author: Ellington, Judge.

text:
    A99A1781.
    FUGARINO v. THE STATE.
    (531 SE2d 187)
   Ellington, Judge.

Sam Emile Fugarino was convicted by a jury of computer trespass, OCGA § 16-9-93 (b), for using a computer with the intention of deleting or removing data from that computer without authority of the computer’s owner. Fugarino appeals from the trial court’s order denying his motion for new trial, arguing the general grounds and that a mistrial should have been granted due to juror misconduct. We affirm.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999).

Viewed in this light, the evidence shows that, at the time the trespass occurred, Fugarino worked as a computer programmer for a company that designed software for land surveyors. During his employment with the company Fugarino became a difficult employee. Fugarino’s employer was concerned about his unusual behavior. On the day of the trespass, Fugarino was informed that another employee had been hired by the company in an unrelated technical support position, and Fugarino began to go “berserk.” Fugarino became very angry and told another employee that he was upset that someone was being hired to take his place, that the code was his product, that no one else was going to work on his code, that nobody was going to take his place and that he was “going to take his code with him.” This employee then observed Fugarino deleting massive amounts of files. “Pages were being highlighted and a whole system appeared to be being erased.” Fugarino himself admitted that “he was going to delete it [the code] from the machine. . . .” When this employee told the owner of the company what he had seen, the owner confronted Fugarino. Fugarino told him that the code was his, that “the blood of his dead son” was in the code and that the owner “would never get to make any money from that code.” The owner managed to get Fugarino to leave the office and secured the company’s computer. He then discovered that Fugarino had added additional layers of password protection to the computer’s system, and he was unable to access the program code. Fugarino returned to the office later that evening and again confronted the owner stating that he “would never be able to sell that code, that he would fix it so [the owner] never sold, the code.” The owner was forced to have Fugarino removed by police. At trial a police investigator trained in the recovery of computer evidence testified that he examined the computer and confirmed that large amounts of data had been deleted from the system. Based on this evidence, the jury convicted Fugarino of one count of computer trespass.

1. (a) Fugarino contends the trial court erred in denying his motion for a directed verdict of acquittal on the grounds that the State failed to produce sufficient evidence to prove beyond a reasonable doubt that he actually deleted any materials from his employer’s computer in violation of OCGA § 16-9-93 (b).

OCGA § 16-9-93 (b) states in pertinent part,

Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of: (1) Deleting or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network . . . shall be guilty of the crime of computer trespass.

Testimony showed that Fugarino used a computer owned by the company with the intention of deleting or removing data from that computer. The burden on the State was not to show that Fugarino had completed the act of deleting or removing data from his computer but to show that he had used a computer, knowing that he did not have the authority to do so, with the intention of deleting data. There is sufficient evidence in this case to allow a reasonable trier of fact to find that a computer trespass had occurred. Gordon v. State, 206 Ga. App. 450, 451-454 (2) (425 SE2d 906) (1992).

(b) Fugarino further contends that the trial court erred in denying his motion for a directed verdict of acquittal on the grounds that the State failed to produce any evidence to prove beyond a reasonable doubt that Fugarino’s use of the computer at issue was knowingly “without authority” as required by OCGA § 16-9-93 (b).

The term “without authority” is defined by the legislature in OCGA § 16-9-92 (11) as “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.” The owner of the company testified that he did not give Fugarino authority or permission to delete portions of the company’s program. Moreover, the vindictive and retaliatory manner in which Fugarino deleted large amounts of computer code indicates that he knew he lacked authority to do so. Therefore, there was sufficient evidence to allow a rational trier of fact to conclude beyond a reasonable doubt that Fugarino used a computer, owned by his employer, with knowledge that such use was without authority and with the intention of removing programs or data from that computer. See Gordon v. State, 206 Ga. App. at 451-454.

2. Fugarino argues that the trial court erred in denying his motion for a mistrial or, in the alternative, to dismiss the biased juror, based upon the statement of one juror that another juror had disclosed that he had made a decision in the case prior to hearing any evidence.

After the first day of evidence and during the evening recess, a juror left a voicemail message for the trial judge regarding comments made by another juror on the panel. The trial court immediately made this message known to the parties and questioned the juror that had left the message outside the presence of the other members. The juror testified that she overheard another juror state that he knew which way he was going to vote in the case if he were selected as a juror and commenting on Fugarino’s Italian heritage. She further testified that she believed other jurors may have overheard these comments and her concern was to make sure that the accused got a fair trial. In response to the allegation made by this juror the trial court immediately conducted an individual examination of each juror outside the presence of the other jurors. The court inquired of each juror about the alleged comments, but no other juror admitted to having heard any comments like the ones described. The jurors then indicated that they could be and would be fair and impartial in this case. The trial judge then questioned the juror who was alleged to have made the statements, and he indicated that he had not made such a statement and that he would be fair and impartial in this case. At the conclusion of the questioning, the trial court determined that there was no basis for granting a mistrial and denied Fugarino’s motion.

When a trial judge decides not to grant a motion for new trial he becomes the trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused. Satterwhite v. State, 235 Ga. App. 687, 690 (509 SE2d 97) (1998). The trial court thoroughly investigated the alleged juror misconduct in this case and determined that the jurors were capable of making a fair and impartial assessment of the evidence. Accordingly, the trial court did not abuse its discretion in this case. Bobo v. State, 254 Ga. 146 (327 SE2d 208) (1985).

Decided March 14, 2000

Reconsideration denied March 30, 2000.

Slater, King & Gross, Scott R. King, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A1862.
    ABEND et al. v. KLAUDT et al.
    (531 SE2d 722)
   Andrews, Presiding Judge.

This appeal arises from a medical malpractice action brought by Betty Klaudt against Dr. Melvin N. Abend. Dr. Abend contends that the trial court erred by denying his motion for summary judgment in which he claimed that the action is barred by the one-year statute of limitation in OCGA § 9-3-72, applicable to foreign objects left in a patient’s body, and by the five-year statute of repose in OCGA § 9-3-71 (b), applicable to medical malpractice actions.

We conclude that a jury issue remains as to whether Klaudt complied with the one-year limitation period of OCGA § 9-3-72 which requires that, where a foreign object is left in a patient’s body, the action “shall be brought within one year after the negligent or wrongful act or omission is discovered.” We further find as a matter of law that the five-year statute of repose in OCGA § 9-3-71 (b) does not bar a foreign object medical malpractice action timely filed within the one-year period set forth in OCGA § 9-3-72. Accordingly, we affirm the denial of Dr. Abend’s motion for summary judgment.

In 1987, Dr. Abend surgically inserted a catheter device into a large vein in Klaudt’s chest leading to her heart in order to allow administration of chemotherapy for treatment of nonHodgkin’s lymphoma. On March 2, 1989, after chemotherapy was completed, Dr. Abend performed surgery to remove the catheter. Over five years later, on April 17 or 18, 1996, Klaudt suddenly started to experience slurred speech, facial drooping, lack of physical coordination, and numbness. As a result, on April 23, 1996, Klaudt was admitted to a hospital and underwent an examination to determine the cause of these symptoms. The examination revealed that a five-inch portion of a catheter device was lodged in the left ventricle of Klaudt’s heart. On April 24, 1996, Klaudt learned that the symptoms she first experienced on April 17 or 18 had been diagnosed at the hospital as embolic episodes to the brain caused by blood clots formed by the catheter penetrating her heart. Surgery was performed on the same day to remove the catheter. On April 21, 1997, less than one year after Klaudt was informed of the diagnosis, Klaudt sued Dr. Abend claiming that he negligently failed to remove all of the catheter device during the March 2, 1989 surgery and that the portion of the catheter he left in her body had moved through the vein into which it was inserted, lodged in her heart, and caused the injuries at issue.

1. It is undisputed that, since the medical malpractice action alleged that Dr. Abend negligently left a foreign object in Klaudt’s body, the one-year limitation period of OCGA § 9-3-72 applies instead of the two-year limitation period of OCGA § 9-3-71 (a). OCGA § 9-3-72 provides in relevant part as follows: “The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered.”

Dr. Abend contends that Klaudt’s action filed on April 21, 1997, is barred by the one-year limitation period of OCGA § 9-3-72 because it was filed more than one year after April 17 or 18, 1996, the date Klaudt first became aware of the injury she alleged was caused by his negligence. In other words, Dr. Abend contends that, under OCGA § 9-3-72, Klaudt discovered his alleged negligent act or omission when she first became aware of the injury on April 17 or 18, even though she was not informed until April 24, 1996, at the hospital, that a catheter lodged in her heart caused the earlier symptoms.

By requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 (183 SE2d 605) (1971). Childers v. Tauber, 148 Ga. App. 157, 158 (250 SE2d 787) (1978); Dalbey v. Banks, 245 Ga. 162, 163 (264 SE2d 4) (1980). In Parker, we held that, where a surgeon negligently leaves a foreign object in a patient’s body, this is a tort of a continuing nature which tolls the statute of limitation until the patient discovers or in the exercise of ordinary care should have discovered the object. Id. at 300-303; Everhart v. Rich’s, Inc., 229 Ga. 798, 801-802 (194 SE2d 425) (1972); Dalbey, 245 Ga. at 163; Williams v. Terry, 197 Ga. App. 209 (398 SE2d 239) (1990). Even though Klaudt became aware on April 17 or 18, 1996, that she was suffering from some kind of injury, the one-year limitation period of OCGA § 9-3-72 did not start to run until she knew or by the exercise of ordinary care should have learned that a foreign object was in her body which was causing the injury. See King v. Seitzingers, 160 Ga. App. 318 (287 SE2d 252) (1981); Waters v. Rosenbloom, 268 Ga. 482, 483 (490 SE2d 73) (1997). Whether Klaudt exercised ordinary care in discovering the catheter in her body on April 24, 1996, or whether ordinary care would have required her to discover it at an earlier date is a mixed question of law and fact for determination by a jury. Piedmont Pharmacy v. Patmore, 144 Ga. App. 160, 161-163 (240 SE2d 888) (1977); King, 160 Ga. App. at 320. The trial court correctly denied Dr. Abend’s motion for summary judgment claiming that the statute of limitation barred the action.

2. Dr. Abend also contends that the five-year statute of repose set forth in OCGA § 9-3-71 (b) bars Klaudt’s medical malpractice action filed on April 21, 1997, because the action, which alleges that Dr. Abend negligently left a foreign object in Klaudt’s body during surgery on March 2, 1989, was brought more than five years after the alleged negligent act or omission occurred. We disagree and conclude that the legislature did not intend for the statute of repose in OCGA § 9-3-71 (b) to bar foreign object medical malpractice actions timely brought within the one-year limitation period of OCGA § 9-3-72.

OCGA § 9-3-71 entitled “General limitation” provides for a two-year statute of limitation and a five-year statute of repose as follows:

(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.
(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.
(d) Nothing contained in subsection (a) or (b) of this Code section shall be construed to repeal Code Section 9-3-73, which shall be deemed to apply either to the applicable statutes of limitation or repose.

OCGA § 9-3-72 entitled “Foreign objects left in body” provides as follows: “The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered.”

Dr. Abend contends that the language of OCGA § 9-3-72 stating that “[t]he limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body . . .” does not refer to the statute of repose in OCGA § 9-3-71 (b) but means only that the two-year statute of limitation in OCGA § 9-3-71 (a) does not apply. Accordingly, Dr. Abend asserts that a foreign object medical malpractice action brought more than five years after the alleged negligent act or omission occurred is barred by the five-year statute of repose in OCGA § 9-3-71 (b) even if it is brought under OCGA § 9-3-72 within one year after the negligent or wrongful act or omission is discovered. We conclude, however, that the language of OCGA § 9-3-72 stating that “the limitations” of OCGA § 9-3-71 shall not apply refers to two periods of time in OCGA § 9-3-71 which generally limit when an action can be brought — the two-year statute of limitation and the five-year statute of repose. Accordingly, we find the legislature intended that neither the two-year statute of limitation nor the five-year statute of repose bars a foreign object medical malpractice action timely brought under OCGA § 9-3-72 within one year after the negligent or wrongful act or omission is discovered. In reaching this conclusion, we resolve any ambiguity in the language of the statute in favor of the statutory construction which determines that foreign object medical malpractice cases are governed solely by the limitation requirements of OCGA § 9-3-72.

First, the statutory construction concluding that the statute of repose in OCGA § 9-3-71 does not apply to actions brought under OCGA § 9-3-72 is consistent with the legislative intent expressed in OCGA § 9-3-73, where the legislature set forth a statute of limitation and a five-year statute of repose applicable to medical malpractice actions brought on behalf of legally incompetent persons and minors. After setting forth the statute of limitation in subsection (b) and the statute of repose in subsection (c), OCGA § 9-3-73 (d) and (e) further provide as follows:

(d) Subsection (b) of this Code section is intended to create a statute of limitations and subsection (c) of this Code section is intended to create a statute of repose.
(e) The limitations of subsections (b) and (c) of this Code section shall not apply where a foreign object has been left in a patient’s body. Such cases shall be governed by Code Section 9-3-72.

OCGA § 9-3-73 plainly states that the five-year statute of repose created in that Code- section does not apply to foreign object medical malpractice actions timely brought under OCGA § 9-3-72. Construing OCGA § 9-3-73 in pari materia with the provisions of OCGA §§ 9-3-71 and 9-3-72, we conclude that the legislature also intended that the statute of repose in OCGA § 9-3-71 not bar actions timely brought under OCGA § 9-3-72. Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948).

Second, when the legislature created the five-year statute of repose in OCGA § 9-3-71 (b) by the 1985 amendment to the statute, it was presumed to do so with full knowledge of the existing law and with reference to it and was presumably aware that the existing requirements of OCGA § 9-3-72 were a codification of the continuing tort rule announced in Parker, 124 Ga. App. 300. Buice v. Dixon, 223 Ga. 645, 647 (157 SE2d 481) (1967). Where a Code section has been codified from an appellate decision, it will be construed in the light of the source from which it comes, unless the language of the Code section demands a different construction. Sinclair v. Friedlander, 197 Ga. 797, 798-799 (30 SE2d 398) (1944). We find no basis for concluding that the language of OCGA § 9-3-72 demands that it be construed differently from the appellate decisions which have applied the continuing tort rule first announced in Parker.

In Parker we held that, where a surgeon negligently leaves a foreign object in a patient’s body, this is a continuing tort which tolls the statute of limitation until the patient discovers or in the exercise of ordinary care should have discovered the object. Childers, 148 Ga. App. at 158; Dalbey, 245 Ga. at 163; Everhart, 229 Ga. at 801-802. “Georgia courts have consistently held that in a continuing tort a cause of action accrues when a plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof.” Waters, 268 Ga. at 483. The legislative interests in classifying foreign object medical malpractice cases under OCGA § 9-3-72 as continuing torts were set forth in the 1980 decision in Dalbey v. Banks:

Where a physician places a foreign object in his patient’s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making [this type of medical malpractice a continuing tort] was to allow the plaintiff’s claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient’s body is directly traceable to the doctor’s malfeasance.

Dalbey, 245 Ga. at 163-164.

By contrast, in Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (437 SE2d 308) (1993), the court identified the legislative interests behind the two-year statute of limitation and the five-year statute of repose in OCGA § 9-3-71. According to Craven, the purpose of the statute of limitation was the elimination of stale claims. Id. at 659-660. As to the five-year statute of repose included in the 1985 amended version of OCGA § 9-3-71, Craven concluded that it was directed toward the following interests:

Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury make[s] it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause. Therefore, we conclude that the purpose of the statute of repose is rational.

Craven, 263 Ga. at 658.

It follows from this analysis that, when the legislature enacted the five-year statute of repose in OCGA § 9-3-71 (b), it sought to curtail the so-called “long tail” of exposure to medical malpractice claims brought many years after the alleged negligent act or omission, particularly in cases where the passage of time makes it more difficult to establish causation. See Hill v. Fordham, 186 Ga. App. 354, 357-358 (367 SE2d 128) (1988); Craven, 263 Ga. at 660. It also follows that, when the legislature codified the continuing tort rule in OCGA § 9-3-72 with respect to foreign objects left in a patient’s body, its purpose was to allow this type of claim to survive until discovery, despite the passage of time, because the directly traceable nature of the negligence causing the injury eliminated the dangers normally associated with belated claims. Accordingly, we find that the legislature did not intend for the statute of repose in OCGA § 9-3-71 (b) to govern actions brought pursuant to OCGA § 9-3-72 alleging that a foreign object was left in a patient’s body. The trial court correctly denied Dr. Abend’s motion for summary judgment claiming the action was barred by the statute of repose.

