author: Blackburn, Chief Judge.

text:
    A01A2072, A01A2075. A01A2073, A01A2076. A01A2074, A01A2077.
    WOLF CAMERA, INC. v. ROYTER; and vice versa. WAYNE v. ROYTER; and vice versa. SMITH v. ROYTER; and vice versa.
    (558 SE2d 797)
   Blackburn, Chief Judge.

In this action regarding the malicious prosecution of a store employee for theft, Wolf Camera, Inc., Leonard Wayne, and Rex Smith (defendants) appeal the jury’s verdict of $580,000 in favor of Arthur Royter, contending that the trial court erred by: (1) denying their motions for a directed verdict and judgment notwithstanding the verdict; (2) charging the jury on punitive damages; and (3) allowing testimony regarding an incident involving Royter and Wayne’s wife. In related cross-appeals, Royter contends that the trial court erred by denying his request for prejudgment interest pursuant to OCGA § 51-12-14. For the reasons set forth below, we affirm.

Case Nos. A01A2072, A01A2073, and A01A2074

1. Defendants contend that the trial court erred by denying their motions for directed verdict and j.n.o.v. on the malicious prosecution charges.

In determining whether the trial court erred by denying [defendants’] motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Punctuation omitted.) Dept. of Transp. v. Dalton Paving &c.

Viewed in this light, the record reveals that Royter was employed as a salesperson at a Wolf Camera store located on Jimmy Carter Boulevard. Smith was the store manager, and Wayne served as the store’s district manager. Beginning in January 1994, the store began experiencing cash shortages, and Wayne decided to install a hidden camera above the cash register to monitor his sales staff. On May 13, 1994, Wayne, with Smith present, approached Royter with videotaped footage of May 9, 1994, and May 10, 1994. Wayne informed Royter that these videotapes contained footage of him taking money from the cash register at approximately 10:42 a.m. and putting it in his pocket.

Wayne then called the police to report the alleged theft. Officer Timothy Thompson responded to the call. When Officer Thompson arrived at the store, Wayne informed him that shortages had been occurring since January, and he showed Officer Thompson part of the May 10 videotape in which Royter could be seen removing cash from the register. Wayne and Smith then asked Officer Thompson to take out a warrant on Royter. Based on the information that he was given along with what he had seen on the May 10 videotape, Officer Thompson arrested Royter.

Royter denied Wayne’s charges of theft to Officer Thompson. Royter also testified that he consistently denied the charges to Wayne and Smith as well; however, both Wayne and Smith testified that Royter confessed his guilt separately to each of them. Interestingly, neither Wayne nor Smith ever reported these confessions to the police.

Subsequent to Royter’s arrest, Wayne discovered that Royter had logged in a “paid out” slip at 5:00 p.m. on the date that he was accused of stealing. This slip showed that Royter had used store money to purchase supplies. Wayne did not come forward with this information, and neither did Smith, although Smith, as Royter’s direct supervisor, had personally signed the paid out slip. Wayne testified that, prior to Royter’s arrest, he made no attempt to determine whether there had been a paid out slip which would support the legitimacy of Royter’s removal of cash from the register. In addition, the state solicitor-general’s file indicates that Wayne agreed to provide copies of data sheets tracking use of the register and Smith stated that he could “back up shortages and documentation.” Wayne and Smith never did so. Ultimately, the paid out slip was not produced by defendants until the second day of Royter’s criminal trial, after they had been ordered to do so by the trial judge.

Royter and Wayne were neighbors, and, when Royter applied for the position at Wolf Camera, he listed Wayne as one of his references. Smith testified that Royter, prior to his termination, discussed an incident involving Wayne’s wife with three other employees.

In addition to not bringing forth information concerning the paid out slip, Wayne did not come forward with information that shortages occurred prior to Royter’s termination on days when Royter was not working. He also failed to disclose that the shortages continued after Royter’s arrest. Furthermore, at trial, Wayne admitted that he could not tell from the videotape whether Royter had engaged in theft or a legitimate transaction, despite his contrary statements to Officer Thompson at the time of Royter’s arrest.

Wolf Camera and its representatives also seemed to have some trouble providing relevant evidence. In response to a subpoena, Wolf Camera ran two printouts from its computer regarding paid out transactions in the Jimmy Carter Boulevard store on May 10, 1994. The first printout involving cash paid out transactions showed that Royter registered a paid out on the day in question. The second printout regarded “in-store paid outs,” or paid outs used to requisition products already in the store, and it showed that no such in-store paid outs occurred. Only the second printout was provided to the solicitor, despite the fact that the first printout showed that a paid out had occurred on the date in question. And, despite corporate policy to the contrary, the detail tape for the register which Royter used was destroyed, and the closing checklist was discarded.

In addition to this information, Royter, during the malicious prosecution trial, pointed out numerous inaccuracies in Wayne’s testimony at an earlier hearing to determine whether Royter was entitled to unemployment compensation benefits. These inaccuracies include representations that, among other things, no paid outs had been posted and no shortages had occurred since Royter’s termination.

This evidence presented created a proper issue for the jury regarding Royter’s malicious prosecution pursuant to OCGA § 51-7-40, contrary to the defendants’ contentions that: (a) they could not be considered prosecutors; (b) probable cause existed for the initial arrest; and (c) no showing of malice was made.

(a) Defendants contend that only the solicitor could be considered a prosecutor in this case because they made no efforts to try Royter. The record, however, contains evidence contrary to this assertion.

First, Officer Thompson testified that Wayne and Smith asked him to arrest Royter. Second, despite their discovery of exculpatory evidence, the defendants kept this evidence to themselves. And, third, although the defendants may not have constantly pushed the prosecution forward, they refused to drop the charges despite the exculpatory evidence held by them. In addition, contrary to Smith’s arguments, the evidence could support a determination that the defendants acted in concert to further the prosecution against Royter. There was some evidence that all three defendants withheld information favorable to Royter, and, based on this fact, the jury could have determined that the defendants conspired to ensure Royter’s conviction. Branson v. Donaldson,

The defendants further maintain that that they cannot be considered prosecutors in this case because Officer Thompson conducted an independent investigation prior to the arrest of Royter.

The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for malicious prosecution; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable. A distinction must be taken between actually instigating or procuring the institution of criminal proceedings and merely laying information before a law enforcement official without in any way attempting to influence his judgment. A person may be liable where he gave information to the investigating officer which he knew to be false and so. unduly influenced the authorities.

(Citations and punctuation omitted.) Willis v. Brassell.

The defendants argue that Royter’s arrest was the product of Officer Thompson’s individual judgment, not any actions or statements by the defendants. The record belies this argument. When asked whether he conducted an independent investigation, Officer Thompson testified: “No, Sir. Other than what statements I had received from the complainant and what I actually saw on the video, I determined that there was probable cause, that I felt probable cause for arrest.”

(b) The defendants contend that Royter’s arrest was supported by probable cause and, as such, no action for malicious prosecution was viable.

OCGA § 51-7-43 provides: “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall, be a question for the jury, under the direction of the court.”

As an initial matter, the defendants argue that, because Royter’s motion for directed verdict was denied at his prior criminal trial, Royter could not show at the subsequent civil trial that no probable cause existed for his arrest.

“[O]ne of the essential elements of an action for malicious prosecution, the lack of probable cause (see OCGA § 51-7-40), cannot be established as a matter of law if in the preceding criminal action the court denied the claimant’s motion for directed verdict of acquittal and that ruling stands unreversed and untainted by fraud or corruption”

(Emphasis supplied.) Wingster v. Huntley’s Jiffy Stores.

Here, although the trial court in Royter’s criminal trial denied his motion for directed verdict, there was evidence in the malicious prosecution trial which could support the jury’s determination that such denial was obtained through fraud committed by the defendants. As discussed above, there was evidence which could support a determination by the jury that the defendants acted in unison to frame Royter and conceal exculpatory evidence. And, because the trial court’s denial of Royter’s motion for directed verdict was based on evidence which the jury found to be disingenuous, it cannot be said that it was procured in the absence of fraud or deceit.

