author: Pope, Chief Judge.

text:
    A93A1228.
    LEFLER v. THE STATE.
    (436 SE2d 777)
   Pope, Chief Judge.

Defendant Arthur David Lefler appeals his conviction for vehicular- homicide in the first degree, driving under the influence and failure to stop at or return to the scene of an accident in violation of OCGA § 40-6-270 (a).

Construing the evidence in the light most favorable to support the verdict, the evidence shows that on October 20, 1990 at approximately 8:00 a.m., a pedestrian was struck and killed by a brown sports car near the intersection of North Avenue and Peachtree Street in Atlanta. The driver of that vehicle fled the scene. At approximately noon that same day, defendant, while driving a brown Datsun 280Z, was arrested for driving under the influence in Cobb County. At the time of his arrest, defendant’s blood-alcohol level was .11 grams percent. The windshield on his car was broken, the bumper was damaged and blood, hair and clothing fragments were on both the windshield and the hood. The State presented evidence that the blood, hair and clothing on defendant’s car matched that of the victim struck in Atlanta earlier that day. The State also presented evidence that glass fragments found on the victim matched glass from the windshield of defendant’s car.

1. We first address defendant’s contention the trial court committed reversible error by failing to grant his plea in bar. Defendant contends his prosecution for vehicular homicide and driving under the influence was barred because jeopardy attached with regard to those crimes when the defendant was convicted of driving under the influence in the Municipal Court of Smyrna prior to being prosecuted in Fulton County Superior Court for the crimes underlying this appeal. OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” “The same conduct” has been used interchangeably with the phrase “the same transaction.” Harrell v. State, 196 Ga. App. 101, 103 (395 SE2d 598) (1990); see McCannon v. State, 252 Ga. 515, 518, n. 5 (315 SE2d 413) (1984). Defendant’s prosecution for driving under the influence in the Municipal Court of Smyrna did not arise from the same transaction as the vehicular homicide and driving under the influence charge for which the defendant was prosecuted in Fulton County Superior Court. The offenses were completed at different times and different locations. Furthermore, jeopardy did not attach in this case because there is no single court with jurisdiction over all the crimes. The Fulton County Superior Court does not have jurisdiction over the offense of driving under the influence within the city limits of Smyrna and likewise the Smyrna Municipal Court is without jurisdiction to try the vehicular homicide and driving under the influence charges for conduct occurring within Fulton County. See OCGA § 17-2-2; Harrell, 196 Ga. App. at 103. We find no error in the trial court’s denial of defendant’s plea of double jeopardy.

2. Defendant argues the trial court erred by refusing to charge the jury on the lesser included offense of second degree vehicular homicide. Defendant made a written request to charge on that offense. We agree and reverse the conviction. Defendant was charged with vehicular homicide in the first degree by causing the death of the victim without malice aforethought through the violation of OCGA §§ 40-6-391 and 40-6-390. In this case, as in Hayles v. State, 180 Ga. App. 860 (350 SE2d 793) (1986), although there was sufficient evidence to authorize defendant’s conviction of vehicular homicide in the first degree in the manner charged, there was also evidence that he committed the separate less culpable traffic offenses of speeding and failing to obey a traffic signal. If the jury believed the offense of vehicular homicide was committed as the result of defendant failing to obey a traffic signal or speeding, they would be authorized to find defendant guilty of second degree vehicular homicide. The evidence did not therefore demand a finding that defendant driving under the influence and/or engaging in reckless driving were the proximate causes of the victim’s death. We reject the State’s argument that the defendant must be charged with a traffic offense involving less culpable conduct before a charge on vehicular homicide in the second degree is authorized. Accordingly, the trial court erred in refusing to give defendant’s request to charge on second degree vehicular homicide. Id. at 862.

3. We will address those remaining enumerations of error which are capable of repetition on retrial. Defendant argues it was error for the trial court to allow into evidence testimony concerning his arrest in Smyrna later in the day in question for driving under the influence as a similar transaction. We do not agree. In this case a hearing was held in the manner required by Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991). After that hearing the trial court properly concluded the State had met its burden set forth in Williams and that the State could present the facts surrounding defendant’s arrest for driving under the influence in Smyrna for the purpose of showing defendant’s propensity to drive under the influence, a crime with which he was also charged in Fulton County. We find no error in the trial court’s ruling under the facts in this case.

4. Defendant asserts the trial court erred in allowing testimony concerning defendant’s blood-alcohol level at the time of his arrest in Smyrna, approximately four-and-one-half hours after he allegedly struck the pedestrian in Atlanta. “ ‘It is weli settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those that establish the commission of another criminal offense.’ . . . [Cit.]” Robinson v. State, 200 Ga. App. 515, 519 (408 SE2d 820) (1991).

5. Defendant argues the trial court committed reversible error by allowing the State’s expert witness to testify about the defendant’s blood-alcohol level at 12:30 p.m. and to answer a series of hypothetical questions about what the blood-alcohol level a person of defendant’s approximate weight would be at certain times given a certain number of 80 proof alcoholic beverages within a certain time period. The expert’s testimony concerning the results of the blood-alcohol test he performed on defendant’s blood taken at approximately 12:30 p.m. on the day in question is admissible as part of the similar transaction evidence or as a circumstance surrounding defendant’s arrest. The trial court also did not abuse its discretion by allowing the expert to answer the hypothetical questions posed since these questions were based on the evidence presented and were relevant in this case.

6. We have examined defendant’s remaining enumerations of error and either find that the enumerations are unlikely to recur upon retrial or that the enumerations are without merit.

Decided October 21, 1993.

Bedford, Kirschner & Venker, T. Jackson Bedford, Jr., for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Barry I. Mortge, Assistant District Attorneys, for appellee.

Judgment reversed.

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

       Although the time frame given in the State’s hypothetical questions differed slightly from the evidence presented earlier, when the expert was cross-examined by the defendant, he posed a similar hypothetical question to him using the correct time frame. We presume the jurors remembered the evidence correctly.


source: Caselaw Access Project

license: Public Domain

text:
    A93A1250.
    MEINERS v. FORTSON & WHITE et al.
    (436 SE2d 780)
   Pope, Chief Judge.

In this legal malpractice action, plaintiff appeals the trial court’s grant of defendants’ motion for summary judgment and denial of plaintiff’s motion for partial summary judgment.

On September 26, 1988, plaintiff was injured in a two-car accident which occurred when Michelle Sperzel ran a red light. In January 1989, plaintiff retained defendant law firm Fortson & White to pursue her claims arising out of the accident, with defendant Robert E. Mulholland as the attorney primarily responsible for her case. Mulholland interviewed witnesses and sent out requests for medical bills and records from plaintiff’s treating physicians. He also contacted Allstate, Sperzel’s insurer, and sent them copies of some but not all of plaintiff’s bills. When plaintiff’s demand for $40,000 did not result in a settlement, Mulholland filed a complaint in late November 1989 naming Sperzel as a defendant. The complaint and entry of service form both listed Sperzel’s address incorrectly, however, even though her correct address could easily have been obtained from the police report of the accident or the phone book. As a result, the sheriff did not serve Sperzel. In February 1990, Mulholland left Fortson & White to join another firm. Soon thereafter, plaintiff fired Fortson & White and hired defendant Mitchell Gross as her new counsel. Mulholland had hired an investigator to track down Sperzel’s address before he left, but the investigator did not do so before plaintiff changed attorneys. When Mulholland heard plaintiff had a new attorney, he called Gross to make sure Gross realized Sperzel had not yet been served, explicitly advising him of the service problem. At the time plaintiff fired Fortson & White and retained Gross, more than six months remained before the statute of limitation ran. However, service was not perfected on Sperzel, and plaintiff’s action against her was dismissed.

1. Plaintiff submitted an affidavit in which an expert opined that defendants were negligent in listing an incorrect address for Sperzel on the complaint and entry of service form, and then in failing to correct their error and perfect service on her. Because defendants did not submit an expert affidavit countering plaintiff’s, she contends that summary judgment for defendants was error and that she was entitled to partial summary judgment since defendant’s liability was established as a matter of law. However, we conclude that even if defendants were negligent, their negligence was not the proximate cause of plaintiff’s loss of her cause of action.

The pivotal question is whether substitution of new counsel who negligently fails to cure the results of the first counsel’s negligence cuts off the first counsel’s liability. As with any proximate cause question involving an intervening negligent act of a third party, the answer depends on the foreseeability of the intervening negligence. See, e.g., Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805 (1) (415 SE2d 705) (1992). Where, as here, the second attorney is specifically advised by the first attorney that a party needs to be served and the second attorney has more than six months to accomplish that service, it is not reasonably foreseeable that the second attorney will fail to cure the first attorney’s error and perfect service as a matter of law. Accordingly, the unforeseeable intervening negligence of Gross cut off defendants’ liability for damages resulting from their failure to perfect service on Sperzel. See Frazier v. Effman, 501 S2d 114 (Fla. Dist. Ct. App. 1987) (where second attorney has sufficient time to rectify oversight before statute of limitation ran, first attorney is not liable even if second attorney was not specifically notified of problem); Steketee v. Lintz, Williams &c., 694 P2d 1153 (Cal. 1985) (attorney cannot be held liable for failing to file action prior to expiration of statute of limitation if he ceased to represent the client and was replaced by other counsel before the statute ran). Cline v. Watkins, 66 Cal.App.3d 174, 135 Cal. Rptr. 838 (2d Dist. 1977), cited by plaintiff for the proposition that the foreseeability of the second attorney’s failure to cure the negligence of the first is a jury question, is factually distinguishable because instead of involving an obvious statute of limitation problem of which the second attorney was specifically advised, it involved a less noticeable problem of which the second attorney was not aware. Summary judgment for defendants was therefore properly granted with respect to plaintiff’s claims based on defendants’ failure to perfect service, regardless of plaintiff’s uncountered expert testimony that defendants were negligent.

