in charging the jury it “must” reduce any counterclaim award, there was no harm because the jury found against Crotts on the counterclaim. Crotts contends there was harm because the charge induced the jury to reduce Crotts’s counterclaim by the amount of insurance benefits Crotts had received, $20,913.65; take the remaining counterclaim amount; and use it to reduce Payne’s award on the main claim. Even if such a calculation would produce Payne’s award from the evidence presented, we cannot assume the jury engaged in such an exercise. A special verdict form was used, and the jury specifically found that Payne was not liable to Crotts on the counterclaim.

Additionally, in response to Crotts’s motion for new trial, Payne submitted an affidavit of the jury foreman sustaining the verdict. See OCGA § 9-10-9. The affidavit showed the jury completely rejected all Crotts’s bases for its counterclaim and did not make the calculation adjustments Crotts contends it did. There could be no harm from any error. Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376) (1992).

Similarly, Crotts’s third enumeration, asserting error in the ex-elusion of evidence concerning amounts it had paid for insurance premiums, fails because the evidence affected only the issue of damages on the rejected counterclaim.

Decided November 28, 1995.

A. Joseph Nardone, Jr., for appellant.

Rachelson & Beloin, Frederic S. Beloin, for appellee.

4. Crotts contends it was error for the court to charge the jury with the language of OCGA § 24-4-23, relating to the presumption arising from the failure to answer a business letter, arguing that Payne’s letter of July 26, 1991, which mentioned “outstanding invoices” totaling $24,912.86, was not a product of “mutual correspondence.” See American Express &c. Co. v. Berlye, 202 Ga. App. 358, 361 (2) (414 SE2d 499) (1991). The letter followed two letters to Payne dated February 1 and March 11, 1991, which reported problems and requested service. Even if this did not establish a mutual correspondence about Payne’s work, a strict mutual correspondence, in the sense of an exchange of several letters, is not always necessary. The statute refers to the “ordinary course of business,” and the question is whether the evidence shows “such a ‘due course of business’ as to warrant the application of this [Code] section.” Western Union Tel. Co. v. Nix, 73 Ga. App. 184, 191 (3) (36 SE2d 111) (1945). It is undisputed that repeated service calls were made and invoices prepared and presented. Payne’s letter was in the ordinary course of business, so it was not error to give this charge.

5. Finally, Crotts contends its motion for directed verdict should have been granted because Payne’s claim was actually a claim in quantum meruit rather than a claim on a commercial account, and Payne did not produce any evidence of the value of the services rendered, only the amount charged. No authority is cited. The claim is for “an obligation for the payment of money arising out of a transaction to sell or furnish . . . goods or services.” See OCGA § 7-4-16. Although Moore v. Hendrix & Hodges, 144 Ga. 646, 648 (87 SE 915) (1916), states that parties must have an agreement on a fixed amount to establish an account stated, the same is not required for a claim on open account. See Kay Solar Systems v. Rome Printing Co., 160 Ga. App. 825, 826 (1) (287 SE2d 675) (1982). A directed verdict was not mandated.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1493.
    COOLEY v. THE STATE.
    (464 SE2d 619)
   McMurray, Presiding Judge.

Defendant Cooley appeals his conviction of the offense of terroristic threats. Held:

Defendant enumerates as error the denial of his motion for directed verdict of acquittal submitted at the close of the State’s evidence. Since the evidence when viewed in a light most favorable to upholding the verdict fails to satisfy the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), a verdict of acquittal was demanded and defendant’s conviction must be reversed.

Defendant’s daughter was involved in a fight at school. The child’s teacher reported this to the school’s administrators by beginning a disciplinary referral form, that is, filling in portions of the form with the child’s name, time, date, the teacher’s name, and a brief description of the offense. The dispute between the students was resolved by the counseling of one of the school’s assistant principals. Apologies were exchanged between the students and the assistant principal sent home with defendant’s daughter the disciplinary referral form. To the form the assistant principal added a description of the resolution of the incident and signed the form in a space subscribed “Office Signature.” The form also contained a space for a parent’s signature. Defendant’s daughter was instructed by the assistant principal to have a parent sign the form and return it to her. Defendant’s daughter returned the disciplinary form sealed in an envelope to her teacher, who passed it on to the school’s second assistant principal, who in turn passed it on to the assistant principal who had signed the form.