Decided March 16, 2000

Reconsideration denied March 30, 2000

Alston & Bird, Lori G. Baer, Candice Stone, for appellants.

Cathey & Strain, Dennis T. Cathey, David A. Sleppy, for appellees.

Judgment affirmed.

Johnson, C. J., McMurray, P. J, Pope, P. J., Blackburn, P. J., Smith, Ruffin, Eldridge, Barnes, Ellington and Phipps, JJ, concur. Miller, J., disqualified.

       The action includes a claim for loss of consortium by Klaudt’s husband, Vernon Klaudt. In addition to Dr. Abend, the action names as a defendant Dr. Abend’s professional corporation, Melvin N. Abend, M.D., P.C.

       In Beck v. Dennis, 215 Ga. App. 728 (452 SE2d 205) (1994), the trial court granted summary judgment to the defendant physician on the basis that the statute of repose in OCGA § 9-3-71 (b) barred a medical malpractice action. Although the decision did not mention OCGA § 9-3-72, the plaintiff’s action could be construed on the stated facts as brought pursuant to OCGA § 9-3-72 on the basis that the physician negligently left a foreign object in his body. The decision did not address the application of OCGA § 9-3-72 or the relationship between OCGA § 9-3-72 and the statute of repose in OCGA § 9-3-71 (b). We reversed the trial court because we found a factual issue existed as to whether fraud estopped the physician from relying on the statute of repose. Nevertheless, to the extent the decision could be understood to state that the statute of repose in OCGA § 9-3-71 (b) could bar an action brought within the one-year limitation period of OCGA § 9-3-72, Beck is disapproved.


author: Ruffin, Judge.

text:
    A99A2021.
    MANZI v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (531 SE2d 164)
   Ruffin, Judge.

On April 18, 1997, Lisa Manzi was injured in an automobile collision. She sued Wendell Kistler, who she claimed was driving the truck in which she was a passenger. On November 3, 1997, she served Cotton States Mutual Insurance Company, her uninsured motorist carrier. Cotton States moved for summary judgment, arguing that it had no liability under the policy because Manzi failed to notify it of the accident in a timely manner. The trial court granted the motion, and Manzi appeals. For reasons discussed below, we affirm.

Section IV of the insurance policy, entitled “DUTIES AFTER AN ACCIDENT OR LOSS,” provides in relevant part as follows:

We must be notified promptly, but in no event later than 60 days, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Receipt of such notice by the company or any of its authorized agents shall be a condition precedent to the existence of any coverage under this policy and of the company’s obligation to defend any claim under this policy.

This notice provision is applicable to all claims under the policy, including uninsured motorist claims.

It is undisputed that Cotton States was not notified of the accident until November 3, 1997, when it was served with Manzi’s complaint. Although this was more than 60 days after the accident, Manzi contends that the notice provision is ambiguous because it does not state that the 60-day period begins on the date of the accident. She argues that, with respect to uninsured motorist claims, the 60-day period should not begin until it is discovered that the defendant is uninsured. Cotton States, on the other hand, argues that the policy unambiguously requires notice to be given within 60 days after the accident or loss.

Manzi relies primarily on Gregory v. Allstate Ins. Co., where the policy contained a provision requiring that notice of an accident or loss be given “ ‘as soon as practicable.’ ” The policy did not, however, state that compliance with the notice provision was a condition precedent to the insurer’s obligations thereunder. We held that “where failure to [give notice as soon as practicable] is not made the breach of a condition precedent, the real defense must be based on the issue of whether the insurer has been prejudiced by delay.” We then stated that:

[t]he uninsured motorist endorsement becomes operative, not when there has been an accident, but when it is ascertained that the operator was uninsured. Where the uninsured motorist endorsement provides for notice as soon as practicable, this should be interpreted as if it read as soon as practicable after discovery of the uninsured status, and means within a reasonable time under all of the circumstances if the insured was reasonably diligent in his efforts to determine the insurance status of his adversary.

Manzi argues that Gregory requires us to construe the notice provision, with respect to uninsured motorist claims, to require notice “promptly, but in no event later than 60 days, after discovery of the uninsured status”

Cotton States, on the other hand, relies on Cotton States Mut. Ins. Co. v. Hipps, in which we construed this same policy provision to be unambiguous. The insured’s son in that case was involved in a collision. Although the insured sued the other individuals involved, he did not notify his own insurer, Cotton States, until a year after the accident, after the other individuals had filed counterclaims for personal injury and property damage. In holding that Cotton States was entitled to summary judgment on the issue of coverage, we noted that:

[t]he condition precedent in this case requires 60 days notice after the covered event. It is immaterial to enforcement of this condition precedent that [the insured] thought those other drivers were the cause of the collision and would be liable for his damages and theirs. . . . The language of this policy is unambiguous. ... It unambiguously requires that notice of the covered event and its particulars be received by Cotton States within 60 days of the event, as a condition precedent to coverage of the event. This requirement upon the insured is not dependent on . . . the existence of any insurance held by any other parties; and the insured’s beliefs or misunderstandings about who was liable for this collision did not relieve him of the plain duty to which he agreed and induced Cotton States to issue this policy.

The issue in Hipps, however, was not when the 60-day notice period began, but whether notice was required at all. Nevertheless, we believe that the construction given the provision in Hipps is the correct one.

In general, the interpretation of contractual language is a question of law for the court, unless it is so ambiguous that the ambiguity cannot be resolved by the ordinary rules of construction. As the Supreme Court has noted,

[a]n insurance contract is governed by the ordinary rules of construction and should be construed to ascertain the intention of the parties. In discovering the intent of the parties, the whole instrument should be considered together, along with the surrounding circumstances.

Moreover, while ambiguities in insurance contracts are to be construed against the-insurer, we are not to

call forth doubt or make hypercritical constructions. The natural, obvious meaning is to be preferred over any curious, hidden meaning which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind would discover. The language of the contract in its entirety should be given a reasonable construction, not beyond that fairly intended within its terms.

Although the policy does not expressly state that the 60-day period begins on the date of the accident or loss, that is clearly implied in the policy language, which requires prompt notice of “how, when and where the accident or loss happened.” The “natural, obvious meaning” of this language is that the occurrence of the accident or loss triggers the requirement to provide notice. Even if Hipps is not binding precedent on this point, its reasoning is sound and underscores the fact that we are to look for the natural and obvious meaning of contractual language, even in the context of an insurance contract.

As discussed above, the notice provision applies to all claims made under the policy, not just to uninsured motorist claims. Accepting Manzi’s construction would require us to give the same language different meanings, depending upon whether or not the claim is one for uninsured motorist coverage. Nothing in the policy, however, suggests that the parties intended the language to mean different things in different situations. Indeed, the purpose of a notice provision is not simply to inform the insurer that a claim is being made under the policy, but to notify the insurer of the occurrence of a potentially covered event. As the Supreme Court has noted, in the context of uninsured motorist coverage,

[t]he purpose of notice is to enable the insurer to inform itself promptly concerning the accident, so that it may investigate the circumstances, prepare for a defense, if necessary, or be advised whether it is prudent to settle any claim arising therefrom.

These considerations apply regardless of whether the insured believes that other insurance is available. To interpret the provision as Manzi suggests would allow an insured to delay notifying the insurer for months or even years, so long as the insured thought that other insurance existed to cover the loss. Such an interpretation is contrary to the obvious intent of the policy, which is to require notice promptly after the occurrence of a covered event.

It is undisputed that Manzi did not notify Cotton States of the occurrence of the accident until November 3, 1997, more than six months after the accident. Unlike in Gregory, compliance with the notice provision is expressly made “a condition precedent to the existence of any coverage under this policy and of the company’s obligation to defend any claim under this policy.” Although Manzi argues that the notice provision violates public policy because it restricts coverage under the uninsured motorist endorsement, we have previously rejected this argument. And although Manzi contends that Cotton States waived compliance by asserting in its answer that Kistler was adequately insured, we do not see how such an assertion is inconsistent with its defense that Manzi failed to satisfy a condition precedent for coverage, particularly since it raised such a defense in its answer. Accordingly, the trial court did not err in granting Cotton States’ motion for summary judgment.

Judgment affirmed.

Andrews, P. J., concurs. Ellington, J., concurs in the judgment only.

Decided March 13, 2000

Reconsideration denied March 30, 2000

Charles A. Gower, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., for appellee.

       In his answer, Kistler claimed that Manzi was the one driving the truck and that he was the passenger.