2. Plaintiff’s expert also opined that defendants were negligent in failing to provide Allstate with certain information it had requested. If defendants had done so, the expert stated, “Allstate Insurance Company would have been in a position to properly evaluate the case, and to enter into settlement negotiations, and . . . such negotiations could have resulted in a satisfactory settlement.” Thus, plaintiff argues, defendants are liable as a matter of law for damages resulting from their failure to provide Allstate with the requested information, even if they are not liable based on their failure to perfect service. In order to prevail on this claim, however, plaintiff would have to show that negotiations “would have” resulted in a settlement; “might have” or “could have” is not enough. See Hunt v. Tomlinson, 799 F2d 712 (1) (11th Cir. 1986) (applying Georgia law). As there is no evidence that a settlement would have been reached had defendants provided Allstate with the requested bills and records, summary judgment for defendants was proper with respect to this issue as well.

Decided October 21, 1993.

Harris, Phillips & Harris, R. Britt Harris, Jr., for appellant.

Freeman & Hawkins, H. Lane Young, Kellie R. Casey, Peter R. York, for appellees.

Judgment affirmed.

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

       Defendant Mitchell Gross defaulted and then filed for bankruptcy protection. He is not a party to this appeal.


text:
    A93A1367.
    MORGAN v. GEORGIA GENERAL INSURANCE COMPANY.
    (436 SE2d 782)
   Pope, Chief Judge.

Plaintiff-insured was sued by a third party after his son was involved in an automobile accident. Defendant-insurer refused to defend plaintiff on the grounds that plaintiff’s policy with defendant was not in effect at the time the accident occurred. Plaintiff then brought this action seeking a declaratory judgment establishing defendant’s responsibility under the policy. The trial court granted summary judgment for defendant, and plaintiff appealed.

We view the record in the light most favorable to plaintiff as the opponent of summary judgment, giving him the benefit of all reasonable doubts and inferences. See, e.g., McGinty v. Goldens Foundry &c. Co., 208 Ga. App. 248 (1) (430 SE2d 185) (1993). Plaintiff purchased a policy of insurance from defendant which provided coverage from 12:01 a.m. on April 12, 1991, to 12:01 a.m. on October 12, 1991. Plaintiff did not pay his premium all at once, but instead financed it through AIM Finance. Each month he would receive a bill for that month’s installment payment on the premium, and each month his wife would pay it. In September 1991, plaintiff received a renewal offer from defendant. The offer stated a total amount for the premium and provided a space for a check mark indicating the insured’s desire to finance the premium through AIM. Plaintiff’s wife checked that space, signed the offer and mailed it back. She expected to receive a bill for October as well as insurance cards. When she did not, Mrs. Morgan went to see Wendy Peavy, the agent from whom plaintiff originally bought the insurance. Peavy did not ask for any payment on the premium. Instead, she told Mrs. Morgan she would be billed and typed up two new insurance cards for her. Plaintiff and his wife then considered their insurance to be in effect. When their son had an accident around 6:00 p.m. on October 12, 1991, however, defendant denied coverage.

Plaintiff argues that a question of fact exists as to whether a binding insurance contract was created when his wife accepted the renewal offer by signing it and mailing it back, checking off the space indicating that the premium was to be financed. We agree. In the context of this case, by marking the space indicating the premium was to be financed, the Morgans promised to continue making installment payments in accordance with a financing plan as they had done in the past, and defendant’s inclusion of this financing option in its offer can only be construed as an agreement to accept the Morgans’ promise of future payments in return for its promise of insurance coverage. Citing Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837 (4) (413 SE2d 430) (1992), defendant argues that the contract must fail for lack of consideration because plaintiff did not pay the required renewal premium. In Brown, however, the insured did not finance the premium but instead sent in a check which bounced. Unlike a bad check, a promise to make one or more payments in the future clearly is valid consideration which will support a contract. See Black’s Law Dictionary, p. 277 (5th ed. 1979); OCGA § 13-3-42. In this case, the conditions giving rise to the insurer’s conditional obligation under the contract occurred before the insured’s promise to pay in the future was fulfilled, but this circumstance should not enable the insurer to escape its obligation under the contract. If the insurer did not intend to be bound until the premium was actually received, it shoüld not have incorporated the financing option into its renewal offer.

Thus, if a jury believes the Morgans signed and returned the renewal offer and promised to make monthly payments on the premium under a financing plan, it would be authorized to find that the policy was renewed and coverage was in force at the time of the accident even though the first payment on the renewed policy had not yet been received. Furthermore, even if the inclusion of the financing option in the offer were not construed as an acceptance by the insurer of plaintiff’s promise to pay in the future, we agree with plaintiff that a question of fact would exist as to whether defendant should be estopped from denying coverage based on its agent’s failure to ask Mrs. Morgan for a payment and statement that she would be billed. See Home Materials v. Auto Owners Ins. Co., 250 Ga. 599 (2) (300 SE2d 139) (1983). The trial court therefore erred in granting summary judgment for defendant.

Decided October 21, 1993.

Wright & Hyman, Thomas H. Hyman, for appellant.

William H. Anderson III, for appellee.

Judgment reversed.

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


text:
    A93A1377.
    WRIGHT v. THE STATE.
    (436 SE2d 783)
   Pope, Chief Judge.

Defendant was convicted of armed robbery and appeals his conviction.

Two men with a revolver robbed a Del Taco restaurant, entering the restaurant by climbing in the drive-thru window. They demanded money, first from Jonathan Streetman, the employee manning the window, and then from Seth Harms, the shift manager. Harms gave the robbers a little more than $1,000, and the robbers left. The first officer on the scene was Patrolman Earnest Stanley, but the police were unable to locate the robbers that night..

Exactly two weeks after the robbery, Officer Stanley saw a car driving without its headlights not far from the Del Taco restaurant. He ran a check on the license tag and found the car was stolen. When he pulled behind the car and turned on his lights, the driver of the stolen car, defendant, would not stop. A high-speed chase ensued which ended only when defendant lost control of the stolen vehicle and struck a telephone pole. Defendant was arrested along with co-defendant Terrance Cook and a third man, both of whom were passengers in the car. Because defendant and co-defendant fit the descriptions of the men involved in the Del Taco robbery, Streetman and Harms were asked to view photo arrays containing their pictures a few days later. Streetman was unable to identify defendant, though he recognized co-defendant. Harms did identify defendant’s picture from the photo array. However, he was unable to pick out defendant in the courtroom. At trial, officers were allowed to testify about the circumstances of defendant’s arrest and about the pre-trial photo identification. The State also presented expert testimony showing that defendant’s fingerprints and palmprints were taken from surfaces in and around the drive-thru window the night of the armed robbery.

Decided October 21, 1993.

Lloyd W. Walker, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

1. Defendant’s argument that the trial court erred in admitting testimony about the circumstances of his arrest for another offense is without merit. “ ‘It is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those that establish the commission of another criminal offense.’ . . . [Cit.]” Robinson v. State, 200 Ga. App. 515, 519 (408 SE2d 820) (1991).

2. Defendant also contends the trial court erred in allowing the investigator to testify that Harms identified defendant in a photo line-up because the line-up was impermissibly suggestive. It does not appear from the record that either the photographs or the procedures used were impermissibly suggestive. Moreover, in light of the fingerprints and palmprints placing defendant in and around the drive-thru window on the night of the robbery, we conclude that any error in admitting testimony regarding the pre-trial identification would have been harmless.

Judgment affirmed.

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


text:
    A93A1398.
    MORRIS v. THE STATE.
    (436 SE2d 785)
   Pope, Chief Judge.

Defendant Floyd J. Morris appeals from his conviction for vehicular homicide in the first degree. The jury found that defendant committed the crime of vehicular homicide in the first degree by driving a moving vehicle while under the influence of drugs in violation of OCGA § 40-6-391 (a) (2), which prohibits a person from driving a moving vehicle while under the influence of any drug to the extent that it is less safe for the person to drive.

In the early morning hours of March 14, 1990, defendant was driving a truck along a foggy road in Jeff Davis County as part of his employment. He did not see and ran a stop sign, striking another vehicle and killing its occupant.