In the space for the parent’s signature was written “over” and the back of the form contained a handwritten note. This note, which forms the basis of the alleged offense, states:

“Corporal punishment is not an option in any situation concerning my daughter. Any use of physical violence against my daughter will result in the use of physical violence of mine directed against the perpetrator. I will protect my child against physical abuse, if I have to kill you to do it!

[defendant’s signature]

I notice that there is nothing marked in action taken prior to referral. In all cases reaction to a first offense should be to contact the parents. Parents should be given the opportunity to correct the children first. I have done this.

[defendant’s signature]”

Pretermitting any other issues raised by defendant’s enumeration of error, we note that the crime of terroristic threats is not limited to circumstances where the perpetrator engages in the prohibited conduct in a face to face confrontation with the victim. Previous cases have approved convictions where the perpetrator has caused threats to be transmitted by telephone or conveyed by mail. Hammock v. State, 210 Ga. App. 513, 515 (3) (436 SE2d 571); Usher v. State, 143 Ga. App. 843 (240 SE2d 214). But where there is no evidence that the defendant caused the threat to be conveyed to the victim, there is no proof of the crime of terroristic threats and we find no authority for sustaining a conviction.

Decided November 17, 1995

Reconsideration denied November 29, 1995.

Cowart & McCullough, Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assis tant District Attorney, for appellee.

Defendant’s child did not testify at trial. There is no direct evidence that the child was acting on her father’s instructions in returning the referral form to the school. There is evidence that the child was instructed by the assistant principal, who is the alleged victim, to return the form. Defendant testified that he did not return the form to his daughter and also denied having written “over” in the space provided for a parent’s signature.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. In our view it is a reasonable hypothesis that defendant’s daughter, a fifth grade student at the time of the alleged offense, acted independently in recovering possession of the disciplinary referral form and returning it to the school in compliance with the instructions she had received from the assistant principal. “While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must view the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law. [Cits.]” Brooks v. State, 206 Ga. App. 485, 486 (1) (425 SE2d 911). See also Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788). The State’s failure to present evidence excluding a reasonable hypothesis of innocence results in a failure of proof in regard to several elements of the crime charged and should have precluded the jury’s return of a verdict of guilty.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A1679.
    HALTA v. BAILEY.
    (464 SE2d 614)
   Andrews, Judge.

The central issue raised in this appeal is whether the grantee and first taker are indispensable parties in this action for declaratory judgment and claim of fraudulent conveyance of shares of closely held stock.

Taken in the light most favorable to the jury’s verdict, the evidence at trial was that in December 1992, plaintiff Bailey was awarded shares of stock in two closely held corporations, Huddleston Company and Walker Concrete, in the final judgment in the divorce action between her and Crawford Bailey. Prior to this, on May 12, 1989, the Fayette Superior Court had issued a temporary restraining order in the divorce case which provided, inter alia: “Each party is hereby enjoined and restrained from selling, encumbering, contracting to sale or otherwise disposing of or removing from the jurisdiction of this court, any of the properties belonging to the parties except in the ordinary course of business.”

When the divorce court awarded Bailey the stocks, they were in the possession of defendant Halta. Halta claimed she acquired the stocks through investments made with Associated Ventures, Inc., which were initiated in April 1991. Bailey claimed the stocks were rightfully hers and that her former husband, Crawford Bailey, had fraudulently conveyed the stocks to Halta. Bailey further claimed that Associated Ventures was a sham corporation set up by her husband to serve as a conduit through which he could pass assets to Halta, his girl friend, in contravention of the temporary restraining order issued by the divorce court. Bailey initially sued Crawford Bailey and Associated Ventures as well as Halta. However, Bailey dismissed her claims against Crawford Bailey and Associated Ventures prior to trial.