       Manzi’s father, Billy Adams, is the named insured under the policy. Manzi claims that she was a member of Adams’ household at the time of the accident and thus an additional insured under the policy. For purposes of this appeal, we assume that Manzi is an additional insured under the policy.

       134 Ga. App. 461 (214 SE2d 696) (1975).

       Id. at 464.

       Id.

       (Punctuation, omitted.) Id.

       224 Ga. App. 756 (481 SE2d 876) (1997).

       (Emphasis in original and supplied.) Id. at 756-757.

        Smith v. Allen, 180 Ga. App. 624, 626 (1) (349 SE2d 548) (1986).

       (Citations omitted.) Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 838 (1) (413 SE2d 430) (1992).

       (Citations omitted.) Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579, 583 (1) (168 SE2d 171) (1969). See also Maddox v. Life & Cas. Ins. Co. &c., 79 Ga. App. 164, 174 (3) (53 SE2d 235) (1949).

       See Myers v. Texaco Refining &c., 205 Ga. App. 292, 299 (422 SE2d 216) (1992) (provision is enforceable even if “interpretation is required or ... an obvious inference must be made from plain and unambiguous language”).

       (Punctuation omitted.) Kitt v. Shield Ins. Co., 240 Ga. 619, 621 (241 SE2d 824) (1978).

       We note that an insured’s contractual duty to notify her insurer of the occurrence of a covered event is different from the insured’s duty to serve her uninsured motorist carrier with a copy of her complaint against an uninsured defendant. Under OCGA § 33-7-11 (d), as amended effective July 1,1998, the plaintiff is required to serve the uninsured motorist carrier only where “a reasonable belief” exists that the vehicle is an uninsured motor vehicle. See Ga. L. 1998, p. 1064, § 3.

       See Caldwell v. State Farm &c. Ins. Co., 192 Ga. App. 419, 421 (2) (385 SE2d 97) (1989) (no requirement that insurer show prejudice from failure to receive notice where prompt notice was valid condition precedent to coverage).

       See Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676) (1980) (holding that 30-day reporting requirement was enforceable).

       See Great Southwest &c. Ins. Co. v. Sprinkler Contractors, 168 Ga. App. 104, 105 (308 SE2d 204) (1983) (conditions precedent may be “ “waived by conduct inconsistent with an intention to enforce strict compliance with the condition, by which the insured is led to believe the insurer does not intend to require such strict compliance’ ”).

       See Caldwell, supra (affirming summary judgment to insurer due to insured’s failure to comply with notice provision).


author: Smith, Judge.

text:
    A99A2028.
    GRIFFIN v. THE STATE.
    (531 SE2d 175)
   Smith, Judge.

Stacey Darnell Griffin was convicted of kidnapping, robbing, and raping two different women within a span of less than thirty-six hours in the same isolated area in Buford. Following the denial of his motion for new trial, Griffin brought this appeal in which he asserts 13 enumerations of error. Having determined no error occurred, we affirm.

Viewed in a light most favorable to the verdict, the evidence showed that Griffin tricked the first victim, T. S., into giving him a ride to another person’s house. Realizing that she had been deceived, T. S. attempted to make a turn, but Griffin screamed at her, grabbed her neck, and began choking her. Griffin then directed T. S. to drive to Cole Road. When she did not comply, he rammed the gearshift into park and told her he was going to kill her. Begging for her life, she offered Griffin the truck and her purse. He rejected those things and told her he would take what he wanted. Griffin removed the victim’s shorts and panties and forced her to have sexual intercourse. When Griffin finished raping her, he ordered her out, then sped off in the victim’s truck, leaving her stranded wearing only her socks and tennis shoes. The victim ran into a nearby factory, where workers gave her some cloth in which to wrap herself and called 911. Police took the victim to the Gwinnett Rape Crisis Center.

Less than 36 hours later, Griffin managed to obtain a ride from his next victim, C. C., who was driving to Buford accompanied by her ex-boyfriend, Johnny Vickers, to procure drugs. Griffin directed them to an area of Buford which took them toward Cole Road where he had raped the first victim. Griffin suddenly yanked up the emergency brake, forcing the vehicle into a skid. Griffin pushed the victim’s head into the steering wheel and threatened to kill her unless Vickers left. When Vickers ran for help, Griffin directed the victim where to drive. After inquiring whether she had ever been raped before, Griffin ordered her to stop the vehicle and strip, then proceeded to rape her on the hood of the car. During the attack, the victim complained that the hood was extremely hot and was burning her skin. Just as he had done the night before, Griffin left the victim stranded without any clothes while he sped away in a stolen car. Screaming, the victim managed to flag down a passing motorist, and police were summoned.

Meanwhile, Vickers described the perpetrator to police. Based on that description, police suspected Griffin. When Vickers was shown a photo lineup, he selected Griffin’s photograph. Another photo lineup was created, and the first victim also identified Griffin as the rapist. Three or four days after the first rape, police discovered the missing truck with the victim’s clothes and purse inside. The second victim also identified Griffin as her assailant.

Both victims were examined at the Gwinnett Rape Crisis Center, and both had injuries consistent with being raped. Numerous photographs of T. S.’s injuries documented scratches and bruises on her arms and legs and red marks encircling her neck. Two days after this crime spree, after a chase involving the second vehicle, the stolen car crashed into a ravine, but its driver managed to escape. Investigators dusted the hood for fingerprints and lifted prints that matched Griffin’s prints. .

1. Griffin contends the trial court erred by refusing to grant his motion to sever the counts.

The decision to grant a motion to sever the trial of criminal offenses rests within the sound discretion of the trial court. Williams v. State, 178 Ga. App. 581, 584 (1) (344 SE2d 247) (1986). After balancing the interests of the State and those of the accused, a trial court may properly deny a motion to sever when:

the crimes alleged were part of a continuous transaction or series of similar transactions conducted over a relatively short time, and from the nature of the entire transaction, it would be difficult to present to a jury evidence of one of the crimes without also referring to or permitting evidence of the other [crimes].

(Citations and punctuation omitted.) Rocha v. State, 234 Ga. App. 48, 53 (5) (506 SE2d 192) (1998).

Here, the facts surrounding the two rapes are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992). The trial court did not abuse its discretion in denying the motion to sever. Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995); see Cooper v. State, 253 Ga. 736, 737-738 (3) (325 SE2d 137) (1985).

2. Griffin claims the trial court erred by striking a juror for cause. We disagree.

Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]

Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993).

On the morning of the second day of voir dire, a venireman, who was a retired police officer, gave a note to the bailiff. In this note, he expressed his dissatisfaction with the way the judge was handling the case and voiced his prejudice against the judge. After counsel and the judge met in chambers with him, the trial court observed that this prospective juror believed that due to the court’s refusal to allow defense counsel to pose hypothetical questions about a defendant’s right not to testify, Griffin “was not going to get a fair trial.” The juror conceded that this feeling would carry through the trial and affect his ability to be fair and impartial. Upon further examination by counsel, he confirmed that he did not think the defendant had been treated fairly by the court. He asked to be excused from the case and acknowledged that his feelings would affect his impartiality. In light of this juror’s apparently fixed opinion that the judge had not been fair to the defendant, we cannot agree that it was error to excuse this juror for cause. Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993) (decision to strike a juror for cause rests within the sound discretion of the trial court).

3. Griffin contends the trial court erred in refusing to excuse three prospective jurors for cause. We disagree. Absent proof of a manifest abuse of discretion, a trial court’s refusal to strike a .juror for cause will not be disturbed. Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416) (1989). Moreover, “[t]he fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter oflaw[,] that the juror be excused for cause.” (Citations and punctuation omitted.) Wilson v. State, 220 Ga. App. 487, 488 (1) (469 SE2d 516) (1996). See McClain v. State, 267 Ga. 378, 380-381 (1) (a) (477 SE2d 814) (1996).

First, Griffin contends the court should have excused for cause a civilian employee of the City of Lilburn Police Department, because she exhibited a hostile attitude toward defense counsel and himself. The transcript, however, indicates that this juror expressly denied that her job would affect her ability to be fair and impartial. Next, Griffin claims the trial court erred in refusing to excuse for cause a registered nurse who stated that as the mother of two daughters similar in age to the victims’ ages, she would probably be more sympathetic to the victims. But this juror also stated that she thought she would be fair as a juror and could base her decision solely on the evidence. Finally, Griffin asserts the trial court erred in refusing to excuse for cause a juror who expressed concern about having to listen to graphic details of sexual crimes. While this juror did initially voice some doubt about her ability to be fair and impartial in a sexual violence case, she later testified that she could put aside her feelings of aversion and decide the case based on the evidence. The trial court did not manifestly abuse its discretion in refusing to excuse for cause any of these three jurors. Scott, supra.

