text:
    A99A0762.
    KANJI v. THE STATE.
    (522 SE2d 234)
   Ruffin, Judge.

A jury convicted Azim Nizarali Kanji of one count of criminal attempt to commit armed robbery. In his sole enumeration of error on appeal, Kanji contends the trial court erred in admitting an audio tape recording that included the testimony of a person who was not listed on the State’s witness list. Kanji’s contention lacks merit, and we affirm.

On August 8, 1996, the Clayton County Police Department received a call about a robbery in progress at a convenience store. The police officers who responded to the call arrested Kanji, Quan Thompson, and J. W., a juvenile. At trial, J. W. testified that he, Kanji, and Thompson planned to rob the convenience store and that Kanji’s job was to drive the getaway car. In addition to J. W.’s testimony, the State tendered a written statement made by J. W. and an audio tape of an interview with J. W, each of which implicated Kanji in the robbery attempt. At the beginning of the audio tape, the police recorded J. W.’s mother, who gave her name and acknowledged that the police had her permission to question her son. .

Kanji objected to the admission of the tape because the State failed to provide J. W.’s mother’s name on its witness list in response to Kanji’s discovery request. According to Kanji, J. W.’s mother’s statement was harmful because it suggested that J. W.’s statement was voluntary when, in fact, the statement was made under duress.

“A defendant has a constitutional and statutory right to a list of State witnesses before trial.” Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219) (1998). This Court has held that the State must provide the defendant with “a list of the witnesses on whose testimony the charge against the accused is founded.” Campbell v. State, 149 Ga. App. 299, 300 (3) (254 SE2d 389) (1979). As the statement made by J. W.’s mother did not address the charge against Kanji, it is not clear that the State had any obligation to provide her name as a witness. Pretermitting whether the State should have listed her as a witness, we find no error. The purpose of providing a defendant with the names of the State’s witnesses is “to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview.” Mize, supra; Johnson v. State, 232 Ga. App. 717, 719 (1) (b) (503 SE2d 603) (1998). Here, the State provided Kanji with a transcript of the audio tape before trial. Accordingly, Kanji cannot — and does not — claim surprise. As the purpose of the witness list rule was fulfilled, we find no error. Mize, supra.

Decided May 27, 1999.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

To the extent that Kanji attempts to challenge the voluntariness of J. W.’s statement on appeal, this issue is not properly before us. Kanji did not enumerate this as error, and he is precluded from enlarging his sole enumeration of error to encompass this issue. Lucas v. State, 234 Ga. App. 534 (507 SE2d 253) (1998); Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213) (1997).

Judgment affirmed.

McMurray, P. J, and Andrews, J., concur.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A0885.
    HAMILTON v. THE STATE.
    (517 SE2d 118)
   Blackburn, Presiding Judge.

Following a jury trial, Rodriguez Hamilton appeals the denial of his motion for new trial contending: (1) the evidence does not support the convictions of burglary, two counts of false imprisonment, two counts of armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a crime; (2) the trial court erred by restricting defense counsel’s cross-examination of a witness; and (3) he received ineffective assistance of counsel at his trial. For the reasons which follow, we affirm.

1. Hamilton contends that the trial court erred in denying his motion for a new trial based on the insufficiency of the evidence. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hamilton] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that on August 11,1997, in the early morning hours, Hamilton and another man entered an apartment at 430 Fairhope Street in Augusta, Georgia, where Tameka Pollard and Christopher Dunbar lived. Hamilton and his co-assailant, demanding money and valuables, drove Pollard and Dunbar from their beds at gunpoint. Pollard and Dunbar were made to lie on the floor while the men ransacked the apartment. Then, Hamilton and his co-assailant forced Pollard and Dunbar, at gunpoint, outside to Dunbar’s car. Hamilton and his co-assailant loaded the car with the belongings taken from Pollard and Dunbar. After demanding that Pollard start the car, Hamilton and his co-assailant told the two victims to return to the apartment, and then they drove off. This evidence was sufficient to authorize the jury’s finding that Hamilton was guilty, beyond a reasonable doubt, of the offenses of which he was convicted. See Jackson, supra.

2. The trial court did not err in sustaining the State’s objection to the cross-examination of Investigator Bowen by defense counsel. At the time of the objection, defense counsel argued that Bowen’s testimony would show inconsistencies between the victims’ testimony at trial and what Bowen reported at the time of the incident. “Although a defendant is entitled to a thorough and sifting cross-examination of the witnesses against him, the scope of cross-examination is largely within the discretion of the trial court and will not be interfered with by this court unless abused.” Smith v. State, 171 Ga. App. 758, 761 (6) (321 SE2d 213) (1984). We find no abuse here because defense counsel did not lay the proper foundation to impeach the victim witnesses.

A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him . . . the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.

OCGA § 24-9-83.

In this case, defense counsel had not questioned the victims about the information contained in Bowen’s report. Since the victims were not given the opportunity to explain or deny the alleged inconsistencies, the proper foundation was not laid. Horne v. State, 204 Ga. App. 81 (418 SE2d 441) (1992). The trial court properly restricted the cross-examination of Bowen.

3. Finally, Hamilton claims he received ineffective assistance at trial.

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

(Punctuation omitted.) Herndon v. State, 235 Ga. App. 258-259 (509 SE2d 142) (1998).

Hamilton claims that his counsel was ineffective in either failing to move to suppress or to object to a photographic lineup identification. However, there was no testimony from trial counsel at the hearing on the motion for new trial, and without such testimony it is difficult for a defendant to overcome the presumption that counsel’s actions were strategic. Russell v. State, 269 Ga. 511 (501 SE2d 206) (1998); McClarity v. State, 234 Ga. App. 348 (506 SE2d 392) (1998). The decision whether to move to suppress or to object to evidence is a strategic decision by counsel and does not constitute ineffective assistance of counsel without a contrary showing. Herndon, supra. Hamilton failed to make the requisite showing, and therefore counsel's action in failing to object to the photographic lineup is presumed strategic. The trial court properly denied the motion.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

Decided May 27, 1999.

Jeffrey S. Bowman, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A99A0961.
    KUNIS v. THE STATE.
    (518 SE2d 725)
   Blackburn, Presiding Judge.

Gregory S. Kunis appeals from his conviction of misdemeanor theft by taking, following a jury trial, contending that the trial court erred by: (1) admitting an incriminating custodial statement made by him and (2) denying his motion for directed verdict. He also contends that there-was insufficient evidence to support the verdict. For the reasons set forth below, we affirm.

1. Kunis contends that the trial court erred by admitting an incriminating custodial statement made by him because the statement was not given voluntarily.

[Wjhether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances. The totality of the circumstances is determined through a consideration of nine factors: 1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge and the nature of his right to consult an attorney and remain silent; 4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogation; 8) whether or not the accused refused to voluntarily give statements on prior occasions; and 9) whether the accused has repudiated an extrajudicial statement at a later date.

(Citation omitted.) Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993).

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

(Citation and punctuation omitted.) Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998).

The evidence at Kunis’ Jackson-Denno hearing shows that Kunis was informed of and understood his rights; that he was questioned only once by one investigator while one other police officer was present; that the questioning lasted no more than fifteen or twenty minutes; that he showed a willingness to cooperate and that he never repudiated his statement. Thus, the trial court’s findings are supported by the evidence and are not clearly erroneous.

2. In three enumerations of error, Kunis contends that the evidence was insufficient to support the verdict. Kunis specifically argues that the State failed to produce either the victim of the theft or the items stolen.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Kunis] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that Kunis admitted to taking two sets of tires, two batteries, two come-a-longs and a large spotlight from his employer, Western Auto. Kunis then sold the items to another man for small sums of money and some marijuana. This man, who was the subject of a Georgia Bureau of Investigation narcotics investigation, gave or sold the items to a GBI confidential informant. This evidence was sufficient to authorize the jury’s finding that Kunis was guilty beyond a reasonable doubt. See Jackson, supra.

Decided May 27, 1999.

Albert L. Watson III, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth A. Over-camp, Assistant District Attorney, for appellee.

Kunis’ argument that the State failed to satisfy its burden of proof because it did not produce a victim of the crime or the stolen property is misplaced. The manager of the Western Auto testified at trial regarding the stolen items and their value. Furthermore, although the State never produced any of the stolen items at trial, recovery (and therefore display) of the stolen items is not essential to prove theft by taking. Ware v. State, 143 Ga. App. 663 (239 SE2d 552) (1977).

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Judge.

text:
    A99A0757.
    HART v. THE STATE.
    (517 SE2d 790)
   Andrews, Judge.

Andra Hart was found guilty by a jury of burglary. On appeal Hart claims the trial court failed to properly charge the jury and abused its discretion by refusing to strike two prospective jurors for cause. We find no basis for reversal and affirm.