The case was tried to a jury, and the jury returned a verdict awarding the stock shares in both companies to Bailey. Halta appeals, claiming that the trial court erred in: (1) failing to grant Halta’s motion to add indispensable parties; (2) failing to grant Halta’s motion to dismiss for failure to join the grantor and initial grantee as indispensable parties; and (3) denying Halta’s motion for directed verdict because Crawford Bailey and Associated Ventures were not joined as parties in the case.

1. Halta claims that Bailey cannot bring an action under OCGA § 18-2-22 (2) against just one person, Halta, the final recipient of the stock. OCGA § 18-2-22 (2) requires that the conveyance have been made: (1) with the intent to defraud and (2) that this intention be known by the taking party. Halta claims that the grantor, Crawford Bailey, and the first taker, Associated Ventures, must be joined as indispensable parties. The sole basis for this claim appears to be Halta’s contention that since Crawford Bailey and Associated Ventures were not parties, she had the unwarranted burden of proving the intent and knowledge of two other entities who were not parties to the case.

There are two essential tests for an indispensable party under OCGA § 9-11-19 (a): (1) can relief be afforded the plaintiff without the presence of the other party, and (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 230 Ga. 786, 796 (199 SE2d 223) (1973). If there are no compelling reasons for joining third parties, then they are not indispensable, and it is not necessary to join them for a just adjudication of the action between the original parties. Peoples Bank &c. v. N. C. Nat. Bank, 230 Ga. 389, 392 (197 SE2d 352) (1973). Here, the joinder of neither Crawford Bailey nor Associated Ventures is necessary for a just adjudication of the merits of this action, and neither is required for complete relief. Further, Halta puts forward no compelling reasons why they must be joined. Halta’s ability to present evidence and testimony as to Crawford Bailey’s and Associated Ventures’ intent was not affected by whether or not they were parties to the action. Halta subpoenaed Crawford Bailey, and he testified at trial. Halta was likewise free to present any and all evidence available as to Associated Ventures’ intent and knowledge in taking possession of the stocks.

The cases cited by Halta do not demand a different result. While we agree it is well settled that, in an equitable action to set aside a deed to real property, all parties to the deed are necessary parties, we do not find these cases authoritative in the instant situation dealing with the fraudulent conveyance of stock certificates.

Bailey claims this issue is controlled by the Georgia Supreme Court’s decision in Stokes v. McRae, 247 Ga. 658 (278 SE2d 393) (1981). This was a case of fraudulent conveyance of real property in which the grantor of the deeds was named as a defendant but never answered. The case proceeded against the grantee, with the grantor testifying at trial. The issue of whether the grantor was a necessary party was not raised on appeal. The Georgia Supreme Court found that the plaintiff had presented sufficient evidence to raise a jury issue as to both elements under OCGA § 18-2-22 (2). Stokes, supra at 659-660.

In light of Stokes and for the reasons discussed above, we find that Crawford Bailey and Associated Ventures were not indispensable parties in the fraudulent conveyance action. Accordingly, the trial court did not err in denying Halta’s motion to add them as indispensable parties, motion to dismiss for failure to add indispensable parties, or motion for directed verdict because Crawford Bailey and Associated Ventures were not added as parties.

2. Halta also claims that the trial court erred in denying her motion for directed verdict because there was not enough evidence of the knowledge of Associated Ventures to go to a jury.

“[I]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. The standard for review of a directed verdict and a judgment n.o.v. are the same: Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. And, the standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard.” (Citations and punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 698 (409 SE2d 267) (1991).

In the instant case, Bailey introduced sufficient evidence from which a jury could conclude that Associated Ventures was formed only to serve as a means by which Crawford Bailey could transfer assets to Halta in contravention of the restraining order entered in his divorce case. As the trial court stated, there was sufficient evidence from which the jury could find that the stock went directly from Crawford Bailey to Halta, in which case the intent of Associated Ventures was not even at issue. Accordingly, this enumeration of error is without merit.