4. Griffin contends the trial court erred in admitting his videotaped statement into evidence because it improperly placed his character in issue. Griffin claims that although State’s Exhibit 34 “was severely edited by the district attorney with the approval of the judge,” the tape was objectionable in any form. In arguing for the exclusion of this evidence, Griffin does not contest the voluntariness of his statement, only that it impermissibly injected his character into the trial. OCGA § 24-2-2.

As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and unless an abuse of that discretion is shown, the court’s decision will not be disturbed. Cook v. State, 221 Ga. App. 831, 833 (3) (472 SE2d 686) (1996). See OCGA § 24-2-2. When portions of the statement being challenged form an integral part of a confession, such incriminating remarks are not rendered inadmissible because a defendant admitted to the commission of another or separate offense. Walker v. State, 264 Ga. 79, 80 (3) (440 SE2d 637) (1994). Nor does material evidence become inadmissible simply because it incidentally places a defendant’s character in issue. Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991).

The heavily edited videotape documented a custodial interview conducted after Griffin was arrested on an unrelated battery charge. After being fully apprised of his right against self-incrimination, Griffin uttered several incriminating remarks. When an interviewer suggested that physical evidence might tie Griffin to the rape of T. S., Griffin admitted having had sex with her but claimed that T. S. gave him the truck in exchange for sex. Griffin also disclosed that he had been embroiled in a violent argument with his girlfriend. Then, when explaining why he fled from police during the high speed chase, Griffin attempted to justify his flight by claiming that his girlfriend had taken out a warrant for his arrest. We find no error in the admission of this statement even though it implicated Griffin in the commission of other crimes. Walker, supra.

5. Griffin asserts the court erred in qualifying a nurse as an expert witness because she was not qualified to make medical diagnoses or to interpret the causes of the symptoms.

A decision as to whether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused. Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). An expert is one whose habits and profession endow that person with the particular skill needed in forming an opinion on the subject matter at inquiry. Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). Formal education in a particular subject is not always a prerequisite for expert status, since special knowledge may be derived from experience as well as from study. Taylor v. State, 261 Ga. 287, 290 (404 SE2d 255) (1991).

Despite Griffin’s claim to the contrary, the trial court admitted this witness only as an expert in “the field of examination of sexual assault victims.” The witness, Kabee Johnston, a registered nurse working in women’s health since 1971, worked as a “sexual assault nurse examiner” at the Gwinnett Rape Crisis Center. Johnston conducted the physical examinations of both victims and prepared the rape kits that were forwarded to the state crime laboratory. Johnston testified that she had worked as an obstetrical nurse with gynecological experience for 23 years. Johnston explained that she had received specialized professional training in the examination of victims of sexual assaults and in the collection of evidence from such crimes. Johnston testified that she had performed examinations of about 100 women at the rape crisis center. The trial court properly admitted this witness as an expert. Smith, supra.

6. Griffin claims the trial court erred in admitting the State’s medical diagrams as evidence and allowing them to go out with the jury. He contends these exhibits constituted continuing witness testimony which was inherently prejudicial.

During the testimony of Johnston, the registered nurse who examined both victims, the State utilized two anatomical diagrams depicting female genitalia. The witness indicated on the diagram where injuries to the first victim appeared. The State then presented a second identical anatomical diagram to the same witness so that she could identify the location of the second victim’s injuries. Both diagrams were admitted into evidence over objection. The transcript reveals that Griffin posed no objection to the diagrams themselves but rather to the nurse’s qualifications to respond to questions as to whether the victims’ injuries were consistent with nonconsensual intercourse. An objection not raised at trial cannot be asserted for the first time on appeal because it is deemed waived. Ingram v. State, 224 Ga. App. 271 (1) (480 SE2d 302) (1997). Moreover, items of demonstrative evidence, like these, are tools to explain testimony, and are not subject to a continuing witness objection. Gabbard v. State, 233 Ga. App. 122, 124 (3) (503 SE2d 347) (1998); see Parks v. State, 199 Ga. App. 736, 738-739 (2) (406 SE2d 229) (1991).

7. Griffin contends the trial court erred in admitting the photo lineup viewed by the first victim, T. S., on the ground that it was impermissibly suggestive because one photograph was used twice.

When T. S. initially viewed a photographic array which included Griffin’s photograph, she was unable to select anyone and requested more recent pictures. Five days later, from a different array, T. S. selected Griffin’s photograph. But an array is not necessarily defective because the same person’s photograph had already appeared in a prior array. See Rivers v. State, 225 Ga. App. 558, 562 (3) (484 SE2d 519) (1997). In any event, Griffin’s claim that he traded sex with T. S. for her vehicle would seem to negate any issue as to T. S.’s identification of him.

8. Griffin contends the trial court erred by allowing two officers to testify about hearsay statements.

(a) Griffin claims that Detective Jackson was improperly permitted to testify as to what T. S. told him during an interview on the night of the rape.

During cross-examination, Jackson was asked several questions about T. S.’s statement to police. On redirect, Jackson was asked to relate T. S.’s entire statement to enable the jury to have a complete concept of what was said. After Griffin’s cross-examination elicited portions of her statement on a piecemeal basis, the State was entitled to bring out as much of the whole conversation as was needed to enable the jury “to arrive at the true drift, intent and meaning” of what T. S. had earlier told police. (Punctuation omitted.) Thomas v. State, 196 Ga. App. 88, 90 (2) (395 SE2d 615) (1990). Even had Griffin not opened the door to such testimony, no error occurred because T. S. testified under oath and was subject to cross-examination. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

(b) Griffin claims that the trial court improperly permitted hearsay evidence as to his identity.

After Vickers identified Griffin as the kidnapper and after a high speed chase involving the victim’s car, a patrol officer intercepted a pickup truck that approached the area of the search. Satisfied that Griffin was not inside the vehicle, the investigator then showed a photograph to the occupants and inquired whether anyone recognized the person depicted. The investigator testified that several men recognized that person as Griffin. Even assuming arguendo that the identification of Griffin in the photograph by several unnamed citizens was, in fact, inadmissible hearsay, Griffin failed even to suggest how he might have been harmed by this testimony. Copeland v. State, 235 Ga. App. 682, 685 (2) (b) (510 SE2d 124) (1998) (harm and error

must be shown for reversal). This evidence was merely cumulative since both victims identified Griffin as their attacker and other evidence linked him to the crimes.

9. Griffin asserts that the trial court erred in admitting the photo lineup viewed by Vickers. Griffin claims the identification process was defective because the photograph selected by Vickers was the only one that depicted only one person.

This argument overlooks the fact that Vickers was acquainted with Griffin and had previously purchased drugs from him. See Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988). Since Vickers’ identification of Griffin had an independent origin, this evidence was not erroneously admitted. Arnold v. State, 198 Ga. App. 449, 450 (1) (402 SE2d 69) (1991).

10. Griffin claims the trial court erred in admitting State’s Exhibit 67, which consisted of fingerprint cards, and then allowing these cards to go out with the jury.

During the trial, the State tendered four fingerprints lifted from the second victim’s car. Evidence matching Griffin’s fingerprints to those found on the hood of the car was relevant to a material issue in the case and therefore admissible. OCGA § 24-2-1. On the back of one of the fingerprint cards appeared a circle with a slash, the number six, the identifying name of Griffin, and the date and time the laboratory technician signed the card. Griffin objected to the comparison results appearing on the back of the cards being sent out with the jury. Over Griffin’s objection that the cards would constitute continuing testimony, the court admitted the fingerprint cards including the comparison results on the back of the cards.

Griffin’s continuing witness objection was inappropriate. Gab-bard, supra; Ingram, supra. His failure to seek redaction of the challenged portion waived that objection. See Keller v. State, 231 Ga. App. 546, 548 (499 SE2d 713) (1998) (information on fingerprint cards indicating the possible commission of other offenses can be redacted).

11. Griffin contends the trial court erred in admitting an enlarged photograph of his fingerprints used by an officer for comparison purposes. He claims that the exhibit should not have been permitted to go out with the jury. This exhibit, however, was admitted into evidence without objection. Griffin cannot assert for the first time any objection to the admissibility of this exhibit, including a continuing witness objection. Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991) (objections not made at trial cannot be asserted on appeal for the first time).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided March 14, 2000

Reconsideration denied March 30, 2000

Robert L. Waller III, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

       Although a copy of this videotape was not included in the appellate record, the State does not dispute the accuracy of the offending excerpts cited by Griffin.


text:
    A99A2259.
    JACKSON v. THE STATE.
    (531 SE2d 747)
   Ruffin, Judge.