1. The State presented evidence sufficient to support the jury’s conclusion that, without authority and with the intent to commit a theft therein, Hart entered the dwelling house of the victim as charged in the indictment. The victim testified that he caught Hart inside his house at about 12:30 a.m., and that, after a brief struggle, he subdued Hart, called the police, and held Hart until the police arrived. The victim testified that he did not know Hart and that Hart had no authority to enter the house. He said that Hart gained entry to the house by pulling off a screen and coming in through the kitchen window. The police officer who responded to the call testified that, when he arrived, Hart was in the house bleeding from a wound suffered in the struggle. The officer said Hart told him that he saw the door to the house open and that he entered the house only to tell the residents that their door was open. The officer testified that he observed the damaged screen and window where the victim said Hart entered the house. The victim’s wife, who was also home at the time, testified and confirmed her husband’s testimony. As similar transaction evidence, the State also showed that Hart had previously committed a similar burglary involving the theft of property from a residence.

Hart testified and denied the charges. He said that he met the victim four months prior to the alleged burglary, and that he and the victim had a secret homosexual relationship. Hart testified that, on the night at issue, he went to the victim’s house to break off the relationship, that the victim let him into the house to talk, and that, when the victim’s wife saw them, the victim attacked him and falsely accused him of burglary.

In weighing the credibility of the witnesses, the jury obviously concluded that Hart’s version of the events was not credible. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Hart was guilty of burglary. OCGA § 16-7-1; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hart claims the trial court committed numerous errors in its charge to the jury, including errors in failing to charge and errors in the charge given.

The record shows that, after charging the jury, the trial court asked defense counsel for objections to the charge and that, without reserving objections, defense counsel responded that the defendant relied on his previous objections made in the pre-charge conference. The only objection made by Hart in the pre-charge conference which he now alleges as error on appeal was to the trial court’s refusal to give his requested charge on the general intent necessary to commit a crime. Accordingly, Hart preserved appellate review of the trial court’s refusal to give his requested charge on intent. However, Hart’s failure either to object or to reserve the right to raise other objections at a later time was a procedural default which bars appellate review of other alleged errors in the charge, unless those alleged errors constitute substantial error which was harmful as a matter of law as set forth in OCGA § 5-5-24 (c). Gaines v. State, 177 Ga. App. 795, 798-799 (341 SE2d 252) (1986); Early v. State, 218 Ga. App. 869, 870 (463 SE2d 706) (1995).

(a) There is no merit to Hart’s claim that the trial court’s refusal to give his requested charge on general criminal intent requires reversal. Although the trial judge did not give the pattern charge on intent, as she indicated she would do in the charge conference, the jury was instructed that “a person commits the offense of burglary when without authority that person enters in a building or dwelling house of another with the intent to Commit a theft.” The trial judge also instructed the jury that there must be a joint operation of act and intention to constitute a criminal violation and that every element of the offense charged must be proved beyond a reasonable doubt. These instructions were sufficient to inform the jury of the essential elements of the offense, including general intent and specific intent to commit a theft. Hensley v. State, 228 Ga. 501, 503-504 (186 SE2d 729) (1972); Barrett v. State, 146 Ga. App. 207, 208 (245 SE2d 890) (1978); compare Brooks v. State, 146 Ga. App. 519 (246 SE2d 506) (1978).

(b) It follows that Hart’s additional claims that the trial court committed harmful error in failing, sua sponte, to adequately instruct the jury as to general intent and specific intent are without merit.

(c) Contrary to Hart’s contention, the trial court did not err by failing, sua sponte, to instruct the jury as to the elements of theft. Sharp v. State, 192 Ga. App. 353, 354-355 (385 SE2d 23) (1989).

(d) Hart also claims the trial court erred by using the phrase “moral and reasonable certainty” in its charge on reasonable doubt. Although the better practice is to omit any reference to “moral and reasonable certainty,” there was no reversible error because the charge viewed in its entirety “repeatedly and accurately conveyed to the jury the concept of reasonable doubt.” Vance v. State, 262 Ga. 236, 237-238 (416 SE2d 516) (1992), overruled on other grounds, 267 Ga. 209, 210 (477 SE2d 807) (1996); Caldwell v. State, 263 Ga. 560, 563-564 (436 SE2d 488) (1993); Armstrong v. State, 265 Ga. 18, 19 (453 SE2d 442) (1995).

Moreover, all of the claims of error in Divisions 2 (b), (c), and (d), supra, were waived by Hart’s failure to raise objections in the trial court, and we find no substantial error as defined in OCGA § 5-5-24 (c).

3. Hart claims the trial court erred in failing to remove two prospective jurors for cause.

The first prospective juror testified that a business where she worked had been burglarized twice, the most recent time about four months earlier. She stated she was not present during the burglaries. When asked, “And you believe that you can’t set that aside?” she responded, “No.” The record is unclear whether this response meant that she did not believe she could not set it aside or whether she believed she could not set it aside. When asked again if she could be a fair and impartial juror in the trial of the burglary charge, she responded, “I would have a problem being impartial.” Based on this record, the trial court denied Hart’s motion to remove the prospective juror for cause.

The second prospective juror stated that his residence had been burglarized five times, the most recent time about ten years ago. When asked if he could be a fair and impartial juror, he stated that the previous burglaries would probably enter his mind, but that he was not saying that was all he would think about. The trial court denied Hart’s motion to remove the prospective juror for cause.

Whether to remove a prospective juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496 (435 SE2d 431) (1993). To excuse for cause, it must be shown that the juror holds an opinion of guilt or innocence that is so fixed and definite that the juror would be unable to set the opinion aside and decide the case on the evidence and the charge of the court. Id. A prospective juror’s expression of doubt as to his or her impartiality or ability to put aside personal experiences does not demand removal for cause as a matter of law. Holmes v. State, 269 Ga. 124, 126 (498 SE2d 732) (1998). “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Id.

Decided May 12, 1999

Reconsideration denied May 28, 1999 — Cert. applied for.

Jennifer N. Foster, for appellant.

Paul L. Howard, Jr., District Attorney, Darrell T. Carver, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

The trial court did not abuse its discretion in refusing to remove the prospective jurors for cause. Although both prospective jurors expressed doubts as to whether they could put aside their experiences, neither said that he or she had formed an opinion as to Hart’s guilt or innocence. Id.

Contrary to Hart’s contention, the trial court was not required to make factual findings on the record in support of its decision that the jurors should not be excused for cause. Factual findings are required only “where the record shows on its face circumstances indicating that a potential juror has a compelling interest or bias in the case.” (Emphasis supplied.) Garland, 263 Ga. at 497. Neither prospective juror in this case held such a compelling interest or bias in the outcome of the case. Matthews v. State, 268 Ga. 798, 800 (493 SE2d 136) (1997). The record of the voir dire was sufficient to support the trial court’s rulings.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A0020.
    PEACOCK et al. v. CHEGWIDDEN et al.
    (518 SE2d 760)
   McMurray, Presiding Judge.

Plaintiffs H. Dean Peacock and Peacock Architects, Inc. filed this action for damages, an accounting, and other relief against defendants William E. Chegwidden, Charles E. Holmes, Don R. Dorsey, and CDH Partners, Inc. (“CDH”; collectively “defendants”), alleging that in October 1993, plaintiffs and defendants “combined their separate architectural skills and formed a business entity in the nature of a joint venture [(‘Partnership 1’)] to market and perform architectural services within the health care industry.” Subsequently, plaintiffs and defendants allegedly entered into another partnership (“Partnership 2”), “whereby revenues and profits from all parties’ respective operations were to be pooled and shared on a predetermined basis.” But that business was dissolved by the defendants, who “wrongfully retained certain net profits which were earned primarily as a result of Plaintiffs’ efforts. . . .” Specifically, in January 1996, defendants advised plaintiffs of their desire to terminate the aforementioned business relationship, and in February 1996, plaintiffs and defendants entered into “a termination agreement [(‘the Dissolution Agreement’)] to dissolve the . . . business arrangement.” Plaintiffs sought $400,000 for the termination of this business relationship. All defendants admitted that plaintiff Peacock was an employee of defendant CDH, and further admitted that all parties discussed various alternative future business arrangements including plaintiff Peacock’s possible purchase of stock in CDH from one of the shareholders, but denied the material allegations of a final agreement regarding a partnership or joint venture, or the terms of the eventual termination of their professional relationship. Defendant CDH counterclaimed for conversion of approximately $400,000 in payments to Peacock Architects, Inc. under existing contracts made on behalf of CDH. After discovery, defendants moved for summary judgment on the ground that the alleged partnerships, joint ventures, and so-called Dissolution Agreement lacked mutuality and so were unenforceable. The trial court agreed and granted partial summary judgment as to all theories of liability contained in the complaint before amendment. This appeal followed. Held:

1. “A partnership is an association of two or more persons to carry on as co-owners a business for profit.” OCGA § 14-8-6 (a). “A partnership results from a contract, either express or implied. Huggins v. Huggins, 117 Ga. 151, 155 (1) (43 SE 759).” Clark v. Schwartz, 210 Ga. App. 678, 679 (436 SE2d 759). But the consent of the parties is essential to a contract, and “until each has assented to all the terms, there is no binding contract.” OCGA § 13-3-2. Although the record in this case is replete with factual issues as to the existence of CDH&P, a division of CDH, as a joint venture (Partnership 1), we conclude there are no material fact questions about any subsequent partnership and its dissolution (Partnership 2 and the Dissolution Agreement), because plaintiff Peacock admitted there was no final agreement as to essential terms for each subsequent alleged contract.