3. Next, Halta argues the trial court erred in admitting photographs taken by Bailey of a house owned by Halta’s corporation. These photographs purported to establish the relationship between Halta and Bailey’s former husband which went toward proving Bailey’s claim of fraudulent conveyance. Halta claims the photographs should not have been admitted because what was shown in the pictures was not connected with Halta or Crawford Bailey, and therefore, the pictures were not relevant, and their only purpose would be to prejudice the jury.

“The admission or exclusion of photographic exhibits is a matter within the discretion of the trial court, and unless abuse of discretion appears, no error is shown.” (Citations omitted.) Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 779 (403 SE2d 235) (1991). Here, some of the pictures were relevant to Bailey’s contention that her former husband and Halta had a personal relationship. While some of the pictures appear to be not relevant on this issue, they also appear to be innocuous. Therefore, no harm has been shown due to the admission of the irrelevant pictures. “The burden is on the party seeking reversal to show not only error, but also injury arising from the alleged error.” Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328) (1982). Accordingly, we find this enumeration of error to be without merit.

Decided November 6, 1995

Reconsideration denied November 29, 1995

Driebe & Driebe, Charles J. Driebe, J. Ronald Stegall, Jr., for appellant.

Cashin, Morton & Mullins, Harry L. Cashin, Jr., Noel B. Mc-Devitt, Jr., Albert B. Wallace, Stephen B. Wallace II, for appellee.

4. Amazingly, Halta also claims that the court erred in admitting into evidence a portion of her own affidavit submitted in support of her motion for summary judgment in this case. Halta appears to be saying that since Bailey stated at one point that she was not trying to prove direct fraud against Halta, then the fraudulent portion of Haifa’s affidavit should not have been admitted into evidence.

“Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” (Citations and punctuation omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (421 SE2d 555) (1992). Here, the affidavit certainly is relevant to Haifa’s credibility, and therefore, the court properly admitted it into evidence.

5. Next, Halta claims that the court erred in giving Bailey’s requests to Charge Nos. 6, 7, 8, and 9 since these charges make no mention of Associated Ventures. As previously discussed, there was sufficient evidence at trial that the stock passed directly from Bailey to Halta. Since the trial court also instructed the jury on OCGA § 18-2-22 (2) and how it would apply in a transfer of the stock from Crawford Bailey to Associated Ventures to Halta, the charge as a whole was fair.

6. Haifa’s remaining enumerations of error claim that the court erred in not giving her requests to Charge Nos. 2, 4, 6, 7, 8 and 9. We find these enumerations to be without merit. We have reviewed the record and find that, taken as a whole, the charge was fair and accurate. Further, we find no harm or prejudice to Halta in the court’s refusal to give the requested charges. See Leigner v. State, 213 Ga. App. 871, 872 (446 SE2d 770) (1994) (charge must be taken as a whole and each part considered in connection with all other parts). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A1829.
    REDDING v. THE STATE.
    (464 SE2d 824)
   Andrews, Judge.

Redding appeals from a judgment entered on a jury verdict finding him guilty on 13 of 14 counts of rape, aggravated sodomy, aggravated assault, burglary, robbery, armed robbery and possession of a knife. This is the third appearance of this case in our court, and the procedural history is an involved one. Redding was first indicted in 1988 for the rape and robbery of C. W. on September 29, 1987. Red-ding filed a motion to suppress evidence obtained in that case, and the trial court denied it. Redding appealed, and we remanded the case to the trial court to review certain misstatements and omissions in the affidavit submitted to obtain the search warrant. Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989). On remand, the trial court granted the motion to suppress. Redding was then re-indicted for the offenses involving C. W. and for additional offenses occurring during the rape of H. B. Redding’s trial in August 1991 on the H. B. counts ended in a mistrial. Redding was indicted a third time for these same offenses and filed a motion for judgment of acquittal based on OCGA § 17-7-53.1. The trial court denied the motion, and we affirmed. Redding v. State, 205 Ga. App. 613 (423 SE2d 10) (1992). In March 1994, the trial court affirmed its earlier ruling that the DNA evidence in the H. B. case was admissible and ruled some of the new DNA evidence in the C. W. case admissible and some not admissible.

