text:
    74858.
    THE STATE v. REESE.
    (361 SE2d 507)
   Birdsong, Chief Judge.

The State appeals from the judgment of the trial court granting defendant Charles J. Reese’s motion to dismiss the accusation against him which alleged the compounding of a crime. Reese was a security guard at K-Mart in Dublin, Georgia, when he swore out a warrant against Gloria Bostic, alleging she had committed a shoplifting offense. Ms. Bostic’s case was scheduled for trial and the court appointed the public defender to represent her. K-Mart terminated Reese as a security guard and he contacted Bostic and asked her if she would be interested in having the shoplifting charge dropped. Ms. Bostic said that Reese told her he would drop the warrant if she would pay him $100. Ms. Bostic agreed and advised her appointed counsel who informed the office of the District Attorney. On November 25, 1985, the police placed a “body bug” and recording device on Ms. Bostic and she was given $50 in marked money to give to Reese. Ms. Bostic met with Reese, gave him the $50, and he agreed to accept the money and said he would have the warrant dropped. Reese was arrested and searched and the marked money removed from his right front trouser’s pocket.

Defendant’s counsel filed a motion to dismiss on November 19, 1986, alleging the shoplifting charge against Ms. Bostic had been nolle prossed on March 10, 1986, for insufficiency of evidence. The record discloses that the District Attorney filed an Order of Nolle Prosequi, which was signed by the trial court in which it was stated “that there is insufficient evidence for prosecution. . . .”

The trial court, following disclosure of the nolle prosequi of Ms. Bostic’s case, held “there is no crime to be compounded” and dismissed the accusation. The State appeals. Held:

The criminal offense of compounding a crime is defined as occurring when “after institution of criminal proceedings and without leave of the court or of the prosecuting attorney of the court where the criminal proceedings are pending, he accepts or agrees to accept any benefit in consideration of a promise, express or implied, not to prosecute or aid in the prosecution of a criminal offense.” OCGA § 16-10-90 (a). This is a penal statute and as such must be strictly construed, although there are few cases construing this statute. Both counsel have cited but one case, Hays v. State, 142 Ga. 592 (83 SE 236). Hays held that “[t]here could be no compounding of a crime unless there was a crime to compound.” 142 Ga. 594. We have no disagreement with this holding, but the trial court applied this rule in deciding defendant’s motion to dismiss as of December 20, 1986, whereas this offense occurred on November 25, 1985, when the charge against Ms. Bostic had been instituted and was then pending. Our statute requires no more.

“ ‘Compounding a public offense, felony or misdemeanor, is essentially immoral, not malum prohibitum, but malum in se; proceeding upon “a wicked consideration”; “to gild over and conceal the truth.” ’ ” (Emphasis deleted.) Jones v. Dannenberg Co., 112 Ga. 426, 431 (37 SE 729). The offense is complete when all the elements are present, and all elements were present on November 25, 1985. See Rhodes v. Neal, 64 Ga. 704, 706; Chandler v. Johnson, 39 Ga. 85, 89.

The offense of compounding a crime is separate and apart from the underlying offense, and is not, per se, based upon the successful prosecution of the offense attempted to be compounded. See generally 15A AmJur2d 767-768, Compounding Crimes, §§ 1-2; 15A CJS 158-159, Compounding Offenses, §§ 1-2. This is a statutory offense, and all that the statute requires is “institution of criminal proceedings and without leave of the court or of the prosecuting attorney of the court where the criminal proceedings are pending, he accepts or agrees to accept any benefit . . . express or implied; not to prosecute or aid in the prosecution of a criminal offense.” (Emphasis supplied.) OCGA § 16-10-90 (a). The crucial date is the date of the consummated agreement to conceal the crime, or abstain from prosecution, or to withhold evidence. If, on that date, the underlying criminal proceedings have been instituted, and are then pending, and the unlawful agreement is reached, the offense is complete. The significant date of the case sub judice was November 25, 1985, a time at which the action was still pending. Cf. Smith v. State, 248 Ga. 828 (3) (286 SE2d 709); cf. Flakes v. State, 243 Ga. 699 (3) (256 SE2d 379); Love v. Hardison, 166 Ga. App. 677 (1) (305 SE2d 420); Todd v. State, 163 Ga. App. 814 (1) (294 SE2d 714).

The nolle prosequi of the shoplifting charge following the date of commission of the compounding offense does not relate back to decriminalize defendant’s delicts on that date, nor does Hays v. State demand a different result. On the date alleged as the date of the compounding crime, the criminal charge of shoplifting was in existence and was then pending trial. Successful prosecution is not required for that crime, for it is obvious that where the individual compounding the underlying offense is the principal or only witness against the accused, and that individual is charged with compounding the underlying criminal offense, the possibility of successfully prosecuting the person charged with the underlying offense is non-existent.

The trial court erred in dismissing the accusation.

Judgment reversed.

Been, P. J., and Pope, J., concur.

Decided September 9, 1987

Rehearing dismissed October 1, 1987.

Beverly B. Hayes, District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellant.

M. V. Booker, for appellee.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    75059.
    DAVIS v. THE STATE.
    (361 SE2d 547)
   Birdsong, Chief Judge.

Appellant was convicted by a jury of aggravated assault, carrying a deadly weapon into a public gathering, and carrying a pistol without a license. Appellant was in attendance at a dart tournament at the American Legion Bar in Conyers, Georgia, early one evening. The bartender, Paul Watts, allowed appellant to bring his pistol into the bar because appellant did not want to leave the gun in his truck which would not lock. The gun was placed in a cabinet behind the bar for safekeeping. Later that evening at the conclusion of the dart tournament, appellant, without permission, went behind the bar to retrieve his gun. Watts then turned to appellant and said: “. . . I told you not to bother the pistol.” As Watts started toward him, appellant raised the gun and shot Watts in the chest. Appellant claimed the shooting was an accident, but Watts testified he saw the look of rage in appellant’s eyes. Experts testified at trial that it would have been difficult to fire the pistol accidentally. Appellant brings this appeal enumerating four errors. Held:

1. Appellant was arrested shortly after the shooting occurred. Later that evening, appellant registered .08 grams on an intoximeter test administered by the police. The State used the result of the test to establish the fact that appellant was not legally intoxicated. Appellant contends it was error for the trial court to admit into evidence the result of the test because it was performed in violation of appellant’s right not to do an affirmative act that would be incriminating as guaranteed by the Georgia Constitution. When the State questioned the arresting officer about his experience in DUI cases, appellant’s counsel objected to the relevancy of DUI. The trial judge overruled the objection stating that appellant had previously mentioned his high level of intoxication during the night in question, thus making the arresting officer’s experience with intoxicated persons relevant.

At the time-the actual results of the intoximeter test were admitted, appellant made no objection. Appellant does not raise on appeal the question raised at trial, i.e., relevancy. The ground enumerated as error on this appeal even though on constitutionality was never raised at trial. “Under our appellate procedure, ‘ “(a) reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below.” ’ Downs v. State, 145 Ga. App. 583, 587 (3) (244 SE2d 109).” Brooker v. State, 164 Ga. App. 775, 778 (2) (298 SE2d 48). Therefore, appellant has waived consideration of this enumeration on appeal. Even so, the issue of intoxication was raised by appellant and evidence shedding light upon the degree of intoxication was relevant for enlightenment of the jury. Allen v. State, 137 Ga. App. 755, 756 (224 SE2d 834).

2. Appellant maintains the trial court erred in requesting the numerical division of the jury and then giving an Allen charge. The record indicates that after a lengthy period of deliberation, the trial judge stated: “ . . . I think it would be appropriate if I bring them back and ask them the numerical division only, and then give them an Allen charge. Is there any objection to that?” Appellant’s counsel clearly responded: “No, sir.” No objection having been made at trial, nothing is preserved for review on appeal. Scott v. State, 243 Ga. 233, 235 (2) (253 SE2d 698); Moore v. State, 176 Ga. App. 882, 884 (2) (339 SE2d 271).

3. Appellant alleges the trial court erred in continuing to recharge the jury on points favorable to the State. On four separate occasions, the jury asked the trial judge to repeat the charge on aggravated assault. It is appellant’s contention that by repeating the definition of aggravated assault without including appellant’s affirmative defense of accident, the trial court created an impression favorable to the State.

“Where the jury, after having been charged by the court, returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the specific point suggested by the jury’s inquiry.” Williams v. State, 151 Ga. App. 765, 766 (1) (261 SE2d 487). In the case sub judice, the jury confined its question to the definition of aggravated assault and did not ask to be recharged on the defense of accident. It is well settled that the extent and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. Absent an abuse of that discretion, such decisions will not be disturbed on appeal. Taylor v. State, 169 Ga. App. 842, 844 (2) (315 SE2d 661). We find no abuse of discretion here.

4. Finally, under all the evidence adduced at trial, viewed in the light favorable to the verdict, any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided October 1, 1987.

David B. Irwin, for appellant.

Robert F. Mumford, District Attorney, Shirley A. Champa, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    75106.
    CLARK v. THE STATE.
    (361 SE2d 549)
   Deen, Presiding Judge.

Larry F. Clark appeals from his conviction of child molestation asserting the general grounds.

The evidence showed that the victim was thirteen years old when appellant entered her home through a bedroom window while she was babysitting her younger sister and raped her. During the evening, while she was watching television, she noticed that a light went on in the kitchen and got up to investigate. She was grabbed around the waist and thrown on the sofa. Her assailant told her not to scream or he would kill her. She could not see his face because it was covered by a T-shirt, but she recognized his voice and called him “Larry.” During their struggle she would not pull her pants down and he hit her on the lip. He was able to remove her pants and had intercourse with her. Immediately after he left, she called the police and she was taken to the hospital.