2. In his deposition, plaintiff Peacock testified he did not need a lawyer’s assistance to form a corporation, and that he understood a corporation was a separate legal entity. It was plaintiff Peacock’s understanding that Partnership 1 consisted of CDH&P, an unincorporated entity intended to do business as a division of the defendant professional corporation, CDH. Plaintiff Peacock understood he was “a principal and owner of activities related to the operations of CDH&P as an entity,” and does not contend he thereby became an owner of defendant CDH. Plaintiff Peacock and the three principals of defendant CDH, defendants Chegwidden, Dorsey and Holmes, desired to “avoid the paperwork and the legal work [necessary] to form a separate legal entity.” Plaintiff Peacock’s duties were to pursue and manage operations related to that business, acting as the primary client contact. Any profits derived from CDH&P would be split based on a year-end evaluation of activity related to the principals involved with CDH&P, that is, how much activity from defendant CDH was “actually utilized in CDH&P work and expansion, and basically take a yearly look at that to determine a fair agreement on splitting profits.” As of November 1, 1993, all individuals who had been employees of Peacock Architects, Inc. became employees of defendant CDH. CDH remained apart from CDH&P activities; there was no merger of the two. But in December 1993, defendant Dorsey and plaintiff Peacock, each signing as a principal of CDH&P, jointly submitted an architectural and engineering proposal to Kennestone Hospital on the stationery of defendant CDH. In his affidavit, plaintiff Peacock deposed that he received a “draw equivalent to that. . . [paid the individual defendants, and this payment] was understood to be a draw against profits,” as plaintiff Peacock did not have any fixed annual compensation.

“The sharing of gross returns does not of itself establish a partnership.” OCGA § 14-8-7 (3). But “receipt by a person of a share of the profits of a business is prima-facie evidence that he is a partner in the business,” subject to certain exceptions. OCGA § 14-8-7 (4). In the case sub judice, evidence that plaintiff Peacock received a salary from defendant CDH is not determinative of the existence vel non of a joint venture in CDH&P. See Gnann v. Cameron, 29 Ga. App. 608, 609 (116 SE 338). This is especially true since defendant CDH held plaintiff Peacock out as a principal in CDH&P to prospective customers. “Whether the parties intended to make a contract [for a joint venture] is a question of fact. See 1 Corbin, Contracts, 474, § 106 (1950).” Frey v. Friendly Motors, 129 Ga. App. 636, 637 (200 SE2d 467). The evidence authorizes a finding that the division of the profits was not to be equal among all partners but would be pro rata, based on the parties’ respective contributions. The trial court erred in granting summary judgment as to claims regarding this alleged oral joint venture, including the claim for an accounting among partners as authorized by OCGA § 23-2-70 (5). “Where a fiduciary relation exists, an accounting in equity is proper.” Atlanta Trust Co. v. Nat. Bondholders Corp., 188 Ga. 761, 766-767 (2) (4 SE2d 644).

3. Partnership 2, an equal partnership, allegedly arose on January 1, 1995, when defendant Chegwidden approached plaintiff Peacock with a proposal to “fold both Peacock Architects and CDH&P under one entity, creating a single firm,” in which stock would be owned by the existing stockholders or partners, defendants Chegwidden, Dorsey, and Holmes, plus plaintiff Peacock. Plaintiff Peacock understood he would buy the interest of defendant Holmes in CDH for $250,000, paying $25,000 per year out of plaintiff Peacock’s share of a specified quarter’s profits derived by the new entity. For the first five years, profits would be split four ways, then revert to a three-way split with defendant Holmes accepting a salary but no longer receiving a share of the profits. But in January 1995, the parties were “still resolving and working on specific details. . . .” There was never any writing memorializing the agreement, and the parties never simultaneously acknowledged any agreement. According to plaintiff Peacock, they had an agreement “knowing full well that the specific details of that agreement were yet to be materialized.” Specifically, plaintiff Peacock did not yet know the future “legal structure as a whole of CDH, how the ownership would be transferred, what documents would need to be prepared. . . .” The distribution of stock was still outstanding because defendant Holmes “wanted to leave stock to his son[,] an employee of CDH.” So as of January 1, 1995, plaintiff Peacock truly “had not 100 percent agreed” to pay defendant Holmes $250,000 as an equity contribution to become a 25 percent shareholder in defendant CDH. Plaintiff Peacock never did pay any portion of the $250,000 for his alleged partnership interest. As for the purchase of the assets of Peacock Architects, Inc., plaintiff Peacock submitted a proposed amount for the assets but never received an express acceptance. Rather, he believed defendants agreed to his proposal because they never raised any objections or concerns in response. CDH paid for a computer system and a phone system leased by Peacock Architects, Inc. In the fall of 1995, defendant Chegwidden proposed a two-tier structure whereby only senior partners such as defendants would share some profits devoted to Fund A, whereas all partners, including plaintiff Peacock, would share in some (undefined) fraction of profits devoted to Fund B. But plaintiff Peacock did not want to accept this proposal and communicated that fact to defendant Chegwidden. He confirmed he “hadn’t agreed on any specific terms that [were] acceptable to [himself] and [defendants] at the same time.”

It became apparent to plaintiff Peacock through the comments of defendant Chegwidden and CDH’s attorney that defendant Holmes insisted the $250,000 price for his ownership interest meant “net proceeds to himself, thereby turning it into more like a $400,000.00 condition that had to be somehow worked out. . . .” By January 1996, the parties still “did not get this resolved,” and so conversation turned to “terminating [the second alleged] partnership agreement.”

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial “ ‘is to be construed most strongly against him when it is self-contradictory, vague or equivocal.’ ” Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122) (1957); W. & A. Railroad Co. v. Evans, 96 Ga. 481 (23 SE 494) (1895). Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, supra.

Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680). In the case sub judice, plaintiff Peacock’s testimony that there was a complete partnership agreement as of January 1,1995, is contradicted by his admission that he himself was not 100 percent committed to any particular deal. Moreover, it is undisputed that numerous material aspects of the proposed partnership were not finalized, including the exact percentage interest of plaintiff Peacock or the exact share of profits to be devoted to the fund in which he was to participate as a junior partner. “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” (Citations and punctuation omitted.) Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 880-881 (1) (278 SE2d 750). CDH’s payment of installment loans undertaken by Peacock Architects does not raise an inference of partnership. OCGA § 14-8-7 (4) (E). In our view, plaintiffs’ evidence shows only incomplete negotiations without a meeting of the minds as to all essential terms. Clark v. Schwartz, 210 Ga. App. at 679, supra.

In the alternative, plaintiffs contend there is part performance under OCGA § 13-5-31 (3) to create a jury question.

The part performance required by [OCGA § 13-5-31 (3)] must be essential to the contract, that is, required by its terms, such that a benefit is conferred upon the [defendant], with a consequent loss to the [plaintiff] which renders the court’s refusal to enforce the contract tantamount to a fraud upon the [plaintiff].

Hudson v. Venture Indus., 243 Ga. 116, 118 (252 SE2d 606). Moreover, the proponent of part performance must first establish that the contract is certain and definite in all essential particulars. Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237, 239 (2) (421 SE2d 773).

In the case sub judice, the fact that defendant CDH retained $10,000 from a $39,000 bonus for plaintiff Peacock does not establish any part performance of the alleged partnership stock purchase agreement on the part of either plaintiff because that money remained in “limbo,” neither tendered to defendant Dorsey nor accepted by him. Since that money can be turned over to plaintiff Peacock, it would scarcely amount to a fraud upon him because the court refused to enforce the non-existent contract. The trial court correctly granted partial summary judgment as to claims arising from the alleged Partnership 2.