Redding was convicted, and the trial court sentenced him to five life sentences plus forty years. Redding now appeals the trial court’s denial of his motion for new trial.

1. In his first enumeration of error, Redding contends that the trial court erred in denying his Batson challenge to the striking of a black juror. Redding argues that the State’s explanation for striking the juror, that the juror was unemployed, is not a sufficient reason under Batson. However, the State gave several race-neutral reasons for striking the juror. The juror’s sister had been charged with felony assault offenses. Another sister had just left the DeKalb Police Department under circumstances which suggested there may have been bad feelings. Further, the juror was friends with another juror who had been charged with child molestation and sexual assault and was struck for cause because he was a convicted felon.

Thus, we find that the prosecutor gave sufficient race-neutral reasons for striking this juror to warrant the trial court’s denial of Red-ding’s Batson challenge. Accordingly, this enumeration of error is without merit.

2. Second, Redding argues that the evidence fails to support the verdict. On appeal, this Court determines the sufficiency and not the weight of the evidence. Lattimore v. State, 203 Ga. App. 259, 260 (416 SE2d 829) (1992). Further, the evidence must be viewed in the light most favorable to the jury’s verdict, and Redding no longer enjoys a presumption of innocence. Palmore v. State, 213 Ga. App. 140, 141 (444 SE2d 581) (1994). Accordingly, the evidence at trial was as follows. Around 7:00 a.m. on August 4, 1987, just as it was getting light, H. B. awoke to find a black male with a knife hovering over her. She was able to see him for approximately ten seconds and then he told her to close her eyes and keep them closed. H. B.’s two-year-old daughter and five-month-old son were also in the room with her. The man forced her to orally sodomize him and raped her. H. B. testified that the man smelled of beer. After he raped her, the man demanded money. H. B. described her attacker as being between five feet, eight inches and five feet, ten inches tall, weighing 135 to 150 pounds, with a moustache and thin short hair, wearing a red t-shirt with black writing on it and having a large amount of body hair.

On September 29, 1987, C. W., who lived two-tenths of a mile from H. B., was awakened in the early morning by someone taking her cover off and kicking her ankle. C. W. jumped out of bed, and the man put his arms out to keep her from running out of the room. C. W. testified that the man smelled of beer. She decided to fight and hit her attacker in the groin. The man beat her until she stopped struggling. He repeatedly forced her to orally sodomize him and raped her several times. After the rape, the man demanded money and left after pulling her phone out of its socket and taking the money in her purse.

H. B. gave police information as to the general description of her attacker but told them she would not be able to identify him because she had not seen him clearly enough. C. W. stated that she thought she would be able to identify her attacker. She gave police information for a composite sketch, and the detectives from the Decatur Police Department thought the composite resembled Redding. In addition, C. W. described her attacker as having a scar, and Detective Rosser discovered that Redding had a scar on the left side of his stomach and a scar down the middle of his stomach. Further, Red-ding lived in the same neighborhood as C. W. and H. B., approximately four-tenths of a mile from C. W.

When C. W. was driving through the neighborhood with detectives in an attempt to identify her attacker, the detectives spotted Redding at a convenience store. They called Redding over to the car. C. W. told the detectives that Redding was not the man who attacked her, but she got scared when she heard his voice. She told the detectives that Redding’s head and body were the exact shape as the rapist’s.

The forensic evidence introduced at trial showed that hair matching that of Redding’s was found in the pubic combings of the two victims and on the bed sheets. There was expert testimony that the DNA isolated from the H. B. rape kit matched the DNA isolated from Redding’s blood. There was also expert testimony as to the DNA match between Redding’s blood and the sperm found on C. W.’s sheet and in C. W.’s rape kit. Further, Redding matched the physical description given by both victims. In addition, Redding had a scar similar to the one C. W. described to police.