1. Defendant first argues that the State did not present sufficient evidence that defendant was driving under the influence of a drug to the extent that it was less safe for him to drive. None of the witnesses who had an opportunity to observe the defendant close to the time of the accident testified that he appeared under the influence of drugs or alcohol. However, the forensic scientist who tested defendant’s blood, which was taken approximately two hours after the accident, testified the marijuana level in defendant’s blood was between 100-250 milliliters. She further testified without objection that his marijuana level was very high and in her opinion such a marijuana level would make defendant a less safe driver. There was evidence presented by defendant’s co-worker, who was a passenger in the truck he was driving, that defendant could have been traveling as fast as 50-55 mph at the time of the collision, although the companion thought he was driving effectively. However, other testimony was presented that a speed of only 35-40 mph would be reasonable under the foggy conditions existing that morning. The jury was also authorized to consider that defendant did not see the stop sign or the vehicle that he struck. Viewing this evidence in a light favorable to the verdict, it was sufficient to enable a rational finder of fact to find defendant guilty of the crime for which he was convicted. See Hall v. State, 200 Ga. App. 585 (2) (409 SE2d 221) (1991). Cf. Sparks v. State, 195 Ga. App. 589 (2) (394 SE2d 407) (1990) (evidence that defendant ingested cocaine was not sufficient to prove defendant was a less safe driver); Clay v. State, 193 Ga. App. 377 (2) (387 SE2d 644) (1989) (the officer’s opinion that defendant was a less safe driver was without an evidentiary foundation).

Decided October 21, 1993.

Thomas H. Pittman, for appellant.

2. It was error under the facts of this case for the trial court to refuse to give defendant’s written request to charge on accident. OCGA § 16-2-2 provides: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” In this case there was overwhelming evidence that the foggy weather conditions made it impossible or almost impossible for the defendant to see the stop sign he ran at the time he struck the victim’s vehicle. The testimony of both defendant and his co-worker raised the defense of accident. Accordingly, the trial court erred by refusing to give a charge on accident. Sapp v. State, 179 Ga. App. 614 (2) (347 SE2d 354) (1986). The judgment below must be reversed.

3. We have examined defendant’s remaining enumerations of error and find them to be without merit.

Judgment reversed.

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

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.


text:
    A93A1503.
    STARGEL v. THE STATE.
    (436 SE2d 786)
   Pope, Chief Judge.

Defendant was convicted by a jury on two counts of aggravated child molestation and acquitted on two counts of aggravated sodomy.

M. S., defendant’s five-year-old grandson, told his mother that J. W., M. S.’s nine-year-old cousin, and N. S., his ten-year-old uncle (defendant’s son), had “stuck their joober in my butt,” meaning they had engaged in anal intercourse with him. After a doctor’s physical exam showed that M. S.’s rectum was stretched to the point that two fingers could be easily inserted without hurting him, his mother asked him if any adults were involved. When M. S. was silent and appeared scared, she told him she would name some names and he should stop her if she named anyone who was involved. She first named her own father, her stepfather and a cousin of M. S.’s father, and M. S. did not respond. Then she named “Papa Billy,” M. S.’s name for defendant, and M. S. said, “(P)lease don’t tell ... he done it.” Later, when M. S. and his mother were driving by defendant’s house, M. S. pointed at some bushes and said, “Mom, that’s where Papa Billy did that to me at.” This was a spontaneous remark on M. S.’s part; his mother had not brought up the subject. M. S. also told Investigator Travis Brown, the deputy sheriff assigned to the case, that “Papa” had touched him in this way. Although there was some confusion as to which grandfather he was referring to, M. S. referred to the one who touched him as N. S.’s daddy and said he had a beard. Both of these descriptions fit defendant and do not fit the others M. S. calls “Papa.” J. W. also testified that defendant had anal intercourse with him in the bushes at defendant’s house, though he had previously told Investigator Brown that no adults were involved. J. W.’s school counselor testified that he had told her about this incident.

Defendant agreed to take a polygraph test and signed a stipulation providing that the results of the test could be used in court. The stipulation also provided that defendant could have a second, independent polygraph test, and that the results of the second test would also be admissible. When the results of the first test showed deception on the part of defendant, he made a motion for funds for an independent polygraph test, which was granted. However, the second test also showed that defendant was deceptive in answering relevant questions. Over defendant’s objection, the State was allowed to introduce the results of both tests.

1. Viewing this evidence in the light most favorable to the verdict, it was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant argues the trial court erred in allowing him only 12 peremptory challenges of potential jurors rather than 20. See OCGA § 15-12-165 (amended effective July 1, 1992 to reduce number of peremptory challenges for criminal defendant from 20 to 12). Because the charged offenses occurred prior to the effective date of the amendment, defendant contends the trial court’s application of the amended version of OCGA § 15-12-165 in his case violated the constitutional prohibition against ex post facto laws. Although we have not addressed this exact question, numerous other jurisdictions have; and all have concluded, as did the trial court here, that the application of a law reducing the number of a criminal defendant’s peremptory strikes is not an impermissible application of an ex post facto law because the change is procedural rather than substantive. See, e.g., Simpson v. Wyrick, 527 FSupp. 1144 (W. D. Mo. 1981), aff'd, 685 F2d 438 (8th Cir. 1982); Haynes v. State, 424 S2d 669 (Ala. Cr. App. 1982); Schaefer v. Commonwealth, 622 SW2d 218 (Ky. 1981); State v. Smith, 477 S2d 875 (La. App. 1985); Commonwealth v. Whitfield, 419 A2d 27 (Pa. Super. 1980). As we did in a similar case, “[w]e find the foreign authority persuasive and also note that the statutory amendment did not make criminal an act that was innocent when done, did not increase the punishment for a previously committed offense, and did not alter the rules of evidence. Nor did the amendment deprive the defendant of any substantive right available to him at the time of the offenses.” Aspinwall v. State, 201 Ga. App. 203, 204 (410 SE2d 388) (1991) (where defendant requested trial at current term or next term of court pursuant to OCGA § 17-7-170 and statute setting terms of court was then amended, application of new statute to determine whether trial was timely had no ex post facto consequences). Defendant’s reliance on McSears v. State, 247 Ga. 48 (2) (273 SE2d 847) (1981) and Campbell v. State, 178 Ga. App. 814 (4) (344 SE2d 745) (1986) is misplaced because those cases involved a change in the actual number of persons on the jury rather than a change in the procedure utilized to choose the jury. Accordingly, the trial court did not err in limiting defendant to 12 strikes in accordance with the version of OCGA § 15-12-165 in effect at the time of trial.

3. Defendant next contends that the trial court infringed his right . not to incriminate himself when it compelled defendant to disclose information regarding the expert who gave him the second, independent polygraph test and allowed the State to call him as its witness. Because it will further the search for truth, our Supreme Court has held that the State is entitled to a copy of a scientific report by a defendant’s expert just as the defendant is entitled to a copy of a scientific report by the State’s expert, and that the State may call the defendant’s expert as a witness if the defendant does not do so. Sabel v. State, 248 Ga. 10, 18 (6) (282 SE2d 61) (1981); see also Weakley v. State, 259 Ga. 205 (2) (378 SE2d 688) (1989); Blige v. State, 205 Ga. App. 133 (6) (421 SE2d 547) (1992), aff’d, 263 Ga. 244 (430 SE2d 761) (1993). Moreover, prior to the first, State-administered polygraph test and after being fully apprised of his rights, defendant signed a stipulation providing: “Should the results of said examination be adverse to the defendant, he may submit himself to an examiner of his choice . . . and said examination will also be admissible as opinion evidence. . . .” Thus, to the extent the expert’s testimony involved potentially privileged communications, defendant waived the privilege by signing the stipulation.

4. Defendant’s argument that the trial court should have included in its charge on polygraph tests an instruction that such tests are unreliable also is without merit. The charge given by the trial judge was a correct statement of the law under State v. Chambers, 240 Ga. 76, 80 (239 SE2d 324) (1977). For defendant’s benefit, the trial court added a statement that such tests are generally not admissible in absence of a stipulation. Defendant was then able to explain in closing argument that polygraph tests are not generally admissible without stipulation because they are considered unreliable, but an instruction to that effect would have been an improper comment on the evidence by the trial judge.

5. Lastly, defendant challenges two of the trial court’s evidentiary rulings, which defendant says limited his right to thoroughly confront his accusers. Evidentiary matters, including the scope of cross-examination, lie largely within the discretion of the trial court. See Scott v. State, 190 Ga. App. 359 (2) (378 SE2d 738) (1989).

At the end of defendant’s cross-examination of M. S., defense counsel asked M. S. a compound question designed to emphasize inconsistencies in his statements. The trial court properly sustained an objection to this question and gave defense counsel the opportunity to rephrase it, but defense counsel chose not to do so. In any case, defendant was able to repeatedly point out and emphasize the inconsistencies in the stories of both victims. See Scott, 190 Ga. App. at 360 (where subject matter has been successfully explored, trial court does not unduly limit cross-examination by refusing to allow it to be explored further).

During defendant’s direct testimony, defense counsel sought to elicit information regarding how J. W.’s parents (defendant’s sister and her husband) disciplined J. W. When the State objected on relevancy grounds, defense counsel stated that it could be inferred from their disciplinary practices that J. W. might have changed his story about defendant’s involvement to please his parents. Defense counsel acknowledged, however, that there was no evidence that J. W.’s parents had put any pressure on him in relation to this case. Thus, any possible relevance was purely speculative, and the trial court did not abuse its discretion in sustaining the State’s objection.