4. Regarding the so-called Dissolution Agreement, once plaintiff Peacock knew defendants no longer wanted to pursue any sort of stock purchase or joint professional arrangement, he submitted to defendant Dorsey a proposed financial settlement and accounting. Defendants “agreed in principle” to go back to day one, analyzing the profitability of each joint project and then using the net result of that analysis as the termination funding. But as late as April 15, 1996, the parties “still had not gotten an accounting put together,” and this was holding up the disbursal of funds held by CDH which plaintiff Peacock believed belonged to Peacock Architects, Inc. In late April or early May 1996, defendant CDH paid plaintiffs $50,000. In June, plaintiff Peacock received from defendants “some accounting that [utilized] assumptions on overhead conditions [reflecting] a different financial picture from [plaintiff Peacock’s] perspective.” Plaintiff Peacock “certainly disagreed with [those numbers].” Although defendants do not dispute there was an agreement that plaintiffs relocate, and that CDH would support plaintiffs’ completion of the CDH&P projects through completion, there were only incomplete discussions about certain projects for which the full net profits would be paid over to plaintiffs versus certain projects “managed by [plaintiffs] that [CDH] might share ... in the net profits,” either equally or in some percentage.

In our view, this evidence shows only incomplete and ongoing negotiations as to the true financial result of the parties’ intended disengagement, through offer and counteroffer. Consequently, the trial court correctly granted summary judgment as to any breach of the alleged express Dissolution Agreement. But plaintiffs’ claim for the reasonable value of the professional architectural services they performed remains viable. See Hudson v. Venture Indus., 243 Ga. at 117, fn. 1, supra. The trial court erred in granting summary judgment as to any claim sounding in quantum meruit, arising out of the disengagement of the parties.

Decided May 28, 1999.

Cofer, Beauchamp, Stradley & Hicks, Stanley A. Coburn, Calvin P. Jellema, for appellants.

Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, for appellees.

Judgment affirmed in part and reversed in part.

Andrews and Ruffin, JJ, concur.

       We express no opinion whether the oral ten-year purchase agreement, entirely executory, was unenforceable under OCGA § 13-5-30 (5).


text:
    A99A0310.
    WILEY v. THE STATE.
    (519 SE2d 10)
   McMurray, Presiding Judge.

Defendant Wiley appeals her conviction of the offenses of armed robbery and possession of marijuana. Held:

1. The first enumeration of error maintains that the trial court erred in admitting certain similar transaction evidence. Defendant did not file a motion in limine regarding the similar transaction evidence, but challenged the admissibility of the similar transaction evidence at the pretrial hearing pursuant to Uniform Superior Court Rule 31.3. Under these circumstances, defendant waived appellate review of her challenge to the similar transaction evidence by failing to make any objection when that evidence w;as introduced at trial. Smith v. State, 268 Ga. 42, 43 (3) (485 SE2d 189); McClarity v. State, 234 Ga. App. 348, 349 (2) (506 SE2d 392); Davis v. State, 229 Ga. App. 787, 789 (2) (494 SE2d 702).

2. The second enumeration of error maintains that the trial court gave an incorrect jury instruction on circumstantial evidence. Using the language of OCGA § 24-4-6, the trial court charged that “[t]o warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” Defendant argues that the use of the italicized phrase from the statute does not comport with the rationale of Robinson v. State, 261 Ga. 698 (410 SE2d 116), which is often cited for the rule announced therein that where the State’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. Defendant argues that this phrase erroneously conveys to the jury that the prosecution’s case must be wholly circumstantial before the jury should apply the principle. However, since we find many cases holding that a charge on circumstantial evidence using the statutory language satisfies the requirement created in Robinson, we find that this enumeration of error lacks merit. Tomko v. State, 233 Ga. App. 20, 21 (2) (503 SE2d 300); Waits v. State, 232 Ga. App. 357, 358 (2) (501 SE2d 870); Stephens v. State, 208 Ga. App. 291, 293 (4) (430 SE2d 29).

3. Next, defendant contends that the trial court erred in instructing the jury on expert witnesses because no witness was tendered or qualified as an expert. The witness to whom the charge could have applied was Corporal William Schaeffer, of the Savannah Police Department, who testified as to his special training and experience in the area of fingerprint analysis. This officer then provided opinion testimony regarding a number of fingerprint comparisons.

If, after qualifying the witness as an expert but without formal tender, counsel proceeds to ask for expert opinion evidence based upon either a hypothetical or facts within the personal knowledge of the witness the trial court has tacitly or impliedly accepted the witness as an expert.

In the Interest of C. W. D., 232 Ga. App. 200, 207 (3) (b) (501 SE2d 232). Nonetheless, even if Officer Schaeffer’s testimony did not authorize the charge on expert testimony, we hold that it is highly probable that the charge did not contribute to the verdict and was harmless. In so holding, we reject defendant’s contention that the charge would have bolstered the credibility of the police witnesses by elevating them to the status of experts. Winfield v. State, 210 Ga. App. 849, 852 (3) (437 SE2d 849).

4. The trial court did not err in charging the jury on conspiracy, whether that charge is considered alone or in conjunction with the charge given on parties to a crime. Huey v. State, 263 Ga. 840, 842 (3) (439 SE2d 656); Cordova v. State, 191 Ga. App. 297, 298 (1) (381 SE2d 436). Furthermore, it is clear that a conspiracy may be proven and a jury charge may be given on conspiracy in the language of OCGA § 16-2-20, even though a defendant is not indicted under the theory of conspiracy provided in OCGA § 16-4-8. Id.; see also Williams v. State, 267 Ga. 308, 309 (2) (477 SE2d 570).

5. Defendant’s final enumeration of error questions the sufficiency of the evidence to authorize her conviction of possession of marijuana. Defendant testified that she received some marijuana as a result of the armed robbery. After defendant and her accomplices were arrested approximately an hour after the armed robbery, a bag of marijuana was found on the ground near the vehicle she had been driving moments before and a second bag of marijuana was apparently dropped on the ground by an accomplice who had been seized by a police officer. The recovery of the marijuana served to satisfy the statutory requirement for corroboration of defendant’s confession of possession of marijuana. OCGA § 24-3-53; Miller v. State, 268 Ga. 1, 2 (485 SE2d 752).

Decided May 28, 1999.

Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

The recovered marijuana was not without evidentiary value due to the lack of expert testimony since identification of a material or substance may be made by other than expert testimony. Rabern v. State of Ga., 221 Ga. App. 874, 875 (2) (473 SE2d 547); Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175). Here, defendant did not challenge the identification of the marijuana and made no objection to the testimony as to the nature of the substance found in the bags.

There was also sufficient evidence showing defendant’s guilt of armed robbery. In a tape-recorded statement to police, defendant described the planning and execution of the armed robbery. Defendant left her accomplices near the planned robbery site and met the victim ostensibly to purchase marijuana. After leading the victim to the planned robbery site and inviting him into her car, the victim and defendant were approached by the accomplices who robbed the victim at gunpoint, taking the victim’s money, pager, car, and a quantity of marijuana. Defendant’s statement with respect to the armed robbery was amply corroborated by the testimony of the victim and other evidence presented at trial.

The evidence presented at trial was sufficient to authorize the jurors, as rational triers of fact, to conclude that defendant was guilty beyond a reasonable doubt of possession of marijuana and of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Leming v. State, 235 Ga. App. 710, 711 (2) (510 SE2d 364); Goswick v. State, 201 Ga. App. 799, 800 (412 SE2d 293).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0611.
    JENKINS v. DEPARTMENT OF CORRECTIONS.
    (518 SE2d 730)
   Blackburn, Presiding Judge.

Teresa Jenkins, an inmate, appeals from the trial court’s order dismissing two counts and granting summary judgment on the third count of her complaint against the Georgia Department of Correetions (the Department). Jenkins contends the trial court erred by: (1) granting summary judgment on her claim of intentional infliction of emotional distress; (2) finding her claim that the Department had violated the Georgia Constitution was precluded by the doctrine of sovereign immunity; and (3) dismissing her claim that the Department violated 42 USC § 1983. For the reasons set forth below, we affirm.

1. “A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Punctuation omitted.) Urban v. Lemley, 232 Ga. App. 259 (501 SE2d 529) (1998).

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Jenkins, the evidence shows that the Department operated the Macon Transitional Center, a less restrictive facility where, in preparation for their release, inmates could participate in center programs and employment in the community. Only those inmates who met certain criteria, based on their incarceration offense and their behavior while incarcerated, were selected by the Department for assignment to the minimum security transitional facility. Accordingly, inmates selected for the transitional facility were required to obey the rules, and, if they abused privileges and failed to follow rules, they could be reassigned to a more secure facility. Unmarried inmates selected for the transitional facility were prohibited from having sexual relationships. Inmates who violated this rule were reassigned to the Georgia Women’s Correctional Institute (GWCI), a more restrictive facility.

