author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0596, A96A0597.
    SOUTHERN FIRE & CASUALTY COMPANY v. FREEMAN; and vice versa.
    (474 SE2d 195)
   Blackburn, Judge.

In Case No. A96A0596, Southern Fire & Casualty Company (Southern Fire) appeals the trial court’s order granting Sarah Freeman’s motion for summary judgment on the issue of Southern Fire’s compliance with former OCGA § 33-34-5 (b) in the application for automobile insurance at issue. In Case No. A96A0597, Sarah Freeman appeals the trial court’s order granting Southern Fire’s motion for summary judgment on the issue of bad faith damages provided for by OCGA § 33-4-6.

1. Freeman, the insured, contended that Southern Fire’s application failed to meet the mandates of former OCGA § 33-34-5 (b) and thus the policy provides additional coverage for her. In granting her motion for summary judgment, the trial court agreed.

“The legislature enacted the former OCGA § 33-34-5 (b) to draw a bright line between cases where applicants effectively rejected optional coverages and cases where the applicant did not. Southern Guaranty Ins. &c. v. Goddard, 259 Ga. 257 (379 SE2d 778) (1989). That Code section, which was in effect at the time [Freeman] applied for insurance coverage with [Southern Fire], required that ‘(e)ach initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.’ Accordingly, ‘for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in bold face, and (3) that the statement be signed by the applicant.’ Id. at 258.” Travelers Indem. Co. v. Holtz, 218 Ga. App. 83 (460 SE2d 300) (1995). In Southern Guaranty Ins. Co. v. Goddard, supra at 258, the Georgia Supreme Court determined that “[t]he common sense definition of boldface is that print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.”

In the present case, Southern Fire’s application contained an “Offer of Additional Optional No-Fault Coverage” on a separate page marked off in its own box. See Exhibit A to this opinion. Below the offer of additional coverage, set off in its own paragraph, and in bold type is the language: “The Additional Optional Coverages Above Have Been Explained To Me.” This statement is followed by two short lines, also in boldface type, containing the definitions of PIP and ACV: “PIP means personal injury protection and ACV means actual cash value.” Freeman’s signature, as applicant, follows these definitions.

Our review of the application indicates that although the statement required by law to be in boldface type, is in boldface type, additional surrounding language is also in boldface type. This additional language is not required by law to be in boldface type. Furthermore, other language on the form is printed in such a way as to make it conspicuous, e.g., “For Georgia Residents” at the top of the form is in boldface type and in a larger sized font than the language around it. Under the facts of this case, we find that the mandates of former OCGA § 33-34-5 (b) and the requirements of our Supreme Court in Goddard, supra, have not been met because the statement required by law to be “different enough to be conspicuous” is not. Windsor Ins. Co. v. Jeffery, 204 Ga. App. 557, 558 (420 SE2d 15) (1992). The dissent ignores the Supreme Court’s specific requirement that the print be more conspicuous than the print which surrounds it. The reason for this requirement is that the effect of boldfacing could be easily defeated by simply boldfacing the surrounding material. Rather like in hiding a tree, the best place to do so is in a forest. Goddard, supra at 258. We have no authority to overrule the Supreme Court and are bound to follow its specific requirements. Therefore, the trial court correctly granted Freeman’s motion for summary judgment.

2. In her cross-appeal, Freeman contends the trial court erred in granting Southern Fire’s motion for summary judgment on her claims for bad faith penalties and attorney fees.

“To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action. [Furthermore,] [penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.” (Citations and punctuation omitted.) Southern Fire &c. Ins. Co. v. Northwest Ga. Bank, 209 Ga. App. 867, 868 (434 SE2d 729) (1993).

In the present case, we cannot say that the trial court erred in determining that Southern Fire’s defense was not frivolous or an unfounded denial of liability. This Court is unaware of any case directly interpreting the insurance application at issue. Although the trial court relied on Henry v. Gulf Ins. Co., 214 Ga. App. 516 (1) (448 SE2d 230) (1994), to determine that the present application did not comply with former OCGA § 33-34-5 (b), that case is distinguishable. In Henry, we determined that an application which contains the acknowledgment in all capital letters with the same ink density as the remaining type on the page was not sufficient to meet the mandates of former OCGA § 33-34-5 (b). Id. at 517. Because the acknowledgment in the present case is in boldface type, our analysis in the Henry case does not directly apply, and is not a basis to assert that the issue presented in the present case has previously been determined.

Although Southern Fire’s defense did not prevail, the insured must prove that the defense was frivolous and unfounded. The insured failed to carry this burden. Therefore, the trial court correctly granted Southern Fire’s motion for summary judgment.

Judgments affirmed.

McMurray, P. J., Pope, P. J., and Johnson, J., concur. Birdsong, P. J., and Ruffin, J., concur in the judgment only. Beasley, C. J., Andrews and Smith, JJ, dissent.

Beasley, Chief Judge,

dissenting.

I concur in Division 2 (Case No. A96A0597) but not in Division 1 (Case No. A96A0596). It is obvious in this case that plenty of notice was given and that the applicant for insurance knew what she was signing. The explanation itself is express to an extent, and the applicant’s name is carefully subscribed on the two lines provided for it. The nature of her signature gives the appearance of deliberateness.

The options are clearly and simply presented in orderly columns, with space between so they are not lost in close writing. The box gives added emphasis to the fact that this portion of the application is unique and exclusively for Georgia residents. In bold face are certain important statements, each set off from the others, that this is an offer, that Georgia law requires it, that the applicant must make a written choice about each option, that they have been explained to her, and what the abbreviations mean for the coverages she must accept or reject.

Although this form was signed in 1988, no case in these intervening years has held that it is deficient for failing to meet the mandates of OCGA § 33-34-5 (b), as the majority noted, before that Code section was changed in 1991. The conclusion is inescapable from a reading of the questioned portion of the document that it “contain[s] a statement in boldface type signed by the applicant indicating that the optional coverages listed in [the] Code section have been explained to the applicant.” OCGA § 33-34-5 (b) (1990 ed.). The three parts of this requirement, as identified by the Supreme Court in Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778) (1989), were satisfied. The “bright line” was followed.

The fact that the insurer deemed it wise, to assure applicant’s attention and understanding, to highlight several other short statements as well does not diminish or detract or neutralize the boldness of the required statement. It stands out by itself, with space between it and all the other print, most of which is not bold. It is conspicuous, in the word used by the Supreme Court in Goddard; it is not an obtuse statement, buried in a “confusing maze” written in insurance industry jargon with abbreviations listing 29 types of coverage making 87 options available, as was the application presented to Goddard. In fact, the insurer went so far as to capitalize the first letter of each word in the assurance, giving it even more emphasis than the Code requires. The applicant’s signature is only one sentence removed from this law-required statement, strengthening the memorialization of the acknowledgment that the insurer fulfilled its obligation to explain. The other boldfacing merely gives context to the statement of assurance, fleshing out its bare bones.

Applying the “common sense” approach taken by the Supreme Court in Goddard leads to the conclusion that “the plain-talking statute” was complied with in this case. Its purpose was met, as it is clear from the insurance application that Freeman confirmed that the coverage which she knew would cost an additional premium was explained to her and rejected by her. That being so, she has no claim for additional coverage, and the trial court erred in denying summary judgment to defendant on this issue.

I am authorized to state that Judge Andrews and Judge Smith join in this dissent.

Decided June 25, 1996

Reconsideration denied July 12, 1996

McLain & Merritt, William S. Sutton, for appellant.

B. Samuel Engram, Jr., for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A0651.
    In the Interest of M. M., a child.
    (474 SE2d 53)
   Blackburn, Judge.

We granted Mary Grace Mills’ application for interlocutory appeal in order to determine if the trial court properly exercised jurisdiction to hear this interstate custody dispute under the emergency condition exception of OCGA § 19-9-43 (a) (3) (B), the Uniform Child Custody Jurisdiction Act (UCCJA).

The parties were granted a divorce by the Superior Court of DeKalb County in May 1993. Joint child custody was awarded to the parties with primary physical custody of the child continuing in the mother. In the summer of 1994, the mother and child permanently moved to Evansville, Indiana, where they have continuously resided. Except for periods of visitation with his father in Georgia, the child, who is presently six years old, remained in Indiana until the father filed this action in September 1995.

The child spent an extended summer visitation with the father beginning in May 1995, but returned to Indiana prior to his scheduled Labor Day visit with his father in Atlanta. It was agreed that the child would be returned from the Labor Day holiday visitation to his mother in Indiana on September 5, 1995. However, the father refused to return the child at the appointed time and, instead, filed this civil action seeking to modify the custody arrangement.

1. On appeal, the child’s mother contends that the trial court erred in determining that it had jurisdiction to hear the dispute.

One of the codified purposes for the legislature’s passage of the UCCJA is to “[a]ssure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” OCGA § 19-9-41 (a) (3). Based on this purpose, the UCCJA limits jurisdiction to decide child custody matters to the home state of the child except in limited situations. See OCGA §§ 19-9-43 (a) (1) (A), (B); 19-9-43 (a) (3). The “home state” means the state in which the child lived with a parent for at least six months immediately preceding the time involved. Periods of temporary absence are counted as part of the six-month period. See OCGA § 19-9-42 (5). The home state here is clearly Indiana.