Decided October 21, 1993.

Charles E. Day, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A93A1513.
    SHEATS v. THE STATE.
    (436 SE2d 796)
   Andrews, Judge.

Sheats was charged and convicted of aggravated assault, and appeals.

Viewing the facts in the light most favorable to the verdict, Sheats stabbed victim Williams with a butcher knife several times. Williams testified that he was not carrying a knife at the time of the incident and that Sheats instigated the conflict. Williams stated that when Sheats stabbed him, he had keys in his hand.

Sheats and another witness testified that Williams attacked Sheats first. Sheats, who admitted that he had been drinking that evening, stated that he acted in self-defense.

1. In his first enumeration of error, citing Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992), Sheats claims that the trial court erred in giving sequential charges on aggravated assault and reckless conduct. Sheats contends that by giving these charges sequentially, the trial court precluded the jury from considering the reckless conduct charge as to which a verdict was warranted.

This enumeration is without merit. “The intent of Edge, supra at 867 (2), is to preclude a felony murder conviction where such a conviction would prevent an otherwise warranted verdict of voluntary manslaughter. . . . Thus, the giving of a sequential charge may be reversible error in a case wherein the jury must determine whether a homicide is felony murder or voluntary manslaughter.” (Citations, punctuation and emphasis omitted.) McGill v. State, 263 Ga. 81 (428 SE2d 341) (1993). “The evil which Edge seeks to cure is not present in the case before us.” Stewart v. State, 262 Ga. 894, 896 (426 SE2d 367) (1993); see also Philmore v. State, 263 Ga. 67 (5) (428 SE2d 329) (1993). The jury’s finding that Sheats committed aggravated assault under OCGA § 16-5-21 required a finding of an intentional infliction of injury, which precluded the element of criminal negligence in reckless conduct under OCGA § 16-5-60. See generally Bowers v. State, 177 Ga. App. 36 (1) (338 SE2d 457) (1985).

Decided October 21, 1993.

Omotayo B. Alii, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

2. In his second enumeration, Sheats raises general grounds and claims that the trial court erred in denying his motion for new trial since the verdict was contrary to the evidence and law. “The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. We find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citation and punctuation omitted.) Johnson v. State, 204 Ga. App. 277, 279 (3) (419 SE2d 118) (1992); see generally Perryman v. State, 208 Ga. App. 754 (1) (431 SE2d 742) (1993).

Judgment affirmed.

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

       We do not reach the argument raised by the State that based on Riley v. State, 181 Ga. App. 667 (3) (353 SE2d 598) (1987), Sheats was not entitled to charges on both self-defense and reckless conduct.


text:
    A93A1554, A93A1556.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA/ALBANY STATE COLLEGE v. MOORE (two cases).
    (436 SE2d 789)
   Pope, Chief Judge.

These related discretionary appeals arose from two charges brought by Dr. John E. Moore against the Board of Regents of the University System of Georgia/Albany State College (“the Board”) under the Fair Employment Practices Act, OCGA § 45-19-20 et seq. In his first charge (Case No. A93A1554), Dr. Moore alleged that the Board discriminated and retaliated against him when it refused to promote him to the rank of full professor at Albany State College in 1986-1987; and in his second charge (Case No. A93A1556), Dr. Moore asserted that the Board continued to discriminate and retaliate against him by refusing to promote him to the rank of full professor during 1987-1988.

Case No. A93A1554

1. An Office of Fair Employment Practices (“OFEP”) Special Master ruled in Dr. Moore’s favor on the first charge in May 1989, awarding him retroactive instatement as a full professor as well as back pay and attorney fees. This ruling was affirmed by the superior court, which then remanded the case for a determination of the amount of back pay and attorney fees. For the back pay hearing before the Special Master, Dr. Moore utilized the services of an attorney appointed and paid by OFEP. After the hearing, the Special Master issued a supplemental order on back pay and attorney fees, awarding Dr. Moore an amount which included attorney fees of $150/ hour for counsel’s work with respect to the back pay hearing. The Board petitioned for judicial review of this portion of the award only. The Board raised several arguments, including the argument that the rate of $150/hour was unreasonable, but relied primarily on the then recently decided case Dept. of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992), which held that an award of attorney fees for work before the Special Master is inappropriate where the complainant is represented by an attorney provided by OFEP. The superior court rejected the Board’s assertions with respect to the reasonableness of the $150 rate, but reversed the challenged award of attorney fees based on Finney. The superior court then pointed out that Finney applied only to counsel’s services before the Special Master and proceeded to award Dr. Moore attorney fees for his counsel’s services before the superior court on the Board’s petition for judicial review of the improper attorney fee award below. We granted the Board’s application for discretionary appeal to review this last attorney fee award, and now reverse.

OCGA § 45-19-39 (c) provides that “[i]f, upon judicial review of any order of a special master . . . , the court rules in favor of the complainant, then the court may in its discretion render an award of reasonable attorney’s fees and costs of litigation in the superior court to the complainant.” In this case, the superior court did not rule in Dr. Moore’s favor on the Board’s appeal of the supplemental order. Contrary to Dr. Moore’s assertion, the earlier ruling that the Board had discriminated and retaliated against Dr. Moore did not establish Dr. Moore as the prevailing party with respect to all issues in all related proceedings; nor did the superior court’s rejection of one of the Board’s arguments in dicta constitute a ruling in Dr. Moore’s favor. The bottom line is that the court agreed with the Board on the dis-positive issue on appeal and reversed the appealed award of attorney fees. Accordingly, the trial court did not have discretion to award Dr. Moore attorney fees under OCGA § 45-19-39 (c) and erred in doing so.

Case No. A93A1556

2. The supplemental order on back pay and attorney fees in the first case was issued and appealed to the superior court in November 1991. In December 1991, the Special Master issued an order in the second case, finding that the Board was collaterally estopped from relitigating the issue of its discrimination and retaliation against Dr. Moore. As the Special Master had already ordered retroactive instatement and back pay in the first case, the Special Master fashioned an alternative remedy in the second case: It mandated the establishment of a “race relations” program at Albany State College and fined two individuals who had committed discriminatory and retaliatory acts. Also in December 1991, the Board appealed this order, contending that collateral estoppel should not apply and that the Special Master’s remedy exceeded her authority. In its petitions for judicial review in both the first case, filed in November 1991, and the second case, filed in December 1991, the Board asked the court to establish a briefing schedule; and the petition in the second case suggested that the cases be consolidated for oral argument. The court accepted this suggestion, and in a letter to the parties citing both case numbers stated that it was consolidating the two cases and requested that the Board file its brief by February 28, 1992. The Board requested an extension, which was granted. However, the Board did not file a brief in the second case by the extended deadline, and when Dr. Moore filed a motion to dismiss the appeal for failure to file a brief, the Board did not respond to that motion either. The Board’s counsel says he failed to understand that the briefing schedule applied to both cases, and further failed to realize that the motion to dismiss addressed the second rather than the first case. The Board still had not filed a brief when oral argument was held on April 8, 1992, and the court orally dismissed the appeal in the second case at that time. On April 24, 1992, the Board filed a motion for reconsideration of the dismissal, with a copy of its brief on the merits of the appeal attached. Dr. Moore responded to the motion for reconsideration and filed its own motion to strike the Board’s untimely brief. The superior court denied the Board’s motion for reconsideration, granted Dr. Moore’s motion to strike and awarded Dr. Moore attorney fees for the appeal at a rate of $175/hour.

The Board contends the superior court abused its discretion in dismissing its petition for judicial review for failure to file its brief in a timely manner. We agree. While the court below has authority to control its docket and regulate the business of the court, its discretion in doing so is not without limit. See Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992). Dr. Moore cites several cases in which this court dismissed appeals when the appellants failed to file their briefs in a timely manner, arguing that these cases provide authority for the dismissal in this case by analogy. See, e.g., Rutledge v. Northbank Liquor Store, 176 Ga. App. 243 (335 SE2d 479) (1985); Thomas v. Ragle, 173 Ga. App. 367 (326 SE2d 488) (1985). However, we dismissed these appeals pursuant to Court of Appeals Rule 14 (a), and only after the appellant failed to comply with this court’s order to file.

Although petitioners for judicial review of an administrative decision have the right to file briefs if they wish to do so under OCGA § 50-13-19 (g), briefs are not required for superior court review of such decisions as a general matter. The Board indicated its desire to file a brief in this case, but this does not change the fact that the statutory scheme contemplates that superior court review of a Special Master’s decision can and often will be accomplished without briefing. Because the dismissal of the Board’s appeal occurred in the superior court and because it occurred in a context in which briefs are not required as a general matter, we think the more apt analogy is to Uniform Superior Court Rule 14. Under this rule, the court may dismiss an action without prejudice if the plaintiff fails to appear for the call of the action for trial or other proceeding. In Kraft, 262 Ga. at 336-337, the plaintiff failed to appear for trial. The superior court did not dismiss the case, but proceeded to hear the defendant’s evidence and arguments and decided the case against plaintiff on the merits. The Court of Appeals reversed, ruling that the lower court was limited to the sanction provided in the rule — dismissal without prejudice. See Abad v. Kraft, Inc., 201 Ga. App. 523 (411 SE2d 500) (1991). This ruling was in turn reversed by the Supreme Court. Kraft, 262 Ga. at 336-337. The majority in Kraft recognized that dismissal of the case with prejudice would have been an abuse of discretion but rejected the argument that the procedure followed by the superior court was effectively the same as a dismissal on the merits. It held that the superior court had various options available to it under its broad authority to control its docket and regulate its business, and that its course of deciding the case on the merits but without plaintiff’s evidence and argument was not an abuse of discretion. Id.