Thus, unless the facts regarding probable cause are undisputed, it is a question for the jury. The facts were decidedly in dispute, leaving to the jury the task of determining if the circumstances were such so as to create an honest and reasonable belief in [defendants’] mind[s] that there was probable cause for the prosecution. Probable cause can be found only after reasonable and proper inquiry. It cannot exist if [defendants] knew that the facts stated to the law enforcement official were false or if [they] failed to make a fair, full, and complete statement of the facts as they existed, or if [they] concealed facts. The [defendants’] belief then could not possibly be “honest” or “reasonable.”

(Citations and punctuation omitted.) Willis, supra at 353 (4).

(c) Finally, defendants argue that Royter failed to show that they acted with malice.

OCGA § 51-7-44 provides: “A total lack of probable cause is a circumstance from which malice may be inferred; however, the inference may be rebutted by proof.” In this case, the defendants argue that two main pieces of evidence supported a finding of probable cause to arrest Royter: his admissions to Wayne and Smith and the videotape. From the evidence placed before it, however, the jury in the malicious prosecution case could have determined that neither piece of evidence supported a finding of even partial probable cause.

With regard to Royter’s alleged admissions, Royter denied that he ever admitted anything to Wayne and Smith, and it is clear that the jury believed him and concluded that Wayne and Smith lied. Based on this determination of credibility, the jury could conclude that the alleged confessions did not occur and, as such, provided no probable cause.

In conjunction with this finding, the jury also had some evidence from which it could determine that the videotape provided as evidence of Royter’s theft was offered in furtherance of a conspiracy to have Royter arrested. At trial, Wayne admitted that, based on the videotape, it could not be determined whether Royter was taking money or committing a valid transaction. Combined with the jury’s finding that Wayne and Smith lied about Royter’s confession, the jury could determine that the videotape, which was admittedly ambiguous, was merely one part of defendants’ scheme, which, in and of itself, provided no probable cause.

2. Defendants contend that the trial court erred by charging the jury on the issue of punitive damages separate and apart from the malicious prosecution charge, contending that the charges were duplicative and resulted in double recovery.

The record shows that, although defendants objected to charging the jury on punitive damages, they, in fact, submitted written requests to charge the jury on that very issue. And, the court granted some of these requests in its charge on punitive damages. Defendants have, therefore, waived their right to take issue with the trial court’s charge on appeal. As a general matter, a defendant cannot complain of a decision to which his conduct contributed. Hawkins v. State

3. Defendants contend, in the alternative, that, even if the trial court properly instructed the jury on punitive damages, the jury’s award must nonetheless be overturned based on Roberts v. Lane.

In Roberts, a husband and wife were found liable for defamation on a joint and several basis. On appeal, this court found that, although the evidence supported a finding against the husband, it did not support a finding against the wife, and we reversed the judgment against her. Because of this reversal, we went on to hold:

“(t)he effect of” reversing the judgment against Mrs. Roberts “is to impose attorney fees and to assess punitive damages that the jury may have based, in whole or in part, upon the acts or intentions of” Mrs. Roberts. The jury might not have awarded the total amount of attorney fees or the sum of $10,000 for punitive damages if they were considering Mr. Roberts’ liability alone. He is entitled to a new trial with regard only to these damages.

(Emphasis omitted.) Id. at 13 (3).

Roberts has no relevance here. In this case, we find that the evidence did support the finding of malicious prosecution against all three defendants. Therefore, the award of punitive damages remains binding against all three.,

4. Finally, defendants contend that the trial court erred by allowing Royter to introduce testimony regarding an incident involving Wayne’s wife. During trial, testimony revealed that, prior to his termination, Royter talked to some of his fellow employees about certain incidents involving Wayne’s wife when Wayne was not at home. After a number of questions had been posed to Royter regarding this subject, defendants finally made a motion to strike, arguing that the evidence was not relevant.

In general, the admission of evidence is a matter within the sound discretion of the trial judge. Moreover, Georgia law favors the admission of any relevant evidence, no matter how slight its probative value may be, and, on the balance, evidence of even doubtfiil relevance should be admitted. Baker v. State.

In this case, the evidence certainly had some relevance, as it provided a possible motive for Royter’s dismissal. To the extent that this evidence was tenuous, defendants had the right to point that out to the jury. Defendants did not, however, have the right to keep this information from the jurors altogether.

Case Nos. A01A2075, A01A2076, andA01A2077

In his cross-appeal, Royter contends that the trial court erred by denying his motion for prejudgment interest. We cannot agree.

The record shows that Royter, prior to trial, mailed separate demand letters to Wayne and Wolf Camera requesting a payment of $300,000 within 30 days in order to invoke the notice provisions of OCGA § 51-12-14.

The Unliquidated Damages Interest Act establishes specific procedures for the recovery of prejudgment interest. OCGA § 51-12-14. As the statute is in derogation of the common law, it must be strictly construed. Claimants who give the requisite statutory written notice and demand can recoup prejudgment interest “on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” OCGA § 51-12-14 (a).

(Citation omitted.) Kuhl v. Shepard.

As an initial matter,

[a]lthough the law in this state encourages the resolution in one action of all claims arising from a single occurrence or transaction, each letter sent by [Royter] offered to settle [his] claims by covenant not to sue in favor of the letter’s recipient, thus terminating the action as to that particular party. It is apparent from the demand letters that if any recipient had paid the sum demanded in the letter it received, that payment would not have ended the entire litigation, which would have continued against the other defendants until the total of the sums demanded from all was paid. Thus, the aggregate sum claimed by [Royter] from all the defendants — the “sum claimed” — in this case was [$600,000] rather than $300,000 as urged by [Royter].

Decided January 14, 2002.

Cobb, Grabbe, Spillers & Irwin, R. Chris Irwin, for appellants.

David P. Smith, for appellee.

(Citations and punctuation omitted.) Bullman v. Tenneco Oil Co.

Further, although [Royter] correctly notes that the judgment against [defendants] was joint and several, thus entitling [him] to collect the entire amount from either party, should [Royter] in fact satisfy [his] judgment completely by collecting it from one [of the defendants], [he] would then be entitled to collect nothing from the other. Since the party paying the full judgment under those circumstances would then be entitled to pro rata contribution from the other judgment debtors, in the instant case each [defendant] ultimately is liable only for a pro rata share of the [$580,000].

(Citation and emphasis omitted.) Bullman, supra at 410. Accordingly, the trial court did not err in denying Royter’s motion for prejudgment interest in this case.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

       The jury awarded $380,000 in compensatory damages and $200,000 in punitive damages.

        Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 213 (489 SE2d 329) (1997).

       Wayne informed Officer Thompson that during this period of time the store had lost $1,470.

       OCGA § 51-7-40 provides: “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.”

        Branson v. Donaldson, 206 Ga. App. 723, 726 (3) (426 SE2d 218) (1992).

        Willis v. Brassell, 220 Ga. App. 348, 350-351 (1) (a) (469 SE2d 733) (1996).

        Wingster v. Huntley’s Jiffy Stores, 200 Ga. App. 252 (407 SE2d 481) (1991).

        Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990).

        Roberts v. Lane, 210 Ga. App. 10 (435 SE2d 227) (1993).

       Defendants previously filed a motion in limine to exclude such evidence in its entirety because it was speculative in nature.

        Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980).

       No letter was conveyed to Smith.

        Kuhl v. Shepard, 226 Ga. App. 439, 440 (487 SE2d 68) (1997).

        Bullman v. Tenneco Oil Co., 197 Ga. App. 408, 409-410 (398 SE2d 311) (1990).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A2301.
    THORPE v. THE STATE.
    (558 SE2d 804)
   Ellington, Judge.