In the present case, the trial court based its exercise of jurisdiction on the emergency provision contained in OCGA § 19-9-43 (a) (3) (B). An emergency situation exists where the trial court determines that the exercise of its jurisdiction “is necessary ... to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.” (Emphasis supplied.) OCGA § 19-9-43 (a) (3) (B). This basis of jurisdiction “is limited to a situation in which an extreme emergency exists.” (Citations and punctuation omitted.) Lightfoot v. Lightfoot, 210 Ga. App. 400, 402 (436 SE2d 700) (1993).

In the present case, the trial court based its grant of emergency jurisdiction on its finding of evidence of sexual and physical abuse involving the child. The sole evidence upon which the trial court relied for its determination of sexual abuse was a letter sent to the child’s father from the director of the child’s former school in Indiana. Pretermitting the admissibility of the letter, we find that it does not support the trial court’s determination that an extreme emergency existed necessitating its exercise of emergency jurisdiction.

The letter detailed certain behavior displayed by the child which included “swearing, talking about bathroom functions, exposing his privates, . . . and pulling down the panties of younger children.” The director did not indicate that the child himself had been sexually abused. The trial court drew that conclusion from the behavior described in the letter, notwithstanding the lack of any testimony from the child, through the father, of any instances of sexual abuse. Furthermore, while the father asserted that this letter led him to believe that his child was sexually abused, he never contacted the school to learn more about the behavior described in the letter.

We note that the letter was dated May 24, 1995, which indicates that the father received the letter during the child’s summer visitation with him in Georgia. The father did not attempt to seek relief in Indiana during this visitation period which would have avoided any “danger” to the child while he properly sought judicial relief. The father returned the child to Indiana with full knowledge of the director’s letter. It was only when the mother decided not to return the child to the private school that the father decided to initiate this action in Georgia.

The father testified, pursuant to the Child Hearsay Statute, that the child had recently said that “his mother beats him and leaves bruises on him.” While the trial court was not convinced that abuse occurred, it exercised emergency jurisdiction stating, “[w]e need to investigate this all a lot more. I’m making a finding that the child said that [the physical abuse] happened. That’s all I’ve got right now, and that’s enough. I’m not accusing Ms. Mills of being a child abuser. Don’t think that” (Emphasis supplied.) The trial court did not make the predicate finding that its intervention was “necessary ... to protect the child” from the mother’s physical abuse. OCGA § 19-9-43 (a) (3) (B). The trial court’s finding that such abuse may have occurred does not support its exercise of emergency jurisdiction.

The trial court’s third basis for its exercise of emergency jurisdiction was based on the mother’s nonmarital cohabitation with her fiance, a relationship that the court found “may be detrimental to the well being of the child.” (Emphasis supplied.) We note that the trial court’s finding was not based on the mother’s fiance in particular or any inappropriate behavior that the child may have witnessed occurring between his mother and her fiance. Rather, the trial court’s holding was based on the status of the parties and indicated that as a general matter it felt children should not be put into the custody of cohabitating couples that are not married. Assuming without deciding that the trial court did not abuse its discretion in making this finding, the trial court’s determination that the relationship “may be detrimental to the child” was not sufficient to invoke emergency jurisdiction. See Hutto v. Hutto, 250 Ga. 116 (296 SE2d 549) (1982) (by itself, the mother’s nonmarital cohabitation did not rise to the level of an “extreme emergency” that would permit the exercise of emergency jurisdiction under a similar provision of the Georgia Child Custody Intrastate Jurisdiction Act).

As outlined above, the possibility that the child’s well-being “may be” detrimentally affected by a certain condition is not sufficient to support the exercise of emergency jurisdiction. Rather, the trial court must be convinced that its intervention is necessary to protect the child. OCGA § 19-9-43 (a) (3) (B). Absent an emergency condition, there is no reason to suppose that the courts of the child’s home state of Indiana would be any less interested in the welfare of the child than are the courts of Georgia. Also, the school director who authored the letter describing the child’s conduct would be subject to the subpoena powers of the Indiana courts and to cross-examination. The intent and the terms of OCGA § 19-9-43 (a) (3) require that this action be heard in Indiana.

Decided June 24, 1996

Reconsideration denied July 12, 1996

Garland C. G. Moore, for appellant.

Sabiston & Smith, Charles A. Smith, Nelle M. Funderburk, Lyle K. Porter, for appellee.

As the trial court was without jurisdiction to hear this custody dispute, its judgment is vacated, and the case is hereby remanded with direction that the trial court dismiss the complaint. See Lightfoot, supra at 403. We note that the father is not without recourse as he may seek to modify custody in an action filed within the appropriate forum. Hutto, supra at 118.

2. In light of the above, the mother’s additional enumerations of error are rendered moot.

Judgment vacated with direction.

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

       The trial court sits as the trier of fact on jurisdictional issues, and its factual determinations are tested by the any evidence rule. See McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (418 SE2d 130) (1992).

       The father argues that Georgia should have jurisdiction because the mother has violated their separation agreement by moving to Indiana without first modifying their visitation agreement. The UCCJA provides for jurisdiction in such a situation, but only for the first six months after the out-of-state move. See OCGA § 19-9-43 (a) (1) (B). In the present case, the father failed to file this action within six months of the child’s out-of-state move. Therefore jurisdiction is proper in Georgia only if supported by other provisions of OCGA § 19-9-43.


author: Pope, Presiding Judge. Andrews, Judge,

text:
    A96A0694.
    THE STATE v. PASTORINI.
    (474 SE2d 122)
   Pope, Presiding Judge.

The State appeals from the trial court’s ruling finding inadmissible the field sobriety tests administered to Pastorini. We affirm in part and reverse in part.

The record in this case demonstrates that on January 28, 1995, shortly after 10:00 p.m., Gwinnett County Officer Griffith was dispatched to investigate a minor traffic accident on Peachtree Parkway. He found a Lexus and a Mitsubishi pulled to the side of the road, with the drivers waiting outside their vehicles. The Lexus was slightly damaged on the front of the passenger’s side and Pastorini’s Mitsubishi was dented on the front driver’s side. Officer Griffith observed that Pastorini’s face was flushed, his eyes red, bloodshot, and glazed, he was unsteady on his feet, and he “smelled strongly of alcoholic beverage.” Pastorini had his driver’s license in his hand, but had left his insurance card in his vehicle. When asked for it by the officer, he started toward his car. He was unsteady on his feet and had to use the car to steady himself. The officer obtained the licenses and insurance cards of both drivers and retained them.

Officer Griffith asked Pastorini how much he had had to drink and Pastorini said “three scotches.” Asked if he thought he should be driving, Pastorini replied, “no, I should be at home.” Asked what had happened in the accident, Pastorini replied he did not know.

1. The trial court concluded that, after this exchange, if not sooner, Pastorini was not free to leave the scene, i.e., was in custody, and that the field sobriety tests administered thereafter were inadmissible due to lack of Miranda warnings. We disagree. In Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), the United States Supreme Court held that a person taken into official police custody or otherwise deprived by police of their freedom of action in any significant way must be advised of their constitutional rights. In its decision, however, the Supreme Court failed to set forth what was meant by “in custody.” But, it later addressed this issue in Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984).

In that case, the Supreme Court formulated an objective test to determine whether a detainee is “in custody.” That test is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. Id. at 442. The Supreme Court also held that the safeguards prescribed by Miranda become applicable only after a detainee’s “freedom of action is curtailed to a ‘degree associated with formal arrest.’ [Cit.]” Id. at 440. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.

In applying the above-mentioned test and rationale, we have specifically held that roadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation. Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). “A law enforcement officer coming upon the scene of suspected criminal activity [or a traffic incident] will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave. . . .” Lankford v. State, 204 Ga. App. 405, 406-407 (2) (419 SE2d 498) (1992). Moreover, “[a]n officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on these documents. [Cits.]” Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992). The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law. See Crum, 194 Ga. App. at 272, where we found a driver who could not show proof of insurance during a routine traffic stop, and thus could have been arrested if he attempted to leave, was not “in custody” until after he had been given field sobriety tests and formally arrested.

In cases like this, it is “ ‘crucial to focus on what the [detainee’s] immediate “business” is, in order to decide if the police retention of his papers would likely impede his freedom to proceed with it,’ [cit.].” Rogers, 206 Ga. App. at 658 (2), and thus, reach a determination as to whether or not a reasonable person in the detainee’s position would believe that the detention was temporary. Defendant’s immediate business in this case revolved around the fact that he had been involved in a car accident. And, unlike the factual situation presented in Rogers, upon arriving on the scene, the police officer in this case only posed questions to defendant that were relevant to the reason he had taken defendant’s license in the first place — to conduct an investigation of the accident. Under such circumstances, we hold that at the time defendant was given the field sobriety tests, a reasonable person in his position would not have concluded that his freedom of action had been more than temporarily curtailed, but rather, that he was only “being briefly detained while the officer determined the nature of the situation.” Daugherty v. State, 182 Ga. App. 730, 731 (356 SE2d 902) (1987); Lankford, 204 Ga. App. at 407. “ ‘ “Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.” (Cits.)’ Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988). Since [defendant] was not formally arrested until after the field sobriety test[s], there was no violation of his right against self-incrimination.” Id.