Additionally, if an inmate were pregnant, Department of Corrections regulations required the Department “[t]o ensure the right of the pregnant inmate to choose whether to continue the pregnancy or to abort [and] [t]o provide guidance on the issues of infant placement and abortion.” Pregnant inmates were reassigned to GWCI because the transitional facility did not have appropriate medical facilities.

Jenkins was incarcerated initially at GWCI but was subsequently selected for assignment to the Macon Transitional Center. At the transitional facility, Jenkins was released to work in the community. Through her work, Jenkins became friendly with a man in the community.

In April 1991, the Department learned from another inmate that Jenkins, who was not married, was pregnant. The Department issued a disciplinary report to Jenkins for failing to follow instructions and engaging in sexual activity in violation of the rules. Jenkins was placed in disciplinary confinement for two or three days. This meant she could not leave the facility. As required by department policy, Jenkins was informed of her option to continue or to abort her pregnancy. She was told that Department policy required that pregnant prisoners be returned to GWCI. She was advised that she might be allowed to remain at the transitional facility, should she elect to abort, as she would no longer be pregnant. Jenkins chose to continue her pregnancy. Jenkins was transferred to GWCI for violating Department rules by voluntarily engaging in sexual activities while an inmate. Because of the Department’s policy not to retain pregnant inmates at the transitional facility because it did not have appropriate medical facilities, Jenkins’ transfer would have occurred in any event. She later miscarried.

On May 1, 1991, a hearing was held on Jenkins’ disciplinary report. Jenkins pled guilty to engaging in sexual activity and not guilty to failing to follow directions. Jenkins deposed that she had been involved in a sexual relationship with a man she had met at her work and with another inmate.

At the hearing on these charges, Jenkins disclosed to the Department for the first time, that she had also been raped and contended that her pregnancy was the result of such rape. Jenkins said the rape occurred when, afraid that she would be late to work, she accepted an unauthorized ride from a male friend in the community. He was not on Jenkins’ approved list for transportation. Her friend drove to an isolated spot and raped her. Jenkins made no criminal report of her rape. Jenkins deposed that following the rape, she was only five or ten minutes late for work, and that she did not tell anyone that she had been assaulted. Neither had she disclosed her rape to the investigator when the State determined she was pregnant. Following the hearing, she was sentenced to 14 days isolation and 30 days loss of store privileges. On review by the superintendent the next day, the discipline sentence was rescinded on technical grounds, and no new punishment was ever imposed.

Jenkins filed an action under the Georgia Tort Claims Act and 42 USC § 1983, contending that she was punished because she elected not to abort her pregnancy. On the Department’s motions for summary judgment and to dismiss the complaint, the trial court found that the actions of the Department did not, as a matter of law, support Jenkins’ claim of intentional infliction of emotional distress.

Four elements must be present to support a claim of intentional infliction of emotional distress: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiff’s emotional distress; and (4) the emotional distress must be severe.

(Punctuation omitted.) Whalen v. Isaacs, 233 Ga. App. 367, 368 (2) (504 SE2d 214) (1998). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991).

Jenkins alleges that, because of her decision to continue her pregnancy, the Department returned her to the higher security prison, where inmates did not enjoy the privileges of the transitional facility, and subjected her to discipline. She contends this conduct was egregious and outrageous. However, construing the evidence most favorably to Jenkins, there is no evidence that she was punished for choosing to continue her pregnancy.

The evidence is that Jenkins was placed in confinement and transferred to GWCI for violating the rules at the transitional facility, specifically for engaging in sexual activity. Initially, Jenkins’ pregnancy was evidence that she had engaged in sexual activity in violation of the rules. Then, Jenkins pled guilty to engaging in sexual activity at her disciplinary hearing. Jenkins’ transfer to GWCI was consistent with the Department’s practice to discipline inmates who violated the rules at the transitional facility. Furthermore, her transfer was consistent with the Department’s practice to transfer pregnant inmates to a prison facility which could provide medical care.

Jenkins points to the statements of the Department employees as evidence that the Department punished her for choosing to continue her pregnancy; however, it is undisputed that the employees were required to inform Jenkins of her options either to continue the pregnancy or to have an abortion. There is no evidence that the employees were threatening. Although Jenkins has presented circumstantial evidence that some inmates who chose to abort their pregnancies were transferred back to the transitional facility, that evidence does not establish that Jenkins’ transfer was punishment for her decision to continue the pregnancy. “Circumstantial evidence has no probative value in establishing a fact when such evidence is consistent with direct and unimpeached evidence showing the nonexistence of such a fact.” (Citation and punctuation omitted.) Whalen, supra at 368. See MARTA v. Mehretab, 224 Ga. App. 263, 265-266 (1) (480 SE2d 310) (1997).

Stripped of the allegation that the Department disciplined Jenkins as punishment for her refusal to abort her child, none of the Department’s acts (placing her in disciplinary confinement or transferring her to GWCI) was egregious or outrageous conduct which would support a claim for intentional infliction of emotional distress. The transfer is not egregious conduct as the Department has the right to make prison to prison transfers. See Meachum v. Fano, 427 U. S. 215 (96 SC 2532, 49 LE2d 451) (1976). Furthermore, the Department has the right to impose disciplinary action against inmates who violate rules, and it may use isolation as a punishment for infractions of correctional rules and regulations. OCGA § 42-5-58 (b); see Sandin v. Connor, 515 U. S. 472 (115 SC 2293, 132 LE2d 418) (1995). Under these circumstances, the Department’s acts do not support Jenkins’ claim for intentional infliction of emotional distress.

2. The facts do not support Jenkins’ claim that the Department violated her rights under the Georgia Constitution. Jenkins’ constitutional claim also is based on her allegation that she was punished for choosing to continue her pregnancy. As discussed in Division 1, supra, Jenkins failed to support this allegation with evidence. The Department acted within its authority and consistent with its general policy. The trial court found that Jenkins’ claim of constitutional violations was precluded by the doctrine of sovereign immunity; however, pretermitting the issue of sovereign immunity, the evidence does not support Jenkins’ claim that the Department violated her constitutional rights. “[A] judgment right for any reason will be affirmed.” Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648, 650 (2) (502 SE2d 257) (1998). The trial court properly dismissed the claim.

3. The trial court properly granted the Department’s motion to dismiss the § 1983 claim. “Will v. Michigan Dept. of State Police, 491 U. S. 58 (109 SC 2304, 105 LE2d 45) (1989) holds that § 1983 claims cannot be asserted against a state agency or state officials acting in their official capacity.” Professional Practices Comm. v. Brewer, 219 Ga. App. 730, 731 (466 SE2d 651) (1995). See Dollar v. Olmstead, 232 Ga. App. 520, 522 (1) (502 SE2d 472) (1998) (error not to grant summary judgment to Commissioner of the Georgia Department of Human Resources because § 1983 claims cannot be asserted against a state agency or state officials acting in their official capacity). “[T]he [Department] is not a ‘person’ against whom a § 1983 claim for damages will lie.” State Bd. of Ed. v. Drury, 263 Ga. 429, 434 (2) (437 SE2d 290) (1993).

Decided May 28, 1999.

Bondurant, Mixson & Elmore, Jeffrey O. Bramlett, Joshua F. Thorpe, David G. Brackett, Robert W. Cullen, John A. Pickens, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Loretta L. Pinkston, Senior Assistant Attorneys General, Ralph W. Ellis, David B. Fife, Assistant Attorneys General, for appellee.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       Jenkins initially did not tell the Department that her pregnancy was the result of a rape.


author: Judge Harold R. Banke.

text:
    A99A0631.
    COOK v. THE STATE.
    (518 SE2d 749)
   Judge Harold R. Banke.

In a bench trial Michael Cook was found guilty of failure to yield. On appeal, Cook enumerates two errors.

The State’s evidence showed that Cook, a commercial truck driver, was issued a traffic citation after a collision between his tractor-trailer and a car driven by Princetta Summer. Summer testified that she had a green light for her direction of travel when Cook’s 18-wheeler suddenly crashed into her Maxima. According to the investigating officer, who observed the debris, the damage to the vehicles, and conducted interviews at the scene, the collision occurred as Cook was attempting to make a left turn across traffic after hesitating while he had a green arrow. An eyewitness, Covin Foreman, confirmed that after a momentary lull in the traffic he watched the tractor-trailer start to make its turn. Both Foreman and another witness attested that the light was green for Summer.