The attending physician testified that the victim’s lip was swollen, that she had an abrasion on her neck, and that she detected vaginal secretions during the examination. In a statement given to the police shortly after his arrest, Clark admitted having sexual relations with the victim, but denied using force. He claimed that the victim let him in the house through the front door and denied using a bedroom window to enter the house. He further denied knowing that the victim was under the age of fourteen. Held:

Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” “Considerations of ‘consent’ and ‘force’ are irrelevant in a child molestation case.” Hines v. State, 173 Ga. App. 657, 658 (327 SE2d 786) (1985); Coker v. State, 164 Ga. App. 493 (297 SE2d 68) (1982). “[S]ociety has evolved a code of ethics which ultimately demands that those who travel roughshod over others be required to stew in their own juice.” Hatton v. State, 39 S2d 713. Illegally entering of the house and body of another, as here shown, results in a rough, rude, raping and running roughshod over the rights of another. A review of the evidence shows that it was sufficient for a rational trier of fact to find the defendant guilty of the offense of child molestation beyond a reasonable doubt. Hines v. State, supra.

Decided October 1, 1987.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge. Benham, Judge,

text:
    74453.
    SOUTHWIRE COMPANY v. BENEFIELD.
    (361 SE2d 525)
   Banke, Presiding Judge.

Benefield sued his employer (Southwire Company) and Downey (a physician in Southwire’s employ), alleging that they had conspired to commit fraud, deceit, and medical malpractice by intentionally withholding from him the knowledge that he had been exposed to lead poisoning in the work place. Benefield contends that he was prevented from obtaining proper medical treatment as a result of this misconduct on the part of the defendants and that the effects of the lead poisoning were thereby aggravated. The trial court denied Southwire’s motion for summary judgment, concluding as follows: “[N]ormally a claim such as this would be barred with workers’ compensation being the sole remedy; however, in accord with Downey v. Bexley, 253 Ga. 125 (317 SE2d 523) (1984), these defendants cannot avoid an alleged breach of professional responsibility on this ground.” We granted an interlocutory appeal and now reverse the judgment of the trial court. Held:

Where applicable, the Workers’ Compensation Act provides the exclusive remedy to an employee injured “by accident arising out of and in the course of the employment.” OCGA § 34-9-1 (4). Pursuant to OCGA § 34-9-281 (a), an occupational disease is considered to be a compensable, accidental injury. Southwire contends that because lead poisoning is compensable as an occupational disease pursuant to OCGA § 34-9-280 (3) (A) (xiv), workers’ compensation is Benefield’s exclusive remedy. See OCGA § 34-9-289; Synalloy Corp. v. Newton, 254 Ga. 174, 175 (326 SE2d 470) (1985).

While Benefield cites authority from other jurisdictions demonstrating a trend in the law toward permitting employees to pursue tort actions against employers for fraudulently concealing the nature of an injury caused by hazardous materials in the work place, it appears to be well settled in this state that when an employee’s injuries are compensable under the Act, he is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer. See Evans v. Bibb County, 178 Ga. App. 139 (342 SE2d 484) (1986); Southern Wire & Iron v. Fowler, 217 Ga. 727 (2) (124 SE2d 738) (1962), rev’g Fowler v. Southern Wire & Iron, 104 Ga. App. 401 (122 SE2d 157) (1961).

The Supreme Court’s statement in Bright v. Nimmo, 253 Ga. 378, 380 (320 SE2d 365) (1984), that “[i]ntentional injuries warrant special consideration” was evidently not intended to change this rule, as the holding in that case was that no common law tort action was authorized where the injury sought to be redressed was compensable under the Act. Nor does this court’s holding in Cline v. Aetna Cas. &c. Co., 137 Ga. App. 76 (1) (223 SE2d 14) (1975), cited in Bright, supra, conflict with the rule, as the injury for which the employee in that case sought redress was purely financial, not physical; and the Act provided no redress for it. Although in Smith v. Rich’s, 104 Ga. App. 883 (123 SE2d 316) (1961), also cited in Bright, this court did allow an employee to maintain a tort action to recover for physical injuries allegedly resulting from intentional misconduct by the employer, the decision in that case was based on this court’s prior decision in Fowler v. Southern Wire & Iron, 104 Ga. App. 401, supra, which was subsequently reversed by the Supreme Court. See 217 Ga. 727 (2), supra. Thus, Smith can no longer be considered controlling authority.

In the case relied upon by the trial court, Downey v. Bexley, 253 Ga. 125, supra, the Supreme Court allowed another Southwire employee to maintain a tort action against the same physician involved in the present action based on allegations of fraud and medical malpractice, holding that “where a professional co-employee is charged with fraud, deceit, and violation of professional trust, he may be held liable in tort for his wrongdoing to an injured co-employee.” Id. at 125. The Supreme Court did not, however, suggest in that case that a tort action would be authorized against the employer, nor did it otherwise express any intention to abrogate the doctrine that workers’ compensation provides the exclusive remedy against the employer to recover for an injury which is compensable under the Act. See Synalloy v. Newton, supra. Accordingly, we are constrained to hold that the claimant in the present case is not entitled to maintain a tort action against his employer.

Judgment reversed.

Carley, J., concurs. Benham, J., concurs specially.

Decided September 18, 1987

Rehearing denied October 2, 1987

James H. Bratton, Jr. Frederick G. Boynton, Edward H. Wasmuth, Jr., for appellant.

Stephen E. Garner, for appellee.

Thomas W. Bennett, Kathryn M. Weigand, amici curiae.

Benham, Judge,

concurring specially.

While I concur in the opinion and judgment of the majority, I do so reluctantly, as I feel that this is yet another instance in which an employer’s intentional tortious acts against its employee are unjustly protected by the Workers’ Compensation Act. This court is powerless to rectify such wrongs perpetrated against innocent workers, and the perpetration of such wrongs will continue unabated as long as the statutory exclusivity feature of the Workers’ Compensation Act remains unchanged. The current state of the law does nothing to discourage employers from acting in a manner that deleteriously affects their employees in this and other ways, and until the legislature takes some steps to modify the Act, I fear we will see these situations come before us time and time again. See, e.g., McCormick v. Mark Heard Fuel Co., 183 Ga. App. 488 (359 SE2d 171) (1987).


author: Deen, Presiding Judge. Birdsong, Chief Judge,

text:
    74605.
    RACHALS v. THE STATE.
    (361 SE2d 671)
   Deen, Presiding Judge.

The appellant, Terri Rachals, a nurse employed in the Surgical Intensive Care Unit of the Phoebe Putney Memorial Hospital, of Albany, Georgia, was indicted and tried on six counts of murder and twenty counts of aggravated assault, allegedly caused by the administration of potassium chloride to patients in the intensive care unit. The jury returned verdicts of “not guilty” on all murder charges, and 19 counts alleging aggravated assault. Mrs. Rachals was found “guilty but mentally ill” of aggravated assault, with intent to murder, of Sam Bentley, by injecting potassium chloride into a bag of fresh frozen plasma, which was then introduced into Bentley’s body while he was a patient in the Intensive Care Unit of the Phoebe Putney Hospital.

Following an unusual increase in the number of cardiac arrests of patients in the Phoebe Putney Hospital during the latter part of 1985, investigations were conducted by the Georgia Department of Human Resources and the Georgia Bureau of Investigation. Following these investigations, Rachals was arrested for the various charges of murder and aggravated assault. Held,'.

1. In a hearing to determine the voluntariness of a statement Rachals made to the investigating GBI agents, a Dr. Turner was allowed to testify that when he spoke with Rachals shortly after her confrontation by the GBI agents, Rachals appeared to be able to tell right from wrong. Rachals contends that this testimony violated the psychiatrist-patient privilege established by OCGA § 24-9-21.

Before the psychiatrist/patient communications privilege arises under OCGA § 24-9-21, a relationship of psychiatrist and patient must exist, to the extent that treatment was given or contemplated. Massey v. State, 226 Ga. 703 (177 SE2d 79) (1970). The most realistic view of the evidence simply is that the appellant’s real concern was more to avoid the immediate reality of spending the night in jail, rather than seeking psychiatric treatment. Certainly the appearance of the psychiatrist resulted from the efforts of others.

The record shows that following her statement to the GBI agents, the appellant asked the head nurse to call Dr. Calhoun, in whom she had previously confided about her emotional and domestic problems. In response to the appellant’s remark that she would kill herself if she had to go to jail, Dr. Calhoun replied that they would try to get her some help. Dr. Turner was then summoned, and, after talking with the appellant for a few minutes, asked her if she would consent to a voluntary admission into the psychiatric ward. Not surprisingly, the appellant readily assented.

She remained in the ward only until the following morning. It does not appear that she received treatment of any kind during this brief retreat to the psychiatric ward, and upon her release (in the custody of the police) she never again sought the services of Dr. Turner. Under these circumstances, no psychiatrist/patient relationship was created because (1) the appellant certainly was not seeking out psychiatric care in the usual sense of the term; and (2) no real treatment was given or contemplated. Accordingly, no communications privilege restricted the admissibility of Dr. Turner’s testimony.

In any event, even if a psychiatrist/patient relationship existed between Dr. Turner and the appellant, any error in the admission of Dr. Turner’s testimony was harmless. The objectionable testimony was Dr. Turner’s opinion that the appellant appeared to know right from wrong at the time he talked with her. During the trial, two other psychiatrists, who had evaluated the appellant, also testified that in their opinions the appellant’s emotional problems did not interfere with her ability to tell right from wrong. Thus, because Dr. Turner’s testimony was cumulative of other, properly-admitted evidence, reversal is inappropriate. See Wilson v. Bonner, 166 Ga. App. 9 (5) (303 SE2d 134) (1983); Caston v. State, 178 Ga. App. 752 (344 SE2d 725) (1986).