The dissent’s reliance on Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989) and State v. Whitfield, 214 Ga. App. 574 (3) (448 SE2d 492) (1994) in support of its conclusion that the trial court did not clearly err in this case is misplaced. Both of those cases are distinguishable from the case at bar. In Hughes, the arresting officer had told the suspect that he was not free to leave before giving the suspect sobriety tests and allowing him to make certain statements. In Whitfield, the suspect had been formally arrested on obstruction charges and then transported to the police station where he was given sobriety tests before being read his Miranda rights.

2. The sobriety tests at issue in this case are the “walk and turn,” “one leg stand” and “horizontal gaze nystagmus.” In addition to the reason stated in Division 1 of this opinion, the trial court suppressed evidence of each of the tests on the ground that they had not been administered in accordance with NHTSA standards. By doing so, the trial court in essence treated each test as a scientific procedure. We have previously determined, however, that sobriety tests such as the “walk and turn” and the “one leg stand,” both of which demonstrate a suspect’s dexterity and ability to follow directions, do not constitute scientific procedures. See Crawford v. City of Forest Park, 215 Ga. App. 234, 236 (450 SE2d 237) (1994). And, testimony from an officer about a suspect’s inability to complete such dexterity tests does not amount to testimony regarding scientific procedures, but instead amounts to testimony as to behavioral observations on the officer’s part. Id. Therefore, these two tests and any testimony concerning their administration are not subject to the standard set out in Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982), for determining whether a scientific procedure is admissible.

While it is true that the police officer in this case had been trained to administer the above-mentioned dexterity tests by the NHTSA, and defendant introduced expert testimony indicating that the officer had failed to administer the tests in accordance with his training, such expert testimony affects only the weight to be given to the tests, and not their admissibility. The weight and credibility of evidence such as this should be left for jury determination. Coates v. State, 216 Ga. App. 93 (453 SE2d 35) (1995). Accordingly, we conclude that the trial court’s decision to suppress evidence concerning the “one leg stand” and “walk and turn” tests based on the officer’s administration of these tests was clearly erroneous.

The trial court’s decision to suppress evidence of the “horizontal gaze nystagmus test,” on the other hand, was not clearly erroneous. That test constitutes a scientific procedure, see Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992), and there was ample evidence from which the trial court could have determined that the test’s administration was invalid. Consequently, we affirm the trial court’s decision to exclude evidence regarding that test.

Judgment affirmed in part and reversed in part.

Beasley, C. J., Johnson, Blackburn and Ruffin, JJ., concur. Birdsong, P. J, Andrews and Smith, JJ., concur in part and dissent in part. McMurray, P. J., dissents.

Andrews, Judge,

concurring in part and dissenting in part.

Although I concur with Division 2, because I believe that the trial judge did not, under the facts of this case, make clearly erroneous factual or legal conclusions concerning whether Pastorini was “in custody,” I must respectfully dissent as to Division 1.

Pastorini filed a motion in limine to exclude evidence of the field sobriety tests administered to him. The same appellate rules apply to our review of both a motion in limine and a motion to suppress. State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688) (1994), quoting Baldwin v. State, 263 Ga. 524, 525 (1) (435 SE2d 926) (1993). Therefore, the factual and credibility determinations made by the trial judge in granting a motion in limine must be accepted by this Court unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Leviner, supra; Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).

Decided July 12, 1996

Gerald N Blaney, Jr., Solicitor, Richard E. Thomas, Allison L. Thatcher, Assistant Solicitors, for appellant.

William C. Head, for appellee.

As in Rogers v. State, supra at 657 (2), when Officer Griffith took Pastorini’s license and registration, due to his location on the shoulder of Peachtree Parkway, a six lane limited access highway, at its intersection with Holcomb Bridge Road, Pastorini was “effectively immobilized without his driver’s license since had he tried to drive away he could have been arrested for driving without a license. OCGA §§ 40-5-20; 40-5-29. [Cits.]” Id. at 658.

Also, Officer Griffith’s investigation, at this point, had broadened from consideration of which, if either, driver to cite for a moving traffic violation as a result of the auto accident into one involving a noticeably intoxicated driver who would , not be allowed to leave the scene under his own power. Compare Carroll v. State, 203 Ga. App. 22 (416 SE2d 354) (1992), with Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989). As stated in dissent by Judge Deen in State v. Hughes, 189 Ga. App. 671, 676 (377 SE2d 192) (1988), modified by Hughes, supra, “[i]f something looks like an arrest, sounds like an arrest, and acts like an arrest, it probably is an arrest, regardless of whether or not one uses the magic word itself.”

I would affirm the trial court’s grant of Pastorini’s motion regarding exclusion of the field sobriety tests on the basis he was in custody. State v. Whitfield, 214 Ga. App. 574 (3) (448 SE2d 492) (1994); see Weeks v. State, 206 Ga. App. 431, 433 (425 SE2d 421) (1992).

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this opinion.


text:
    A96A0964.
    WRIGHT v. THE STATE.
    (474 SE2d 121)
   Blackburn, Judge.

Warren Wright appeals his conviction of robbery by sudden snatching.

1. Wright contends that the evidence was not sufficient to warrant a conviction and the verdict was against the weight of the evidence.

Viewing the evidence in the light most favorable to the verdict, on September 20, 1994, Wright and a companion visited the Big A Package Store in Americus, Georgia six times. A store clerk testified that, on the sixth visit, Wright’s companion diverted her attention from the cash drawer by requesting lottery tickets. While obtaining the requested tickets, the clerk heard something out of the ordinary. Turning around to investigate, she noticed that Wright had one of his hands in the store’s cash drawer. As the clerk approached Wright, she saw that he had at least three rolls of quarters in his left hand. The clerk called the office manager for assistance. Although Wright was informed that the police were going to be called, rather than staying to settle the matter, Wright denied any wrongdoing and walked off the premises. Wright was later apprehended by the police. The office manager testified that after the incident the cash drawer only contained $240, although it was company policy to keep $300 in the cash drawer at all times.

The elements of robbery by sudden snatching are outlined in OCGA § 16-8-40 (a): “A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” Under the guidelines of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find that the evidence was sufficient to enable a rational trier of fact to find Wright guilty beyond a reasonable doubt of robbery by sudden snatching.

2. Wright contends that the trial court erred in allowing him to represent himself at trial. Specifically, Wright contends that he did not make a knowing and intelligent waiver of counsel. The record, however, reveals that before allowing Wright to represent himself, the trial court carefully explained to Wright the potential risks of proceeding without counsel. Specifically, the trial court informed Wright that if he waived his right to counsel, he would still be bound by the same rules of evidence and procedure that his counsel would have been bound by, and that he would not be allowed to argue ineffective assistance of counsel on appeal. In addition, the trial court informed Wright that, although he could seek assistance from his hired counsel during the trial, only Wright would have a speaking role in the trial of his case. Considering the record before us, we are satisfied that Wright’s choice to represent himself was made after he was made aware of his right to counsel and of the dangers of proceeding without counsel. Accordingly, this enumeration is without merit. See Shavers v. State, 179 Ga. App. 45, 46 (345 SE2d 134) (1986).

Decided July 12, 1996.

Donald L. Lamberth, for appellant.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

3. Wright contends that he was denied effective assistance of counsel. “[W]hen a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.” Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982). The trial court expressly informed Wright of this rule of law prior to accepting Wright’s request to represent himself. Therefore, this enumeration is without merit.

Judgment affirmed.

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

       Wright testified that, instead of rolled quarters, he was carrying shotgun shells which he recently purchased in the liquor store parking lot from a person he could only identify as “B.” Neither shotgun shells nor rolled quarters were ever discovered on Wright’s person or in the brown bag he was alleged to have been carrying when he left the store.


author: Ruffin, Judge.

text:
    A96A1406.
    GRIFFIS v. THE STATE.
    (474 SE2d 119)
   Ruffin, Judge.

William Griffis was convicted of sodomy, aggravated sodomy, aggravated child molestation, cruelty to children, and three counts of child molestation. He appeals his conviction, alleging insufficiency of the evidence and an error in the admission of evidence. For reasons which follow, we affirm.

1. Griffis contends the evidence was insufficient to find him guilty beyond a reasonable doubt of Counts 2, 4, 5 and 6 of the indictment since there was no evidence of penetration. We disagree.

“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; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Farmer v. State, 215 Ga. App. 243, 244 (450 SE2d 271) (1994).

The victim, who was five years old at the time of trial, testified that Griffis, who is her father, hurt her in the front and the back. When presented with anatomically correct drawings, the victim clarified that her front was her vagina and her back was her anus. Also using drawings, the victim showed that Griffis touched her with his penis. She further testified that Griffis put a sock over her eyes because he did not want her to see what he was doing. According to a child abuse investigator, the victim told her that Griffis put his “ding-dong” on her vagina and “her butt.” Although the examining doctor did not find any evidence of sexual abuse during his examination, the nurse testified at trial that if there had been slight tearing or bruising, the body would be able to completely heal itself within ten days of the incident. The nurse also noted that the victim was very cooperative and calm during the examination, which was quite unusual for a child and indicated that the child probably “had this type of thing happen to her . . . where she would lay still for an adult.”