Accordingly, for the reasons discussed above, we find that the evidence was sufficient to authorize a rational trier of fact to find Red-ding guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Redding also appeals the trial court’s denial of his motion to sever the H. B. case from the C. W. case. The facts in the two cases, as discussed above, are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. See Byars v. State, 198 Ga. App. 793, 794 (403 SE2d 82) (1991) (rule allowing similar transaction evidence has been liberally extended in sexual offense cases). Accordingly, “[w]here the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying (the) motion for severance.” (Citation omitted.) Weaver v. State, 206 Ga. App. 560, 561 (426 SE2d 41) (1992). Therefore, the trial court did not err in denying the motion to sever.

4. Redding claims that evidence of DNA matching was improperly admitted. Specifically, Redding objects to: 1) the evidence allowing the use of a monomorphic enzyme probe to correct for band shifting, thus allowing the State’s witness to testify that there was a match of otherwise non-matching DNA; 2) the admission of improper statistical procedures and 3) the admission of the results of the DNA matching tests because improper execution of laboratory techniques and human error caused these results to be unreliable.

In this case, two different laboratories conducted the testing of the DNA evidence admitted. Lifecodes performed the RFLP (restriction fragment length polymorphism) test of the evidence gathered in the H. B. case, and Genetic Design performed the PCR (polymerase chain reaction) tests in both the C. W. and H. B. cases. Redding complains of the correction for band shifting which occurred in the RFLP test and argues that the PCR technique is not acceptable.

The trial court conducted extensive hearings and listened to testimony from numerous expert witnesses on the issues of admissibility of the DNA evidence, and the court’s order on these issues is thorough and well reasoned. We agree with the trial court that the procedures used in the testing were sufficiently reliable to admit the DNA evidence. Dr. Choi, who testified as an expert for the defense, stated that while he disagreed with Lifecodes’ interpretation of the results, the manner in which Lifecodes tested the DNA evidence was acceptable. Dr. Adkinson admitted that the manner in which the DNA was collected was proper. The trial court found there was “no dispute over the correctness of the procedures used by Lifecodes in conducting the RFLP analysis. The only dispute involves the question of whether a laboratory should correct for band shift.” There was also no testimony faulting the procedures used by Genetic Design with regard to the HLA-DQALPHA and D1S80 testing. In addition, we need not consider complaints about the handling of the evidence used in the PCR tests conducted by Lifecodes since the trial court determined this evidence was not admissible.

Further, the statistical procedures used were proper. Dr. McElfresh testified that the calculations performed in the H. B. case were based upon actual observed genotype frequencies as opposed to expected frequencies. These observed frequencies are more conservative or favorable to the defendant than the expected frequency calculations using the Hardy-Weinberg formula. Dr. Anderson, a defense witness, testified that Lifecodes’ method of calculating frequencies was proper.

With regard to the issue of whether evidence obtained as a result of band shifting should have been admitted, the Georgia Supreme Court has ruled that evidence obtained as a result of Lifecodes’ use of a monomorphic probe to correct for band shifting is admissible. Caldwell v. State, 260 Ga. 278, 287-288 (393 SE2d 436) (1990).

Redding also contends that the use of the PCR technique is not acceptable since it requires a “trust me” approach to verification. The lightness or darkness of the “dot” test results does not always show up on a photograph used to verify the tests. As the trial court explained in its order, the PCR technique is an amplification process which causes the DNA to separate and replicate. This results in a larger pool of DNA than that obtained from the original sample. The trial court also noted that the use of PCR has many advantages, among which are its ability to be used on old and degraded samples and also on smaller samples than those required for other tests. While there were possible problems which could arise in using this technique, the court noted that there was no evidence of any of these problems occurring in this particular test. Although the trial court found that the PCR tests conducted by Lifecodes were not sufficiently reliable to be admitted, the trial court did allow into evidence the PCR tests performed by Genetic Design.