Kenny Tobias Thorpe pled guilty to conspiracy to commit a crime, OCGA § 16-4-8. He appeals the trial court’s order denying his motion for an out-of-time appeal, contending his trial counsel failed to inform him of his right to appeal. Thorpe raises additional arguments regarding the voluntariness of his plea, the denial of his motion to withdraw his guilty plea, and his sentence. For the following reasons, we reverse as to the denial of an out-of-time appeal and remand to the trial court for a hearing.

In seeking an out-of-time appeal, Thorpe argued, inter alia, that his trial counsel rendered ineffective assistance by failing to inform him of his right to appeal. In denying his motion, the trial court stated, “[s]ince there is no right to appeal a guilty plea, there is no requirement that an accused who pleads guilty be advised of that non-existent right.” The trial court overstated the limitations on the right to appeal after judgment is entered on a guilty plea. A criminal defendant may pursue a direct appeal from a judgment of conviction and sentence entered on a guilty plea if “the issue on appeal can be resolved by facts appearing in the record,” including the transcript of his guilty plea hearing. (Citations and punctuation omitted.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). “An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. It is the remedy for a frustrated right of appeal.” (Citations and punctuation omitted.) Id. Where a defendant’s judgment of conviction and sentence were entered after he pled guilty, the defendant bears the burden in moving for an out-of-time appeal of showing “he actually had a right to file a timely direct appeal which was frustrated by the ineffective assistance of his counsel.” (Emphasis in original.) Id.

In his motion seeking an out-of-time appeal, Thorpe carried his burden of identifying at least one appellate issue which could be resolved by facts appearing in the record, including the transcript of his guilty plea hearing. Specifically, Thorpe argued the trial court erred when it failed to inform him that he could withdraw his guilty plea as a matter of right after the court stated its intention to reject the plea agreement and before it pronounced judgment and sentence. Because Thorpe was entitled to file a direct appeal from the judgment entered on his guilty plea and enumerate any alleged errors which could be resolved by facts appearing in the record, his trial counsel should have informed him of that right. Smith v. State, 266 Ga. at 687.

Thorpe contends, however, that his trial counsel never informed him of his right to file a limited direct appeal.

Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal.

(Citations, punctuation and emphasis omitted.) Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001). If Thorpe was not responsible for his failure to file a timely notice of appeal, the trial court should have granted his motion for an out-of-time appeal. Id. We find the trial court abused its discretion by failing to make a factual inquiry into whether Thorpe’s counsel informed the defendant of his appeal rights and whether the defendaiit voluntarily waived those appeal rights. We therefore reverse the denial of Thorpe’s motion for an out-of-time appeal and remand for a hearing on this issue. Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994).

Judgment reversed as to the denial of the motion for an out-of-time appeal and case remanded with direction.

Johnson, P. J., and Ruffin, J., concur.

Decided January 14, 2002.

Kenny T. Thorpe, pro se.

Stephen D. Kelley, District Attorney, Gregory C. Perry, Assistant District Attorney, for appellee.

       For Thorpe’s benefit as a pro se litigant, we note that his enumeration of error regarding the alleged ineffective assistance rendered by his trial counsel (in matters other than failing to advise him of his right to appeal) cannot he resolved with reference to facts appearing in the record. Accordingly, such arguments cannot be addressed in a direct appeal from the judgment entered on his guilty plea. Stewart v. State, 268 Ga. 886, 887 (494 SE2d 665) (1998). The appropriate vehicle for developing the required factual record was via a motion to withdraw his guilty plea. Umbehaum v. State, 251 Ga. App. 471, 474 (5) (554 SE2d 608) (2001); Obi v. State, 229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997). See Farist v. State, 249 Ga. App. 320 (1) (547 SE2d 618) (2001) (after entry of judgment on a guilty plea, a motion for new trial will not he as there was no trial). The right to counsel continues through a timely motion to withdraw a guilty plea, and an appeal would lie from the denial of that motion.
        Fortson v. State, 272 Ga. 457, 459-460 (1) (532 SE2d 102) (2000); Umbehaum v. State, 251 Ga. App. at 474 (5). The trial court’s jurisdiction to hear such a motion, however, expired at the end of the term of court in which judgment was entered on the plea. Henry v. State, 269 Ga. 851, 853 (2) (507 SE2d 419) (1998); Farist v. State, 249 Ga. App. at 320 (1). Thorpe’s only remaining remedy for his ineffective assistance of counsel claims (and other issues which cannot be resolved with reference to facts already in the record) is via a petition for a writ of habeas corpus. Umbehaum v. State, 251 Ga. App. at 474 (5); Farist v. State, 249 Ga. App. at 320 (1).


author: Phipps, Judge.

text:
    A01A2483.
    In the Interest of D. J., a child.
    (558 SE2d 806)
   Phipps, Judge.

D. J. was found delinquent in the Juvenile Court of Spalding County for committing theft by receiving stolen property. D. J. argues that the evidence was insufficient to establish that he exercised control over the property. We agree and reverse.

Bonnie Shockley testified that a man, later identified as Mickey Miller, came to her workplace in Griffin and took her van to wash and “detail.” When Miller failed to return the van, Shockley called the police. The next morning, several police officers stopped the van on a street in Griffin. S. A., who was D. J.’s juvenile co-defendant, was in the driver’s seat; Phillip Prater, an adult, was in the front passenger seat; and D. J. was in the backseat.

S. A. told Sergeant James Landham that D. J. and Prater had driven the van to his residence earlier that morning to pick him up. S. A. said that D. J. had been driving the van initially, but S. A. began driving later. Landham testified that D. J. and Prater also talked to the police, but neither said that D, J. had ever driven the van. Landham admitted that S. A.’s testimony was the only evidence that D. J. had driven the van.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains property that he knows or should know was stolen. “ ‘Receiving' means acquiring possession or control ... of the property.” Mere proximity to stolen property does not establish possession or control. Thus, “riding in a stolen van or automobile as a passenger does not support a conviction for theft by receiving unless the accused also, at some point, acquires possession of or controls the vehicle. . . .”

D. J. contends that the State failed to show that he ever possessed or controlled the van. He argues that S. A.’s statement that he drove the van was insufficient to establish his guilt. We agree.

Decided January 14, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, Ryan M. Reid, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

The testimony of an accomplice cannot, by itself, establish the guilt of the accused in a felony case. Although only slight independent evidence is necessary to corroborate the accomplice’s testimony, that evidence must tend to establish that the accused participated in the crime. Corroboration of other aspects of the accomplice’s testimony is meaningless if that corroboration does not link the accused with the offense.

In this case, the State sought to satisfy the “possession” element of theft by receiving stolen property by showing that D. J. drove the van after it had been stolen. But as Landham conceded, there was no evidence apart from S. A.’s testimony that D. J. ever drove the van. All other evidence in the case indicates that D. J. was simply a passenger. While other aspects of S. A.’s statement may have been corroborated by other evidence in the record, there was no corroboration of the portion of his statement placing D. J. behind the wheel of the van. Without corroboration of that critical fact, D. J.’s adjudication as delinquent for theft by receiving stolen property cannot stand.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 16-8-7 (a).

       Id.

        In the Interest of C. W., 226 Ga. App. 30, 31 (485 SE2d 561) (1997).

       (Citations omitted.) Id.; see also Harris v. State, 247 Ga. App. 41 (543 SE2d 75) (2000).

       See OCGA § 24-4-8; In the Interest of J. B., 223 Ga. App. 429, 430 (1) (477 SE2d 874) (1996).

        Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

        Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996); West v. State, 232 Ga. 861, 865 (2) (209 SE2d 195) (1974); Ledford v. State, 162 Ga. App. 221, 223 (291 SE2d 82) (1982).

        West, supra.

       Cf. Harris, supra at 43 (evidence that defendant was a passenger in stolen car did not constitute evidence that defendant exercised possession or control of the car).


author: Eldridge, Judge.

text:
    A02A0481.
    VILLEGAS v. THE STATE.
    (558 SE2d 808)
   Eldridge, Judge.