2. The taped statement of Rachals to the GBI agents is not subject to the objection that it is inadmissible because it is “hearsay.” Sanders v. State, 246 Ga. 42 (268 SE2d 628) (1980); Thomas v. State, 240 Ga. 393 (2) (242 SE2d 1) (1977); Stanley v. State, 240 Ga. 341 (3) (241 SE2d 173) (1977). Further, whether an accused is mentally capable of, and did in fact make a knowing and intelligent waiver of her Miranda rights, is a factual and credibility issue for the trial court and will not be disturbed on appeal unless clearly erroneous. Evans v. State, 176 Ga. App. 818, 820 (338 SE2d 48) (1985).

3. Appellant also enumerates as error the testimony of Dr. Adelle Franks, which by inference could be interpreted to mean that “Terri Rachals was, by odds of five out of nine, probably guilty.” Dr. Franks was an epidemiologist, from the U. S. Center for Disease Control, on loan to the Georgia Department of Human Resources. The Georgia DHR had requested assistance in evaluating the increase in the number of cardiac arrests occurring in the Phoebe Putney Hospital. Dr. Franks went to the hospital in December 1985, and examined the hospital’s records for the entire year previous to November 1985. In three of those months, the hospital had experienced no cardiac arrests. In two months, four cardiac arrests had occurred in each month. Accordingly, Dr. Franks stated that the hospital should have between zero and four cardiac arrests in a normal month. However, in the month of November 1985, eleven cardiac arrests had occurred on the 3:00 o’clock to 11:00 o’clock shift. The probability of this occurring “by chance alone is less than one in a trillion.” In the month of November, five cardiac arrests had occurred in one day and one patient had a total of eight cardiac arrests in that one month. Dr. Franks listed all cardiac arrest patients for the period investigated and the primary nurse on duty with that patient. Rachals was the primary nurse for 11 cardiac arrest patients in the month of November. No other nurse was the primary care nurse for more than one cardiac arrest patient. Dr. Franks charted all 24 nurses for that month and the number of cardiac arrests that occurred on their shift, and those that occurred when they were not on shift to calculate a “rate ratio.” The “rate ratio” for most nurses was around one, while the “rate ratio” for Rachals “was 26.6, which means that in 26.6 times, it was more likely that a cardiac arrest would occur while she was on duty than when she was not on duty. . . . [T]he rate ratio show infinitely large and unmeasurable [sic] because all of the cardiac arrests that occurred on the 3:00 o’clock to 11:00 o’clock shift occurred while she was on duty.” Rachals’s counsel contends that this testimony impermissibly invaded the province of the jury, in that it concluded that if a crime occurred while Rachals was on duty, the odds were 26.6 to 1 that she did it.

GBI Agent Sweat testified that of the 19 cardiac arrests that occurred during the investigative period, Rachals was charged with every cardiac arrest which occurred while she was on duty. Since she was not present when eight occurred, she was not charged with them. Six cardiac arrests occurred on one day, November 24, although it was not normal for more than four cardiac arrests to occur within a one-month period. Rachals was not charged with three of them since she was not present. Dr. Franks admitted that four cardiac arrests within a one-month period would be considered normal and she could not tell you which of any of the cardiac arrests that occurred when Rachals was on duty could be considered to be normally expected.

In Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983), the Supreme Court was faced with an allegation of error “in permitting a state’s expert witness to discuss mathematical probabilities concerning the fiber evidence and in permitting the prosecutor to argue mathematical probabilities to the jury.” Id. at 786. The court found no error “as experts are permitted to give their opinions, based upon their knowledge, including mathematical computations.” Id. This enumeration was not exhaustively discussed, because of the numerous allegations of error in the Williams case, but it appears to sanction “mathematical probabilities concerning . . . evidence,” including evidence which circumstantially permits an inference of guilt. While no one would doubt the admissibility of the raw data to a jury about what acts occurred on which nurses’ shifts, we have serious reservations about mathematical computations as to the probability of guilt of an accused person. However, we are constrained to follow Williams, supra, and find no reversible error under the facts of this case.

Other jurisdictions have been even less open to the admissibility of such matters of statistical and mathematical probability. In People v. Collins, 66 Cal. Rptr. 497 (438 P2d 33) (1968), for example, the Supreme Court of California disallowed the use of a mathematical formula to establish the presence of the two defendants at the scene of the crime. That court determined that the statistical analysis was invalid due to the large number of variables that could be duplicated in the uncontrolled environment. There the odds were listed as one in twelve million that the asserted fact occurred by chance, as compared to one in a trillion in the case sub judice. For a simple, lucid, and informative guide to mathematical, statistical analysis, and suggested formulas advanced for alleged arithmetical accuracy, this writer invites reference to the Appendix contained in Collins.

In the instant case, however, the number of variables was limited in the controlled situation, and the statistics were not derived from a random sampling. Rather, hospital records established the average number of cardiac arrests for the entire year prior to November 1985, when the dramatic increase in the number of cardiac arrests was noticed. The potential for analytical error that was apparent in Collins is absent in the instant case. When in doubt, evidence of this type should be admitted, unless based on sheer speculation, Woods v. Andersen, 145 Ga. App. 492, 496 (243 SE2d 748) (1978), although it may be totally rejected by the jury. While “these observations are made to emphasize the caution with which the courts should greet such presentations of statistical probability in criminal proceedings,” Brooks v. State, 171 Ga. App. 55, 57 (318 SE2d 785) (1984), the testimony was admissible in this case, for whatever value the jury assigned it.

4. Rachals also contests the sufficiency of the evidence to show her guilt as to the aggravated assault upon Sam Bentley. Dr. Douglas Calhoun was Bentley’s attending physician. While at a meeting he received word that Bentley’s heart rhythm and blood pressure did not appear to be stable. He immediately went to his bedside and after examination ordered fresh frozen plasma to be administered. Janice Thomas was the primary nurse for Bentley but Rachals went to the lab and procured the fresh frozen plasma. Thomas does not remember which nurse hung the plasma. In her recorded statement to GBI Agent Sweat, Rachals told him Mr. Bentley asked her to “let him die.” He was “very, very ill also. His skin was sloughing off and he was just laying there suffering and he’d just look at you and just ask you to let him die. So when I went to pick up the fresh frozen plasma, I inserted 20 mil equivalents [of potassium chloride] and they hung it and he arrested, but he did not die.” Nurse Thomas had left the room and when Rachals saw Bentley’s “QRS started widening,” she notified Dr. Calhoun and assisted in stabilizing Bentley. Dr. Calhoun testified that while he was present Bentley exhibited “a very bizzare unusual set of things ... a very spectacular, sudden set of irregular heartbeats and rapidly went into . . . cessation of heart function. . . .” Nurse Rachals called Dr. Calhoun’s attention to Bentley’s EKG widening, “which is indicative of potassium intoxication.” The medical team was successful in resuscitating Bentley.

We find this evidence sufficient to authorize a rational trier of fact to find Rachals guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Rachals’ remaining enumerations of error are without merit.

Judgment affirmed.

McMurray, P. J., Banke, P. J., and Ben-ham, J., concur. Beasley, J., concurs in the judgment only. Birdsong, C. J., Carley, Sognier and Pope, JJ., dissent.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from Division 1 of the majority opinion and the judgment. I cannot concur with the decision that no psychiatrist-patient relationship was created between Dr. Turner and Ms. Rachals. Neither can I agree with the conclusion that “no real treatment was given or contemplated.” The record is devoid of any evidence on this question, and the majority concludes from a silent record, not only that no treatment was given, but surmises that none was “contemplated.” Dr. Turner was never asked whether he prescribed any medication for Ms. Rachals and the subject of whether he “contemplated” further treatment or medication in the event she did not show improvement was never raised. If it is acceptable appellate procedure to assume the critical facts from a silent record, then an appellate court need never reverse another judgment, even if the State offers no evidence. We can assume what the evidence would show if it were admissible, and if it were admitted.

Our Code establishes as privileged, “[communications between psychiatrist and patient. . . .” OCGA § 24-9-21 (5). Therefore, the testimony of a psychiatrist is inadmissible against his patient because of its privileged status. Kimble v. Kimble, 240 Ga. 100, 101 (239 SE2d 676); Wilson v. Bonner, 166 Ga. App. 9, 16 (303 SE2d 134). In the instant appeal, the District Attorney on March 17, 1986, filed a petition with the trial court requesting psychiatric examination of Rachals after he concluded “defendant may be suffering from mental illness. . . .” On April 29, 1986, defendant’s counsel filed his notice of intent to raise the issues of insanity and mental incompetence. Hence, the sanity of Rachals was a viable issue and the State chose to attack the question head-on and called Rachals’ psychiatrist to establish her sanity. The State called Dr. Allen Turner and questioned him as to whether Rachals “knew the difference between right and wrong at the time you were talking to her.” The trial court permitted Turner to answer, over objection on the basis of privileged communication between a psychiatrist-patient, and that Dr. Turner’s conclusions were “based on those communications.”

During Rachals’ interrogation by the GBI agents, she “asked . . . or made [the] statement she might need some help. ...” She asked that the head nurse, Diane Hall, be present. Following the interview Rachals asked Hall “to call Dr. Calhoun; she wanted to talk to him; she had been trying to talk with him for a couple of weeks and had not been able to reach him.” Dr. Calhoun spoke with Rachals and after Rachals told him something about “killing herself,” said: “Well, we’ll get you some help.” Shortly thereafter, Dr. Turner arrived and spoke to Rachals for approximately 15-30 minutes on the ninth floor and diagnosed her as “suicidal and very, very depressed.” He asked her to accept voluntary admission to the psychiatric unit of the hospital because “he feared for her safety[,] that she might well try to harm herself. . . .” That evening, Dr. Turner again spoke to Rachals on the seventh floor. He released Rachals about mid-morning of the following day after he concluded she was no longer “a threat to herself ... to the extent that . . . she couldn’t be released to the sheriff’s office.”