The foregoing evidence was sufficient for a jury to infer a “contact” between Griffis’ sexual organ and the victim’s vaginal and anal areas. Proof of penetration is not required for a conviction of sodomy. Smith v. State, 210 Ga. App. 634, 635 (2) (d) (437 SE2d 333) (1993); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986). All that is required is some contact. Id. We have reviewed the entire transcript and find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As for Griffis’ claim that a fatal variance existed because the indictment alleged Griffis placed his penis in the victim’s vagina and anus, while the evidence at trial showed Griffis only placed his penis on the victim’s vagina and anus, we do not find that this is a fatal variance even if the evidence at trial was as alleged by Griffis. “Under the test announced in DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801)[,] no fatal variance between the indictment and the proof exists if the defendant is informed of the charges against him and protected from subsequent prosecutions for the same offense. Assuming a variance existed here, it met the DePalma test: [Griffis] was not misled or prejudiced, so any variance was not fatal.” (Citations and punctuation omitted.) Farmer, supra at 244; Smith, supra at 636.

2. Griffis further asserts the trial court erred in admitting testimony by a third person concerning statements made by the victim’s six-year-old brother to the third person. According to Griffis, these statements are not admissible under the child hearsay rule.

At trial, the children’s mother testified that the brother told her he had seen Griffis “put his front private on his sister’s front private” and “put his front private in her mouth.” In addition, a school counselor testified that the brother told her he had heard Griffis ask the victim “to lick his private parts.” However, a Barrow County Department of Family & Children Services investigator testified that the brother told her Griffis did not do anything to the victim.

Griffis correctly argues that the Child Hearsay Act, OCGA § 24-3-16, does not apply to out-of-court statements of a child witness who observes the physical abuse of another child, but who is not himself a victim of such abuse. Thornton v. State, 264 Ga. 563 (2) (a) (449 SE2d 98) (1994). However, the State contends that the statements made by the victim’s brother to third persons were admissible as either prior inconsistent statements or prior consistent statements. We agree with the State.

Decided July 12, 1996.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Griffis had the opportunity to confront the victim’s brother and cross-examine him under oath about his out-of-court statements. “Under Gibbons [v. State, 248 Ga. 858 (286 SE2d 717) (1982)], a prior inconsistent statement made by a witness who takes the stand and is subject to cross-examination is not limited in value to impeachment, but is admissible as substantive evidence of the matter asserted. Under Cuzzort [v. State, 254 Ga. 745 (334 SE2d 661) (1985)], ‘where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible (as substantive evidence).’ [Cit.]” Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1995). The testimony of the third persons concerning the brother’s out-of-court statements were admissible since the brother’s statements were either inconsistent with his trial testimony that he did not see anything and did not know what Griffis and the victim were doing or consistent with his testimony. Accordingly, there was no error in admitting the statements over Griffis’ hearsay objection.

“Further, the out-of-court statements were] cumulative to that of the victim on the witness stand. Evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence. [Cits.]” Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1987). See also Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A0874.
    WORTHY et al. v. KENDALL et al.
    (474 SE2d 627)
   Blackburn, Judge.

Betty Worthy and her husband appeal the judgment entered following a jury trial of their tort action stemming from an automobile collision. Worthy sought damages for her personal injuries, and her husband sought damages for his loss of consortium. The jury-returned a verdict of $319 for Worthy and $0 for her husband. Worthy and her husband appeal the trial court’s denial of their motion for new trial.

On March 25, 1993, Worthy was a passenger riding in the front seat of a car driven by Minerva Williams. Williams was driving eastbound on East Thompson Street when she collided with a car driven by Matthews Charles Kendall. At the time of the collision, Kendall was in the process of turning right onto East Thompson from Glendale Road. It is undisputed that traffic entering East Thompson from Glendale is required to stop and yield the right-of-way to traffic traveling on East Thompson pursuant to a stop sign erected on Glendale. The proximate cause of the accident, however, is in dispute.

Kendall testified that he stopped at the stop sign on Glendale and noticed that two cars were traveling eastbound on East Thompson Street, the second car being the vehicle driven by Williams. The first vehicle had its turn signal on and slowed down to make a right-hand turn onto Glendale. As a result, Kendall believed it was safe to turn right onto East Thompson and did so. He further testified that Williams, rather than remaining behind the turning vehicle ahead of her, illegally passed it, resulting in the collision. Williams, on the other hand, testified that there was no turning vehicle ahead of her, and that Kendall simply failed to yield the right-of-way to traffic on East Thompson. Worthy testified that she did not see the accident occur because she was facing the back of the car at the time.

1. Worthy and her husband contend that the trial court erred in allowing the defendants to introduce, over objection, collateral source evidence of Worthy’s receipt of disability benefits. The trial court overruled the objection on the grounds that Worthy’s husband “opened the door” to such testimony when his counsel asked: “How have y’all handled the finances on [one] income?” and Mr. Worthy testified that he had exhausted his retirement fund and worked a large amount of overtime, which aggravated his own existing leg injury.

Evidence of disability payments is generally inadmissible under the collateral source rule. Dietz v. Becker, 209 Ga. App. 678, 680 (434 SE2d 103) (1993). “[I]mpeachment by evidence of collateral sources is only allowed if the false testimony is related to a material issue in the case. Waits v. Hardy, 214 Ga. 495, 496 (105 SE2d 719) (1958); Mann v. State, 124 Ga. 760 (53 SE 324) (1906).” Warren v. Ballard, 266 Ga. 408 (467 SE2d 891) (1996).

Georgia law does not authorize the Worthys to recover damages for the exhaustion of the husband’s retirement fund or for the fact that he worked overtime to pay bills after his wife’s accident. The financial resources of Worthy and her husband are irrelevant to the issue of damages. See Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374, 376 (418 SE2d 27) (1992);' see also Warren, supra (a plaintiff’s anxiety over bills following an accident is immaterial). As a result, such testimony did not relate to a material issue and is not subject to impeachment by collateral source evidence. The proper remedy would have been for the defendants to object to this line of questioning. See Warren v. Ballard, supra.

We cannot say that the trial court’s error in admitting evidence of Worthy’s disability payments was harmless because it is likely that it negatively impacted the amount awarded by the jury. Compare Dietz, supra at 680. Accordingly, the trial court’s judgment must be reversed and the case remanded for retrial consistent with this opinion.

2. We will address the remaining enumerations of error which are capable of repetition at retrial.

(a) The Worthys contend that the trial court erred in charging the jury on comparative negligence over their objection. At the time of the collision, Worthy had taken off her seatbelt and was riding backwards in the front seat propped up on her knees in order to look into a passenger’s mouth, who was complaining that he had a broken tooth. In light of this evidence, the jury could have rationally believed that Worthy’s position in the car at the time of the accident evidenced a failure on Worthy’s behalf to use ordinary care, and contributed to the severity of her injuries. As long as there is “any evidence, however slight,” that a plaintiff was negligent, a comparative negligence charge will not constitute reversible error. See Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472 (433 SE2d 398) (1993).

Moreover, Williams testified that she failed to see Kendall’s vehicle until she was about 10 feet from it, although there was at least 100 feet of visibility in front of the intersection and she testified that no other cars were ahead of her. From this evidence, a jury could infer that Williams’ view may have been blocked by Worthy at the time of the accident. As long as there is some slight “indirect evidence from which a jury might infer that” a passenger was riding in a position that is likely to interfere with the driver’s view ahead or to the sides in violation of OCGA § 40-6-242 (b), it is not an error to give a charge on comparative negligence. Brown v. Sims, 174 Ga. App. 243, 246 (329 SE2d 523) (1985). As a result, this enumeration of error is without merit.

(b) The Worthys contend that the trial court erred in giving jury charges as to OCGA § 40-6-46 (no-passing zones), OCGA § 40-6-45 (driving left of the centerline), and OCGA § 40-6-180 (basic rules of the road).

The Worthys contend that it was error for the trial court to give the preceding charges because the negligence of Williams, as the host driver, cannot be imputed to Worthy, the passenger. See King v. Parson, 149 Ga. App. 28, 29-30 (253 SE2d 426) (1979). In his defensive pleadings, and in his testimony at trial, however, Kendall alleged that the negligence of Williams, the host driver, was the sole proximate cause of the accident. “The issue of the host driver’s negligence as constituting the sole proximate cause of the plaintiff’s injuries having been injected into this case by the defensive pleadings and the evidence, it was pertinent for the trial judge to charge the jury on this subject. [Cit.]” Stroud v. Willingham, 126 Ga. App. 156, 160 (190 SE2d 143) (1972). As a result, this enumeration is without merit.

Decided July 15, 1996.

Richard T. Bridges, for appellants.

Alan W. Connell, for appellees.

Judgment reversed and case remanded.

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

       Although Kendall pled guilty to the traffic citation he received for failing to yield the right-of-way, such guilty plea does not establish as a matter of law that Kendall was negligent. See Peacock v. Strickland, 198 Ga. App. 406, 407 (401 SE2d 601) (1991).


author: Judge Harold R. Banke.

text:
    A96A0893.
    APPLING v. THE STATE.
    (474 SE2d 237)
   Judge Harold R. Banke.

A jury found Robert Earl Appling guilty but mentally ill of aggravated assault and aggravated assault on a police officer. He enumerates four errors on appeal.