A Decatur County jury convicted Anthony Otto Jackson of armed robbery, burglary and false imprisonment. Jackson was granted an out-of-time appeal on October 16, 1997. He subsequently filed a motion for new trial, which was denied on April 30, 1999, and now appeals. For reasons which follow, we affirm.

The evidence shows that the victim was awakened at 3:00 a.m. on October 21, 1994, by two men at her back door. They asked if “John” was home. The victim said no, but the men forced their way into the house. One of the men wore a red bandanna over his face, and the other wore a black stocking on his head. The victim recognized the man wearing the red bandanna as Jackson, although she knew him by the names of “Tony Williams” and “Tony Johnson.” She identified Jackson’s accomplice as Kenya Thomas, and she recognized a third man standing outside her back door, Jimmy Lee Wilson, by the sound of his voice. The victim had seen the three men at a local store earlier in the day, and Jackson and Thomas were still wearing the same clothes. The victim was personally acquainted with Jackson, and he had visited her at her house.

Jackson threatened the victim with his gun and asked her where her money was. When she did not answer, Jackson told Thomas to search the house. Jackson tried to force the victim to the floor and ripped off her nightgown. Meanwhile, Thomas stole $650 from a drawer in the bedroom.

Maurice Adams, who was walking home, heard the victim’s screams. He tried to enter her house but saw two men, one wearing a red bandanna and the other a stocking, standing over the victim with guns pointed at her, and he retreated from the door. Adams identified Jackson, whom he had known for seven to ten years, as the man wearing the red bandanna. After hearing Adams, the intruders fled from the house and got into a burgundy car.

Phyllis McDowell testified that around midnight on October 21, 1994, she had given a ride to Jackson, Thomas and Wilson in her maroon or burgundy colored car. McDowell knew Jackson by the names of “Tony Johnson” and “Tony Williams.” After dropping the men off at a street corner, McDowell went to a convenience store and then picked up the three men ten minutes later. When the men got into her car, they seemed “pumped up,” and Jackson commented: “That s-was easy.”

The victim identified Jackson from a photographic lineup on November 22,1994. Jackson’s name had previously been entered into the Georgia Crime Information Center (“GCIC”) on October 31, 1994, in connection with the warrants issued for Tony Johnson a/k/a Williams. Jackson was arrested in Florida on August 21, 1995, and extradited to Decatur County for trial.

1. Jackson’s first three enumerations of error concern the legality of his arrest. First, he claims that he was arrested under an illegal warrant in violation of his Fourth Amendment rights. Second, he claims he was illegally detained for a period of time without a warrant or probable cause in the Decatur County jail. Third, he claims that he was arrested due to information improperly entered into the GCIC.

Jackson was arrested in Florida and detained and transferred to Decatur County pursuant to a message from the Decatur County Sheriff’s Department stating that “Anthony Jackson AKA: Tony Williams, Tony Johnson” was wanted in Decatur County under warrants F8556, 8557 and 8558. Those warrants were initially issued for “Tony Johnson (AKA William)” and the name “Jackson” was added later. Jackson contends that these warrants were not issued for him and that “Jackson” was entered into the GCIC in violation of Georgia regulations. In particular, he argues that the State had no authority for entering his name into the GCIC until the victim selected a picture of him from a photo lineup, but the name “Jackson” had been added as an alias to the warrants in the GCIC three weeks before.

Given that Jackson had three aliases, it is not surprising that there was some confusion with the initial warrants. We need not decide, however, whether the irregularities claimed by Jackson rendered the warrants invalid. Even assuming Jackson was illegally arrested and detained, that, without more, is insufficient grounds for ordering a new trial:

Assuming the arrest to have been illegally made, there is no claim that the conviction rested upon evidence seized as a result of the illegal arrest, or upon a confession secured pursuant to the illegal arrest, etc., but simply that he was illegally arrested. This, alone, does not entitle defendant to release or a new trial.

Therefore, Jackson’s first three enumerations of error are without merit.

2. In his fourth and fifth enumerations of error, Jackson claims that he was identified as the result of an improperly suggestive photographic lineup and that there was no independent basis for his in-court identification. However, because Jackson failed to object to the in-court identification or the admission into evidence of the photographic lineup, his conviction cannot be reversed on this basis.

3. Jackson claims to have received ineffective assistance of counsel. In order to establish ineffectiveness of trial counsel under Strickland v. Washington, Jackson must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 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. Furthermore,

[t]here 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.

Jackson was represented by Curley Doltie, a Florida attorney admitted pro hac vice, and by Richard Greenberg, who was licensed to practice in Georgia. We have reviewed the trial transcript, and we affirm the trial court’s finding that their assistance was not ineffective.

(a) Jackson complains that his attorneys failed to pursue an alibi defense. In the hearing on his motion for new trial, Jackson maintains that he was in New York on October 21, 1994, the day of the crime. To support this contention, he presented a temporary license which he obtained in New York on October 28, 1994. At the hearing on the motion for new trial, Jackson also presented or made reference to witnesses who could place him in New York at approximately the time of the crime, but not on the exact date. We cannot say that Jackson has shown he had a strong alibi defense. In the absence of testimony to the contrary, we will presume counsel’s decision not to pursue an alibi defense to be a choice of trial strategy.

(b) Jackson objects to the failure of his attorneys to oppose his extradition from Florida to Georgia and his detention before a valid warrant was issued. These matters do not have any bearing on Jackson’s trial.

(c) Jackson complains that his attorneys failed to object to comments made by the prosecution at closing arguments regarding Jackson having been “on the run.” An objection may simply have highlighted the point being made by the prosecution, so we cannot say this was not a valid exercise of professional judgment.

(d) Jackson claims that his attorneys did not read the transcript of the trial of his accomplices, but his attorneys attempted to impeach prosecution witnesses based on testimony from that trial.

(e) Jackson complains that his counsel failed to interview the prosecution’s witnesses before trial. We have reviewed the record, and counsel did not appear to be unprepared for these witnesses.

(f) Jackson maintains that counsel should have called Jean Paultre Pierre to impeach the testimony of the victim and Adams. Pierre, who is known by a street name of “Jean Jean,” had written a “sworn statement,” presented at Jackson’s motion for a new trial, which alleges that witness Adams and the victim had conspired to fabricate the crime. Pierre maintains that Adams had taken the victim’s money and “smoked it up.” We are not in the position to second-guess trial counsel with respect to the decision not to present this witness’ testimony. Counsel may have judged Pierre to be untruthful or subject to impeachment by the prosecution.

(g) Counsel failed to obtain certified copies of the previous drug and assault convictions of witness Adams. The trial court noted that, in the absence of certified copies, counsel could not introduce those convictions into evidence. Perhaps counsel could have impeached Adams if they had obtained certified copies of his convictions. On the other hand, evidence of Adams’ previous convictions may not have substantially helped Jackson’s case. Adams was cross-examined and questioned about prior inconsistent statements. Counsel may not have anticipated a need to further question Adams’ veracity. In the absence of testimony indicating why counsel did not obtain certified copies of Adams’ convictions, we cannot hold, as a matter of law, that such failure amounted to ineffective assistance of counsel.

Decided March 17, 2000

Reconsideration denied March 30, 2000

Paul Fryer, for appellant. J. Brown Moseley, District Attorney, Anthony E. Paulsen III, Assistant District Attorney, for appellee.

(h) Finally, in his sixth enumeration of error, Jackson complains of ineffective assistance of counsel for their failure to object to the introduction of the photographic lineup and because there was no basis for Jackson’s in-court identification. Such an objection could not have been sustained.

The victim identified Jackson from a photographic lineup of six men. All of the men were shown full-faced, with no masks or other facial covering. Photographic lineups are a valid method of pretrial identification:

[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

There is no evidence that the picture of Jackson was improperly suggested to the victim as that of the perpetrator. Although the assailants wore masks during the robbery, we do not find that a full-faced lineup makes the victim’s identification of Jackson unreliable. She had previously informed the police that she knew her attackers, and any attempt to partially obscure the faces in the lineup would have made the pretrial identification less reliable, not more so.