Dr. Turner was asked: “[D]id you consider Terri Rachals to be your patient at this time? A. At that time as I talked with her.” “I admitted her to the hospital under my care on the seventh floor.” Rachals had been seeking medical help for her mental health for more than two weeks. These facts are contrary to the majority’s conclusion that Rachals was not “seeking out psychiatric care in the usual sense of the term.” Dr. Turner considered Rachals to be his patient, he had consulted with her on the ninth floor for 15-30 minutes. He diagnosed her as “suicidal and very, very depressed.” His prescribed treatment was admission to the hospital’s psychiatric unit, because “he feared for her safety. ...” This latter testimony of Rachals’ psychiatrist is contrary to the majority’s assertion that “appellant’s real concern was more to avoid the immediate reality of spending the night in jail. . . .’’It was the psychiatrist’s medical treatment for his patient by prescribing a night in the psychiatric ward that was responsible for the decision of where Rachals spent the night. A second consultation took place between Dr. Turner and his patient on the seventh floor, presumably in the psychiatric ward, because that is where Rachals spent the night. The record is silent as to what treatment or medication Dr. Turner prescribed for his patient that evening or upon her admission to the psychiatric ward. The majority has concluded from the blank record that “no real treatment was given or contemplated.” To the contrary, if it is acceptable appellate practice to make assumptions from a silent record, it is far more plausible, likely, and realistic, that a psychiatrist who had diagnosed his patient as being “suicidal and very, very depressed,” who was threatening to take her life, was facing multiple murder charges, and it was necessary to confine her to a psychiatric ward, that the doctor would prescribe some medication to calm his mental patient and assist her through this crisis.

The majority finds it relevant and convincing that Rachals did not see Dr. Turner after her release to the sheriff. Four psychiatrists and one psychologist who saw Ms. Rachals on a continuing basis following her arrest, for the ensuing year during her stays at Central State Hospital and the Georgia Regional Hospital at Augusta, testified at the trial to their consultations, and the Superintendent of the Georgia Regional Hospital at Augusta stated that Rachals had been examined by so many psychiatrists she wrote on the wall: “Leave me alone, damn it.” It is safe to conclude that the most distasteful situation to which Ms. Rachals could have been subjected was to another consultation with another psychiatrist.

The majority also holds that even if the psychiatrist-patient relationship existed any error in the admission of Dr. Turner’s testimony was harmless because it was cumulative of other properly-admitted evidence. I agree that two psychiatrists appearing as state’s witnesses testified that Rachals could distinguish between right and wrong, but Dr. Craig was asked “whether or not during the months of October and November of 1985 and February of ’86, that the Defendant in this case knew the difference between right and wrong,” and Dr. Hall was asked: “on the dates of the alleged crimes, which were in October and November of 1985 and February of 1986, whether or not she knew the difference between right and wrong on those times?” The question posed by the State to Dr. Turner, the appellant’s psychiatrist, was: “Now, based on your conversation with her on the seventh and ninth floors [on March 13, 1986], do you have an opinion as to whether or not she knew the difference between right and wrong at the time you were talking to herV’ (Emphasis supplied.) Drs. Craig and Hall testified to the ability of Rachals to distinguish between right and wrong in October and November 1985 and February 1986. Dr. Turner testified only as to the period on March 13, 1986. Because different time periods are involved they are not “cumulative.”

We should note that the same Code section that establishes privileged communications between psychiatrist-patient, establishes privileged communications between attorney-client. In Almond v. State, 180 Ga. App. 475 (349 SE2d 482), this Court condemned using a defendant’s counsel to establish his client’s competency, when such opinion was based on conversation between the attorney and his client. In the instant appeal, the State is using the patient’s psychiatrist to establish her sanity, when such opinion is based on conversation between the doctor and his patient during such relationship. The. rule established in Almond is applicable here, the same code section that establishes the confidential relationship between an attorney and his client, establishes the same relationship between a psychiatrist and his patient. In the case at bar, the psychiatrist consulted with his patient on three occasions, first diagnosed her as suicidal and depressed, placed his patient in the psychiatric ward under his care, and on the following day again diagnosed his patient as sufficiently improved that she could be released from the hospital. Dr. Turner was never asked whether he used any particular form of psychiatric therapy during his consultations with Rachals, nor was he asked if he prescribed any medication to treat a depressed and suicidal patient facing a crisis involving multiple murder charges, who was threatening to kill herself. If those questions had been asked, Dr. Turner was under the Codal proscription that “[n]o physician . . . shall be required to release any medical information concerning a patient except on written authorization or other waiver by the patient ... or on appropriate court order or subpoena. . . .” OCGA § 24-9-40. However, we need not concern ourselves with this statute, since under the majority view, no amount of consultation between a psychiatrist and patient can establish such a relationship. Thus, if a psychiatrist only consults with a patient he is now free to publish any information given him by this person who is not his patient.

Decided September 10, 1987

Rehearing denied October 2, 1987

George P. Donaldson III, Reginald J. R. Bell, Jr., for appellant.

Hobart M. Hind, District Attorney, John W. Hogg, Melodie B. Swartzbaugh, L. Earl Jones, Assistant District Attorneys, for appellee.

The majority’s holding is also cause for concern on another matter. Since the same Code section that establishes the confidentiality of communications between the psychiatrist and his patient, also establishes the same relationship between an attorney and his client, and no amount of consultation between a psychiatrist and his patient establishes the privilege — can an attorney who has consulted with a criminal defendant be required to divulge the information given him by this person who is not a client because all that occurred was a consultation? The rule espoused by the majority may resolve this appeal, but it creates more problems for doctors and lawyers than it solves.

I, therefore, respectfully dissent.

I am authorized to state that Judge Carley, Judge Sognier, and Judge Pope join in this dissent.


author: Beasley, Judge.

text:
    74762.
    RICKS v. THE STATE.
    (361 SE2d 829)
   Beasley, Judge.

The defendant appeals his conviction of homicide by vehicle in the first degree, OCGA § 40-6-393 (a), and denial of his motion for new trial brought on two grounds.

1. Sufficiency of the evidence. First degree homicide by a vehicle involves causing the death of another person, without malice aforethought, through violation of certain designated code sections regulating traffic. In this case the defendant was charged with a violation of OCGA § 40-6-390 (a), reckless driving.

Viewing the evidence in favor of judgment, the car defendant was driving entered a sharp left-hand curve in the road at a speed of at least 80 miles per hour and continued in a straight line without turning. As a result the vehicle flipped over two or three times before coming to rest a distance of 575 feet from where it left the road. Of the two passengers riding in the front seat one was injured and the other killed. There were no skid marks, the presence of which normally indicate that the brakes were applied. Photographs of the scene reveal a severely damaged vehicle.

The evidence was sufficient for the trial court, as trier of fact, to find the defendant guilty of the offense charged beyond a reasonable doubt. See Deshazier v. State, 155 Ga. App. 526 (271 SE2d 664) (1980).

2. Reasonably effective assistance of counsel. Defendant advances several instances of inaction by trial counsel which he claims deprived him of his Sixth Amendment right, so that denial of his motion for new trial on this ground was error.

The first deficiency is that trial counsel failed to establish a defense by failing to introduce evidence that the car defendant was driving was equipped with power brakes and power steering. It was brought out that as the car left the road one of the passengers, both of whom were riding in the front, reached over and turned off the ignition switch. A defense witness testified that where the switch is turned off on an automobile equipped with power brakes and steering “[t]he car would be hard to steer and the brakes would be very hard to put on. You’d have only manual brakes.” Trial counsel failed to link this up by questioning defendant as to how his car was equipped, and the court agreed with the state during closing argument of defendant that there was no evidence of this fact.

The second omission is that counsel failed to impeach the state’s primary witness via a number of available avenues. The surviving passenger testified the defendant stopped the car, grabbed and struck the deceased and just before the wreck stated “y’all ain’t never going to make it back home.” She also testified that she turned the ignition off after two wheels left the road but before the other two did. Defendant complains that his counsel failed to impeach the witness by showing how implausible her story was, and that her testimony about the seating arrangement was erroneous. Defendant was not asked whether he made the statement she attributed to him. He was, however, asked about and denied either stopping the car or beating the deceased. It was not elicited that the passenger-witness was motivated by a pecuniary interest in the outcome of the case because her family was suing defendant.

In Davenport v. State, 172 Ga. App. 848, 856 (2) (325 SE2d 173) (1984), we thoroughly discussed the Sixth Amendment requirements as expanded by Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) and United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657) (1984). The test is a two-pronged one. “First, accused must show that counsel’s performance was deficient in that he committed errors so serious as not to be functioning as ‘counsel’ guaranteed by the Sixth Amendment. Second, accused must show such deficient performance prejudiced the defense so as to deprive accused of a fair trial. The standard as to the first test is ‘reasonably effective assistance’ based on the facts of the particular case. As to the second, the standard is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985). Accord Jones v. State, 177 Ga. App. 531, 533 (4) (339 SE2d 786) (1986).

Decided September 8, 1987

Rehearing dismissed October 2, 1987.

Ralph M. Walke, for appellant.

Beverly B. Hayes, Jr., District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellee.

With regard to deficient performance, “[e]rrors of judgment and tactical errors do not constitute denial of effective assistance of counsel.” Cherry v. State, 178 Ga. App. 483, 484 (2) (343 SE2d 510) (1986). Despite defendant’s assertion to the contrary, trial counsel was not so unprepared, nor was his representation so inadequate as not to amount to “counsel” within the meaning of the Sixth Amendment. Ealy v. State, 251 Ga. 426, 428 (2) (306 SE2d 275) (1983); Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567) (1985).