Applying the Kraft analysis to the facts of this case, we conclude that the superior court abused its discretion in dismissing the Board’s petition for judicial review for failure to file a brief in a timely manner. However, we agree that the Board’s neglect was inexcusable, cf. U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990) (mistake coupled with press of business does not make neglect excusable in context of opening default), and hold that the superior court’s grant of Dr. Moore’s motion to strike was a proper exercise of its broad authority to control its docket and regulate the business of the court. We therefore reverse the dismissal but affirm the grant of the motion to strike the Board’s brief. Indeed, the resulting procedure on remand, where the superior court should proceed to decide the merits of the appeal on the basis of the record (and Dr. Moore’s brief if he chooses to file one), without considering the Board’s stricken brief, will be remarkably similar to the one-sided trial procedure approved in Kraft.

Decided October 21, 1993.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, for appellant.

Elizabeth J. Appley, for appellee.

3. The Board also argues that the superior court erred in awarding Dr. Moore attorney fees for the appeal at the rate of $175/hour. However, Dr. Moore submitted affidavits showing that this rate was well within the range of reasonableness for an experienced civil rights attorney in the Atlanta area and explaining why Dr. Moore had to go outside of Albany, to Atlanta, to obtain the services of such an attorney. Accordingly, if the superior court rules in Dr. Moore’s favor on remand, it would be authorized to award attorney fees at the rate of $175/hour.

Judgment in Case No. A93A1554 reversed. Judgment in Case No. A93A1556 reversed in part, affirmed in part and remanded for further proceedings consistent with this opinion.

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

       This ruling was subsequently affirmed in Finney v. Dept. of Corrections, 263 Ga. 301 (1) (434 SE2d 45) (1993), but on different grounds: the Supreme Court held that a complainant who incurs no attorney fees should not be awarded attorney fees because he is only entitled by statute to “actual damages.”

       In light of our ruling that the Board’s brief will not be considered and the fact that the Board will probably have to pay attorney fees for the appeal if it loses, the Board may choose to simply dismiss its appeal voluntarily.


author:
Johnson, Judge.
      Beasley, Presiding Judge, Blackburn, Judge,

text:
    A93A1575.
    BALLENGER v. THE STATE.
    (436 SE2d 793)
   Johnson, Judge.

Michael Scott Ballenger pled guilty to charges of interference with government property, obstruction of an officer, habitual violator, driving under the influence of alcohol and operating a vehicle with a foreign license. Numerous conditions were imposed on the probated portion of the five-year sentence Ballenger received, including a special condition requiring Ballenger to wear a fluorescent pink plastic bracelet imprinted with the words “D.U.I. CONVICT” until further order of the court. At the sentencing hearing, the court acknowledged that Ballenger had reserved the right to challenge that condition of probation on appeal.

1. In his first enumeration of error, Ballenger asserts that the trial court lacks authority to impose the wearing of the bracelet as a part of the sentence because it is not specifically authorized by an existing Georgia statute. This argument is without merit. Ballenger received a five-year sentence in accordance with OCGA § 40-5-58 (as in effect on the date of the offense) on the felony charges and twelve months, to be served concurrently on the misdemeanor charges. The trial judge is expressly authorized by OCGA § 17-10-1 (a) to “suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. . . .” OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980). “A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted.) Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992). In affirming a trial court’s imposition of an unusual condition of probation in Mangiapane v. State, 178 Ga. App. 836 (344 SE2d 756) (1986), we found that requiring the appellant, convicted of driving under the influence of alcohol, to complete the written requirements for Boy Scout merit badges on the subjects of traffic safety, law and citizenship in the community had rehabilitative value and served a useful purpose. This is just one example of a condition which was tailored by a trial court, but was not expressly authorized by specific Georgia statute. Ballenger’s assertion that the conditions of probation must be expressly authorized by statute is incorrect.

2. Ballenger argues that requiring him to wear the bracelet violates his equal protection rights and constitutes cruel and unusual punishment. In support of these arguments he cites Covington v. State, 157 Ga. App. 371 (277 SE2d 744) (1981), in which we held: “ ‘A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit.’ ” Arguing the reverse, he asserts that since the condition of probation is not specifically authorized by statute, it is not within statutory limits and is therefore cruel and unusual. For the reasons discussed in Division 1 above, this argument is without merit.

Ballenger also relies on Inman v. State, 124 Ga. App. 190 (183 SE2d 413) (1971), in which we held that a condition of probation requiring appellant to cut his hair during the term of his probation was unreasonable because it was not related to his rehabilitation and invaded his constitutionally protected right to self-expression. However, “[t]he two essential purposes of probation in Georgia, as elsewhere are the rehabilitation of the probationer, and the protection of society,,” (Punctuation omitted.) Hancock v. State, 205 Ga. App. 890, 891 (424 SE2d 77) (1992), citing Owens v. Kelley, 681 F2d 1362 (11th Cir. 1982). Being jurists rather than psychologists, we cannot say that the stigmatizing effect of wearing the bracelet may not have a rehabilitative, deterrent effect on Ballenger. See Lindsay v. State, 606 S2d 652, 657 (5) (Fla. App. 1992). Certainly the fines and/or' incarceration this defendant received in connection with his numerous previous driving under the influence and habitual violator convictions did not succeed in rehabilitating him. It may also serve the second purpose, that of protecting society, in the event someone notices the bracelet and chooses not to ride with Ballenger or refuses to allow him to drive. Balancing the possible beneficial purpose of this condition of probation, we do not find as a matter of law that the possible embarrassment of being required to wear the bracelet constitutes an unreasonable infringement on Ballenger’s constitutional rights. Finally, we do not find the trial court’s assessment that this condition has rehabilitative value to be so totally without basis that we will interfere with its broad discretion in matters of conditions of probation.

3. In his last enumerated error, Ballenger argues that the condition which requires him to wear the bracelet until further order of the court violates the provisions of OCGA § 17-10-1 (a) because it is indeterminate in duration. The conditions of probation cannot exceed the length of the sentence. It follows, therefore, that if the trial court has not entered an order permitting the removal of the bracelet prior to the expiration of the five-year sentence, the ability of the court to enforce the terms of the conditions of the probation would lapse at that point. Ballenger could then remove the bracelet without leave of court and would not be in violation of the conditions of his probation. It would have been clearer if the trial court framed this condition of probation differently, i.e., ordered Ballenger to wear the bracelet for the entire period of his probation, unless specially permitted to remove it by order of the court. Nonetheless we do not find that the condition, as worded, is indeterminate in length or is so confusing so as to require a remand for clarification.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., concur. Beasley, P. J., concurs specially. Blackburn and Cooper, JJ., dissent.

Beasley, Presiding Judge,

concurring specially.

In addition to protecting society by alerting its members of defendant’s dangerous propensity to drink and drive, the wearing of the bracelet serves as a constant visual reminder to defendant himself of the consequences of driving while intoxicated. Thus it would also have a least a deterrent, if not a rehabilitative, effect. Even if he hides it under his sleeve, he will know it is there.

Blackburn, Judge,

dissenting.

I must respectfully dissent, because I do not agree that requiring a DUI convict to wear a fluorescent pink identification bracelet identifying him as such, as a condition of probation, serves any legitimate purpose of probation.

OCGA § 42-8-35 sets forth 12 acceptable conditions that may be imposed on probation. As noted by the majority opinion, however, that list is not exclusive. Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980). “The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement. [Cits.]” (Emphasis supplied.) State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974).

In Georgia, the two essential purposes of probation are the rehabilitation of the probationer and the protection of society. Hancock v. State, 205 Ga. App. 890 (424 SE2d 77) (1992). Although conditions of probation have been imposed for economically punitive purposes, even then, such conditions must not exceed the statutory limits and must also be reasonably calculated to serve one of the legitimate purposes of probation, else they are invalid. Grant v. State, 176 Ga. App. 460 (336 SE2d 354) (1985).

In the instant case, the clear purpose of requiring Ballenger to wear a fluorescent pink bracelet proclaiming him to be a DUI convict was simply to punish him by humiliation. As noted in Lindsay v. State, 606 S2d 652 (5) (Fla. App. 1992), cited by the majority opinion, a few courts have subscribed to the theory that measures such as wearing the “scarlet letter” or a sandwich board describing one’s transgressions promote rehabilitation by providing a constant reminder that past conduct was legally and socially wrong. In my view, humiliation is a form of punishment which is not authorized by statute.