According to Cook, after the light changed to green he began creeping into the intersection when Summer’s car suddenly struck his truck. Cook testified that he never saw her vehicle. Notwithstanding Summer’s testimony to the contrary, by Cook’s version of events, Summer was at fault for driving unlawfully in an emergency lane on the paved shoulder. Held:

1. By asserting that the verdict was contrary to and against the weight of the evidence, Cook, in effect, contests the sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988). Cook contends that the evidence established that it was Summer, not he, who was the party at fault. In essence, Cook asks this Court to retry his case, reweigh the evidence, and judge the credibility of the witnesses, which we cannot do. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991); Key v. State, 230 Ga. App. 359, 361 (3) (496 SE2d 497) (1998).

Having reviewed the evidence in a light most favorable to the verdict as we must, we find that a rational trier of fact could have determined that Cook failed to yield the right of way while making a left turn. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence adduced at trial was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to sustain Cook’s conviction for violating OCGA § 40-6-71.

2. Cook contends that the trial court abused its discretion in denying his motion for new trial. After the trial, Cook’s counsel learned about a set of 30 photographs taken by an investigator hired by an insurance company. Subsequently, Cook moved for a new trial asserting, inter alia, newly discovered evidence material to his defense.

At the motion hearing, counsel admitted that all of the photographs had been in existence at the time of trial. Additionally, counsel could not explain for the record why if photographs of the scene had been so essential, he did not take and submit his own photos. The court determined that Cook failed to sustain his burden of showing due diligence in obtaining the photographs prior to trial since the photographs were available had he sought them. The court noted, “That’s a lack of diligence. That’s not newly discovered evidence. That’s evidence you failed to go and collect.”

To obtain a new trial based on newly discovered evidence, one must satisfy six requirements, including establishing that the failure to timely acquire this evidence was not attributable to a lack of due diligence and also showing that the new evidence was so material that it would likely have produced a different result. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980); Alexander v. State, 186 Ga. App. 787, 790 (4) (368 SE2d 550) (1988). Merely asserting that the evidence could not have been discovered by ordinary diligence is not sufficient. Mills v. State, 193 Ga. 139, 147 (1) (17 SE2d 719) (1941).

Decided May 28, 1999.

Allan E. Alberga, for appellant.

Carmen Smith, Solicitor, Bobby D. Gardner, Jr., Jody L. Peskin, Assistant Solicitors, for appellee.

Here, Cook offered no legally cognizable explanation for his belated discovery of the photographs. Nor did Cook establish that the photographs were so essential to his case that their admission would likely have produced a different outcome. See Chapel v. State, 270 Ga. 151, 153 (2) (510 SE2d 802) (1998). Plainly, the trial court did not abuse its discretion in refusing to grant the motion for new trial. Brown v. State, 209 Ga. App. 314, 316 (2) (433 SE2d 321) (1993).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0756.
    DENNIS v. THE STATE.
    (518 SE2d 745)
   Judge Harold R. Banke.

A jury convicted Johnny Dennis of burglary but acquitted him of murder, felony murder, and possession of a firearm during the commission of a felony. On appeal, Dennis asserts ten enumerations of error, primarily contesting an adverse ruling on his motion pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

When viewed in a light most favorable to the verdict, the State’s evidence showed that when the 86-year-old, wheelchair-bound victim, who lived alone, did not answer her telephone, her brother investigated and discovered she had been murdered in her bed. The cause of her death was a single gunshot fired inches away from the left side of her face.

Two days before her murder, the victim had filed a suspicious person report. When Corporal Tony Williams investigated, she told him that she had discovered a small, young black male, whom she had previously seen in the area, inside her garage. When she asked him what he was doing there, he inquired about her car which she informed him was not for sale. Later, when he came back and requested a glass of water, she told him he could use the outside spigot. He told her that his name was “John.” When he returned a third time, the victim became upset and confided to her daughter-in-law that she was afraid.

Relying on information obtained from the victim’s family, police officers and Georgia Bureau of Investigation agents began combing the neighborhood for a young black male named John. After learning that the appellant, “Johnny” Dennis, lived down the street from the victim with his sister and her boyfriend, two investigators asked Dennis some routine questions. Dennis denied knowing the victim, keeping a gun at his house, or having done any yard work for her. But Dennis disclosed that during the previous evening, he had seen a white male with shoulder-length blonde hair running diagonally from the rear of the victim’s home toward the woods carrying something like a bag. Dennis agreed to accompany investigators to the victim’s home where he pointed out the path followed by the man. When a GBI agent determined that Dennis’ purported observation defied the laws of physics, Dennis was taken in for further questioning.

Shortly after Dennis departed with police, his sister’s boyfriend, Ronald Howell, came to the crime scene and told police he had some items at home that he was afraid might have belonged to the victim. Howell turned over a cordless phone, a manicure set, and a .22 rifle which Dennis had brought home on the night of the murder and had given to Howell. Relatives of the victim identified those items as having come from her home.

Howell provided consent to a search of Dennis’ bedroom and the living room. A .32 caliber bullet was found in Dennis’ bedroom. Police discovered a .32 caliber Derringer pistol and additional ammunition concealed in a cabinet in the living room. GBI test firing determined that this Derringer was the murder weapon. According to a forensic latent print examiner, two fingerprints found inside the victim’s home, one from a Dustbuster on the floor of the living room and another from a portable radio located on the nightstand next to her bed, matched Dennis’ fingerprints. Held:

1. Dennis’ contention that the evidence was insufficient to support the verdict is without merit. The evidence established that on the night of the murder, Dennis suddenly came into possession of several items missing from the victim’s home. An investigator depicted the disarray throughout the house as though it had been ransacked. Dennis’ fingerprints appeared on the cordless phone, one of the items which his sister’s boyfriend turned over to police. Dennis’ fingerprints were discovered on two items located inside the victim’s home. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to sustain Dennis’ conviction for burglary. See Wallis v. State, 170 Ga. App. 354 (1) (317 SE2d 331) (1984).

2. Dennis contends that the trial court violated his right to a fair trial by denying his motion to suppress several statements he made. He claims that he was in custody when initially questioned at his home and at the victim’s home. He further asserts that as a mere 15-year-old boy, he did not knowingly and voluntarily waive his rights in light of the coercive atmosphere in which he was questioned.

Unless clearly erroneous, a trial court’s finding of admissibility will be affirmed on appeal. Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733) (1992). In this case, at the hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), an officer testified that Dennis was not in police custody until he arrived at the Juvenile Intake Center. He explained that initially they considered Dennis to be a potential witness rather than a suspect. Up until their arrival at the intake center, the officer attested that Dennis had been free to leave at any time and that he would have taken Dennis home if he had been asked to do so.

During an interview at the intake center, GBI Special Agent Adrian McCravy advised Dennis of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). In the presence of two witnesses, Dennis signed a waiver form after McCravy explained the form to him point by point. After Dennis’ mother arrived, Dennis was re-Mirandized. When questioning resumed and Dennis was confronted with the fact that incriminating evidence had been found inside his home, McCravy asked him if it was not time for him to tell the truth. In response, Dennis looked down and nodded his head affirmatively. At that point, Dennis’ mother asked that the interview stop so that she could consult with an attorney, and all questioning ceased. Because there was evidence authorizing the trial court to find that Dennis was not in custody until after his arrival at the intake center and to support the court’s determination that Dennis’ statements were freely and voluntarily made, we cannot say the court clearly erred in its ruling. Bryant v. State, 193 Ga. App. 840, 841 (2) (389 SE2d 405) (1989). Further, given the overwhelming evidence that Dennis burglarized the victim’s home, he cannot show the requisite harm even had the admission of the evidence been error under the analysis of Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). See Cook v. State, 270 Ga. 820, 828 (3) (514 SE2d 657) (1999).

3. Dennis asserts that the court erred by giving an incomplete charge on a defendant’s right not to testify.

After instructing the jury on the presumption of innocence, the court charged, “[t]he burden is upon the state to prove the defendant’s guilt beyond a reasonable doubt. That burden never shifts.” The court further instructed that the defendant is not required to testify and that “no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of the defendant to testify.” Having reviewed the charge as a whole, we find no error. Sweat v. State, 226 Ga. App. 88, 90 (4) (485 SE2d 259) (1997); see Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

4. Dennis contends that the trial court engaged in improper burden shifting by ignoring the third step of the analysis under Batson. He claims that the trial court failed to make an express finding that he did not carry his burden of showing that the State’s proffered reasons were designed to cover up purposeful racial discrimination.