The State’s evidence shows that in the wake of a number of unexpected deaths among Appling’s friends and acquaintances, bankruptcy, and a divorce, Appling developed a paranoid conviction that members of a motorcycle gang were pursuing him. On the day of the offenses, Appling became suspicious that his girl friend and dog had been poisoned by a yellow substance in his car. After arriving home, his suspicions escalated when he purportedly observed the same three cars circling his neighborhood, and he armed himself. Appling then noticed a flashing red light under the slightly opened hood of his girl friend’s car. Convinced the light was a bomb, Appling hid in a nearby wooded area while his girl friend called the police. He emerged when the fire department arrived, but upon remembering that his girl friend had said she was calling the bomb squad and observing the firemen’s nonchalant attitude, his suspicions grew. Appling then threw the car keys to the firemen and ran. Certain he was being pursued, Appling aimed his gun at a neighbor who happened to drive by, and then ran into the woods where he hid and fired intermittently when he felt threatened. One of these shots hit within 20 to 30 feet of an officer who was investigating the neighbor’s complaint that Appling had aimed the gun at him. After several hours, Appling approached the police, was arrested, and subsequently hospitalized at a mental health center. Held:

1. We reject Appling’s contention that the court’s policy of permitting college students to defer their service as jurors until summer violated his Sixth Amendment rights. Appling claims his jury was not a fair cross-section of the community due to the large number of college students in the jury pool. However, the record shows that he failed to preserve the error for appeal by raising this objection when the array was seated and before commencement of voir dire. OCGA § 15-12-162; Anthony v. State, 213 Ga. App. 303, 304 (1) (444 SE2d 393) (1994). Nor did Appling avail himself of the court’s offer to present argument before the panel was seated. Anthony, 213 Ga. App. at 304 (challenges to the array must be raised at the earliest opportunity).

2. The trial court did not err in denying Appling’s motions for mistrial asserted during closing argument. In his first motion, Appling argued that the evidence did not support the State’s assertion that its expert’s findings were the same as those made by Appling’s expert, Dr. Karjala, who had not testified. Appling declined the court’s offer of additional time to argue that point, requesting instead that the State clarify that its expert had simply testified that nothing in Dr. Karjala’s letter was inconsistent with his findings. Because Appling’s proposed solution to the problem was accepted and he failed to renew his motion, the issue is not preserved for review. Swint v. State, 173 Ga. App. 762, 763 (3) (328 SE2d 373) (1985).

Appling asserted his second motion for mistrial after the State argued that Appling admitted to its expert that he had an alcohol and drug abuse problem and indicated that he continued to drink, although not necessarily to excess at the time of the offense. The record supports this statement. The State’s expert testified that Appling admitted to previous drug and alcohol problems and was discharged from the mental health facility with a diagnosis of substance induced psychotic disorder. He also testified that intoxicants generally worsened the paranoid tendencies Appling exhibited. Appling failed to object to this evidence. Moreover, Appling admitted having an alcoholic beverage during the evening before the offenses occurred. Because the record supported the State’s argument, the motion for mistrial was properly denied. See Bell v. State, 263 Ga. 776, 777-778 (439 SE2d 480) (1994).

Decided July 15, 1996

W. Michael Maloof, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

3. The evidence was sufficient to support Appling’s conviction because he failed to satisfy his burden of showing that a delusional compulsion overmastered his will to resist committing the crime. “In reviewing a verdict of guilty but mentally ill in a case where the defense is not guilty by reason of insanity, this court determines whether, construing the evidence in favor of the verdict, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime. [Cit.]” Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124) (1987). A finding of insanity based upon OCGA § 16-3-3 requires proof that (1) the accused acted under a delusional compulsion; (2) the criminal act was connected with the delusion; and (3) the delusion related to a fact which, if true, would have justified the act. Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). Georgia law presumes the sanity of an accused and we will not reverse a jury’s determination of such where the evidence of insanity is disputed and not overwhelming. Id. at 442; Brown v. State, 250 Ga. 66, 71 (295 SE2d 727) (1982).

In this case, the evidence is not undisputed and so overwhelming as to require reversal of the jury’s decision. See, e.g., Eason v. State, 256 Ga. 701 (353 SE2d 188) (1987). The State’s expert described Appling as alert, well-oriented, calm, stable, and a very good conversationalist with no signs or history of treatable mental illness. Compare Stevens, 256 Ga. at 441. The expert also testified that Appling had never indicated that he believed the gang members from whom he was fleeing were armed and so close as to threaten him with imminent bodily harm. See OCGA § 16-3-21 (a). Under this evidence, a rational trier of fact could find that Appling’s delusion, even if true, would not justify his decision to aim his gun at his neighbor or fire in the direction of the police officer. Stevens, 256 Ga. at 442.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       The light was generated by the car’s antitheft device.


author: McMurray, Presiding Judge.

text:
    A96A1603.
    PETERKIN v. THE STATE.
    (474 SE2d 231)
   McMurray, Presiding Judge.

Defendant was tried before a jury on charges asserted in a multicount indictment and found guilty of violating Georgia’s Racketeer Influenced & Corrupt Organizations Act (“RICO”), committing four separate acts of first degree forgery and committing five separate acts of second degree forgery. The evidence adduced at trial reveals that defendant’s criminal activities included possession of fake driver’s licenses, social security cards and bank checks at a motel room that was registered to “Michael Black.” When law enforcement officers searched this motel room, they found fake driver’s licenses manufactured with different names but bearing the same photograph, snapshots of defendant. And one driver’s license that was manufactured using defendant’s photograph was inscribed with the name that was used to rent the motel room in question, i.e., “Michael Black.”

After determining that defendant’s four separate acts of first degree forgery merged with his RICO violation, the trial court entered a judgment of conviction and sentences on the jury’s verdicts. Defendant filed this appeal, with assistance of counsel. Held:

1. Defendant posted a letter to the clerk of this Court, pro se, requesting additional time to “supplement” and “support [his] attorneys (sic) brief.”

A party does not have a right to be represented by counsel and also represent himself on appeal. Boyd v. State, 195 Ga. App. 758, 759 (395 SE2d 7). We therefore only consider the enumerations of error and brief presented by counsel when a party is represented by counsel on appeal. Clemmons v. State, 210 Ga. App. 632 (437 SE2d 350). Consequently, in the case sub judice, there would be no use in granting defendant’s request for an extension of time to file a supplemental brief, pro se. Accordingly, defendant’s request for additional time to file such a supplemental brief is hereby denied.

2. Defendant contends the trial court erred in allowing an investigating officer’s testimony that a motel clerk’s physical description of the man who checked into the motel room (where officers found forged documents bearing defendant’s photograph) matched defendant’s physical description. Defendant argues that this testimony was hearsay and that its admission was harmful error because the officer’s statement regarding the clerk’s report was the only testimony linking defendant to the motel room where the forged documents were discovered.

While the officer’s testimony may have been erroneously admitted, Teague v. State, 252 Ga. 534 (1) (314 SE2d 910), we find it highly probable that its admission did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). After all, viewed in context, the officer simply conveyed the motel clerk’s description of the man who checked into the motel room, nothing more. The officer did not say that the motel clerk identified defendant as the man who checked into the motel room. This was the officer’s own conclusion, the basis of which could have been easily tested upon cross-examination. Furthermore, the evidence linking defendant to the motel room is overwhelming. One of defendant’s criminal associates testified at trial and identified a computer that was seized by searching officers from the motel room in question as the computer defendant possessed during his involvement with defendant’s criminal enterprise. Searching law enforcement officers found defendant’s photographs on forged documents in the motel room and one of these forged documents is a driver’s license bearing the name used to register the motel room in question, “Michael Black.” And most persuasively, the forged documents found in the motel room bore the same names defendant and his associates were observed using during the fraudulent banking transaction which form the basis of defendant’s RICO violation. Under these circumstances, we find it highly probable that admission of objectional testimony did not contribute to the jury’s verdict. See Teague v. State, 252 Ga. 534, 537 (2), supra.

Decided July 15, 1996.

Phillips & Phillips, Rhonda M. Phillips, for appellant.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Thomas J. Matthews, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A1241.
    DOBSON v. THE STATE.
    (474 SE2d 630)
   Ruffin, Judge.

A jury convicted Randal E. Dobson of two counts of first degree vehicular homicide, serious injury by vehicle, and driving with unlawful blood alcohol concentration. These counts merged into one count of first degree vehicular homicide and one count of serious injury by motor vehicle. Dobson appeals and we affirm.

Dobson asserts that the State produced insufficient evidence to support the jury’s verdict and that the verdict is contrary to law and equity. In particular, Dobson argues that the State failed to produce any evidence showing that Dobson’s act of driving while under the influence of alcohol proximately caused the fatal collision in which he was involved.

In May 1993, Dobson was driving east on Highway 80 near Tybee Island when he lost control of his vehicle and crossed the center line. He collided with an oncoming vehicle driven by Cynthia Love, killing her and severely injuring her passenger. Although Dob-son introduced evidence indicating that the collision may have resulted from a mechanical failure of his vehicle, the State’s evidence showed that Dobson had been drinking prior to the collision. A beer bottle was found between Dobson’s legs as he was being removed from his car, witnesses on the scene testified that Dobson’s breath and his vehicle smelled of alcohol, and a blood sample taken approximately one hour and forty-five minutes after the collision showed that Dobson’s blood alcohol level was .11. There was conflicting testimony at trial as to whether Dobson exhibited any physical signs of intoxication or impairment. However, an expert witness for the state testified that 100 percent of human beings become physically impaired when their blood alcohol levels reach .08 or higher.