A Cherokee County jury found Jose Villegas guilty of trafficking in cocaine. Without challenging the sufficiency of the evidence against him, Villegas appeals and contends that a post-arrest photograph improperly impacted on his entrapment defense and that the trial court’s charge to the jury on entrapment was improper. Because Villegas’ contentions are meritless, we affirm.

1. Villegas, along with his two co-defendants, was photographed on the scene at the time of arrest. The State introduced all three photographs in order to demonstrate the defendants’ appearance at the time of arrest and to clarify the arresting officer’s testimony distinguishing between the defendants. Villegas objected to the introduction of his photograph, claiming “this picture improperly places the Defendant’s character into evidence. He’s obviously under arrest, and it adds nothing to the case.” Before this Court, however, Villegas contends that, even if the photograph was relevant to an issue in the case, it prejudiced his entrapment defense by making him “look to the jury like an individual who is predisposed to commit the crime in question.”

In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. “The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting.” Villegas’ allegation about the photograph’s impact on his entrapment defense was not raised at trial and thus is waived.

2. Appellant complains about that portion of the trial court’s charge wherein the jury was instructed, “if the conduct of the officer is such as not to induce an innocent person to commit a crime but to secure evidence upon which a guilty person can be brought to justice there is no entrapment.”

The trial court asked for exceptions at the conclusion of the charge. Villegas’ attorney disclaimed any objection except the specific objections “noted so far” and did not reserve his right to assert additional objections on motion for new trial or on appeal. A review of Villegas’ specific objections show that he did not object to the entrapment charge on the basis now claimed. “[D]efense counsel may object to such portions of jury instructions as are perceived at trial to be error and may also reserve the right to raise additional objections on motion for new trial or on appeal.” In order to avoid waiver, if the trial court asks if there are objections to the charge, counsel must state his objections and/or follow the procedure of reserving the right to object on motion for new trial or on appeal. Villegas’ failure to reserve the right to raise additional objections to the jury charge waives the instant claim of error.

Decided January 14, 2002.

Peter R. Hill, for appellant.

Garry T. Moss, District Attorney, Allen D. Morris, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       (Citation and punctuation omitted.) Clark v. State, 248 Ga. App. 88, 91 (3) (545 SE2d 637) (2001).

       We note, however, that the photographs were relevant to the officer’s testimony and reflected how the defendants looked at the time of arrest. The photograph at issue did not implicate Villegas in any other crime and did not rise to the level of “general bad character” evidence so as to require reversal pursuant to OCGA § 24-9-20 (b). Bullard v. State, 242 Ga. App. 843, 847 (5) (530 SE2d 265) (2000).

        McCoy v. State, 262 Ga. 699, 701 (2) (425 SE2d 646) (1993).

       Id.; Jackson a State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

       Notwithstanding, the complained-of charge is a correct statement of the law where, as here, the jury instruction as a whole adequately informed the jury of the elements of an entrapment defense. Keaton v. State, 253 Ga. 70, 71, n. 1 (316 SE2d 452) (1984); Leverette v. State, 188 Ga. App. 866, 868 (3) (374 SE2d 803) (1988). Compare Pless v. State, 187 Ga. App. 772 (1) (371 SE2d 406) (1988).


text:
    A02A0578.
    WALLACE v. LEWIS.
    (558 SE2d 810)
   Eldridge, Judge.

In 1997, appellant-defendant Steve Wallace purchased property in north Atlanta, razed the existent dwelling thereon, and built a new home into which he later moved his wife and family. As the work progressed, next-door neighbor appellee-plaintiff Sue Lewis complained to Wallace that run-off water was being diverted onto her property. However, these complaints were to no avail, and, on November 14, 2000, Lewis filed the instant unverified complaint and petition for damages and injunctive relief. Lewis averred, among other things, that “[flor more than two years, Wallace realized the impact of his actions and made no effort to remedy the problem,” and that Wallace’s actions were in the nature of a private nuisance, pertinently praying for damages and an interlocutory injunction. Wallace filed an untimely answer to the complaint that was not verified, and default occurred on December 6, 2000. Lewis and Wallace thereafter filed motions for default judgment and to open default, respectively, and, on May 22, 2001, approximately three weeks after its hearing on the motions, the superior court granted default judgment to Lewis, ruled that run-off from Wallace’s property constituted a private nuisance, ordered the nuisance abated upon means to be determined at a later damages hearing, and ordered an interlocutory injunction restraining and enjoining Wallace from any additional property modifications which would disturb the status quo until such hearing. Wallace appeals the injunction entered against him as granted without giving him notice or an opportunity to be heard contrary to OCGA § 9-11-65 (a). Finding this claim of error to be without merit, we affirm. Held:

Wallace correctly points to OCGA § 9-11-65 (a) as requiring notice to the adverse party and a hearing on disputed issues of fact before an interlocutory injunction may issue. Williams v. Tritt, 262 Ga. 173, 174-175 (2) (415 SE2d 285) (1992). However, as an equity action in default and valid on its face, the instant case is not one in which there are disputed issues of fact.

While in a civil action, not in equity, where the case is in default, the plaintiff is entitled to a default judgment as a matter of law without the introduction of any evidence except as to unliquidated damages, yet in equity cases which involve harsher remedies a determination must be first made that, admitting every allegation ... as true, the plaintiff is entitled to the relief sought. This presents a question of law for the court. . . . Once such a determination has been made that, accepting the allegations of the plaintiff’s claim as true, he is entitled to a decree, then such decree must be entered.

Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 676 (2) (177 SE2d 64) (1970).

Lewis averred multiple actions on Wallace’s part causing water to be diverted unnaturally from his property to hers, i.e., the demolition of a pre-existent home, the construction of a new home, extensive attendant landscaping, and a new drainage system directing run-off from front and back driveways and a 10,000-square-foot roof to her property. Lewis further averred that, from the inception of his activities, she continuously complained to Wallace and that, for more than two years, Wallace made no effort to ameliorate the drainage problem. These allegations of Lewis’ claim, taken as true, were sufficient to authorize Lewis the relief she sought. Times-Journal, Inc. v. Jonquil Broadcasting Co., supra; see Tyler v. Lincoln, 272 Ga. 118, 121 (1) (527 SE2d 180) (2000) (failure to take appropriate steps to control the flow of surface water from one’s property to that of another, despite repeated requests that the problem be corrected, may constitute a continuing nuisance); see also Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga. 392, 398 (1) (65 SE 855) (1909) (“ ‘An essential fact to be averred and proved when an abatement of a nuisance is sought is that the annoyance and loss complained of will be continuous or recurrent, for the occurrences of nuisances, if temporary and occasional only, are not grounds for interference by injunction except in extreme cases.’ [Cit.]”).

Decided January 14, 2002.

Constangy, Brooks & Smith, Robert D. Ware, Ashlee J. Mann, for appellant.

Powell, Goldstein, Frazer & Murphy, John W. Harbin, Simon H. Bloom, for appellee.