While the trial judge is to be commended for seeking innovative ways of dealing with a serious social problem, it is clear under Georgia law that the role of prescribing punishment for criminal acts lies with the legislature and a rationale of rehabilitation may not be used to vest such authority in the judiciary. While it may well be argued that the identifying of those who have been convicted of a crime serves to protect the public, such debate should occur in the legislature and not be unilaterally determined to be an implied power of the judiciary. If it were otherwise, one might well ask why this measure has not been employed in cases involving other offenses besides DUI. If wearing a fluorescent pink bracelet rehabilitates a probationer or protects society to any appreciable degree, should not child molesters, rapists, armed robbers, or murderers be required to wear such a badge of dishonor? Compared to the imposition of the subject condition on those convicted of DUI such a practice certainly would be more reasonable with regard to satisfying the rehabilitation purpose, and would be far more protective of society.

Decided October 21, 1993.

John R. Earl, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

In its brief, the State points out that this condition of probation actually was not negotiated by the State and Ballenger or requested by the State. Rather, the trial court imposed the condition at the time it accepted Ballenger’s guilty plea and pronounced the sentence.

In Inman v. State, 124 Ga. App. 190 (183 SE2d 413) (1971), this court struck down a condition of probation requiring the probationer to get a short haircut, as representing no more than the trial judge’s taste in personal appearance. In doing so, we emphasized: “Society has not authorized its courts to make such conditions for probationers. Some other judge could well decide that they ought to wear striped uniforms and have shaven heads.” Id. at 194. We further observed in Inman that imposition of unreasonable conditions of probation may instill a sense of disrespect for the criminal justice system. That same reasoning and concern is applicable in this case and for the same reason changes of the type herein involved must be authorized by the legislature.

We should once again remind ourselves, “ ‘Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.’ ” Grant v. State, supra at 461. As the subject condition does not legitimately serve either of the essential purposes of probation required under Georgia law, it should be rejected by this court.

I am authorized to staté that Judge Cooper joins in this dissent.


author: Johnson, Judge.

text:
    A93A1590.
    CLEMMONS v. THE STATE.
    (437 SE2d 350)
   Johnson, Judge.

Hartford Clemmons appeals from his convictions of rape, aggravated assault, false imprisonment and possession of a firearm during the commission of a felony. The trial court, pursuant to Clemmons’ request, appointed counsel to represent Clemmons on appeal. His appointed attorney has filed enumerations of error and a brief. Clemmons has also filed, pro se, a supplemental brief raising several errors not contained in his counsel’s enumerations or brief. Clemmons did not obtain leave of court to file a supplemental brief. Court of Appeals Rule 12. Moreover, because the appellant does not have a right to be represented by counsel and also represent himself, we will consider only the enumerations of error and brief presented by counsel. Boyd v. State, 195 Ga. App. 758, 759 (395 SE2d 7) (1990).

1. Clemmons contends that the trial court erred in denying his motions for a directed verdict and a new trial on the charge of possession of a firearm during the commission of a felony because of a fatal variance between the allegata and probata. Clemmons claims that although he was indicted for having a pistol on his person during the rape, the evidence shows that he had the gun on his person only before, not during, the rape. This argument is without merit because, viewing the evidence in the light most favorable to the verdict, the jury could have found beyond a reasonable doubt that Clemmons had the gun on his person during the rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 208 Ga. App. 12, 14 (430 SE2d 157) (1993). The evidence shows that the victim and a friend, Paul Giles, visited Clemmons at his house. Giles left the house to purchase beer. While he was gone, Clemmons hit the victim in the face with his hand, knocked her to the ground and stomped on her stomach with his foot. When Giles returned to the house, Clemmons grabbed a gun from behind a dresser, pointed it at Giles and threatened to shoot him if he did not leave the house. Giles testified that the victim then attempted to leave the house, but Clemmons would not let her and instead forced Giles to leave. After Giles left, Clemmons forced the victim onto a bed after placing the gun on the nearby dresser, and completed the rape.

It is true that this evidence shows that Clemmons did not have the gun on his person at the instant of penetration. Carnal knowledge, however, is only one element of the crime of rape. “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” (Emphasis supplied.) OCGA § 16-6-1 (a). “Force is an essential element of rape. [Cit.]” Williamson v. State, 186 Ga. App. 589 (1) (367 SE2d 863) (1988). “Intimidation may substitute for force.” (Citations and punctuation omitted.) Raines v. State, 191 Ga. App. 743, 744 (1) (382 SE2d 738) (1989). Here, the jury was authorized to find that the force element of the rape began when Clemmons first hit the victim. That force continued when Clemmons used the gun to make Giles leave the house, immediately after which he placed the gun on the dresser and forced the victim to submit to sexual intercourse. Under these facts, the jury could have concluded that Clemmons, although he did not point the gun at the victim, used it to intimidate her and had the gun on his person during the ongoing force applied to accomplish the rape. There is, therefore, no variance between the allegation and the proof.

Even if there were a variance, it would not be fatal. “Based on DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” (Citations and punctuation omitted.) Gordon v. State, 206 Ga. App. 450, 453 (2) (b) (425 SE2d 906) (1992). The claimed variance between the allegation and the proof in the instant case did not affect Clemmons’ substantial rights. The indictment definitely informed Clemmons that he was charged with possession of a firearm during the commission of the rape so as to enable him to present his defense and not be surprised at trial. The indictment also was adequate to protect Clemmons from another prosecution for that offense. The trial court did not err in denying Clemmons’ motions for a directed verdict and a new trial on that offense.

2. Clemmons argues that the court erred in imposing a sentence of life imprisonment on the rape conviction. Clemmons does not claim, and has made no citation to the record, indicating that he raised this challenge in the trial court. The transcript of the sentencing hearing clearly shows that Clemmons did not raise this argument at that hearing. Clemmons also did not set forth this alleged error in the written motion and amended motion for a new trial. We do not know if this contention was raised at the hearing held on that motion because the record does not contain a transcript of that hearing. “We need not address this contention because it does not appear to have been raised in the superior court. [Cits.] The appellant has the burden of showing error affirmatively by the record and the burden is not discharged by mere recitations in the brief. [Cit.]” State v. Meredith, 206 Ga. App. 562, 563 (425 SE2d 681) (1992).

Decided October 21, 1993.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, William T. McBroom III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A0977.
    SMITH v. THE STATE.
    (437 SE2d 333)
   Smith, Judge.

Eugene Smith appeals his conviction of two counts of enticing a child for indecent purposes, OCGA § 16-6-5 (a); three counts of child molestation, OCGA § 16-6-4 (a); and two counts of aggravated child molestation, OCGA § 16-6-4 (c).

Construed to support the verdict, the evidence at trial showed that Smith invited his stepson and a playmate to join him in his workshop in a small building in the back yard of his home, where he exposed himself and, using lubricating jelly, touched the children’s genitals and had his stepson touch Smith’s genitals.

1. In two enumerations, Smith contends the trial court erred in granting the State’s motion in limine preventing him from introducing evidence that the two victims had engaged in prior sexual activity, and in sustaining objections to the questioning of witnesses designed to elicit descriptions of those activities.

The motion in limine was granted after a hearing several months before trial. At the commencement of the trial, before a different judge, Smith again raised his objections to the grant of the motion in limine, arguing that evidence that the two victims had previously engaged in similar sexual activity was admissible for two reasons: first, to show that the seven-year-old victims could have gained their specific knowledge of sexual activities in ways other than having been molested by Smith; and second, to enable him to support his sole defense, which was that he had taken the boys to his workshop to discipline and lecture them after he had again “caught” them engaging in sexual activity with each other and that he may innocently have touched his stepson’s genitals during the lecture.

The trial judge ruled that he would permit a very restricted introduction of such evidence, to be presented only through the testimony of Smith and only in general terms. Smith’s counsel would be permitted to ask questions of the children on cross-examination regarding their prior sexual activity, but any objections to those questions would be sustained. However, the transcript reveals that during the course of the trial the judge permitted extensive testimony establishing the victims’ prior sexual activity and describing that activity. Consequently, the very evidence Smith sought to have admitted was, in fact, admitted. Smith’s contentions, therefore, are not borne out by the record. Our decision must be made on the record and, where the record does not support the contention of error, there is nothing presented to this court for review. Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992).

2. Smith’s remaining enumerations raise the general grounds. We find the evidence was sufficient to enable the jury to find appellant guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 278.1, 61 LE2d 560) (1979).

(a) Contrary to Smith’s assertion, there was evidence that he “enticed” the children to his workshop within the meaning of OCGA § 16-6-5 (a). One victim testified that they were playing in the house, and it was Smith’s idea to go to his workshop. Smith himself testified that he told the victims to go to the workshop because he “didn’t want any interruptions.” The asportation element of this crime therefore was proved, and the jury was authorized to find Smith guilty beyond a reasonable doubt of enticing a child for indecent purposes. See generally Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990).