When considering the evidence submitted at trial, this Court “determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993). In previous vehicular homicide cases, we have upheld the jury’s verdict even where the State’s showing of proximate cause was based upon circumstantial evidence. In Mote v. State, 212 Ga. App. 551 (442 SE2d 799) (1994), this Court upheld the defendant’s conviction of first degree vehicular homicide by less safe DUI, even though the defendant’s blood alcohol level was never tested. Furthermore, there was substantial evidence in Mote that another individual may have caused the collision. Thus, contrary to Dobson’s assertions, the State is not required to produce direct evidence showing that the defendant’s impaired driving ability proximately caused the collision. See id.

In the present case, we find the evidence sufficient to support Dobson’s conviction. “Viewed in the light most favorable to the verdict, there was evidence presented from which a rational trier of fact could reasonably find that [Dobson] was guilty of the offense[s] charged beyond a reasonable doubt. While the testimony of the [witnesses] to the collision arguably suggested that [the collision may have resulted from mechanical failure], the testimony of the witnesses was in conflict. That conflict was for the jury, not this court, to resolve. A rational trier of fact could reasonably have concluded that [Dobson] was intoxicated and that his intoxication caused him to be a less safe’ driver, OCGA § 40-6-391 (a) (1), and caused the collision.” (Citations omitted.) Id. at 552-553. See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

For the same reasons, we are unable to find that the jury’s verdict is contrary to law or equity in this case.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

Decided July 16, 1996.

Douglas G. Andrews, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.


text:
    A96A0948.
    BINION v. THE STATE.
    (474 SE2d 208)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with aggravated assault upon a police officer. The evidence at his jury trial revealed that defendant and his brother, George Binion, were “sitting in [their mother’s] house watching TV, and both of [them] had been intoxicated. . . . [Defendant] started acting a little kind of crazy like, so [George Binion] just went ahead and called the police.” Defendant went into his bedroom and George Binion heard a sound, “like I heard a click of a rifle.” George Binion “assumed it was [defendant’s rifle] because ain’t nobody else in the house got a gun no way.” Corporal John G. Williams of the Morgan County Sheriff’s Office responded to the call, wearing his uniform and driving a marked sheriff’s vehicle with blue lights. George Binion came up to Corporal Williams and “stated that ‘[defendant’s] in the house. He got a gun, and it’s loaded.’ At this time, [Corporal Williams] walked up on the . . . step, . . . pulled his weapon, and . . . knocked on the door. [Defendant] came to the door, snatched it open and said ‘Who is it?’ When [Corporal Williams] looked around, [defendant] was standing there with the rifle, and [Corporal Williams] brought [his] weapon up,” pointing it at defendant, “[b]ecause [defendant] was standing out there with the gun. He had the gun pointed in my direction, and he started up with the gun, but he changed his mind for some reason,” and ran down a hallway. Corporal Williams kept telling defendant to “Come on out and put the gun down.” Defendant “said, T ain’t putting down a damn thing. If you come back here, I’m gonna shoot the shit out of you.’ ” Corporal Williams affirmed that defendant was able to see him in uniform.

After being informed by the trial court that the accused has the “right to testify, and if you want to testify that no one can prevent you from doing so,” defendant informed the court that, “[n]o sir, [he did] not. . .” wish to testify in his own defense.

The jury found defendant guilty as charged. The trial court sentenced him to twenty years with ten years to serve, followed by probation. Defendant’s motion for new trial, as amended by new counsel, was denied and this appeal followed. Held:

1. In five related enumerations of error, defendant complains of the overruling of his motion for new trial on the special ground of ineffective assistance of counsel. He urges the following specifications of trial counsel’s unprofessional errors and omissions: failing to request a charge on a lesser-included offense and failing to discuss any such lesser offense with his client; failing to reserve exceptions to the jury charge and failing to request a charge on the state of defendant’s knowledge; failing to advise defendant of the consequences of trial; failing to inform defendant of plea offers; and failing to investigate defendant’s mental state at the time of the offense and at the time of trial.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Green v. State, 218 Ga. App. 648, 650 (3) (463 SE2d 133).

2. At the hearing on defendant’s motion for new trial, trial counsel explained his theory of the case, namely the legitimate defense of one’s home. The transcript of that hearing indicates that trial counsel did in fact communicate to his client the one plea offer made by the State’s Attorney. Consequently, defendant’s fourth enumeration is not supported by the record and is without merit. Additional arguments, directed toward the advice counsel gave regarding this one acknowledged plea offer, are not reasonably raised in the enumeration complaining of the alleged failure to communicate that offer and will not be considered on appeal. Stanley v. State, 195 Ga. App. 706, 707 (2) (394 SE2d 785). But see Duitsman v. State, 217 Ga. App. 435, 438 (3) (457 SE2d 702).

3. Defendant’s first, second, and third enumerations challenge trial counsel’s “all or nothing” strategy, complaining that he failed to request a charge for some (unspecified) lesser included offense to the indicted offense of aggravated assault on a police officer, failed to reserve exceptions to the charge, and failed to discuss the range of statutory penalties with his client.

“The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1), 79 (447 SE2d 74). “[T]he decision whether to seek submission to the jury of lesser included offenses [does not rise] to the same level as the decision to plead guilty or not guilty to charged offenses so as to require the defendant alone to make that decision.” Van Alstine v. State, 263 Ga. 1, 3 (426 SE2d 360). Although the evidence in the case sub judice is that trial counsel consulted with his client several times before trial, defendant appeared intoxicated during one of those interviews, and counsel never expressly consulted defendant about any lesser included offenses. Counsel “didn’t find anything that [he] thought would have been an appropriate lesser-included offense to this charge based on what [he] understood the evidence and circumstances to be.” Afterwards, trial counsel made the strategic decision to pursue an “all or nothing” strategy. That he did so affords defendant no ground for a new trial. Green v. State, 218 Ga. App. 648, 650 (3), 651 (3) (b), supra; Van Alstine v. State, 263 Ga. 1, 4, supra. Likewise, the failure to request a separate charge on “knowledge” being an essential element of the crime of aggravated assault on a police officer was not an unprofessional lapse in judgment, where evidence that defendant might not have fully appreciated that it was a police officer at the door (due to bright lights in his eyes) was before the jury and properly emphasized by trial counsel; and where the trial court’s charge included the statutory element of “knowingly commits aggravated assault on an officer,” and also the trial court’s charge that an accused is not presumed to act with criminal intent. Penaranda v. State, 203 Ga. App. 740, 744 (4) (f), 745 (417 SE2d 683). See also Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455). These contentions are without merit.

4. In his fifth enumeration of error, defendant contends trial counsel was ineffective because he failed to investigate defendant’s mental state both at the time of the offense and the time of trial. He relies on a previous court order for defendant to undergo psychiatric evaluation, arising out of a 1990 misdemeanor simple assault case. There is no evidence that this evaluation was ever performed. Defendant concedes he cannot demonstrate any prejudice arising from the failure of trial counsel to pursue this line of possible defense, but “requests] that this Court order his evaluation. . . .”

“It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right to counsel should be made at the earliest practicable moment.” Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5). This rule requires that all known bases for alleging ineffective assistance must be raised and determined by the trial court “before appeal if the opportunity to do so is available[.]” (Emphasis in original.) Glover v. State, 266 Ga. 183 (2), 184 (465 SE2d 659). In the case sub judice, defendant had the opportunity before perfecting this appeal to request assistance in pursuing the previously ordered psychological evaluation, as part of his amended motion for new trial. His “failure to seize that opportunity is a procedural bar to raising the issue at [this] time.” Glover v. State, 266 Ga. 183 (2), 184, supra. Consequently, this enumeration is without merit.

Decided July 9, 1996

Reconsideration denied July 17, 1996.

Mumford, Myers & Mooney, Albert A. Myers III, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A95A0764.
    CANTRELL v. THE STATE.
    (474 SE2d 769)
    Decided July 17, 1996.

      Troy R. Millikan, for appellant.
   McMurray, Presiding Judge.

Defendant’s conviction for possession of cocaine with intent to distribute was affirmed by this Court on direct appeal. See Cantrell v. State, 217 Ga. App. 641 (459 SE2d 564). On certiorari, however, the Supreme Court of Georgia reversed, holding that the trial court should have entered a judgment of conviction only upon a charge of simple possession of cocaine as a lesser offense included within the indicted offense of possession with intent to distribute. Cantrell v. State, 266 Ga. 700 (469 SE2d 660). Accordingly, the prior judgment of this Court is vacated and the judgment of the Supreme Court is made the judgment of this Court. The judgment of the trial court is reversed and the case'remanded with direction to enter judgment in accordance with the ruling of the Supreme Court of Georgia.

Judgment reversed and case remanded with direction.

Andrews and Blackburn, JJ, concur.

Lydia J. Sartain, District Attorney, Lee Darragh, Thomas A. Gump, Assistant District Attorneys, for appellee.


text:
    A95A0810.
    ROOKS v. THE STATE.
    (474 SE2d 769)
    Decided July 17, 1996.

      Scott, Quarterman & Wells, Donald T. Wells, Jr., for appellant.