The basis for the in-court identification of Jackson by the victim and Adams is that they knew him. This is not a case of an in-court identification of a defendant who was a stranger to the witness at the time of the crime.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Johnson v. State, 128 Ga. App. 69, 70 (2) (195 SE2d 676) (1973).

        Anderson v. State, 238 Ga. App. 866, 874 (5) (519 SE2d 463) (1999); Curry v. State, 217 Ga. App. 623, 626 (2) (458 SE2d 385) (1995).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991).

        Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995).

       (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

       (Punctuation omitted.) Simmons v. United States, 390 U. S. 377, 384 (88 SC 967, 19 LE2d 1247) (1968).


author: Miller, Judge.

text:
    A99A1753.
    TOM’S AMUSEMENT COMPANY, INC. v. TOTAL VENDING SERVICES et al.
    (533 SE2d 413)
   Miller, Judge.

The primary question on appeal is whether it constitutes tortious interference with contractual and business relations for one company to induce a competitor’s current employee to disclose confidential financial information and for that company further to solicit customers via the employee’s misrepresentations regarding the competitor’s solvency. We hold it does.

Tom’s Amusement Company, Inc. (“TAC”) and Total Vending Services compete in placing coin-operated amusement games in various businesses in Atlanta. While employed by TAC as a route manager servicing games in Georgia, Alan Joseph secretly disclosed TAC’s financial information to Total Vending (which had offered employment to Joseph) and in concert with agents of Total Vending solicited a TAC customer to give its business to Total Vending. As part of this solicitation, Joseph misrepresented TAC’s financial status to the customer. Consequently, the customer (AMF) terminated its relationship with TAC at three locations and gave that business to Total Vending. After TAC fired Joseph in 1995 for breaching his duties to TAC, Total Vending hired him. Joseph then solicited other TAC customers, including CiCi’s Pizza locations.

TAC sued Joseph and Total Vending and its agents (Schneider and Cotter) in seven counts for (1) tortious interference with contractual and business relations — against all defendants; (2) breach of contract to purchase Total Vending — against Schneider only; (3) disclosure of trade secrets — against Joseph only; (4) breach of noncompete covenants — against Joseph only; (5) conversion of corporate revenues — against Joseph only; (6) fraud arising out of the tortious interference, breach of contract, and conversion claims — against all defendants; and (7) federal and state Racketeer Influenced & Corrupt Organizations (RICO) Act violations — against all defendants. Defendants moved for summary judgment on all counts, which the trial court denied for the most part. But the court did grant partial summary judgment on the tortious interference, fraud (insofar as it arose out of the tortious interference), and the federal and state RICO claims, from which order TAC appeals. We affirm in part and reverse in part.

1. Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the evidence de novo in the light most favorable to the nonmovant.

2. TAC contends that the defendants tortiously interfered with three contractual or business relationships: (a) TAC’s business relationship with AMF, (b) TAC’s employment of Joseph, and (c) TAC’s business relationship with CiCi’s. Athens Intl. v. Venture Capital Properties reiterated the elements of these two separate torts:

In establishing a cause of action for malicious or tortious interference with business relations, the appellants must demonstrate that the appellee (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the appellants, and (4) for which the appellants suffered some financial injury. A cause of action for intentional interference with contractual rights must be based on the intentional and non-privileged interference by a third party with existing contractual rights and relations.

(a) AMF’s Business Relationship. TAC had been servicing AMF’s seven Atlanta bowling alleys and thus had at least a business relationship if not an implied contract to continue. While Joseph was still employed by TAC, Total Vending and its agents induced him to disclose TAC’s confidential financial information about revenues from the AMF locations and to solicit AMF repeatedly to give its business to Total Vending. In these solicitations, Joseph misrepresented that TAC was experiencing financial problems and could not afford to buy needed games. AMF succumbed and switched the three most profitable locations to Total Vending.

This direct evidence found in sworn testimony, including testimony from AMF, supports an action for tortious interference. Defendants’ joint actions were neither privileged nor proper. Although it appears Joseph did not hold fiduciary obligations at TAC, nevertheless, “an employee owes a duty of loyalty, faithful service and regard for an employer’s interest.” Thus, before the end of his employment, no employee may solicit customers for a rival business nor otherwise directly compete with his employer’s business. Nor may he misrepresent his employer’s financial status to persuade customers to change to the rival business. To induce a breach of these duties is improper.

But TAC may pursue this tort only against Total Vending and its agents and not against its faithless employee Joseph, because only strangers to the contractual relationship and to the underlying business relationship are liable for tortious interference. Regardless of whether an employee is acting as an agent of his employer when engaging in the interference, he is not a stranger to the business relationship between his employer and the customers he personally services and thus cannot be held liable under a claim of tortious interference. But the competitor and its agents who assist in the interference can.

(b) Joseph’s Employment Relationship. Beginning in 1991 Joseph had a written employment contract with TAC for a one-year term that automatically renewed until terminated. The agreement contained a post-employment twelve-month noneoiiipete covenant that was superseded by a two-year noncompete covenant contained in his 1995 termination agreement. While Joseph was still employed by TAC, Total Vending offered him employment, but he did not accept. TAC eventually terminated Joseph, and Total Vending hired him within a few months.

With regard to the written contract and the written termination agreement, the evidence is undisputed that Total Vending and its agents had no knowledge of these contracts until the filing of this lawsuit. These parties could not have intentionally and maliciously induced Joseph to breach their terms, for they must first have had knowledge of TAC’s rights and have acted with the intent to interfere with them. Evidence that Joseph “never informed any of [Total Vending’s] agents of the existence of his employment contract with appellant and that to his knowledge [Total Vending] was not aware of the contract,” precludes a cause of action for tortious interference with contractual relations against them. Nor can Joseph be held liable for tortiously interfering with his own contracts.

But Total Vending and its agents were certainly aware of Joseph’s employment relationship with TAC and acted to interfere with that. In Georgia, a competitor’s privilege of fair competition is lost

when wrongful means in the solicitation of employees are utilized. [Cits.] Such wrongful means generally involve predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.

Direct evidence shows that before Joseph left TAC’s employment, Total Vending induced him to breach his implied duty of loyalty by working with it to solicit a TAC customer to give its business to Total Vending, by giving it TAC’s confidential financial information, and by misrepresenting TAC’s financial solvency to the customer. TAC lost three AMF locations to Total Vending as a result. Although Total Vending and its agents can be held liable for interfering with TAC’s employment relationship with Joseph, Joseph of course cannot.

(c) CiCVs Business Relationship. TAC serviced various CiCi’s locations, some of which were owned by the franchisor and the others by independent franchisees. TAC was listed as a preferred vendor by the franchisor, which was a recommendation to franchisees that they may wish to contract with TAC. After Joseph left TAC, he solicited various CiCi’s locations serviced by TAC to no avail. But he did persuade a new CiCi’s franchisee opening a location in Smyrna to use Total Vending instead of TAC.

These actions do not constitute tortious interference by Total Vending. “[A]n employee is permitted to solicit his former customers on behalf of a new employer.” Fair competition is always legal, and absent a valid noncompete or nonsolicit covenant a former employee may go to customers whom he procured for the old employer and endeavor to persuade them to change their trade to his advantage. True, Joseph himself had a noncompete agreement with TAC prohibiting such, but the evidence is undisputed that no one at Total Vending was aware of that agreement until this lawsuit was filed. Absent such knowledge, the actions of Total Vending and its agents cannot meet the intent prong of the tort. And as an integral part of TAC’s business relationship with CiCi’s, Joseph was not a stranger and thus cannot be liable for tortious interference.

In summary, the trial court correctly granted summary judgment on all tortious interference claims with the following two exceptions: (i) the claim against Total Vending and its agents for interfering with TAC’s contractual and business relationships with AMF and (ii) the claim against Total Vending and its agents for interfering with TAC’s employment relationship with Joseph (insofar as Total Vending induced Joseph to solicit AMF, to disclose confidential information, and to misrepresent TAC’s financial status to AMF).

3. The trial court also correctly entered summary judgment on TAC’s fraud claim insofar as that alleged fraud was grounded on tortious interference. A fraud claim has five elements: (a) a false representation by the defendant, (b) scienter, (c) an intent to induce the plaintiff to act or refrain from acting, (d) justifiable reliance by the plaintiff, and (e) damage to the plaintiff. TAC’s evidence of tortious interference does not show that false representations were made to TAC with the intent to cause TAC to act in a certain way, nor does it show that TAC justifiably relied on such. Evidence that Joseph made false representations to others such as customers of TAC and that those customers acted thereon to change with whom they did business is irrelevant to a claim of fraud asserted by TAC. The court correctly granted defendants summary judgment on this claim.