With regard to prejudice resulting from counsel’s alleged inadequate representation, defendant has totally failed to demonstrate that the outcome of the proceedings would have been different had trial counsel conducted the defense in the manner now urged. Jones v. State, 180 Ga. App. 706, 707 (350 SE2d 309) (1986). In the circumstances here, there is no violation of defendant’s federal constitutional right.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    74375.
    LEATHERS v. ROBERT POTAMKIN CADILLAC CORPORATION.
    (361 SE2d 845)
   Sognier, Judge.

Sutton T. Leathers, as purchaser, filed an action in two counts against Robert Potamkin Cadillac Corporation, from whom he bought a 1984 Cadillac Coup de Ville automobile, alleging fraud and violation of OCGA § 40-8-5. The trial court granted summary judgment in favor of Potamkin and Leathers appeals.

The record reveals appellant originally executed a lease agreement for the automobile, but converted this to a purchase at substantial savings after confronting appellee with an earlier emission inspection report indicating a mileage reading approximately 60 miles greater than the reading on the day appellant took possession of the car under the lease agreement. Appellant contended the odometer had been unlawfully “rolled back,” and although appellee denied any wrongdoing, it converted the lease agreement to a purchase at dealer cost. In consideration thereof, appellant executed a release, absolving appellee from “all claims, actions, liabilities of whatever nature from the beginning of time up to the present and specifically with reference to any claims, actions or liabilities in connection with” the automobile, identified by vehicle identification number. The release specifically excepted only claims under the new car warranty. It is uncontroverted that the release was given freely, voluntarily, and for valuable consideration.

Appellant claimed that shortly after his purchase of the car and execution of the release, he discovered that the car had been damaged prior to delivery. At that time, he negotiated both with appellee and directly with the Cadillac Motor Division of General Motors, and settled this claim with Cadillac for $1,000 cash, executing another general release, in favor of “Cadillac Division of General Motors and all its agents and employees from any and all actions, causes of action, claims and demands for, upon or by reason of any injuries, losses and damages to persons or property, which have been caused or which may at any time arise out of or in connection with body and frame repairs to” the automobile. The exact date this release was executed is unclear, but approximately four days after it was sent to appellant with a cover letter, appellant delivered a hand-written letter to appellee purporting to “rescind” the purchase of the car. It is uncontroverted, however, that appellant never returned or offered to return the car and, in fact, has retained and continued to drive the car. It is further uncontroverted that appellant refused an offer in writing from Cadillac Division to repurchase the car for the price paid by appellant.

In his sole enumeration of error, appellant contends the trial court erred by granting summary judgment to appellee because any release was ineffective as to claims under OCGA § 40-8-5. We do not agree. Appellant is not entitled both to retain the automobile and to recover its purchase price, as he seeks to do here. “In order to rescind a contract and sue for restitution, a plaintiff must first restore or make a bona fide effort to restore to the other party whatever benefits he has received from the transaction. [Cits.]” Graham v. Cook, 179 Ga. App. 603, 604 (1) (347 SE2d 623) (1986). It is well established that one who, for a valuable consideration, including payment of money, has released another from all further liability, cannot obtain a rescission of such a contract of release, and recover on the original cause of action, without first restoring or offering to restore what the releasee paid for such release. Harley v. Riverside Mills, 129 Ga. 214 (58 SE 711) (1907).

We are not persuaded by appellant’s argument urging our adoption here of the District Court’s rationale in Parker v. DeKalb Chrysler Plymouth, 459 FSupp. 184 (N.D. Ga. 1978), holding that rights under the federal Odometer Act, 15 USC § 1981 et seq., may not be waived. The court’s reasoning in Parker was based on similarities between the federal Odometer Act, supra, and the Truth-in-Lending Act, 15 USC § 1601 et seq., and the fact that previous federal court cases held that rights granted to consumers under the Truth-in-Lending Act may not be waived. We decline to follow that reasoning here for two reasons. First, the court in Parker, supra, was not applying Georgia law, and Georgia has no comparable Truth-in-Lending Act from which we may draw parallels, and consequently, no similar decisions as precedent. On the contrary, the law and policy of this State greatly favor the compromise of disputes, David v. Atlantic Co., 69 Ga. App. 643 (26 SE2d 650) (1943), and in the absence of fraud, a general release has been held to bar any cause of action by one executing such release. Glover v. Southern Bell Tel. & Tel., 229 Ga. 874, 875 (1) (195 SE2d 11) (1972). Appellant makes no claim here that he was fraudulently induced into signing either release. Second, OCGA § 40-8-5 is intended to provide protection to consumers. Pretermitting the question whether under other facts and circumstances rights acquired under OCGA § 40-8-5 may not be waived despite the existence of a release, we find no reason to so hold under the circumstances presented in the case at bar. Appellant, an articulate and wary businessman who, by his own admission, is more knowledgeable and experienced in the law than many practicing lawyers, has retained and continued to utilize the Cadillac automobile which represents the “fruits” of appellee’s alleged unlawful act. Furthermore, appellant has not once, but twice knowingly signed releases of his claims in exchange for substantial monetary consideration. Although there are policy considerations which might exist in other situations, we are unable to imagine any benefit to consumers from forbidding, in circumstances such as these, the knowing and intelligent release of claims in return for substantial benefit. On the contrary, we view such a blanket prohibition as a disincentive for dealers to settle honest claims to the benefit of those consumers who, in their considered wisdom, wish to do so.

Appellant has been compensated twice for the release of whatever claims he may have had against appellee or others. In view of these releases, which are uncontroverted, we find that the trial court properly found no question of fact remained, and appellee was entitled to judgment as a matter of law. See Reed v. Adventist Health Systems/Sunbelt, 181 Ga. App. 750, 752 (1) (353 SE2d 523) (1987).

Decided October 2, 1987.

James E. Thompson, for appellant.

Richard P. Reinhart, Gerald L. Pouncey, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Carley, Judge.

text:
    74708.
    SMITH et al. v. GREAT SOUTHERN FEDERAL SAVINGS BANK.
    (361 SE2d 847)
   Carley, Judge.

Appellee-plaintiff is the holder of six promissory notes. Appellant-defendants are two of the five guarantors of those notes. When the notes went into default, appellee filed suit against all five of the guarantors. Following discovery and the entry of consent judgments against two of the other guarantors, appellee moved for summary judgment as against appellants only. Appellants appeal from the trial court’s order granting summary judgment in favor of appellee.

1. Appellants urge that the trial court’s granting of summary judgment was erroneous in that a genuine issue of material fact remains as to whether appellee released the other guarantors and thereby discharged appellants by operation of law.

Whether or not appellee may have released the other guarantors would not be material to appellants’ liability. Under the terms of the guaranty agreement, appellants consented to appellee’s “release or compromise [of] any liability of any party or parties primarily or secondarily liable on any of these Liabilities . . . without affecting the liability of the undersigned [guarantors]. . . .” It is well established under Georgia law that “[a] surety or guarantor may consent in advance to a course of conduct which would otherwise result in his discharge. [Cits.]” Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (4) (216 SE2d 651) (1975). See also Colodny v. Dominion Mtg. &c. Trust, 141 Ga. App. 139 (2) (232 SE2d 601) (1977); Thurmond v. Ga. R. Bank &c. Co., 162 Ga. App. 245 (1) (290 SE2d 126) (1982). Appellants urge that this provision in the guaranty agreement is to be construed as a limitation on the appellee. Under appellant’s construction, the agreement should be read to provide that appellee may release or compromise any primary or secondary liability but only so long as appellee’s action is “without [effect upon] the liability of the undersigned [guarantors]. ...” However, this court has consistently held that a provision in a guaranty agreement whereby the lender is authorized to take certain actions “ ‘without affecting [the guarantor’s] obligation to pay the loan’ ” constitutes the guarantor’s advance consent to such actions by the lender and operates as a waiver of the guarantor’s right to assert that those actions have resulted in his discharge. H & H Operations v. West Ga. Nat. Bank, 181 Ga. App. 766, 767 (353 SE2d 633) (1987).

Decided October 2, 1987.

H. William Cohen, for appellants.

John L. Watkins, James J. Thomas II, for appellee.

2. Appellants also urge that genuine issues of material fact remain with regard to appellee’s control and possession of the collateral which secured the notes. However, under the terms of the guaranty agreement, appellee was authorized to “release its security interest, if any, in all or any property securing any of the Liabilities and permit substitution or exchange for any such property . . . without affecting the liability of the undersigned [guarantors].” “From this language, it is apparent that [appellants] consented in advance to an impairment of collateral by [appellee]. Consequently, [appellants] are estopped to assert the defense of impairment of collateral. [Cits.]. . . . [T]he trial court did not err in granting summary judgment in favor of [appellee].” H & H Operations v. West Ga. Nat. Bank, supra at 767.

3. The material facts of the present case are indistinguishable from those of H & H Operations, supra. Therefore, our holding in that case controls and the grant of summary judgment in favor of appellee is affirmed.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74805.
    GOLDEN v. THE STATE.
    (361 SE2d 703)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with violating the Georgia Controlled Substances Act by selling cocaine. The State’s evidence showed that appellant sold the cocaine to an undercover agent. The transaction took place in a motel room after appellant had removed a packet of cocaine from clothing that was hanging in the closet. At the time of the sale, another individual was present in the motel room. The next day, after having obtained a search warrant, officers found a quantity of drugs in the motel room. Appellant was arrested when he returned to the room. The jury returned a verdict of guilty. Appellant appeals from the judgment of conviction and sentence entered on the jury verdict.