      Timothy G. Madison, District Attorney, Deborah S. Wilbanks, Robin R. Riggs, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

On direct appeal, this Court affirmed defendant’s conviction for making harassing telephone calls to his former wife but set aside his conviction for criminal attempt to commit aggravated stalking against the same victim, based on the same conduct. Rooks v. State, 217 Ga. App. 643 (458 SE2d 667). The Supreme Court of Georgia granted certiorari and held that the crime of attempt to commit aggravated stalking was not a legal impossibility and that the evidence adduced below was sufficient to authorize defendant’s conviction. State v. Rooks, 266 Ga. 528, 529 (2, 3) (468 SE2d 354). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is made the judgment of this Court. The judgment of the trial court is affirmed.

Judgment affirmed.

Andrews and Blackburn, JJ, concur.


author: Beasley, Chief Judge.

text:
    A96A1002.
    THOMAS v. THE STATE.
    (474 SE2d 631)
   Beasley, Chief Judge.

Thomas challenges the sufficiency of the evidence to support his conviction of possession of cocaine with intent to distribute (OCGA § 16-13-30). He was also convicted of obstruction of an officer (OCGA § 16-10-24) but acquitted of possession/consumption of an alcoholic beverage by a minor (OCGA § 3-3-23). The evidence is viewed with all reasonable inferences made and all issues of weight and credibility resolved in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

City of Albany police officer Moored observed Thomas at the entrance to a food store. In disregard of “no loitering” signs and in violation of a local ordinance, Thomas and others were obstructing and hindering motorists as they turned into the parking lot of the store. He was taken into custody after attempting to flee and resisting arrest. Moored testified that as the officers made the arrest, he noticed an odor of alcoholic beverage on Thomas’ breath and body. After they had placed him in the back of the patrol car to transport him to the police station, he observed Thomas slide to the other side of the seat and stash something behind it. Afterward, he found a small ziplock bag with four or five pieces of crack cocaine. He had thoroughly checked the back seat for items before Thomas was seated there.

Decided July 17, 1996.

Craig S. Mathis, for appellant.

Britt R. Priddy, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.

Thomas argues that the State failed to prove beyond a reasonable doubt that he possessed the cocaine with intent to distribute it, in that he was not observed selling or attempting to sell drugs on the occasion in question and there was no evidence that he had sold drugs in the past.

Several facts in particular weigh against his theory of personal use: the number of pieces of crack cocaine and the absence of any smoking device. See Palmer v. State, 210 Ga. App. 717 (437 SE2d 490) (1993). A law enforcement officer who was qualified as an expert in the field of narcotics investigation testified that the quantity (and packaging) of the cocaine found in defendant’s possession would normally be consistent with that in the possession of a distributor or seller rather than a user. See Palmer, supra; Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991); compare Dyer v. State, 218 Ga. App. 879 (1) (463 SE2d 718) (1995).

After viewing the evidence in the light most favorable to the prosecution, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), any rational trier of fact could have found the essential elements of the crime of possession with intent to distribute beyond a reasonable doubt. Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMURRAY, Presiding Judge.

text:
    A96A1967.
    WARE v. HANDY STORAGE.
    (474 SE2d 240)
    Decided July 17, 1996.
    Tony L. Ware, pro se.

    Handy Storage, pro se.

   McMURRAY, Presiding Judge.

Plaintiff Tony L. Ware, proceeding pro se, brought this action for damages against defendant Handy Storage, alleging that he had contracted to lease a portion of defendant’s warehouse for storage but that defendant “willfully converted plaintiffl’s] personal property,” allegedly worth $14,000,000, by deliberately removing the contents of plaintiff’s leased space. Service of process was made upon the Georgia Secretary of State and, after defendant failed to answer, plaintiff moved for a default judgment. The trial court determined that the damages sought by plaintiff were unliquidated damages and denied plaintiff’s motion for judgment by default. This direct appeal followed. Held:

Plaintiff’s notice of appeal recites that it is an appeal “from a Default Judgment entered and filed. . . This is incorrect, since plaintiff’s motion was expressly denied by the trial court. The Georgia Civil Practice Act, at OCGA § 9-11-55, distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents final judicial action and the vesting of rights. Lanier v. Foster, 133 Ga. App. 149, 153 (3) (210 SE2d 326). In the case sub judice, the denial of plaintiff’s motion for default judgment is not a final adjudication but is an interlocutory ruling which is not directly appealable. OCGA § 5-6-34 (a) (1). Since plaintiff has failed to comply with the mandatory procedures for seeking permission to pursue an interlocutory appeal, the unauthorized direct appeal in the case sub judice must be dismissed. Havischak v. Neal, 176 Ga. App. 203 (335 SE2d 469).

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0775.
    LETLOW v. THE STATE.
    (474 SE2d 211)
   McMURRAY, Presiding Judge.

Defendant was charged by special presentment with two counts each of aggravated child molestation, solicitation of sodomy, child molestation, and contributing to the delinquency of minors, for conduct directed at his two minor nieces, “C. C.” and “M. C.” The evidence adduced at defendant’s jury trial, construed to uphold the verdict, revealed the following: C. C., then aged 13, testified that defendant would provide alcohol and marijuana for herself, for M. C., and for her cousin, defendant’s minor son. “[T]he first time[, defendant] called [C. C.] in there[, the living room, . . .] he said he wanted to eat [her].” As part of a game called “Truth or Dare,” defendant made C. C. perform fellatio upon him. C. C. also witnessed her then ten-year-old sister, M. C., submit to this sexual requirement. M. C., aged 11 at trial, testified she started avoiding visits with defendant, her uncle, “[b]ecause he made [her] feel uncomfortable because he wanted to touch [her].” M. C. described defendant’s version of the game “Truth or Dare,” as where “you go around in a circle and when you get to somebody else, whenever it’s somebody’s turn, they ask you Truth or Dare, and if you say Truth, then they tell you, then they say something and you have to say yes, it’s true, or no it’s not true, and if they say Dare, then they will dare you to do something.” M. C. had to touch defendant and his son “[o]n [their] privacy.” M. C. affirmed that she “put [her] mouth on [defendant’s] privacy . . . [b]ecause he dared [M. C.] to and [she] was scared that if [she] didn’t that [defendant] might hurt [her] or tell [her] to go to bed or something like that.” M. C. had played and lost at strip poker after defendant “taught [her] how to play it.” Defendant also gave marijuana and beer to M. C. Defendant once “said that he’d give [M. C.] a sucker if [she would] hug him[,] and [she] hugged him and he touched [her] privacy.” When the victims told their mother about weekends with defendant, “[t]hey were very upset. They were embarrassed. They were ashamed.” Melissa Utley, an investigator for the Lee County Department of Family & Children Services, investigated “the allegation that [defendant] had sexually abused some children[.]” She spoke once with C. C. and M. C., in her office. C. C. told Melissa Utley “that she would go over to her uncle’s house on the weekends that she was supposed to stay with her dad and they would play games, Truth or Dare and strip poker, and when [Melissa Utley] talked to [C. C.] further and interviewed her further [C. C.] told [Melissa Utley] a little bit about the games and saying that she would have to touch [defendant’s] penis, she’d have to touch it with her hand or her mouth.” “[M. C.] said the same thing. That she — One time she played the games too. One weekend that she was there also.” “Both of the girls admitted [to Melissa Utley] that there was alcohol and pot.” Special Agent David Lafontaine of the Georgia Bureau of Investigation also interviewed C. C. and M. C. He affirmed that the gist of each victim’s testimony in court was “about the same . . .” as statements they gave in prior interviews. Special Agent Lafontaine also interviewed defendant about the allegations. Defendant thought that “the children were ill and needed psychological help, that this didn’t happen, that they were lying.” Defendant also told Special Agent Lafontaine that “[h]e doesn’t drink alcohol [at present] nor smoke or consume marijuana.”

The jury found defendant guilty as charged on each of the eight counts. His motion for new trial was denied and this appeal followed. Held:

1. Defendant contends the trial court erred in recharging the jury. The presentation of evidence took one day and the jury deliber- . ated for a short period before being released for the evening. The next morning, the jury deliberated for an additional 45 minutes, whereupon the following transpired: “FOREMAN: We have not reached a decision yet as far as — we’re not unanimous. THE COURT: I understand. You must be unanimous. FOREMAN: Sir? THE COURT: You must be unanimous. FOREMAN: Well, we can’t — we’re trying but we’re not getting anywhere. THE COURT: You haven’t reached a decision on any charge? There are eight counts. FOREMAN: No, sir. Well, some of us have and, you know, we’re just not in total agreement. THE COURT: Well, that’s what you’re back there for is to deliberate. So go back there and deliberate until you are unanimous. FOREMAN: Well, it doesn’t look like — I mean, we’re trying but we’re just not — THE COURT: You see, this case is going to be decided by some jury and there is no jury any better qualified to decide than you are. So I think you need to get back there and reason with one another and come to some unanimous decision. You may return to the jury room.” Approximately 50 minutes later, the jury returned unanimous guilty verdicts on each of the eight counts of the special presentment. Defendant argues that this recharge “caused some jurors to abandon honest convictions for reasons other than those based on the trial and the arguments of other jurors,” because the trial court did not also instruct that no juror should be required to give up an honest conviction in his deliberations. We disagree. “The need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. Walter v. State, 256 Ga. 666, 668-669 (352 SE2d 570) (1987).” Peebles v. State, 260 Ga. 165, 167 (5) (a) (391 SE2d 639). “The supplemental instructions given in this case are consistent with [Standard 15-4.4 (b) of the American Bar Association Standards for Criminal Justice], and did not single out jurors in the minority as being the only ones who might reasonably be asked to re-examine their views. . . .” Romine v. State, 256 Ga. 521, 525 (1) (c), 527 (350 SE2d 446). Consequently, we find no abuse of the trial court’s discretion. Compare Sanders v. State, 162 Ga. App. 175 (290 SE2d 516). In Sanders, the trial court erroneously instructed the jury, in part, “ ‘this was a simple case and if you can’t remember the evidence, I’m not going to help you any further with it. There are 12 of you and you should go back in there and sit down and talk among yourselves and determine what the evidence is. . . . It’s sort of like a puzzle. If you can’t figure the puzzle out, you’ll just have to stay in there until you do. That’s just the way it is.’ ” (Emphasis supplied.) 162 Ga. App. 175, 176, supra.