4. TAC also alleged claims based on the civil remedies available under both the Georgia and federal RICO statutes.

(a) Federal law rests liability on a showing of a pattern of racketeering activity or the collection of an unlawful debt. A pattern of racketeering activity requires at least two acts of racketeering activity, which consist of various indictable offenses under federal or state law.

Much of the evidence of alleged wrongdoing by the defendants here obviously does not constitute indictable offenses as defined in 18 USC § 1961 (1). The only evidence that comes close involves the allegations of mail and wire fraud. Joseph misrepresented to AMF that TAC was experiencing financial problems and that TAC thus was unable to buy new equipment. TAC’s president testified that these statements were untrue. The evidence shows that the mail and interstate wires were used in furtherance of this scheme.

But Joseph’s misrepresentations were to AMF, not to TAC. Interpreting the proximate cause requirement of the federal RICO statute, the United States Court of Appeals for the Eleventh Circuit held in Pelletier v. Zweifel that “when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme.” Because no misrepresentations were made to TAC upon which TAC relied, these allegations are not actionable under federal RICO law against any defendants.

(b) Under the Georgia RICO Act, a pattern of racketeering activity is also the linchpin to liability. Georgia defines a pattern of racketeering activity as at least two interrelated acts indictable under certain categories of state and federal laws, including those constituting a federal RICO violation. The Pelletier requirement of detrimental reliance for mail or wire fraud claims also applies under Georgia’s RICO statute to preclude such claims from serving as predicate acts here. And because neither tortious interference nor breach of contract is generally indictable under any of the listed laws, the Georgia RICO claim also must fail in this regard. Thus, the trial court correctly granted summary judgment on the federal and Georgia RICO claims based on the strictly tortious conduct.

Decided March 30, 2000

McCullough Sherrill, John A. Sherrill, R. Leslie Waycaster, Jr., Steven M. Staes, for appellant.

Seacrest, Karesh, Tate & Bicknese, Sanford R. Karesh, Edwin A. ■ Tate II, Walker, Hulhert, Gray & Byrd, Lawrence C. Walker, Jr., for appellees.

(c) The single incident whereby Joseph allegedly gave $8,000 of TAC money to AMF as a cash incentive to enter into written agreements is not indictable as bribery under OCGA §§ 16-10-2, 16-12-33, or 16-12-34. Nor does this isolated incident evince any pattern of racketeering.

(d) As against defendant Joseph individually, Georgia RICO claims may validly be predicated upon evidence that he repeatedly converted significant amounts of TAC money, which is indictable conduct under OCGA § 16-8-4 (a).

TAC hired an outside consultant with 27 years experience investigating misappropriation of corporate assets by employees, who monitored the internal meters in the games from which Joseph collected the money. These meters calculate the number of games played and the money that should be in the machine. Over a period of two months, in those machines serviced by Joseph, the “amount of money was always less than the meter readings,” even after the meters were replaced. Amounts missing ranged from $25 to $300 per week per location, and the average shortfall per site over the two-month investigation was $100 per week. In our view, this is “precisely the conduct prohibited by the Georgia statute.” Consequently, as against Joseph individually, for those RICO claims based on proof that an employee repeatedly converted his employer’s money, the grant of summary judgment was in error.

Judgment affirmed in part and reversed in part.

Pope, P. J., concurs. Smith, J., concurs in the judgment only.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       230 Ga. App. 286, 288 (2) (495 SE2d 900) (1998).

         (Citations and punctuation omitted; emphasis in original and supplied.) Id.

       See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 272-273 (2) (329 SE2d 900) (1985) (whole court) (unlawful interference with continuing relationship or implied agreement is actionable).

       (Punctuation omitted.) Crews v. Roger Wahl, C.P.A., P.C., 238 Ga. App. 892, 901 (4) (d) (520 SE2d 727) (1999), approving as a correct statement of the law, Lane Co. v. Taylor, 174 Ga. App. 356, 362 (5) (330 SE2d 112) (1985) (physical precedent only); Ga. Gulf Corp. v. Ward, 701 FSupp. 1556,1559 (N.D. Ga. 1987). The seemingly contradictory language found in Physician Specialists &c. v. Wildmon, 238 Ga. App. 730, 735 (3) (521 SE2d 358) (1999), must be restricted to its facts.

        Instrument Repair Svc. v. Gunby, 238 Ga. App. 138, 140 (1) (518 SE2d 161) (1999); Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1) (430 SE2d 368) (1993); E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 363 (9) (359 SE2d 148) (1987); compare Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678, 680-681 (1) (359 SE2d 737) (1987) (no tortious interference where no evidence of solicitation before leaving employment).

       See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 349 (2) (392 SE2d 860) (1990) (wrongful means include fraud, misrepresentation, or defamation); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 250-251 (2) (166 SE2d 744) (1969) (misrepresentations as to company’s financial solvency are improper means and may constitute element of tortious interference).

        Atlanta Market &c. Co. v. McLane, 269 Ga. 604, 609-610 (2) (503 SE2d 278) (1998) (endorsing cases reducing the number of entities against which tortious interference may be maintained and holding “all parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships”) (citations omitted; emphasis supplied).

       See Parks v. Multimedia Technologies, 239 Ga. App. 282, 291-292 (3) (f) (520 SE2d 517) (1999).

       See id.

        Derosa v. Shiah, 205 Ga. App. 106, 110 (3) (421 SE2d 718) (1992).

        Bible Farm Svc. v. House Hasson Hardware Co., 157 Ga. App. 358, 360 (3) (277 SE2d 341) (1981); see Unigard Ins. Co. v. Zimmerman’s, Inc., 151 Ga. App. 394, 396 (2) (259 SE2d 652) (1979), aff’d, 245 Ga. 475 (265 SE2d 774) (1980); cf. Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743) (1987).

        Atlanta Market, supra, 269 Ga. at 608 (2).

        American Bldgs. Co., supra, 260 Ga. at 349 (2).

       Id.

       Although there is evidence that one solicitation took place before Joseph left TAC’s employment, this solicitation was completely unsuccessful and caused no damages to TAC.

       (Citation omitted.) Contractors’ Bldg. Supply v. Gwinnett Sash &c., 199 Ga. App. 38, 40 (2) (403 SE2d 844) (1991).

        Airotec, supra, 119 Ga. App. at 249 (1).

       We do not address the enforceability of that agreement.

       See Unigard, supra, 151 Ga. App. at 396 (2).

       See Parks, supra, 239 Ga. App. at 292 (3) (f).

        Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989); Pyle v. City of Cedartown, 240 Ga. App. 445, 447 (1) (524 SE2d 7) (1999).

       See Maddox v. Southern Engineering Co., 216 Ga. App. 6, 7 (1) (453 SE2d 70) (1994).

       See 18 USC §§ 1961-1964; OCGA §§ 16-14-1 through 16-14-6.

       18 USC § 1962.

       18 USC § 1961 (1), (5).

       See 18 USC §§ 1341; 1343.

       921 F2d 1465 (11th Cir. 1991).

       (Citations omitted.) Id. at 1499-1500 (II) (A) (2) (b).

       See OCGA § 16-14-4.

       OCGA § 16-14-3 (8), (9); Roth v. Connor, 235 Ga. App. 866, 872 (4) (510 SE2d 550) (1998).

       OCGA § 16-14-3 (9) (A) (xxix).

       See Gentry v. Volkswagen of America, 238 Ga. App. 785, 791 (4) (521 SE2d 13) (1999); Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 601 (1) (c) (494 SE2d 388) (1997), rev’d on other grounds, 270 Ga. 165 (509 SE2d 602) (1998); Longino v. Bank of Ellijay, 228 Ga. App. 37, 41 (2) (491 SE2d 81) (1997); Huddleston v. R. J. Reynolds Tobacco Co., 66 FSupp.2d 1370, 1376 (III) (A) (N.D. Ga. 1999).

       See, e.g., Emrich v. Winsor, 198 Ga. App. 333 (401 SE2d 76) (1991).

       OCGA § 16-14-3 (9) (A) (ix).

       See Denmark v. State, 44 Ga. App. 157, 164 (7) (161 SE 286) (1931).

        Larson v. Smith, 194 Ga. App. 698, 700 (391 SE2d 686) (1990).