The sole enumeration is that the trial court erred in allowing the State to introduce evidence of appellant’s possession of the contraband that was found in the motel room on the day after he allegedly sold the cocaine. “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). With regard to identity, the evidence established that appellant exercised at least joint control over the motel room and was in joint constructive possession of the contraband drugs found therein. See generally Anderson v. State, 166 Ga. App. 459, 460 (3) (304 SE2d 550) (1983). There was also certainly a sufficient factual connection between appellant’s subsequent possession of a stash of drugs and his prior sale of drugs from that very stash. Accordingly, the evidence of the contraband subsequently found in appellant’s motel room was admissible to show identity, motive, plan, scheme, bent of mind or course of conduct as to his previous sale of cocaine and the jury was instructed as to its limited admissibility.

Decided October 2, 1987.

Keith F. Allen, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Moreover, it would appear that the evidence was also admissible as showing the circumstances of appellant’s arrest. “[W]here evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime.” Newman v. State, 239 Ga. 329, 330 (236 SE2d 673) (1977). The trial court did not err in admitting the evidence.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74814.
    BARNEBEE et al. v. SHASTA BEVERAGES, INC. et al.
    (361 SE2d 704)
   Carley, Judge.

Appellant-plaintiffs, Mr. and Mrs. Barnebee, brought suit to recover damages for injuries incurred by Mrs. Barnebee when the automobile in which she was a passenger was struck from the rear by another automobile. The suit was filed against appellee-defendant Mrs. Karasek, the driver of the other automobile, and appellee-defendant Shasta Beverages, Inc., Mrs. Karasek’s employer. The case was tried before a jury and resulted in a verdict in favor of appellees. Appellants’ motion for new trial was denied and they appeal from the judgment entered by the trial court on the jury’s verdict.

Only the general grounds are enumerated. “Although appellants contend that the [verdict is] against the weight of the evidence, weighing the evidence is a function for the jury and the trial court, not an appellate court. [Cits.] [An appellate court considers only] the sufficiency of the evidence. . . . ‘ “In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause. . . . [T]hese issues should be resolved, except in the very rare cases (where there is an admission of liability or an indisputable fact situation clearly establishes liability), by the jury and not by trial and appellate judges.” [Cit.]’ [Cit.]” Verde v. Granary Enterprises, 178 Ga. App. 773 (1) (345 SE2d 56) (1986).

Although, under the evidence, Mrs. Karasek’s acts and omissions may have been the sole proximate cause of the collision, this is not a case wherein there was no exculpatory explanation offered for her injurious conduct. Appellees relied upon the defense of sudden emergency. “A driver of a motor vehicle, when confronted with a sudden peril not arising from any fault of his own, will not be held negligent where he exercises the right to take care of himself in order to avoid injury, provided he acts with such care as an ordinarily prudent person would exercise. [Cits.]” Everett v. Clegg, 213 Ga. 168, 170 (97 SE2d 689) (1957). Although the evidence in this case may have authorized a finding that the asserted “sudden emergency” arose only because Mrs. Karasek was at fault in failing to have discovered it sooner, the evidence did not demand such a finding. “ ‘Whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury.’ [Cit.]” Carter v. Taylor, 124 Ga. App. 540, 541 (184 SE2d 593) (1971). Likewise, the evidence may have authorized a finding that, in the exercise of ordinary care, Mrs. Karasek could still have avoided the collision notwithstanding the “sudden emergency” with which she had been confronted. However, such a finding was not demanded. “ ‘The allowance rightfully to be made for indiscreet conduct under excitement and alarm can better be determined by the jury than by the court.’ [Cit.]” Southern R. Co. v. Crabb, 10 Ga. App. 559 (1) (73 SE 859) (1911).

With no objection from appellants, the trial court instructed the jury on the defense of sudden emergency. The evidence authorized such a charge. “There being nothing in the record to indicate that the case at bar was one of those “rare cases” [which could be decided as a matter of law], the evidence before the jury was sufficient to support the verdict. [Cits.]’ [Cit.]” Verde v. Granary Enterprises, supra at 773 (1).

Decided October 2, 1987.

Roger L. Curry, for appellants.

James H. Fisher II, for appellees.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74877.
    ROWE v. THE STATE.
    (361 SE2d 705)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged her with three counts of violating the Controlled Substances Act and with one count of violating the Dangerous Drug Act. Appellant was found not guilty as to two of the Controlled Substances counts. She appeals from the judgments of conviction and sentences entered on the jury verdicts of guilty as to the remaining two counts.

1. Appellant enumerates as error the trial court’s denial of her motion to suppress evidence which was obtained during two separate searches of her residence. The first search resulted from the efforts of police officers to execute a federal fugitive warrant for an individual who was known to have resided with appellant in the past. Appellant informed the officers that the individual whom they were seeking was no longer residing with her but that a search of her residence for him could be conducted. The officers accepted appellant’s invitation to search her residence for the fugitive. During the course of their search, the officers discovered, in plain view, a partially smoked hand-rolled cigarette containing suspected marijuana. Appellant was placed under arrest and the officers then obtained a warrant to search the premises for contraband. Pursuant to the warrant, the officers conducted a second search and seized small amounts of marijuana and various pills, capsules and small quantities of powders.

Appellant urges that the initial search of her residence was invalid because it was conducted without a warrant and without probable cause. However, appellant consented to the officers’ initial entry into her residence, and consensual searches require neither probable cause nor a warrant for their validity. See generally Dean v. State, 250 Ga. 77, 79-80 (2) (295 SE2d 306) (1982). While in appellant’s home pursuant to her consent, the officers discovered, in plain sight, suspected marijuana. “ ‘ “A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. [Cits.]” [Cit.]’ [Cit.]” Galloway v. State, 178 Ga. App. 31, 34-35 (342 SE2d 473) (1986). The trial court did not err in denying the motion to suppress evidence seized in the initial search of appellant’s residence.

Decided October 2, 1987.

Alex L. Zipperer III, for appellant.

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

The second search was conducted pursuant to a warrant. Appellant contends that this search was invalid because the affidavit upon which the warrant was issued did not clearly show, on its face, the existence of probable cause. However, the determination of the existence of probable cause is not necessarily limited to the four corners of the affidavit upon which the search warrant was issued. The State is allowed to show and the trial court is authorized to consider such additional sworn information as the affiant orally provided to the issuing magistrate. See Dailey v. State, 136 Ga. App. 866 (1) (222 SE2d 682) (1975). Moreover, in determining whether any such additional sworn information was provided to the issuing magistrate by the affiant, this court can consider not only the transcript of the pre-trial hearing, but also the trial transcript. See Sanders v. State, 235 Ga. 425, 431-432 (2) (219 SE2d 768) (1975). Having considered both the transcript of the hearing on appellant’s motion to suppress as well as the trial transcript, we find sufficient evidence that the issuing magistrate was provided with such sworn information, both written and oral, as would authorize a finding of the existence of probable cause to search appellant’s residence for contraband. “The fact that contraband was present in the house may well furnish probable cause for the issuance of a search warrant obtained after a hearing before a magistrate.” State v. Scott, 176 Ga. App. 887, 889 (3) (339 SE2d 276) (1985).

2. Appellant enumerates as error the trial court’s denial of her motion for directed verdict of acquittal as to the violation of the Dangerous Drug Act. An examination of the record reveals sufficient evidence to authorize a finding that appellant was in either sole or joint constructive possession of the dangerous drug promethazine and to sustain the conviction. McLeod v. State, 170 Ga. App. 415 (3) (317 SE2d 253) (1984); Anderson v. State, 166 Ga. App. 459, 460-461 (3) (304 SE2d 550) (1983). We find that a rational trior of fact could reasonably have found 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).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74949.
    PEOPLES et al. v. THE STATE.
    (361 SE2d 848)
   Carley, Judge.

Appellants were co-indicted for armed robbery. They were jointly tried before a jury and found guilty. Appellants appeal from the judgments of conviction and sentences entered on the guilty verdicts.

1. Appellants enumerate the general grounds. The indictment alleged, in relevant part, that appellants “did unlawfully, with the intent to commit theft, take from the person and immediate presence of [the victim] the following property, to wit: fifty dollars in money,. . . by intimidation and by use of a pistol; the same being an offensive weapon. . . .” At trial, the victim testified that, prior to the robbery, there was $50 in his wallet and that his wallet was in his pocket. Having been knocked unconscious during the course of the robbery, the victim was unable to give direct testimony that appellants had removed his wallet from his pocket. However, the victim did testify that his wallet and some of its contents were found on the ground where the robbery had taken place. An eyewitness to the robbery testified that appellants had pulled an unidentifiable object out of the victim’s pocket. This was sufficient evidence to authorize a finding that appellants had unlawfully taken the victim’s wallet and the $50 that it contained. To authorize a conviction under the indictment, the State was not required to prove that appellants had ever removed the $50 from the victim’s wallet. “Under OCGA § 16-8-41 . . . ‘[t]he slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation’ to meet the statutory criterion. [Cits.]” Glidewell v. State, 169 Ga. App. 858, 859 (1) (314 SE2d 924) (1984). “It is not required that the property taken be permanently appropriated. [Cit.]” James v. State, 232 Ga. 834, 835 (209 SE2d 176) (1974). After reviewing the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence from which a rational trior of fact could find proof of appellants’ guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. During the cross-examination of Peoples, he was asked a question which he contends placed his character into issue. However, appellant’s counsel made no objection to the question and appellant answered it. Not until appellant’s cross-examination was completed did his counsel move for a mistrial, contending that the question, which had long since been asked and answered, had placed appellant’s character into issue. The denial of the motion for mistrial is enumerated as error by appellant Peoples.

Decided October 2, 1987.

Jerry Boykin, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Henry M. Newkirk, Assistant District Attorneys, for appellee.

“A mistrial will not lie where the evidence is admitted without objection. [Cit.]” McCormick v. State, 152 Ga. App. 14, 15 (2) (262 SE2d 173) (1979). See also Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367) (1983). Moreover, “a motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). This enumeration is without merit.