The superior court, as a matter of law, having properly determined that the waters draining upon Lewis’ property constituted a nuisance upon Wallace’s default, the interlocutory injunction which Lewis sought was required in balancing the equities between the parties. Times-Journal, Inc. v. Jonquil Broadcasting Co., supra. Under these circumstances, the requirements for notice and a hearing under OCGA § 9-11-65 (a) (1) as prerequisites to the grant of an interlocutory injunction are not controlling because by default the defendant is deemed to have caused the harm which he is not allowed to deny. See Cooper v. Brock, 77 Ga. App. 152, 156 (1) (48 SE2d 156) (1948) (defendant in default estopped from contesting the merits). Further, the interlocutory injunction here in issue did no more than preserve the status quo by prohibiting further construction. See Price v. Empire Land Co., 218 Ga. 80, 85 (126 SE2d 626) (1962) (interlocutory injunction a remedy to prevent a party from leaving another damaged without adequate remedy while their respective rights are under adjudication). Trial courts enjoy broad discretion in determining whether a request for interlocutory injunction should be granted or denied. OCGA § 9-5-8; Avnet, Inc. v. Wyle Laboratories, 263 Ga. 615, 617 (1) (437 SE2d 302) (1993). Appellate courts are not at liberty to disturb such a ruling on appeal in the absence of a manifest abuse of discretion or for lack of any supporting evidence. Kennedy v. W. M. Sheppard Lumber Co., 261 Ga. 145, 146 (1) (401 SE2d 515) (1991). Because the grant of the interlocutory injunction in this case is legally required, we affirm.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       Wallace filed his appeal in the Supreme Court of Georgia which subsequently transferred the case to this Court as presenting an issue of law, i.e., whether appellant’s actions constituted a nuisance, rather than a claim in equity. Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999); Douglas v. Wages, 271 Ga. 616 (523 SE2d 330) (1999).


text:
    A02A0590.
    LOVAIN v. THE STATE.
    (558 SE2d 812)
   Eldridge, Judge.

A Whitfield County jury found Randy Blake Lovain guilty of attempted “Violation of the Georgia Controlled Substances Act, in violation of OCGA § 16-13-30, [in that he] did perform an act to wit: purchasing a piece of a nut having the appearance of a crack cocaine rock from an undercover police officer.” Lovain appeals and, in his sole enumeration of error, contends that the trial court erred in sentencing him to ten years, serve four, balance probated. He claims that the indictment failed to specify that he was being charged with attempted possession of crack cocaine, a Schedule II drug, which offense carries a penalty of between two and fifteen years under OCGA § 16-13-30 (e). Lovain contends that, under the indictment, he might just as easily be guilty of attempted possession of a Schedule III, IV, or V drug under OCGA § 16-13-30 (g), which offense carries a maximum penalty of five years. He asserts that an accused is entitled to have the lesser of two penalties apply where any uncertainty exists as to which penal clause applies.

We agree with Lovain’s last assertion. It has long been the law that “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.” Clearly, however, this is not a case where there is s.uch uncertainty. The indictment charged Lovain with attempting to purchase a substance with the appearance of crack cocaine. The jury found him guilty of attempting to purchase such substance. Under any reading of the indictment, Lovain was trying to buy a rock of crack cocaine from an undercover officer.

Lovain’s exclusive reliance on our decision in Mallarino v. State is misplaced. The indictment in Mallarino failed to charge the defendant with an amount of cocaine greater than “28 grams or more” under OCGA § 16-13-31 (a) (1) (A); thus, the trial court was not authorized to impose a penalty for trafficking in an amount of cocaine in excess of 400 grams under OCGA § 16-13-31 (a) (1) (C). This case does not involve an “amount” of cocaine so as to impact on sentencing.

Any person who attempts or conspires to commit any offense defined in this article [OCGA § 16-13-1 et seq.] shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

Decided January 14, 2002.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Here, the indictment charged Lovain with a violation of our drug laws in that he attempted to purchase what looked like a rock of crack cocaine; the jury found Lovain violated our drug laws by attempting to purchase what looked like a rock of crack cocaine; and Lovain was sentenced within the parameters of the statute which specifies the penalties for the purchase of a rock of crack cocaine. There was no error.

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       (Punctuation omitted.) Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969).

       190 Ga. App. 398, 399 (1) (379 SE2d 210) (1989).

       OCGA § 16-13-33.

       OCGA § 16-13-30 (c).


text:
    A01A1797.
    BURK v. THE STATE.
    (558 SE2d 726)
   Ellington, Judge.

A Lumpkin County jury convicted Winston Raymond Burk of two counts of incest, OCGA § 16-6-22. Following the denial of his motion for new trial, Burk appeals, challenging the admission of his wife’s testimony that he possessed pornographic materials and contending he was denied the effective assistance of counsel. Finding no error, we affirm.

The indictment charged Burk with having sexual intercourse with his daughter on two occasions, once in April 1999 (when she was eighteen years old) and once in the preceding four years. In its brief, the State introduced evidence that one day in late April 1999 Burk asked his daughter to join him in the basement, suggested they could be friends if they had sex, and then had sexual intercourse with her. The victim also recounted numerous previous incidents of sexual intercourse with her father. Burk’s stepdaughter, as a similar transaction witness, testified that over a six-year period Burk had sexual intercourse with her and engaged in acts of sodomy with her. Burk presented a defense suggesting that his wife manipulated their mentally ill daughter into making the accusations against him to gain an upper hand in their pending divorce. In support of his defense, Burk showed that his daughter had a pattern of making sexual accusations against him and other men and quickly retracting the accusations. Burk also relied on evidence that a physical examination performed the day after the alleged April 1999 incident failed to reveal the presence of semen.

1. Burk contends the trial court abused its discretion in allowing the State to elicit testimony from his wife that he possessed pornographic magazines in that his possession of the materials was not linked to the specific acts alleged in the indictment, citing Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999). Since Simpson, physical “evidence of sexual paraphernalia found in the defendant’s possession is inadmissible in a prosecution for a sexual offense unless it can be linked to the crime charged.” State v. Tyson, 273 Ga. 690, 694 (4) (544 SE2d 444) (2001). Pretermitting whether Simpson prohibits oral testimony regarding a defendant’s possession of pornographic materials, as opposed to admission of the materials themselves, the victim and the similar transaction victim testified, without objection, that Burk showed them pornographic materials, thus linking the materials to Burk’s offense. Jowers v. State, 245 Ga. App. 773, 774 (2) (538 SE2d 853) (2000); cf. Frazier v. State, 241 Ga. App. 125, 126 (1) (524 SE2d 768) (1999). Burk’s wife’s testimony was merely cumulative of the victims’ testimony; therefore, any error in admitting the wife’s testimony was harmless. Bearden v. State, 241 Ga. App. 842, 844 (1) (528 SE2d 275) (2000).

2. Burk contends his trial counsel failed to afford him effective assistance in two areas: failing to perfect the record as to adverse evidentiary rulings and committing “tactical blunders.”

In order to establish ineffective assistance of counsel, [Burk] must show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.

(Punctuation and footnotes omitted.) Robertson v. State, 245 Ga. App. 649, 651-652 (2) (538 SE2d 755) (2000). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Further, each claim of inadequate representation must be examined independently of other claims, as Georgia does not recognize the cumulative error rule. Carl v. State, 234 Ga. App. 61, 65 (2) (g) (506 SE2d 207) (1998). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Jack v. State, 245 Ga. App. 216, 220 (6) (536 SE2d 235) (2000).

(a) Burk contends his trial counsel’s performance was deficient in that counsel repeatedly failed to perfect the record as to the substance of evidentiary objections, which the trial court required to be argued at the bench — out of the hearing of the court reporter. Burk fails to specify how any evidentiary ruling of the trial court resulted in the admission of improper evidence or the exclusion of proper evidence. Therefore, Burk has shown no harm from counsel’s alleged deficiencies. Bacon v. State, 249 Ga. App. 347, 350 (3) (548 SE2d 78) (2001); Jacobson v. State, 201 Ga. App. 749, 752-753 (5) (b) (412 SE2d 859) (1991).

Burk contends, however, that the trial court’s procedure on objections, and trial counsel’s failure to perfect the record, renders appellate review of trial counsel’s performance impossible and demands a presumption of harm. At the hearing on Burk’s motion for new trial, Burk’s trial counsel agreed that the trial court’s procedure on objections made his job harder but that he did his best to preserve objections. Trial counsel also testified that many times there was no need to perfect the record as to a particular objection because the prosecutor withdrew or rephrased the objectionable question. Further, our review of the testimony before and after Burk’s objections at trial reveals no obvious error. We will not presume harm under these circumstances. See Owens v. State, 269 Ga. 887, 888 (2) (a) (506 SE2d 860) (1998). The trial court’s determination that Burk received effective assistance of counsel was not clearly erroneous. Bacon, 249 Ga. App. at 350 (3).