Georgia has not decided the issue of the reliability of PCR testing, although other states have allowed this evidence to be introduced. See, e.g., Spencer v. Commonwealth, 240 Va. 78 (393 SE2d 609) (1990); State v. Lyons, 124 Or. App. 598 (863 P2d 1303) (1993). We agree with the trial court’s determination that the tests conducted on the DNA samples using the PCR technique were admissible. We find that the trial court’s approach in determining whether the principles and techniques involved in the PCR testing were valid and whether the procedures were performed in a scientifically acceptable manner is consistent with the approach in Harper v. State, 249 Ga. 519, 524-526 (292 SE2d 389) (1982). See also Caldwell, supra at 287.

Therefore, the court did not err in admitting the results from the DNA testing into evidence. See Johnson v. State, 264 Ga. 456, 458 (448 SE2d 177) (1994) (admissibility of DNA evidence dependent upon court’s determination that procedures were performed in an acceptable manner and were capable of producing reliable results). Accordingly, we find this enumeration of error to be without merit.

5. In his fifth enumeration of error, Redding claims that the trial court erred in denying his motion to suppress. Redding argues that the State obtained its search warrant solely on evidence gathered as a result of a prior search warrant which was found to have been issued without probable cause and the evidence obtained under it suppressed. The evidence suppressed was actually obtained under three prior search warrants. This evidence consisted of samples of Red-ding’s blood, pubic hair, facial and head hair. On August 30, 1989, Investigator Rosser obtained a fourth search warrant for the blood, head hair, pubic hair, facial hair, body hair and saliva of Redding. The affidavit used to obtain this warrant sets out the facts of the two cases, descriptions of the attacker given by the victims, a scar on Red-ding’s side that could match a description of the scar given by C. W. and numerous other details. The affidavit does not mention the matching of hair samples or DNA matching of the blood sample obtained under the previous warrants.

On August 2, 1993, an investigator from the district attorney’s office obtained a fifth search warrant for additional blood from Red-ding. In the affidavit used to obtain this warrant, the investigator mentions the hair matches and DNA test results, but these are the results from tests performed using samples obtained under the fourth search warrant. Since we find that there was probable cause to issue the fourth search warrant and since it was not tainted by the evidence suppressed which was obtained under the first three search warrants, this enumeration of error is without merit. Accordingly, the trial court did not err in denying the motion to suppress.

6. Last, Redding claims he was denied his constitutional right to a speedy trial. The four factors to be used in evaluating a Sixth Amendment speedy trial claim are: 1) length of delay; 2) reason for delay; 3) defendant’s assertion of his right and 4) prejudice to the defendant. Redd v. State, 261 Ga. 300, 301 (404 SE2d 264) (1991).

While the case did take a long time to finally resolve, many of the delays were due to actions appropriately taken on behalf of the defendant. This case involved two trials, two interlocutory appeals and numerous motion hearings. Redding’s first lawyer represented him through the first trial, which ended in a mistrial, and two interlocutory appeals. Redding was represented by different counsel at the second trial. Although Redding’s second trial counsel testified that Red-ding asked her to file a speedy trial demand, she stated that she pointed out to him that since this was a very complex case, she would be unable to prepare in such a short time if the demand were granted. Counsel also stated that Redding told her he understood her reasons for not filing the speedy trial demand out of time. Redding’s contention that a speedy trial could possibly have solved some of the problems caused by the age degradation of the DNA is of little weight given the facts that there is no evidence that the State was responsible for deliberately delaying the trial in order to hamper the defense and much of the delay was for actions taken on behalf of the defendant. Further, Redding was in prison on other charges while this trial was pending.

Decided November 6, 1995

Reconsideration denied November 29, 1995.

William T. Hankins III, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

In addition, counsel was not ineffective for failing to file a speedy trial demand. Although Redding does not list ineffective assistance of counsel as a separate enumeration of error, he argues that counsel was ineffective in failing to file a speedy trial demand. As discussed above, neither trial counsel felt it was in the defendant’s best interest to file a demand for a speedy trial since the case was so complicated and required an unusual amount of preparation time. This enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.