In denying the motion, the court ruled that the State gave adequately race-neutral explanations for each of its strikes. Contrary to Dennis’ argument, the transcript indicates that the court did not impermissibly shift the burden and that the court afforded him a full opportunity to rebut the State’s reasons. See Jones v. State, 226 Ga. App. 428, 430 (1) (487 SE2d 62) (1997); compare O’Neal v. State, 226 Ga. App. 224, 225-226 (1) (482 SE2d 478) (1997) (physical precedent only). Although Dennis vigorously contested each of the explanations offered by the State, arguing that they were all pretextual, the evidence supported the court’s finding to the contrary.

5. In six enumerations of error, Dennis claims that the State violated Batson, supra, by using six peremptory strikes against black prospective jurors. During a Batson hearing, the trial court sits as the finder of fact and its findings concerning whether the opponent of a strike carried his burden of persuasion are “entitled to great deference.” Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). Here, after the State offered race-neutral reasons for each strike, the trial court found that Dennis did not meet his burden of showing that the State had acted with discriminatory intent. This ruling must be affirmed unless it is clearly erroneous. Id.

(a) During voir dire, juror no. 4 stated that he had been beaten up and robbed but did not report the crimes to law enforcement authorities. The State contended that his conduct implied a distrust of police and that the juror had given up on the system. See Sears v. State, 268 Ga. 759, 763 (8) (493 SE2d 180) (1997) (mistrust for attorneys not invalid reason).

(b) Juror no. 5 was struck for being non-attentive and non-responsive during questioning. He avoided eye contact and was sleeping part of the time. These reasons have been found to be race-neutral reasons for striking a juror. Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996); see Lingo v. State, 263 Ga. 664, 667 (1) (b) (5) (437 SE2d 463) (1993).

(c) Juror no. 10 stated that as a social worker she had been taught in her job not to judge other people. She claimed that she did not feel comfortable sitting in judgment. This reason has been held sufficiently race-neutral. Thomas v. State, 208 Ga. App. 367, 369 (1) (430 SE2d 768) (1993).

(d) Notwithstanding his brother’s conviction for murder, Juror no. 13 testified that he thought that his brother had acted in self-defense. The State felt that this belief about his brother’s conviction would affect the juror’s fairness and judgment, especially since Dennis was on trial for murder. See Lewis v. State, 264 Ga. 101, 103 (440 SE2d 664) (1994) (explanation for strike need not rise to level of a challenge for cause but must be race-neutral).

Decided May 28, 1999.

Monique D. Moyse, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

(e) Juror no. 16 had recently graduated from high school and been employed only a few months. She stated that her hobbies were hanging out with her friends and riding to the mall and clubs. The State expressed concern that she was too young and immature to act as a fair and impartial juror. This explanation has been found to be concrete, tangible, and race-neutral. Whatley v. State, 266 Ga. 568, 570 (3) (468 SE2d 751) (1996).

(f) Juror no. 29 stated that his son had been falsely charged with rape in another county. Striking a juror who is a close relative to a person in trouble with the law may be a race-neutral reason for a strike. See Hall v. State, 261 Ga. 778, 779 (2) (415 SE2d 158) (1991).

In none of these six instances has Dennis shown that the trial court’s ruling was clearly erroneous. Pye v. State, 269 Ga. 779, 781 (1) (505 SE2d 4) (1998). Therefore, the court’s ruling must be affirmed. Id.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0819.
    BROWN et al. v. WALTON ELECTRIC MEMBERSHIP CORPORATION.
    (518 SE2d 727)
   Blackburn, Presiding Judge.

Henning Brown and Bosche Brown, Inc. d/b/a Auto Body Color Paint & Decorating (Brown) appeal the grant of summary judgment to Walton County Electric Membership Corporation (Walton EMC) on Walton EMC’s complaint for amounts owed as a result of underbilling for electric service. In separate enumerations of error, Brown contends that genuine issues of material fact remain with regard to: (1) the applicability of the defenses of equitable estoppel, accord and satisfaction and the statute of limitation and (2) the evidence presented by affidavit in support of the motion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

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

The undisputed facts show that Walton EMC supplies electricity to Brown pursuant to an agreement. From November 1991 to June 1997, Walton EMC used an incorrect multiplier in determining Brown’s usage. Consequently Brown was billed for less than the amount of electricity, he actually used during this period. Walton EMC notified Brown that he had been underbilled by $20,808.90, and when Brown refused to pay, Walton EMC filed suit.

1. The trial court properly found that the defenses of equitable estoppel and accord and satisfaction and the statute of limitation do not bar recovery by Walton EMC. In Habersham Elec. Membership Corp. v. Mize, 211 Ga. App. 329 (439 SE2d 26) (1993), a case directly on point with the present case, this Court observed that it is “the public policy of this state that suppliers of electricity cannot discriminate, either for or against consumers, by charging consumers in the same class at different rates.” Id. at 330; see OCGA § 46-3-11 (a). In this case, Brown was charged less for electric service than other consumers in the same class and consequently paid less for the same service.

[P]ublic policy dictates that the consumer in this situation simply has no defense to avoid liability for underbilled services, once it is established that the consumer received the amount of service alleged by the utility, and once it is established that the consumer did not pay the full amount for the utilities provided. Where a statute declares that utilities must charge all customers in a certain class alike, it is a contravention of public policy to estop the utility from collecting the full amount due for utilities consumed even where the customer has been negligently underbilled.

(Punctuation omitted; emphasis supplied.) Id. at 330-331.

Brown erroneously contends that Habersham Elec. Membership Corp. is no longer valid, relying on Judge Beasley’s special concurrence in Albany Oil Mill v. Sumter Elec. Membership Corp., 212 Ga. App. 242 (441 SE2d 524) (1994). However, Albany Oil Mill and Habersham Elec. Membership Corp. are not conflicting decisions. Judge Beasley’s concurrence, which is not binding authority, simply explained that equitable estoppel is an available defense to ultra vires actions. City of East Point v. Upchurch Packing, 58 Ga. App. 829 (200 SE 210) (1938), on which Brown also relies, does not require a different result. In City of East Point equitable estoppel was a defense to ultra vires acts. Since the underbilling situation in Habersham Elec. Membership Corp. did not involve ultra vires acts, its holding is correct. This case likewise does not involve ultra vires acts and therefore is controlled by the holding in Habersham Elec. Membership Corp.

2. Brown contends that the affidavit of Russell DeLong, filed in support of Walton EMC’s motion for summary judgment, is deficient because it contained inadmissible hearsay and that, as a result, Walton EMC was not entitled to summary judgment. The trial court determined that an exhibit to the affidavit was admissible as a business record, and Brown asserts that determination was erroneous.

Pursuant to OCGA § 9-11-56 (e):

[A]fiidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

DeLong’s affidavit states affirmatively that it is made upon personal knowledge. “A statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient to comply with OCGA § 9-11-56 (e).” (Punctuation omitted.) Bishopsgate Ins. Co. v. Cactus Club, 176 Ga. App. 354 (335 SE2d 685) (1985). The affidavit incorporates by reference a letter and attachment dated September 15, 1997, from DeLong to Brown’s attorney in which DeLong explains the error. DeLong sets forth the General Service rate (the rate at which consumers like Brown are billed), the rate at which Brown actually was billed, and the calculations for the amount owed by Brown. This evidence established that, due to the billing error, Brown was charged a more favorable rate for electric service than other consumers in the General Service rate class in violation of OCGA § 46-3-11 (a). This evidence also established the amount owed by Brown.

Brown’s argument that the letter and attachments are inadmissible as business records is not applicable because the information in the letter and the attachment was based on DeLong’s personal knowledge, and Brown does not contend that the information in the affidavit was beyond DeLong’s personal knowledge. “[T]here was no requirement to show the documents were also admissible as business entries. Evidence admissible in one capacity is not inadmissible because it does not satisfy the rules for admissibility in another capacity.” Stuckey Diamonds v. Jones, 195 Ga. App. 351, 352 (393 SE2d 706) (1990). Therefore we need not address whether the letter and attachments were admissible as business records. Even if we were to determine that they were not admissible as business records, a judgment right for any reason will be affirmed. Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648, 650 (2) (502 SE2d 257) (1998).

Decided May 28, 1999 — Cert. applied for.

McArthur & McArthur, John J. McArthur, Charles E. Auslander III, for appellants.

Lambert & Roffman, Marvin J. Reitman, Jr., for appellee.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

       This case was decided prior to the enactment of OCGA § 46-3-11 and, consequently, does not address application of the statute.

       DeLong’s affidavit actually consists of an initial affidavit and a supplemental affidavit.


text:
    A99A0942.
    TUTEN v. COSTRINI.
    (518 SE2d 751)
   Blackburn, Presiding Judge.