(b) Burk contends trial counsel pursued an unsound defense strategy in three particulars: (1) by eliciting testimony that the victim accused Burk, while he was under indictment on these charges, of using a ladder to enter her bedroom window to have sexual intercourse with her; (2) by choosing not to question the victim about the appearance of Burk’s erect penis; and (3) by choosing not to call as a witness Burk’s other daughter. At the motion for new trial, trial counsel testified that he believed the victim’s description of the ladder incident was ludicrous on its face and would undermine her credibility. Trial counsel testified that evidence of Burk’s “penile dysfunction” would work against their efforts to focus on the victim’s mental illness and history of lying about being sexually assaulted and on the victim’s mother’s motives. Furthermore, asking the victim about the appearance of Burk’s penis was risky because they did not know if she could answer correctly. Finally, trial counsel testified that he decided not to call the other daughter as a witness because, given surprising testimony from a third daughter and the prosecuting attorney’s suggestion that she had grounds for impeachment, he believed the second daughter’s testimony might be detrimental. In this case, trial counsel’s explanation of his strategic choices provided sufficient evidence to support the trial court’s ultimate conclusion that Burk received constitutionally adequate representation at trial. Skillern v. State, 240 Ga. App. 34, 36-37 (3) (521 SE2d 844) (1999).

Decided December 11, 2001

Reconsideration denied January 15, 2002

Weaver & Weaver, George W. Weaver, Jeffrey L. Floyd, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


author: Barnes, Judge.

text:
    A01A1730. A01A1731.
    BROCK et al. v. WEDINCAMP et al. WEDINCAMP v. BROCK et al.
    (558 SE2d 836)
   Barnes, Judge.

We granted these interlocutory appeals to consider the trial judge’s partial grant of a motion in limine in this wrongful death case involving evidence regarding the 23-year-old decedent’s sex life and gynecological history. Because this evidence is inadmissible, we reverse the trial court’s order in Case No. A01A1730 and affirm in Case No. A01A1731.

The decedent and her three-year-old son were passengers in a car involved in a head-on collision. The decedent was killed instantly. The son, through his guardian ad litem, Lynn Brock, sued the drivers of both cars involved: Dana Wedincamp and Edward Smith. The plaintiff filed a motion in limine, seeking to exclude evidence that the decedent had two abortions, gave up two children for adoption, and missed work due to pregnancy, as well as evidence regarding her sex life in general, that her sexual practices could possibly have reduced her life expectancy, and that she had visitation disputes with her ex-husband.

The trial court struggled with this difficult issue, for which little appellate guidance was available. It denied the motion as to evidence that the decedent missed work because she was pregnant, holding that “whether or not she worked is relevant to the economic value of her life.”

The court granted the motion regarding the decedent’s abortions, adoptions, sex life, custody disputes, and possible reduced life expectancy due to her sexual practices. The trial court commented that if it allowed such evidence, it would arise in every wrongful death action. “Every married man who had a liaison on the side, when he died, the other side would want to come in and say how many women he’d gone to bed with outside of his marriage.” The court further held, however, that “should Plaintiff put in evidence that implies or states that Decedent was a good mother or a good person or liked or wanted to work with children, Plaintiff has opened the door for evidence of Decedent’s abortions after the birth of [her son] and of the adoptions.” The trial judge’s stated legal justifications were that (1) a jury could determine that a good mother or person would not become pregnant three times in three years after her son was born; and (2) this evidence may impeach evidence that the decedent was a good mother.

In Case No. A01A1730, the plaintiff appeals the trial court’s ruling that the defendants may introduce evidence of the decedent’s abortions and adoptions if plaintiff introduces evidence that decedent was a good mother, was a good person, or liked children. The plaintiff also appeals the trial judge’s ruling allowing evidence that the decedent missed work because she was pregnant. In Case No. A01A1731, Wedincamp appeals the trial court’s ruling making his ability to present this evidence contingent on the plaintiff’s introduction of certain evidence, arguing among other things, that “the value of a person’s life may be devalued by evidence that she is not highly intelligent,” which is demonstrated by the decedent’s unwanted pregnancies.

Clearly, none of this evidence is relevant to liability for the collision that caused the decedent’s death, so we examine whether it is admissible to prove damages. Our Code provides that the measure of damages in a wrongful death case is “the full value of the life of the decedent, as shown by the evidence.” OCGA § 51-4-2 (a). A review of the wrongful death statute’s history and case law will aid us in analyzing the meaning of “full value of life,” and determining what kind of evidence proves a life’s value.

At common law, a person’s suit for personal injuries did not survive his death. In 1846, the British Parliament passed Lord Campbell’s Act, providing that

Whenever the death of any person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured. . . .

(Punctuation omitted.) Thompson v. Watson, 186 Ga. 396, 397 (197 SE 774) (1938). In other words, the wrongdoer remained liable for damages even after the injured person died, as if the injured person had lived and brought suit on his own behalf.

The Georgia Legislature passed its first wrongful death act in 1850, essentially modeled after Lord Campbell’s Act, with the addition of language regarding who was entitled to the proceeds from such an action. Thompson v. Watson, supra, 186 Ga. at 397-398. As in the original British act, the Georgia legislation initially did not describe the measure of damages permitted under such an action. Subsequent statutes specifying that railroads can be liable for a wrongful death, describing the acts that give rise to such an action, and delineating who may prosecute the action followed, but the first statutory pronouncement regarding the measure of damages came in 1878, when the legislature specified that the plaintiff “may recover the full value of the life of the deceased, as shown by the evidence.” (Punctuation omitted.) Id. at 398.

This description of damages has remained the same ever since. Our current OCGA § 51-4-1 (1) defines “full value of the life of the decedent, as shown by the evidence,” as simply “the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.” Further definition has developed in 120 years of case law.

In the first opinion addressing Georgia’s first wrongful death statute, the Supreme Court made the following pronouncement regarding damages:

In any view of the question of damages, something is due, independent of income, for the loss of the care, protection and assistance of the husband and father. Indeed, there are so many elements entering into the account, that in whatever light we look at the subject, we became perplexed in the attempt to pursue it. There must be some latitude left to the soundness of the discretion of the jury, over the subject, as a question of fact. And the greatest, if not the only protection against the abuse of this discretion, must be found in the stern determination of the Courts, not to allow a verdict to stand, which bears the impress upon its face, of passion, partiality, or prejudice.

South-Western R. Co. v. Paulk, 24 Ga. 356, 369 (6) (1858).

For some time after Paulk, the cases did not discuss the element of “something due independent of income,” but instead discussed what sort of evidence is admissible to determine the loss of the decedent’s expected income. One probable reason for this is that the 1858 codification permitted a cause of action only for the death of a husband or father, not for a wife or mother or child. McDowell v. Ga. R., 60 Ga. 320 (1878); Womack v. Central R. & Banking Co., 80 Ga. 132 (5 SE 63) (1887). While a second wrongful death statute in 1856 allowed a child to sue a railroad for the death of either parent, Atlanta &c. R. Co. v. Venable, 65 Ga. 55 (1880), the 1863 codification that merged these two statutes only bestowed a cause of action on widows and children. Eldridge’s Ga. Wrongful Death Actions (3rd ed.), § 1-10, fn. 11. Not until 1887 did our Code allow a cause of action by a husband or child for the death of a wife or mother. Thompson v. Watson, supra, 186 Ga. at 398-399.