Judgments affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74977.
    BAKER v. THE STATE.
    (362 SE2d 96)
   Carley, Judge.

Appellant was tried before a jury and found guilty of criminal trespass and simple battery. He appeals from the judgments of conviction and sentences entered on the guilty verdicts.

1. Urging the existence of fatal variance between the allegations of the accusation and the proof at trial, appellant enumerates the general grounds as to his criminal trespass conviction.

The accusation alleged that appellant had knowingly and without authority entered the land of another “after receiving, prior to such entry, notice from the owner and rightful occupant, to wit: Wiley J. Casey, that such entry was forbidden. . . .” The proof offered at trial showed that appellant had knowingly and without authority entered the property of Mr. Casey after receiving notice that such entry was forbidden. However, the evidence also showed that the notice to appellant that such entry was forbidden had actually been given, not by Mr. Casey, but by Mrs. Casey, a co-owner and co-occupant of the premises. In DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), the Supreme Court of Georgia “adopted the criterion developed by the United States Supreme Court for determining whether or not a variance is fatal: ‘ “The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” . . . [Cit.]’ ” Dobbs v. State, 235 Ga. 800, 801-802 (3) (221 SE2d 576) (1976). That the prior notice to appellant had been given by Mrs. rather than by Mr. Casey “did not subject [appellant] to either of these dangers. [Cits.]” Dobbs v. State, supra at 802 (3). Therefore, the variance is not fatal, and does not require reversal of appellant’s conviction.

Decided October 2, 1987.

Albert F. Burkhalter, Jr., for appellant.

Stephen F. Lanier, District Attorney, Danny W. Crabbe, Assistant District Attorney, for appellee.

After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced 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).

2. Appellant’s remaining enumeration of error has been considered but is found to be without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75013.
    AKINS v. THE STATE.
    (361 SE2d 707)
   Carley, Judge.

Appellant was tried before a jury on charges of possession of marijuana and amphetamine, a Schedule II controlled substance. The jury returned guilty verdicts as to both charges. Appellant appeals from the judgments of conviction and sentences entered on the verdicts.

1. The amphetamine had been found in a pouch containing drug paraphernalia. The pouch itself had been found on the front seat of an automobile in which appellant and another individual had been traveling just prior to their arrests. There was testimony that both appellant and his traveling companion appeared to be under the influence, although they did not smell of alcohol, and that they both had needle marks in their arms. On this evidence, appellant requested a jury charge on the equal access rule with regard to the possession of the amphetamine. The trial court’s refusal to give this instruction is enumerated as error.

“The [equal access] rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. [Cits.] It is simply a defense available to the accused to whom a presumption of possession flows. Because the [S]tate did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.” Castillo v. State, 166 Ga. App. 817, 822 (2) (305 SE2d 629) (1983). Accordingly, the trial court did not err in refusing to instruct the jury on the equal access rule.

Decided October 2, 1987.

Jane Kent Plaginos, for appellant.

Rafe Banks III, District Attorney, T. Russell McClelland III, Assistant District Attorney, for appellee.

2. Appellant enumerates the general grounds with regard to his conviction for possession of amphetamine. After a review of the entire record, we find that a rational trior of fact could reasonably have found 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). See also Robinson v. State, 175 Ga. App. 769 (334 SE2d 358) (1985); Sweat v. State, 172 Ga. App. 712, 713 (1) (324 SE2d 561) (1984).

3. Appellant’s remaining enumeration of error has been considered but is found to be without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75020.
    FALCONE INTERNATIONAL, INC. v. CLOWES.
    (361 SE2d 708)
   Sognier, Judge.

James P. Clowes brought an action against his former employer, Falcone International, Inc., to recover salary and reimburseable expenses he claimed were owed him for services fully performed under an executed oral employment contract. Clowes died during the pendency of the litigation and Dottie Clowes, executrix of his estate, was substituted as plaintiff. The trial court granted Clowes’ motion for summary judgment and Falcone International appeals.

1. In several related enumerations of error, appellant contends the trial court erred by granting summary judgment in favor of appellee because genuine issues of material fact exist with regard to the terms of the employment contract. In support of her motion for summary judgment, appellee proffered the affidavit of her decedent, in which he swore that under the terms of his employment contract with appellant, he was to be paid a salary of $3,500 per month and an automobile allowance of $300 per month, and that $28,600 in salary and reimburseable expenses was owed him under that contract. Appellant filed no response to appellee’s motion for summary judgment. Appellant argues, however, that the trial court erred by failing to consider its previously filed interrogatory answers in ruling on the motion. Appellant asserts that a genuine issue of material fact is raised by statements in the interrogatory answers that under the terms of the employment agreement no salary was to be paid to appellee’s decedent unless and until his work or services made appellant a profitable corporation (which it was not), and that all reimburseable expenses had been paid.

Pretermitting the question whether the affidavit submitted in support of appellee’s motion for summary judgment is itself admissible in evidence, we agree with appellant that its answers to appellee’s interrogatories were sufficient to raise an issue of fact concerning the terms of the oral employment agreement. Under the provisions of OCGA § 9-11-56 (e) interrogatory answers may properly be considered when ruling on a motion for summary judgment. Benefield v. Malone, 110 Ga. App. 607, 612 (3) (139 SE2d 500) (1964). Appellant’s interrogatory answers were verified by Jimmy Len Orton, president of appellant, who stated under oath that the facts contained in the answers were “true and correct to the best of his information, knowledge and belief where derived from his own knowledge, and, where derived from the knowledge or information of others, he verily believes them to be true and correct.” Contrary to appellee’s argument that since it is impossible to ascertain which answers are properly based on personal knowledge, none of the answers may be considered, it is readily discernible from the answers that Orton was present when James Clowes agreed to enter into the contingent compensation arrangement, and that therefore Orton’s information about that agreement is based upon personal knowledge. Even if appellant’s interrogatory answers do contain some material which is not derived from personal knowledge and therefore does not satisfy the requirements of OCGA § 9-11-56 (e) as a response to a motion for summary judgment, those portions of the answers which clearly are derived from personal knowledge do meet the requirements of the statute and must be considered. See Harvey v. C. W. Matthews Contracting Co., 114 Ga. App. 866 (1) (152 SE2d 809) (1966). Since the admissible material in the answers raises a material question of fact as to the terms of the employment agreement, the trial court erred by granting appellee’s motion for summary judgment. See generally Hively v. Davis, 181 Ga. App. 733, 734 (353 SE2d 622) (1987).

2. Appellant also asserts the trial court erred by awarding punitive damages and attorney fees. However, we find no support in the record for the allegation that either punitive damages or attorney fees were awarded. “ ‘It is the duty of the party asserting error to show it by the record. [Cits.] Assertions of evidence in briefs or enumerations of error cannot satisfy this duty. [Cit.]’ [Cit.]” Bellamy v. Edwards, 181 Ga. App. 887, 892 (7) (354 SE2d 434) (1987).

Decided October 2, 1987.

Duard R. McDonald, for appellant.

John L. Skelton, Jr., for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    75205.
    SAMS et al. v. CHAMPION.
    (361 SE2d 852)
   Deen, Presiding Judge.

In this case the appellee took the deposition of a witness, but afterwards decided against having the court reporter transcribe it. In fact, the appellee paid the court reporter for the services rendered and got all of the take-down notes from the reporter. Subsequently, the appellants sought to obtain a copy of the deposition, quite willing to pay for it, but the appellee refused to surrender the take-down notes. The appellants then requested the trial court to order release of the take-down notes so that the deposition could be transcribed. However, being of the mind that the take-down notes belonged to the party who had paid for the deposition, and that the appellants could simply depose the witness on their own or subpoena the witness for the trial, the trial court denied the request. This interlocutory appeal followed.

OCGA § 9-11-30 (c) (1), in part, provides that deposition “testimony shall be taken stenographically or recorded by any other means ordered in accordance with paragraph (4) of subsection (b) of this Code section. If requested by one of the parties, the testimony shall be transcribed.” (Emphasis supplied.) Further, OCGA § 9-11-30 (f) (2) provides that “[u]pon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.” These Code provisions quite clearly give the appellants the right to have the deposition transcribed and to have a copy of the deposition, provided they pay for it. But compare Harrington v. Harrington, 224 Ga. 305 (161 SE2d 862) (1968) and Tow v. Reed, 180 Ga. App. 609 (349 SE2d 829) (1986) with Georgia American Ins. Co. v. Varnum, 182 Ga. App. 907 (357 SE2d 609) (1987).

Judgment reversed.

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

Decided October 2, 1987.

Rex D. Smith, Douglas F. Aholt, for appellants.

J. Blair Craig II, Robert P. Mallis, for appellee.


text:
    75241.
    BRITT v. THE STATE.
    (361 SE2d 710)
   Deen, Presiding Judge.

The appellant, David E. Britt, was found guilty by a jury of aggravated assault upon a police officer. He brings this appeal following the denial of his motion for a new trial.

On February 12, 1986, Britt struck Detective C. M. Walters with his car. Walters, with other officers, was executing a search warrant at the residence of Allison Adams and Lonnie Isler when Britt telephoned Adams. Walters answered the phone and said that Adams was not available. Britt then told Walters that he would be by in fifteen minutes, believing that he was speaking to Allison Adams’ brother. Walters never identified himself as a police officer. Following the call, the police officers removed their cars and attempted to get out of sight so that Britt would be unaware of their presence. As a result, there were no marked police cars in the driveway and Walters was not in uniform when Britt arrived.

Britt, accompanied by his girl friend, drove into the driveway. Walters, who was standing at the side entrance of the house, approached the passenger side of the car. The evidence as to what next occurred is conflicting. Walters claims that when he asked Britt to identify himself, he identified himself as a police officer and showed his badge. He claims that Britt put the car in reverse and attempted to get away. Walters contends that he then pulled out his revolver and yelled “police officer,” and that Britt then came at him and struck him with his car.