In this medical malpractice action, Lynelle Tuten appeals from the trial court’s grant of summary judgment to Dr. Nicholas Costrini, contending the trial court erred in finding: (1) that a consent form signed by her raised the rebuttable presumption that the consent was valid pursuant to OCGA § 31-9-6.1; and (2) that Tuten had failed to rebut that presumption. For the reasons set forth below, we affirm.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Phelps v. BellSouth Advertising &c. Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998).

Construing the facts favorably to Tuten, the evidence shows that Dr. Costrini performed an upper endoscopy on Tuten to determine if she suffered from an obstruction of the esophagus. On the day of the procedure, Tuten read and signed a form entitled, “Consent to Surgical or Diagnostic Procedures.” She had no questions. During the upper endoscopy, Dr. Costrini found a stricture and performed an esophageal dilation. Tuten suffered a tear of the esophagus, a recognized risk of such a procedure, which required immediate surgery and an extended hospital stay. Tuten does not contend that Dr. Costrini failed to meet the standard of care in the actual performance of the subject surgical procedure.

Tuten filed this action for medical malpractice asserting that Dr. Costrini deviated from the standard of care in failing to obtain her informed consent prior to performing the esophageal dilation. Thus, the only issue is her consent to the performance of the procedure, not the quality thereof. Dr. Costrini moved for summary judgment, contending that he had obtained valid consent on the basis of the consent form and the deposition testimony of Tuten’s expert. The trial court granted the motion.

1. The issue of informed consent is addressed by OCGA § 31-9-6.1, which, in relevant part, provides that a patient who is to undergo a surgical procedure under general, spinal or major regional anesthesia must consent to the procedure and must be informed, in general terms, of

(3) The material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest, or death involved in such proposed surgical or diagnostic procedure which, if disclosed to a reasonably prudent person in the patient’s position, could reasonably be expected to cause such prudent person to decline such proposed surgical or diagnostic procedure on the basis of the material risk of injury that could result from such proposed surgical or diagnostic procedure.

A rebuttable presumption as to the validity of the consent is established if the consent is obtained in writing, signed by the patient and discloses in general terms the information set forth in the statute. OCGA § 31-9-6.1 (b) (2).

In this case, the consent form signed by Tuten tracked the statutory language:

I acknowledge and understand that the following procedure(s) which has (have) been described to me is (are) to be performed on the patient: Upper endoscopy with possible biopsies and/or polypectomy and that as a result of the performance of the procedure(s) there is a material risk that the patient may suffer infection, allergic reaction, severe loss of blood, or loss of function of any limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest or death.

The consent form continued:

I acknowledge and understand that during the course of the procedure(s) described in paragraph (A) (1) above, conditions may develop which may reasonably necessitate an extension of the original procedure(s) or the performance of procedure(s) which are unforeseen or not known to he needed at the time this consent is obtained. ... I therefore consent to and authorize the persons described in the last paragraph of this consent to make the decisions concerning the performance of and to perform such procedure(s) the decisions concerning the performance of and to perform such procedure(s) as they deem reasonably necessary or desirable in the exercise of their professional judgment, including those procedures that may be unforeseen or not known to be needed at the time this consent is obtained.

(Emphasis supplied.)

This consent form gives valid consent for: (1) the procedures specified; (2) reasonably necessary unforeseen procedures; or (3) reasonably necessary procedures not known to be needed at the time consent was obtained. Clearly, the esophageal dilation was not specified in the consent form. Therefore, for Tuten to have validly consented to the dilation, it must have been either an unforeseen procedure or a procedure not known to be needed at the time her consent was obtained.

The evidence shows that the procedure was foreseeable. Dr. Costrini testified at his deposition that if the endoscopy revealed an obstruction, a dilation would most likely be necessary. However, since the consent form is read in the disjunctive, we must also examine whether the dilation was known to be needed at the time consent was obtained. The evidence shows that the stricture was discovered during the upper endoscopy, and consequently, the dilation was not known to be needed until that time. Accordingly, by statute, the consent form signed by Tuten created a rebuttable presumption that she gave her consent to Dr. Costrini to perform the esophageal dilation.

2. Moreover, Tuten failed to overcome the statutory presumption of valid consent through the testimony of Dr. Womack or the affidavit of Dr. Herz.

(a) The testimony of Dr. Womack did not overcome the presumption because his contradictory testimony must be construed against Tuten. Generally,

[i]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. However, where the party opposing the motion presents contradictory testimony for which no reasonable explanation is provided, the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) [(1986)] applies.

(Citation omitted.) Ford v. Dove, 218 Ga. App. 828, 829 (1) (463 SE2d 351) (1995). Under Prophecy Corp., the contradictory testimony is construed against the party. Although Dr. Womack is not a party witness, the Prophecy Corp. rationale applies to his contradictory testimony. Where a party’s expert witness contradicts his affidavit testimony in his deposition, the contradictory testimony will be construed against the party on motion for summary judgment. Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997); Ford, supra.

In this case, Dr. Womack testified in his affidavit that Dr. Cos-trim’s failure to obtain Tuten’s informed consent for the dilation was a deviation from the standard of care. However, he subsequently testified at his deposition that the consent form gave valid consent. Tuten did not offer a reasonable explanation for Dr. Womack’s contradictory testimony, and consequently, his testimony is construed against Tuten.

(b) The affidavit of Dr. Herz, offered in response to the motion for summary judgment, did not overcome the presumption of valid consent because it lacked probative value. Dr. Herz’s affidavit is evaluated under the evidentiary standard for summary judgment, not the pleading standard for affidavits. See Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 66 (4) (424 SE2d 632) (1992) (“An expert affidavit, . . . has ‘a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a),’ than when also relied upon as expert testimony ... in the disposition of a motion for summary judgment.”).

In a medical malpractice action, an “ ‘expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge.’ ” Humphrey v. Alvarado, 185 Ga. App. 486, 487 (364 SE2d 618) (1988). OCGA § 9-11-56 (e) requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit ... be attached” to the affidavit. This requirement is met in a medical malpractice action where the medical records are part of the record of the case and are clearly identified in the affidavit. Crawford v. Phillips, 173 Ga. App. 517, 518-519 (326 SE2d 593) (1985).

In this case, Dr. Herz’s opinion regarding the standard of care is based on the medical records of Tuten. Yet, no medical records are attached or identified. No medical records are included in the record. As a result, Dr. Herz’s affidavit lacks probative value, and the trial court properly disregarded it. Furthermore, Dr. Herz’s affidavit fails to establish the elements of a medical malpractice action based on lack of consent, as set forth in OCGA § 31-9-6.1 (d), including that a reasonably prudent patient would have refused the procedure or chosen another alternative. Consequently, the affidavit does not overcome the statutory presumption of valid consent. OCGA § 31-9-6.1 (d).

Dr. Herz’s testimony fails to rebut the presumption of valid consent for the additional reason that it contradicts the testimony of Tuten’s other expert. Typically, the plaintiff in a professional malpractice action is not competent to testify to the standard of care and must rely on an expert to do so. As discussed above, if a party’s expert witness contradicts his own testimony, that contradictory testimony will be construed against the party on motion for summary judgment. Abdul-Majeed, supra. Similarly, the rationale of Prophecy Corp. and Abdul-Majeed also applies where a party’s own expert witnesses offer contradictory testimony. The contradictory testimony will be construed against the party on motion for summary judgment. In this case, Tuten cannot create a question of fact by relying on the contradictory testimony of her own experts. See AbdulMajeed, supra. The contradictory testimony of Tuten’s own experts must be construed against her on motion for summary judgment.

Decided May 28, 1999 — Cert. applied for.

Calhoun, Cerbone & Sapp, John R. Calhoun, Kenneth A. Calhoun, for appellant.

Beckmann & Pinson, Luhr G. C. Beckmann, Jr., William H. Pin-son, Jr., Mark H. Glidewell, for appellee.

We note that the case presented here, where a party offers the contradicting testimony of its own expert witnesses to create a question of fact on motion for summary judgment, is distinguishable from the case where a lay third-party witness offers contradictory testimony. See Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997). In the latter case, the rule in Prophecy Corp. would not apply because the witness is not speaking on behalf of the party. We also note that Prophecy Corp. does not apply where the issue is the validity of an expert’s affidavit for the purposes of OCGA § 9-11-9.1. See Sawyer v. DeKalb Med. Center, 234 Ga. App. 54 (506 SE2d 197) (1998).

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       The affidavit of Dr. Joseph L. Womack was attached to the complaint in accordance with OCGA § 9-11-9.1.

       Under Prophecy Corp.,

      [t]he standard to be applied is: (1) determine whether the testimony of the party is contradictory, (2) if a reasonable explanation is offered for the contradiction, that testimony will not be construed against the party, (3) the burden is on the party giving the testimony to offer a reasonable explanation, and (4) whether this has been done is an issue of law for the trial judge.

        Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987).