(b) Smith contends the evidence was insufficient to convict him of child molestation because there was no evidence showing that the acts were done with the intent to satisfy Smith’s sexual desires, which is an element of the offense. However, whether the requisite, intent existed is a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive. Grant v. State, 193 Ga. App. 178 (387 SE2d 408) (1989). Although some evidence conflicted, particularly the testimony of Smith’s stepson, who at trial both affirmed and denied that Smith touched him in the workshop, there was other evidence, presented through the testimony of the DFCS social worker who interviewed the stepson and the deputy sheriff who was present at the videotaped interviews of the boys, sufficient to establish that Smith showed the two children Playboy magazines and took them to the barn, where he had his stepson rub lubricating jelly on his sex organ in the presence of the other boy. These circumstances are more than sufficient to have authorized the jury to find, beyond a reasonable doubt, that Smith had the requisite intent, id., and that he was guilty of child molestation. The trial court properly charged the jury regarding intent, and the jury’s factual determination not being clearly erroneous, we may not disturb it. Blanton v. State, 191 Ga. App. 454, 455 (1) (382 SE2d 133) (1989).

Decided October 5, 1993

Reconsideration denied October 25, 1993.

Ruskell & Harris, G. Channing Ruskell, McVay & Stubbs, Robert M. Dyer, for appellant.

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

(c) There was sufficient evidence of oral and anal sodomy to have authorized the jury to find Smith guilty beyond a reasonable doubt of aggravated child molestation. In his videotaped interview, Smith’s stepson testified that Smith had asked him to perform oral sex and had tried to anally sodomize him. The stepson’s testimony was confirmed by the deputy sheriff, who testified that he had told her the same things he had said on the taped interview, and the therapist who treated the stepson, who testified that the child told her and demonstrated to her with anatomically correct dolls that Smith had committed oral sodomy and attempted anal sodomy. Any act of child molestation involving sodomy constitutes aggravated child molestation. OCGA § 16-6-4 (c).

(d) Smith contends there was a fatal variance between the indictment and the evidence at trial. The indictment charged him with committing aggravated child molestation by putting his sex organ in the victim’s anus, and the evidence showed that no penetration occurred. Penetration, however, is not an element of sodomy. OCGA § 16-6-2 (a); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986). Moreover, under the test announced in DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969), 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: Smith was not misled or prejudiced, so any variance was not fatal. See Winter v. State, 171 Ga. App. 511, 512 (1) (320 SE2d 233) (1984).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1279.
    WILLIAMS v. HAJOSY.
    (436 SE2d 716)
   Beasley, Presiding Judge.

The trial court granted summary judgment to defendant Hajosy in this medical malpractice action.

Williams was admitted to Spalding Regional Hospital where he was treated by Dr. Hajosy, a specialist in orthopedic surgery, for head injuries sustained when a portion of roof fell on him at his work site. Dr. Hajosy debrided and closed the scalp wound. The next day, the doctor consulted with a neurologist to further evaluate plaintiff’s head injury and decided to transfer him to Georgia Baptist Hospital for treatment by a neurosurgeon. Further explorative surgery by the neurosurgeon there revealed a tear in the dura, which was corrected. The complaint is that Dr. Hajosy’s treatment of plaintiff’s injuries deviated from the standard of care, necessitating further surgical repair of his head injuries and repair of a fractured hip.

The complaint was accompanied by an expert’s affidavit pursuant to OCGA § 9-11-9.1 (a). The competency of the affiant has not been challenged. His opinion was based entirely on his review of the medical records of the two hospitals and various treating physicians. He averred: “[I]t is my opinion that the physician, Dr. Ralph Hajosy, who was responsible for the care of Harold Williams, failed to exercise that degree of care and skill acceptable to the medical profession generally under the same and similar circumstances and like surrounding conditions. Based on the records it would appear that Dr. Ralph Hajosy, in my opinion, failed to take definitive action to correct this life threatening injury. The standard of care would have required that Dr. Hajosy recognize the severity of the open depressed contaminated fracture and that definitive and expeditious treatment be undertaken immediately in order to correct the life threatening condition caused by said open fracture.”

In support of his motion for summary judgment, defendant submitted his own affidavit regarding his familiarity with the standard of care and his compliance with it. In opposition, plaintiff resubmitted the expert’s affidavit filed with the complaint. The medical’records were not attached to the affidavit nor otherwise a part of the court record.

Summary judgment was sought and awarded on the grounds that (1) the complaint failed to satisfy the pleading requirements of OCGA § 9-11-9.1; and, (2) defendant was entitled to judgment as a matter of law since no material issue of fact was established as to the allegations of negligence.

1. The ruling on the first ground was incorrect. A distinction must be made between the sufficiency of the affidavit of plaintiff’s expert for pleading purposes under OCGA § 9-11-9.1 (a), and its evi dentiary sufficiency to defeat a motion for summary judgment under OCGA § 9-11-56. The former mandates the filing of an affidavit with the complaint “of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). The pleading requirement, a threshold matter, is merely “to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989).

“Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1.” Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992). See also 0-1 Doctors Mem. Holding Co., supra at (1); Ulbrich v. Batts, 206 Ga. App. 74 (424 SE2d 288) (1992). The medical records on which the expert’s affidavit is based need not be attached or otherwise in the record. HCA Health Svcs. &c. v. Hampshire, 206 Ga. App. 108, 112 (4) (b) (424 SE2d 293) (1992).

Noncompliance with OCGA § 9-11-9.1 (a) is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim. OCGA §§ 9-11-9.1 (e); 9-11-12 (b) (6). Summary judgment, which addresses the merits, is not the proper vehicle to challenge the pleading, of which the affidavit is a part. Druckman v. Ethridge, 198 Ga. App. 321 (1) (401 SE2d 336) (1991).

2. Assuming the affidavit of plaintiff’s expert was sufficient for OCGA § 9-11-9.1 (a) purposes, it was insufficient to meet the defendant’s affidavit so as to create a genuine issue of material fact under OCGA § 9-11-56 (e). The court’s ruling on the second ground was correct.

Defendant’s own affidavit establishing by personal knowledge that he met the appropriate standard of care pierced the plaintiff’s pleadings and entitled him to summary judgment if his opinion was not rebutted by competent expert counter-evidence. See Augustine v. Frame, 206 Ga. App. 348 (1) (425 SE2d 296) (1992).

A plaintiff’s expert affidavit in opposition to summary judgment, which is based solely on medical records rather than on the affiant’s personal knowledge of the facts, is without probative value if the affidavit neither attaches the medical records nor clearly identifies the matter in the trial record upon which it is based. OCGA § 9-11-56 (e) straightforwardly requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” This has been relaxed somewhat for the practical purpose of avoiding duplication by allowing clear identification of records already on file. Hughey v. Emory Univ., 168 Ga. App. 239 (308 SE2d 558) (1983). Further, in Hayes v. Murray, 252 Ga. 529 (314 SE2d 885) (1984), the affidavit was ruled sufficient because even though the medical records were not in the case record, the affidavit was based in part on personal knowledge.

Decided October 5, 1993

Reconsideration denied October 25, 1993

Martin & Martin, Harold E. Martin, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

Otherwise, as acknowledged in Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473, 474 (388 SE2d 69) (1989), “[w]here records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient” to withstand summary judgment. Accord Augustine, supra; Lance v. Elliott, 202 Ga. App. 164 (413 SE2d 486) (1991); Smith v. Feliciano, 187 Ga. App. 86 (2) (369 SE2d 346) (1988); Nettles v. Laws, 172 Ga. App. 241 (322 SE2d 546) (1984). See also Ulbrich, supra at 74, fn. 1. The rule for the expert’s opinion for summary judgment is of necessity the same as it is for trial, because in both instances it serves an evidentiary purpose. See OCGA § 24-9-67; Andrews v. Major, 180 Ga. App. 393, 394 (2) (349 SE2d 225) (1986). In this instance, plaintiff did not seek to amend the affidavit to include the medical records, which would have been in the trial court’s discretion to allow. OCGA § 9-11-56 (e); Hayes, supra.

Because the opinion of plaintiff’s expert as to defendant’s negligence is based solely on medical records not contained in the record, the affidavit had no probative value in response to defendant’s affidavit. It is not enough that the expert specified the documents which are the foundation for his opinion. Plaintiff’s evidence failed to establish a genuine issue of material fact as to defendant’s negligence. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A0954.
    RINDONE v. THE STATE.
    (437 SE2d 338)
   McMurray, Presiding Judge.

Defendant, a police officer and attorney, was accused of driving under the influence (“DUI”) in that (1) he was in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe to drive and (2) he did have an alcohol concentration of 0.10 grams or more at a time within three hours after being in actual physical control of a moving vehicle. Defendant was also accused of making an improper turn. Following a jury trial, defendant was convicted on all charges. He was sentenced to serve 12 months in confinement for driving under the influence. He was also sentenced to serve a consecutive 12-month sentence for making an improper turn. However, the latter sentence was probated on condition that defendant participate in an alcohol treatment program.

Defendant appeals and asserts seven enumerations of error. Held: 1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the offenses of driving under the influence and making an improper turn beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); King v. State, 205 Ga. App. 825, 826 (2) (423 SE2d 429).

2. During the presentation of defendant’s case, defendant testified, on direct examination, that he had been drinking beer on the night in question; that a client offered to drive his car to a restaurant; that he was lying down in the back seat when the arresting officer spotted the car; that he did not know where his client went after the car was brought to a stop; but that he had not been driving the car. (This testimony was contradicted by the arresting officer who positively identified defendant as the driver of the car.)