Therefore, because the early cases sought damages for the death of a husband or father, most plaintiffs could show some prospective income loss. The Supreme Court in 1868 concluded that the legislature intended to allow only this loss of support as the measure of damages. “Anything more than this, would set us adrift, without chart or compass. The real value of a life[ ] is incalculable, and its actual money-value is all that can be estimated.” Macon &c. R. Co. v. Johnson, 38 Ga. 409, 434 (3) (1868). Thus the jury was to consider “what would be a reasonable support for the wife, according to the circumstances in life of the husband, as they existed at his death, and as they may be reasonably supposed to exist in the future, in view of his character, habits, occupation, and prospects in life.” Id. at 434-435; Engle v. Finch, 165 Ga. 131, 133 (139 SE 868) (1927).

Five years after Engle, this court found no error in a detailed jury charge instructing the jury on estimating the decedent’s lost earnings:

In ascertaining the amount of damages to be allowed in this case, if you allow any, the jury are not restricted to any fixed rule in the mode of estimating the value of the life of the deceased. The age of the deceased, the health he enjoyed, the money he was making by his labor, his habits, his probable loss of employment, his voluntary abstaining from work, dullness in business, reduction of wages, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes which may contribute in greater or less degree to decreasing the gross earnings of a lifetime, may all be considered by the jury in determining the value of the life of the deceased. In estimating damages a proper allowance and deduction should be made in favor of the defendant for any diminution in income from labor which would have resulted, in your opinion, from any of those causes. In ascertaining the value of the life, you will consider the deceased’s age at the time of his death, the length of time he would probably have lived, the amount per annum which he was earning, as such amount may be developed from the evidence before you, and any other facts which will enable you to arrive fairly and impartially, acting under your consciences and your oaths as impartial jurors, at the value of that life.

Radcliffe v. Maddox, 45 Ga. App. 676, 685 (5) (165 SE 841) (1932).

A defendant could not show, however, that the family of a man who died while working on a chain gang was more prosperous after his death. Boswell v. Barnhart, 96 Ga. 521, 522 (23 SE 414) (1895). Instead, “[t]he age of a man, the health he enjoys, the money he is making by his labor, his habits, are data from which the jury may argue how long he will probably live and work, and what his life is worth to his wife in its pecuniary value.” Id. at 524 (4). The jury could consider a decedent’s previous earning capacity, expected increases and decreases in earnings, and “his apparent mentality, industry, and other qualities, as disclosed by the evidence.” City of Thomasville v. Jones, 17 Ga. App. 625, 627 (3) (87 SE 923) (1916). It could consider

the age of the deceased at the time of his death, his health, his habits, the amount of money he was earning, his expectation of life, the probable loss of employment, voluntary abstinence from work, dullness in business, . . . and other causes which may contribute to illustration of the gross earnings of a lifetime.

Pollard v. Boatwright, 57 Ga. App. 565, 568 (1) (196 SE 215) (1938).

But measuring wrongful death damages by estimating the decedent’s future lost income created a problem when the decedent was an infant, a young person who had not yet begun working, or a woman who did not work outside her home. If the jury considered only lost income, the value of these decedents’ lives would be nothing. In 1915, this court addressed that problem. We affirmed a $10,000 verdict when the husband testified that his late wife “did all the house-work, nursed his baby, cooked his food, and did the sewing for the household, and, in addition to all this, helped him in his store,” and that it would cost him $766 per year to replace these services. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 589-590, 600 (84 SE 69) (1915), overruled on other grounds, Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 178 (7) (355 SE2d 104) (1987). Additionally, the jury could consider

what the value of many services hardly capable of exact proof might be, measured in the light of their own observation and experience, notwithstanding such elements of loss as manual labor would be subject to estimation by witnesses. When the loss of a wife’s services, resulting from a personal injury to her, is to be compensated for, she is not to be treated as an ordinary servant or as a mere hireling. [Cits.] She sustains to her husband and his household a relation special and peculiar. Her place can not be supplied; no other is capable of filling it. Some wives perform manual labor — others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to compensation from wrong-doers for causing inability to perform service.

Id. at 599.

While the court in Standard Oil did not use the word “intangible,” it began to develop the idea that one’s life is worth more than just income loss. The intangible factors that “supplement the economic value to comprise the Tull value of the decedent’s life’ elude precise definition.” Miller v. Jenkins, 201 Ga. App. 825, 826 (1) (412 SE2d 555) (1991). More than 50 years after Standard Oil, in a case involving the wrongful death of a mother with no earnings record, we noted that “a mother performs services of a peculiar nature which can be performed by no other person and which are invaluable and incapable of exact proof.” City of Macon v. Smith, 117 Ga. App. 363, 374 (8) (160 SE2d 622) (1968). The value of her services can be determined from “the fact of the relationship and all the facts and circumstances of the family and their living conditions, and from the jurors’ own experience and knowledge of human affairs.” Id.

Incapable of exact proof as it might be, the idea that the full value of a life includes an “intangible” element is now firmly fixed in our case law. South Fulton Med. Center v. Poe, 224 Ga. App. 107, 112 (6) (480 SE2d 40) (1996) (“[T]he full value of the life of the decedent includes both the economic value of the deceased’s normal life expectancy and the intangible element incapable of exact proof, such as ‘a parent’s society, advice, example and counsel.’ ”).

It is clear, also, that under Georgia’s wrongful death statute, damages are measured from the decedent’s point of view. A child’s right to recover for his mother’s death “is a substitution of the [child] in [her] place for the purposes of recovering for the injury inflicted upon [her].” Atlantic &c. R. Co. v. McDilda, 125 Ga. 468, 471 (54 SE 140) (1906). See also Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 887 (15) (311 SE2d 193) (1983) (physical precedent only). In other words, the measure of damages is not a son’s loss from his mother’s absence, but the mother’s loss from not being able to raise her son. Further, the wrongful death statute is

a legislative imposition of a penalty upon the person who causes the death of another by negligence, the penalty to go to the person injured. It is penal in that the measure of the recovery is the full value of the life of the deceased, irrespective of its real value to the person in whom the cause of action is vested.

Engle v. Finch, supra, 165 Ga. at 134.

In this context we consider what portion of the contested evidence is admissible to show both the economic and intangible losses experienced from a 23-year-old mother’s point of view.

Case No. A01A1730

1. The plaintiff contends on appeal that the trial court erred in ruling that, if the plaintiff introduces evidence that the decedent was a good mother, was a good person, or liked children, the defendants may then introduce evidence that the decedent had one abortion and gave up two children for adoption after her son was born. The trial court also held that the defendants could not introduce evidence that the decedent had an abortion before her son was born.

We review a trial court’s ruling on the relevancy of evidence for abuse of discretion. Key v. Grant, 238 Ga. App. 818, 819 (2) (520 SE2d 277) (1999). “The existence of such an abuse may be measured by weighing the challenged evidence’s probative value against the risk that its admission misled the jury or created a substantial danger of unfair prejudice or confusion.” (Citation omitted.) Id. “No precise and universal test of the relevancy of testimony is furnished by the law. The question must be determined in each case according to the facts of that particular case and in accordance with the teachings of reason and judicial experience.” (Citation and punctuation omitted.) Shelnutt v. Phillips, 113 Ga. App. 321-322 (1) (147 SE2d 803) (1966).

The damages awarded in a wrongful death case, as discussed earlier, are measured from the decedent’s perspective. We have affirmed a trial court’s refusal to allow evidence that a decedent had filed for divorce against the plaintiff, “as this evidence could in no way reduce the measure of damages, nor the damages recoverable, as the husband and child are entitled under the statute to recover the full value of the life of the deceased wife and mother; nor was this evidence admissible to disprove” her companionship, love, and affection for her family. Wright v. Dilbeck, 122 Ga. App. 214, 216 (2) (176 SE2d 715) (1970); see also Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 486 (3) (533 SE2d 420) (2000) (while evidence of three-month separation admissible to rebut opening statement that decedent and husband “had been together since 1963,” evidence of reason for separation inadmissible).