2. Ms. Terri Shook, an Enforcement Agent for Child Support in Dougherty County, is the mother of K. S., a 12-year-old friend of the victims who was with them in defendant’s home on the night in question. Ms. Shook was permitted to relate statements made by her daughter, K. S., as to the acts committed by defendant on the victims in the presence of K. S. See OCGA § 24-3-16 as amended by Ga. L. 1995, p. 937, § 1. In his second enumeration, defendant contends the trial court erred in restricting his cross-examination of Terri Shook, under the following circumstances: “[STATE’S ATTORNEY]: Prior to February 18th, you had never met this man [(defendant)] before? [WITNESS]: No. [STATE’S ATTORNEY]: Did you ever have any problems with him, any bone to pick with him, any hostilities against him? You didn’t know him, period? [WITNESS]: I didn’t know him. . . . [Whereupon, cross-examination ensued.] [DEFENSE COUNSEL]: Ms. [Witness], you have one child, not [K. S.], that was alleged to have been molested. Is that true? [STATE’S ATTORNEY]: Judge, at this time I’m going to object. He is referring to an incident that occurred ten years ago. There is no relation to this case or this defendant, and unless he can —. THE COURT: Who is it you’re asking about? [STATE’S ATTORNEY]: About another child belonging to — [DEFENSE COUNSEL]: Her sister, Your Honor. THE COURT: I sustain the objection.” Defendant argues that the circumstance of a prior molestation against one of her own children was relevant to the credibility of the witness because “[i]t shows that she is biased or prejudice^] against [defendant].”

“The state of a witness’s feelings towards the parties and his relationship to them may always be proved for the consideration of the jury.” (Emphasis supplied.) OCGA § 24-9-68. “Evidence tending to show motive is always relevant and admissible. Wall v. State, 126 Ga. 86 [(hn. 4)] (54 S.E. 815); Boone v. State, 145 Ga. 37[, 39 (1)] (88 S.E. 558).” (Emphasis supplied.) Wall v. State, 153 Ga. 309, 315 (1), 316 (112 SE 142). “‘The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted.’ Ledford v. State, 89 Ga. App. 683, 684 (1), 685 (80 SE2d 828). ‘Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations,’ Mitchell v. State of Ga., 71 Ga. 128, 129 (hn. 6).” Snelling v. State, 215 Ga. App. 263, 264 (1) (a), 265 (450 SE2d 299). In our view, a prior act of molestation committed against the child of a witness is relevant to show any possible bias against an accused child molester that the witness may entertain, unconsciously or deliberately. The trial court erred in restricting defendant’s cross-examination of the witness with respect to any possible bias.

“Nevertheless, the question remains whether this undue limitation of cross-examination and erroneous exclusion of relevant [impeachment] evidence was ‘harmful error requiring a reversal (of defendant’s conviction[s] . . .) and a new trial. (The Supreme Court of Georgia) has adopted the highly probable test when determining if an error is harmless. If it is highly probable that the error did not contribute to the judgment then the error is harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).’ Owens v. State, 248 Ga. 629, 631 [(284 SE2d 408)]. ‘The proper test to determine whether error is harmless (due to overwhelming evidence of guilt) is not whether there is sufficient other evidence to convict but whether “it is highly probable that the error did not contribute to the judgment.” (Cit.)’ Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750).” Snelling v. State, 215 Ga. App. 263, 266 (1) (c), supra. In the case sub judice, the possible bias of the mother of a friend of the victims does nothing to impeach the direct testimony of the victims themselves. The direct testimony of each victim corroborates that of the other victim. Their direct testimony was further corroborated by the testimony of their own mother, Seretha Barnett, as well as by physical evidence of alcohol consumption discovered by Special Agent Lafontaine. In light of this abundant evidence, it is highly probable that the lack of the desired cross-examination did not contribute to the jury’s guilty verdict and the judgment of conviction. Consequently, the trial court’s erroneous restriction of defendant’s attempted cross-examination was harmless in this particular instance.

3. Next, defendant contends the trial court “erred in admitting the out-of-court hearsay statements of numerous prosecution witnesses where no showing of the reliability of such statements was made by the State.”

The hearsay statements objected to are admissible under OCGA § 24-3-16, the Child Hearsay Statute. The two victims testified and were cross-examined. This was sufficient under Sosebee v. State, 257 Ga. 298 (357 SE2d 562), to afford the trial court an opportunity to weigh the indicia of reliability. That finding of reliability is implicit in the admission of evidence relating statements by a child, describing any act of sexual contact or physical abuse, through the testimony of the persons to whom the child made the statements. Roberson v. State, 214 Ga. App. 208, 210 (5) (447 SE2d 640).

As to the evidence of Terri Shook, relating statements made by her daughter who witnessed some of the acts of molestation, defendant fails to show where he objected to such evidence or asked the trial court to call the child witness, K. S. “ ‘ “All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for new trial, from inquiring as to the competency of the evidence.” Andrews v. State, 118 Ga. 1 (43 SE 852).’ Hall v. Browning, 71 Ga. App. 835 (3) (32 SE2d 424).” Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 195, 196 (1) (a) (450 SE2d 427). In our view, defendant waived any valid objection to the foundation for Terri Shook’s testimony, relating statements by her daughter that she (the daughter) witnessed defendant induce the two victims into performing acts of oral sodomy upon him. Consequently, this enumeration is without merit.

4. The trial court granted defendant’s pre-trial motion in limine and conditionally excluded from evidence a note written by Terri Shook’s daughter, K. S., to one of the victims, C. C. This note recounted or recited some of the sexual events K. S. told her mother she witnessed and about which C. C. testified before the jury. The trial court further ruled, however, that the State could elicit the circumstances under which the mother found the note. On direct examination of Terri Shook by the State, the following transpired: “[STATE’S ATTORNEY]: [W]as there anything in particular in that note, without disclosing the note, any one particular item that, as a mother, concerned you, that you found in that letter? [WITNESS]: My daughter was asking [C. C.] in the note — [DEFENSE COUNSEL]: Your Honor, this is becoming dangerously close to stating the contents of the letter. . . . [STATE’S ATTORNEY]: Your Honor, this would be a statement made by a child about an act of molestation. It’s clearly covered by the Child Hearsay Statute, especially as it was amended July 1, 1995. . . . THE COURT: That’s all right. I’m familiar with it. I overrule the objection. You can continue. [STATE’S ATTORNEY]: Thank you. We don’t intend to give it [(the note)] to the jury, Judge, just to solicit comments about the note.” Thereafter, Terri Shook testified that she read her daughter’s note which queried of C. C. whether defendant was “ ‘high when he asked you [(C. C.)] to give him a blow job,’ ” and “ ‘Was he [(defendant)] wanting you to give him a blow job so that Smitty could come over?’ ” Terri Shook subsequently testified that her daughter, K. S. “told me that [defendant] had approached [C. C.] and she was wanting — she had a boyfriend that she had a crush on named Smitty. She was wanting him to come over and [defendant] told her that if she gave him [defendant] a blow job that he would let Smitty come over.” Defendant argues that the “incriminating portion of the letter [as] recited by witness Terri Shook . . . was rank hearsay and should have been excluded.” The State argues for the first time that the letter “explained why the child disclosed the defendant’s crimes,” and was admissible as original evidence under OCGA § 24-3-2.

Decided July 9, 1996

Reconsideration denied July 18, 1996

Donald D. Rentz, Mark T. Phillips, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

There is considerable doubt that the contents of a sealed note, not addressed to Terri Shook (the only witness before the jury), was admissible via Terri Shook’s testimony under the Child Hearsay Statute, even as recently amended. Although the note graphically recounts acts of sexual conduct with a minor as witnessed by the author, yet that note does not appear to be a statement to Terri Shook about the events therein related, as required by OCGA § 24-3-16. “Contrary to the State’s contentions, this testimony [relating the contents of the note] would not be admissible as original evidence under OCGA § 24-3-2, since [Terri Shook’s] conduct and motives were not at issue. [See] Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342) (1989). . . . Accordingly, the trial court erred in permitting [Terri Shook] to testify as to what [her daughter wrote, describing what] she saw [being] done to the other [minor girls in defendant’s trailer]. However, as the record shows that this testimony was merely cumulative of [other] testimony [properly admissible under OCGA § 24-3-16 as amended], the error was harmless. Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).” Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.