Britt, however, contends that the first time he saw Walters, Walters had pulled his weapon, and that is the reason he (Britt), attempted to leave the scene. Britt admitted that he heard Walters yelling something, but he could not understand him and was much more concerned about getting away from the man with the gun. Britt testified that at no time did he realize that Walters was a police officer.

1. In his first enumeration of error, appellant claims that the trial court erred in failing to give a charge on misapprehension of fact, although he did not request such a charge, because it constituted his sole defense.

OCGA § 16-3-5 provides: “A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” At trial, appellant denied that he tried to strike Walters with his car, but rather claimed he “was just trying to get away from there” and that he had “to kinda run up on the grass to keep from hitting him.” As appellant denied committing any illegal act, his defense was not premised upon an admitted but mistaken “act.” The evidence therefore did not support such a charge, and it was not error to fail to charge that defense. Curry v. State, 162 Ga. App. 71 (290 SE2d 179) (1982); Gunter v. State, 155 Ga. App. 176 (270 SE2d 224) (1980).

Decided October 2, 1987.

Michael C. Clark, for appellant.

Thomas C. Lawler, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

2. Appellant’s two remaining enumerations of error pertain to the charge on aggravated assault on a police officer and the charge on resisting a legal arrest.

The jury was charged that in determining whether or not Britt knowingly resisted a lawful arrest they had to find whether he was unaware of Walters’ status as a police officer, but at no point in the portion of the charge pertaining to the offense of aggravated assault of a police officer was the jury charged that the accused had to have knowledge that his victim was a police officer.

Under OCGA § 16-5-21 (c), a person must knowingly commit the offense of aggravated assault upon a police officer. “Since it is necessary to prove intent [under this code section], it therefore follows that knowledge is an essential element to the offense of the aggravated assault of a police officer. . . . [A]nd the jury must be charged that knowledge is an essential element to the crime.” Bundren v. State, 247 Ga. 180, 181-182 (274 SE2d 455) (1981). As the trial court failed to properly instruct the jury on this issue, we must reverse and remand this case for retrial.

3. As there was no evidence to support a charge that appellant was resisting arrest, the trial court should not have given it. In view of our ruling in Division 2 above, however, it is not necessary to determine whether the giving of this charge constituted harmful error.

Judgment reversed.

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


text:
    75287, 75288.
    DIVECCHIO v. MEAD CORPORATION (two cases).
    (361 SE2d 850)
   Deen, Presiding Judge.

On August 21, 1985, William Troutman, who was the general manager of Mead Corporation’s two corrugated box plants in Atlanta and Covington, met five other Mead employees at a restaurant/bar to celebrate the impending marriage of another employee. Mead Corporation subsequently reimbursed one of the employees for the tab. Troutman, who had four drinks of Scotch during the hour and a half that he was at the bar, admittedly was “high” or feeling a “buzz” when he left. On his way home, driving a company car, Troutman fell asleep at the wheel and ran over Angelo and Velma Divecchio as they were walking their dog. Each filed individual actions against Trout-man and Mead Corporation, and each appeals from the trial court’s grant of summary judgment for Mead Corporation. Held:

1. In Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), the Supreme Court decided that OCGA §§ 3-3-22 and 3-3-23 were designed to protect third parties from the dangers of providing alcoholic beverages to noticeably intoxicated persons and minors, respectively. In Sutter, the Supreme Court held that the third parties had a cause of action against one who had provided alcoholic beverage to a noticeably intoxicated minor, knowing that the minor would soon be driving a vehicle. It is clear from Sutter that a similar cause of action would lie where one provides alcoholic beverage to a noticeably intoxicated adult who is about to drive a vehicle. In both instances, the provider has a duty not to subject third parties to an unreasonable risk of harm caused by such an intoxicated driver. See Sou. Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611 (359 SE2d 385) (1987).

The first crucial question in this case is whether Mead provided alcoholic beverages to Troutman. As a matter of literal fact, at the time of the alcohol consumption, Mead was not the provider, but it is undisputed that Mead ultimately reimbursed one of the salesmen who included the bar tab in his company expense voucher. It appears from the record, however, that the salesman “disguised” the bar tab as an entertainment/dinner expense to promote sales with a particular company. There is no other evidence showing that Mead, in approving reimbursement of the “entertainment” expense, had any knowledge of the real nature of the expense, and nothing from which one may infer such knowledge. Under these circumstances, where the salesman in effect perpetrated a fraud upon his employer, there was no basis for finding that Mead had provided alcoholic beverages to anyone.

2. The appellants also contend that Troutman was within the scope of employment when he ran over the appellants, since he was driving a company car and Mead reimbursed him for most of the gasoline he purchased, thus making Mead responsible under the doctrine of respondeat superior. Under the facts of this case and the present state of the law, however, we disagree.

Generally, when an employee is involved in a collision while operating his employer’s automobile, a presumption arises that he was acting within the scope of his employment. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). However, when confronted by uncontradicted testimony of the defendant and/or employee that at the time of the collision the employee was on a purely personal mission, in order to survive the defendant’s motion for summary judgment, the plaintiff must show some other fact which indicates that the employee was acting within the scope of employment; further, when the “other fact” is shown by circumstantial evidence, that evidence must be sufficient to support a verdict. Id. at 780; see also Fred A. York, Inc. v. Moss, 176 Ga. App. 350 (335 SE2d 618) (1985).

In the instant case, at the time of the collision, Troutman was driving home for the evening, a purely personal mission absent some other fact. The appellants attempted to show that Mead not only furnished Troutman the vehicle, but also apparently reimbursed him for gasoline expenses incurred during personal use of the car, and then included this reimbursement as a business expense in determining its tax liability. If Mead represented such reimbursement of personal gasoline expenses as business expenses for tax purposes, the appellants argue, Mead should regard Troutman’s personal use of the car as company business.

Troutman’s deposition testimony indicates that he did consider much of his drive-time to and from work and home to be company business for purposes of determining who should pay for the gasoline, due to his having to travel back and forth from the two Mead plants. However, although the amount of personal mileage claimed by Trout-man on the expense vouchers was but a small fraction of the total mileage, only cumulative compilations of the mileage were required, and not any detailed account of the personal use. In short, nothing in the expense vouchers correlates the reimbursement with the nature, i.e., company or personal, of the mileage. This evidence simply would not support a verdict that at the time of the collision, Troutman’s driving home after an evening of carousing with subalterns was within the scope of his employment. Accordingly, the trial court properly denied summary judgment as to this theory of recovery as well.

Assuming that the gathering at the restaurant/bar had been a matter of company business, i.e., Mead approved of such activity because it furthered the business purpose of improving working relationships or employee morale, the doctrine of respondeat superior is still unavailing to the appellants. In a whole court decision, this court has previously rejected application of that doctrine where an employee got intoxicated “wining and dining” prospective customers and then was involved in a collision when he drove home. Healthdyne v. Odom, 173 Ga. App. 184 (325 SE2d 847) (1984). In that case, this writer dissented, favoring adoption of the approach employed in Chastain v. Litton Systems, 694 F2d 957 (4th Cir. 1982), which consisted of a three-prong analysis: (1) whether the employee’s consumption of alcohol was within the scope of employment because it furthered a business purpose; (2) whether the employee negligently drank too much and became intoxicated; and (3) whether that employee’s intoxication continued until the collision and was the proximate cause of the collision. However, this court is bound by the majority opinion in Healthdyne, and not the dissent.

Decided October 2, 1987.

George E. Duncan, Jr., for appellants.

Stephen L. Cotter, for appellee.

Judgments affirmed.

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


author: McMurray, Presiding Judge.

text:
    74921.
    GARRISON v. DEPARTMENT OF HUMAN RESOURCES.
    (361 SE2d 860)
   McMurray, Presiding Judge.

This is an action on an account. Plaintiff State of Georgia, Department of Human Resources seeks to recover a sum allegedly due from defendant Garrison under the provisions of “The Patient Cost of Care Act,” OCGA § 37-9-1 et seq. Defendant appeals from the grant of summary judgment in favor of plaintiff. Held:

1. Defendant contends the superior court improperly excluded his affidavit filed in opposition to plaintiffs motion for summary judgment. However, any exclusion of' defendant’s affidavit is not shown on the face of the record and the superior court’s order states that its order was entered after consideration of the “entire record.” We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court. Howard v. Estate of Howard, 176 Ga. App. 86, 88 (335 SE2d 171). Therefore, we conclude on the basis of the record before this court, that there is no showing that the court failed to consider defendant’s affidavit. This enumeration of error is without merit.

2. Defendant contends that the superior court erred in granting plaintiff’s motion for summary judgment as issues of material fact remain for resolution by a jury. OCGA § 37-9-5 (a) requires notice and opportunity for a hearing concerning assessments under “The Patient Cost of Care Act.” In his affidavit defendant states that, “I was definitely not advised of any potential liability under the Patient Cost Care Act [sic], nor was I advised regarding my right to a hearing under that Act. Additionally, I was never told of any hearing regarding the assessment that they wanted to make against me.” Thus, this portion of defendant’s affidavit which contradicts plaintiffs evidence on this point creates a genuine issue of material fact as to whether defendant was properly assessed the sum at issue. As the conflicting affidavits present a question of credibility as to a material issue, the grant of plaintiffs motion for summary judgment was error. Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 205 (2) (345 SE2d 904); Walker v. Modnar Corp., 178 Ga. App. 374, 376 (2) (343 SE2d 148).

Decided October 5, 1987.

James J. McGinnis, for appellant.

Christine C. Daniel, Michael J. Bowers, Attorney General, David C. Will, Assistant Attorney General, for appellee.

Judgment reversed.

Sognier and Beasley, JJ., concur.