We also reversed a defense verdict in a wrongful death case because of the admission of irrelevant evidence of a relative’s crime, holding that “[w]hile the range of proof in determining the full value of a deceased’s life is broad, we find no reasonable basis for holding that a decedent’s father’s and brother’s criminal records are relevant to any aspect of such a valuation.” Key v. Grant, supra, 238 Ga. App. at 819 (2). On the other hand, evidence of the decedent’s practice of stepping out in front of cars while intoxicated, which was how she died, was relevant to a determination of her life expectancy as well as to the issue of contributory negligence. Stripling v. Godfrey, 143 Ga. App. 742, 743 (2) (240 SE2d 145) (1977) (physical precedent only).

In this case, the evidence Wedincamp seeks to admit is particularly inflammatory. “[I]rrelevant matters which improperly tend to reflect adversely on the victim’s character, which destroy a juror’s impartiality, or which only excite the passions of the jurors should not be admitted.” Cook v. State, 232 Ga. App. 796, 797 (1) (503 SE2d 40) (1998). In Cook, we affirmed the trial court’s exclusion of evidence about the rape victim’s proposed abortion, noting that the defendant acknowledged that this issue “is extremely emotional and divisive, and persons with divergent views often become heated over this subject.” (Punctuation omitted.) Id. The state agreed that “abortion is one of the most inflammatory issues of our time,” and we concluded that “evidence of the abortion only injected an improper element of emotionalism.” (Citation and punctuation omitted.) Id.

Further, even if evidence of the decedent’s abortions and adoptions and sex life were somehow relevant, courts must consider whether “its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” (Citation and punctuation omitted.) Metro. Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (1) (304 SE2d 74) (1983). In this case, we find no abuse of discretion in the trial court’s decision to exclude the evidence to which the plaintiff objects, because it would create such a danger.

We are hesitant to give an advisory opinion on what evidence might be admissible to rebut other evidence after a party allegedly opens the door. Nevertheless, we find that it would be an abuse of the trial court’s discretion if it allowed Wedincamp to present evidence of the decedent’s abortions, adoptions, or sex life merely because the plaintiff presented some evidence that the decedent “was a good mother, or a good person, or liked or wanted to work with children.” Such a decision assumes that this evidence would be inconsistent with being a good mother, a good person, or one who liked or wanted to work with children, and nothing has shown this to be true. In the abstract, we cannot say that evidence of abortions, adoptions, or her sex life would rebut evidence that the decedent was a good person and a good mother to her child. Therefore, absent some proof supporting the trial court’s assumption as well as a clear indication that the probative value of the evidence exceeds its prejudicial impact, we find that admitting this evidence in rebuttal on the basis suggested by the trial court would be an abuse of discretion.

Further, “ [witnesses cannot be impeached by showing their lack of chastity where this bears no relevance to the case.” Smith v. State, 235 Ga. 327, 328 (2) (a) (219 SE2d 440) (1975). The jury must consider the loss to the decedent of her opportunity to raise her son, not the loss to her son of his mother. Viewed properly from that perspective, evidence that the decedent had one abortion before the birth of her son and one abortion and two full-term pregnancies after his birth is not relevant to show the decedent’s loss to herself of her opportunity to be a parent to the son who survived her.

OCGA § 24-2-2 provides that “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” As the trial court noted, the defendants in this case would like to mark the decedent with a scarlet letter. The defendants want to unfairly devalue the decedent’s life to the jury by focusing on her sex life and sex partners, evidence that is irrelevant to the value of her life to herself. This course of action cannot be condoned.

2. The plaintiff also contends that the trial court erred in denying her motion in limine regarding evidence that the decedent missed work because she was pregnant. The trial court held, “Defendant may show that the reason Decedent was not working from time to time was because of her various pregnancies; the legal justification to allow this information to the jury is the fact she was or was not working is relevant to the economic value of her life.”

The plaintiff offered to stipulate that the decedent missed periods of work, but contends that the prejudicial effect of the decedent being pregnant out of wedlock outweighs any probative value gained by telling the jury why she missed work. The defendants respond that if the jury does not know why the decedent missed work, they cannot argue that she might have experienced similar income and job losses in the future and that the jury may properly consider voluntary abstinence from work.

The language concerning “voluntary abstinence” arises in numerous cases regarding jury charges about calculating lost income due either to death or disability. For example, in 1946 this court approved the following charge in a wrongful death case:

In arriving at the gross sum the deceased would have earned to the end of his life had he not been killed, the jury should consider the age of the deceased at the time of his death, his health, possibility of sickness, occupation, habits, and surroundings, the amount of money he was earning, his expectation of life, the probable loss of employment, voluntary abstinence from work, dullness in business, reduction of wages, increasing infirmities of age, with a probable corresponding diminution of earning capacity, and any other causes which may contribute to the illustration of the gross earnings of a lifetime.

(Punctuation omitted; emphasis supplied.) Callaway v. Cox, 74 Ga. App. 555, 562 (8) (40 SE2d 578) (1946). Voluntary abstinence is thus one of many relevant factors a jury may consider in determining the economic value of a decedent. However, while the reason for the decedent’s “voluntary abstinence” from work may be marginally relevant to a determination of her future lost income, based on the record before us, the prejudicial effect of her status as a pregnant unmarried woman clearly outweighs any probative value. Under the evidence existing at the time of the ruling, the trial court abused its discretion in failing to grant the plaintiff’s motion to exclude evidence that decedent’s pregnancies caused her to miss work.

Case No. A01A1731

3. Defendant Wedincamp contends that

[t]he trial court abused its discretion in finding that evidence of the decedent’s five pregnancies, all of which were conceived outside of marriage, are only relevant to the value of the decedent’s life, as they affected her earning ability, intelligence and her character, if . . . any of appellee’s witnesses characterize the deceased as a good person or a good mother.

For the reasons set forth in Division 1, the trial court did not abuse its discretion.

4. Defendant Wedincamp contends that the trial court abused its discretion “in refusing to allow Appellant to introduce evidence from the Decedent’s physician that the Decedent’s promiscuity affected her mortality.” The evidence to which Wedincamp refers consists of the following exchange during a deposition:

Q. All other things being equal, sir, who has a higher mortality rate: A woman who does not have unprotected sex or does have a monogamous relationship, or someone who has frequent unprotected sex with someone other than her husband?
A. Well, the one that would have unprotected sex with multiple partners would be at greater risk.

At the motions hearing, the trial court made the following observations regarding this issue:

I am not going to have [the doctor] tell me that her life — that she has shortened her life by having some extracurricular activities. My Lord, can you imagine? Every wrongful death case now, we’re going to go into the sexual activity of every person who’s in here. [There is] no way that this Court’s going to open that one up. And since this is still what we call, believe it or not, a double-standard community, I am sure the males will applaud that ruling much more than the females before it’s over. I can’t imagine getting into sexual promiscuity and how it shortens your life in every single wrongful death trial I’ve got.

The physician’s testimony regarding whether, hypothetically, this health issue might have affected someone’s longevity was extremely speculative. Without testimony to a reasonable medical certainty that the decedent engaged in conduct that would have shortened her life, the trial court did not abuse its discretion in refusing to admit this evidence.

5. Finally, Wedincamp asserts that the trial court abused its discretion in refusing to allow him to impeach any testimony that the deceased was a good person and good mother with evidence that the decedent hid her son from his father for two years, arguing this evidence is relevant to show the decedent’s character. The defendant misapprehends the nature of the damages for a wrongful death. Again, the jury considers the intangible and economic value of the decedent’s life from the decedent’s perspective, not from her son’s perspective. Viewed in this context, the trial court properly excluded evidence regarding the decedent’s visitation disputes with her ex-husband.

Judgment reversed in Case No. A01A1730. Judgment affirmed in Case No. A01A1731.

Smith, P. J., and Phipps, J., concur.

Decided January 15, 2002

Killian & Boyd, Robert R Killian, Karen M. Krider, for appellants.

Forbes & Bowman, Morton G. Forbes, Catherine M. Bowman, Scot V. Pool, for appellees.