Thereafter, on cross-examination, the assistant solicitor asked defendant if he ever arrested a suspect for DUI when he was not sure that he or she was actually driving. Defendant said there were times when he was not sure who was driving because he lost sight of the car. Then the assistant solicitor asked defendant if he ever arrested someone for DUI who came into court with a different story than he or she had before. Defendant answered affirmatively. The assistant solicitor next asked if it was “common” for a defendant to “tell you one thing at the scene and then come in and say someone else was driving?” At that point, defendant objected to “the entire relevance of this line of questioning.” The objection was overruled and defendant gave a lengthy, but unresponsive, answer to the question. Defendant asserts the trial court erred in overruling his objection.

We find no error. “An objection to evidence on the ground that it is irrelevant ... is ‘entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error. (Cits.)’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598). See also Briard v. State, 188 Ga. App. 490, 493 (4) (373 SE2d 239); Prothro v. State, 186 Ga. App. 836, 838 (4) (368 SE2d 793).

Even if it could be said that the trial court erred in overruling defendant’s objection, we would find such an error to be harmless. “[T]he ‘(a)dmission of irrelevant evidence is not a ground for reversal unless it can be shown the evidence was prejudicial. (Cit.)’ [Cit.]” White v. State, 174 Ga. App. 699, 700 (331 SE2d 72). Defendant has not made such a showing in this case.

3. The trial court did not err in permitting the State to introduce similar transaction evidence. “[I]t appears that, standing alone, the face of the prior [citation] would be sufficient to demonstrate similarity to [the crime] for which [defendant] was being tried. [Cits.] Unlike assault or robbery or other crimes against the person' or property of a victim and which can be committed under varying factual circumstances, the crimes of driving after having been declared an habitual violator and driving under the influence are essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while having the status of an habitual violator or while under the influence that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. [Cits.]” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638).

4. The trial court determined that defendant was not in custody when he admitted that he was driving the car after all. The trial court’s determination was not clearly erroneous and it will not be disturbed on appeal. Magher v. State, 199 Ga. App. 508, 509 (5) (405 SE2d 327).

5. The trial court did not err in refusing to give defendant’s requests to charge nos. 1, 5, and 7.

6. We find no error in the trial court’s charge. The trial court did not express an opinion as to what had or had not been proved by the State when it charged the jury that Intoximeter 3000 machine test results are based on accepted scientific principles, see Brown v. State, 202 Ga. App. 371, 372 (3) (414 SE2d 505), and that Georgia does not require an intoximeter operator to wait 20 minutes before administering an intoximeter breath test. See State v. Richardson, 186 Ga. App. 888 (368 SE2d 825).

7. Because OCGA § 40-1-1 (1) assumes that a defendant’s blood-air ratio is 1 to 2,100, defendant contends the trial court erred in charging the statutory definition of alcohol concentration. In this connection, defendant points to expert testimony to the effect that the ratio pertains to the average defendant and can vary up or down with regard to a particular defendant. See generally Clay v. State, 193 Ga. App. 377 (387 SE2d 644). By sticking to the statutory definition, defendant contends, the trial court created an irrebuttable evidentiary presumption (see Gilbert v. State, 262 Ga. 840, 841 (2) (426 SE2d 155)) and impermissibly expressed its opinion as to what had been proven (see OCGA § 17-8-57). We disagree. The trial court charged the jury that it could give the breath test results the weight that it deemed fit, including no weight at all.

Decided October 13, 1993

Reconsideration denied October 26, 1993

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A93A1342.
    BRYSON v. THE STATE.
    (437 SE2d 352)
   Blackburn, Judge.

In a two-count indictment, the appellant, James Franklin Bryson, was convicted by a jury of aggravated child molestation involving two of his granddaughters. Following a trial by jury, he was convicted of both offenses, and sentenced to 15 years’ imprisonment on each count, to serve consecutively. This appeal follows the trial court’s denial of his motion for new trial.

1. Bryson initially asserts that the trial court erred in charging the jury on the law of aggravated child molestation because the evidence did not support such a charge. We disagree.

At trial, the state presented the unrebutted medical testimony of a pediatrician who examined both victims within days of the molestation. The pediatrician opined that the physical findings that he observed during his examinations were consistent with fondling. His examinations revealed redness in the vaginal areas of both victims in addition to an irregular notch at the 3:00 o’clock position of the older victim’s hymen. Moreover, both victims testified that Bryson’s inappropriate touching of their genital areas hurt them. This evidence showed that Bryson molested the children with such force as to have resulted in physical injury to the children. Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531) (1992). See also OCGA § 16-6-4; Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). Accordingly, the trial court’s instruction to the jury on the statutory definition of aggravated child molestation contained in OCGA § 16-6-4 was authorized by the evidence. Shields v. State, 202 Ga. App. 659, 661 (415 SE2d 478) (1992).

2. Bryson next maintains that the trial court erroneously admitted into evidence prior similar transactions involving two of his nieces and two sisters-in-law, which occurred in the distant past. Bryson further argues that those transactions were too remote, and the trial court’s improper admission of the transactions rendered him defenseless.

Ordinarily, evidence of independent offenses committed by an accused is irrelevant and inadmissible in a prosecution of an accused for a particular crime. Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991) . However, “ ‘[e]vidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.’ ” Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87) (1992) . Before such evidence is deemed admissible, the state must show that the accused was in fact the perpetrator of each prior offense and that there is sufficient similarity between the prior independent offense and the offense charged. Id. at 146. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). This exception to the general rule of inadmissibility has been most liberally extended in the area of sexual offenses, and has been used to show a defendant’s lustful disposition and to corroborate the victim’s testimony. Stine v. State, 199 Ga. App. 898 (2) (406 SE2d 292) (1991); Payne v. State, 207 Ga. App. 312, 315 (428 SE2d 103) (1993).

Both the subject case and the prior transactions involved Bryson’s sexual exploitation of young family members, and are sufficiently similar to justify admission. Stine, supra.

The trial court did not apply the balancing test in determining the admissibility of the similar transaction evidence; however, it is clear that the relevancy of this evidence outweighed its prejudicial impact. The defendant did not raise this issue on appeal so it will not be considered. Cantrell v. State, 210 Ga. App. 218 (435 SE2d 737) (1993). Cf. Payne v. State, supra at 316.

While we do agree that “lapse of time is an important factor to be weighed when considering the admissibility of evidence of independent crimes, it is not wholly determinative.” (Citations and punctuation omitted.) Shields, supra at 660. Considering the fact that all of the prior transactions occurred within 31 years of the offenses for which Bryson was on trial, we cannot say that the prior occurrences are inadmissible per se. Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423) (1991). Cf. Starnes v. State, 205 Ga. App. 882 (424 SE2d 4) (1992) (where the court deemed admissible as prior similar transaction evidence of defendant’s continuous course of conduct over a 29-year and 33-year period immediately preceding the offense at trial). The prior transactions specifically challenged by Bryson based upon remoteness involved two of his sisters-in-law, while the offenses for which he was on trial involved another generation of his family, his granddaughters. Where different generations are involved, as in the case sub judice, obviously many years are going to lapáe between the acts. Cooper v. State, 173 Ga. App. 254 (325 SE2d 877) (1985). Under such circumstances, the lapse of time between the independent transactions and the offenses charged “goes to the weight and credibility of such testimony, not its admissibility. [Cits.]” Id. at 255-256. Inasmuch as the state met the requirements necessary for the admission of this evidence, we conclude that the trial court’s admission of the prior transactions was not erroneous.

Decided October 26, 1993.

James A. Robbins, Jr., for appellant.

We reject Bryson’s contentions that Uniform Superior Court Rule 31.3 mandates the presentation of evidence from witnesses subject to cross-examination. As we stated in McGowan v. State, 198 Ga. App. 575, 576 (1) (402 SE2d 328) (1991), “ ‘Uniform Superior Court Rule 31.3 “clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence.” (Cit.) [Counsel’s] statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity, especially as regards sexual crimes, between the prior acts and the offense(s) on trial to permit the admission of such evidence. (Cit.)’ [Cit.]” See also Hall v. State, 181 Ga. App. 92, 93 (1) (351 SE2d 236) (1986). This procedure was sanctioned by our Supreme Court in Stephens, supra at 468-469. “The purpose of the rule having been served by what transpired, this ground raises no reversible error.” Hall, supra at 94.

3. Lastly, Bryson asserts that the trial court erred in considering the prior occurrences during the sentencing phase of his trial. He further maintains that the trial court erroneously concluded that the jury determined his guilt of the prior offenses by finding that he was guilty of aggravated child molestation. However, Bryson failed to voice any objection during the pre-sentencing phase of the trial, and accordingly, appellate review is precluded. Chapman v. State, 154 Ga. App. 532 (4) (268 SE2d 797) (1980); Williams v. State, 165 Ga. App. 553 (301 SE2d 908) (1983).

Judgment affirmed.

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

Jack 0. Partain III, District Attorney, for appellee.

       Two of Bryson’s five enumerations of error are not supported by argument or citation of authority and are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2); Levanthal v. Seiter, 208 Ga. App. 158 (3) (430 SE2d 378) (1993); Plante v. State, 203 Ga. App. 33 (3) (416 SE2d 316) (1992).