author: Smith, Judge.

text:
    A98A0017.
    RICHARDSON v. THE STATE.
    (504 SE2d 65)
   Smith, Judge.

Charlie James Richardson was convicted by a Colquitt County jury of burglary, armed robbery, aggravated assault, and three counts of possession of a firearm during the commission of a felony. He appeals from the judgment of conviction, alleging error in the trial court’s reinstatement of two jurors over his peremptory strikes and in failure to correct allegedly improper questioning by the State. We find no error and affirm.

1. The trial court did not err in returning two jurors to the jury panel after Richardson exercised his peremptory strikes to remove them. “The principles of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) [(1986)] apply equally to the defense as to the prosecution. [Cits.]” Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994). Peremptory jury strikes may not be based upon race or gender, and claims of racial or gender-based discrimination are evaluated under the same standard. McGlohon v. State, 228 Ga. App. 726, 727 (492 SE2d 715) (1997) (physical precedent only). Richardson exercised eight of his twelve peremptory strikes against white male prospective jurors.

“To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996). The trial court’s findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

Richardson contends the State failed to establish a prima facie case of discriminatory use of peremptory challenges. It is true that “[t]he initial question is whether appellant established a prima facie case of discrimination to trigger the prosecutor’s duty to give racially [or gender] neutral reasons for the exercise of his challenged peremptory strikes. However, once a prosecutor has offered a race-neutral [or gender-neutral] explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Citation and punctuation omitted.) Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993); Ellerbee, supra at 315 (6).

While the trial court did not explicitly invoke every step of the process with respect to each juror, it is apparent, viewing the voir dire transcript as a whole, that the trial court first determined that a prima facie case had been made and listened to Richardson’s reasons for all the challenged strikes. The trial court then accepted Richardson’s explanations for all but two of the challenged jurors. But with respect to these jurors, the court allowed the State to respond to Richardson’s explanations before making a decision. This indicates that the trial court accepted Richardson’s explanations as race-neutral under the second step of the test, but at the third step chose to disbelieve them following the State’s response. Russell v. State, 230 Ga. App. 546, 548 (2) (497 SE2d 36) (1998).

To rebut a prima facie case of discrimination in the use of peremptory strikes, the proponent of the strikes must explain each one. “The explanation need not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges.” (Citation and punctuation omitted.) Gamble, supra at 327 (5). Importantly, however, “rubber stamp approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ensure that no citizen is disqualified from jury service because of his race.” (Citations and punctuation omitted.) Id.

Here, the State challenged Richardson’s strikes on the basis of both race and gender. With respect to the first juror at issue here, Richardson’s counsel at first could not recall if the juror was an older man, but his co-counsel noted that he had served in the military from 1945 to 1948. Counsel offered the explanation that the juror was a “farm man” or “livestock man” and “looked very conservative.” After questioning by the trial court, counsel stated his belief that the juror might have had livestock stolen from him at some time, and “[i]t just all added up to sort of a conservative bent to me.” Pressed for additional reasons, counsel stated that his age was also a factor and that the next juror seemed preferable. After the State responded at the trial court’s request, Richardson’s counsel offered the additional reason that the juror was wearing a red, white, and blue tie. The trial court observed that there were other prospective jurors not excused by Richardson that were as old or older than this juror and appeared as conservative to the court. The court concluded that Richardson was “searching for something after the fact since he has been struck. I have not heard anything yet that I find is a legitimate explanation for the excusal of [this juror].”

With respect to the second juror at issue here, counsel was unable to locate his notes. Co-counsel stated that he had some concerns regarding the juror’s health because he wore trifocals and appeared to be in some discomfort moving around the courtroom. Counsel added that the juror was apparently retired, and co-counsel added that “I think we found some jurors that were more desirable to us further down the line.” The trial court concluded, as with the first juror, “considering the totality of the selection process, it appears to the court that a reason is being searched for after the fact to explain the excusal.” The trial court also noted that, while age would ordinarily be a “legitimate concern” in a case involving elderly victims, age in itself was not a factor in exercising the strike because other persons of approximately the same age were not struck by Richardson.

Significantly, the trial court did not return prospective jurors to the panel when Richardson articulated other non-race- and gender-based explanations for his peremptory strikes. For example, the trial court accepted strikes when the prospective juror or a close relative had been a victim of robbery, knew the victims in this case, worked for the State or in law enforcement, or worked in the banking or financial industry. We must also consider the number of Richardson’s strikes against white males and the trial court’s conclusion that “counsel was engaging in post hoc rationalization,” McGlohon, supra at 728. Viewing the record on voir dire as a whole, it is clear that the trial court concluded the explanations offered for these two jurors were pretextual under the third step of the relevant analysis.

“[T]he trial court’s finding of purposeful discrimination is a finding of fact which ordinarily must be given great deference by an appellate court, since it largely will turn on evaluation of credibility. Moreover, the trial court can visually and auditorially observe the demeanor of both prospective jurors and counsel. Thus, we may only reverse the trial judge’s determination that appellant’s peremptory challenge was motivated by intentionál discrimination if that determination is clearly erroneous.” Ellerbee, supra at 316 (7) (a). Accordingly, we must affirm the trial court’s decision to reseat these two jurors.

2. In his second enumeration of error, Richardson asserts two separate instances of alleged error in a single enumeration, in violation of OCGA § 5-6-40. “When, as here, an appellant asserts more than one error in a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration.” (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). We elect to review Richardson’s first assertion, that the prosecutor improperly asked a State’s witness if his mother was present in the courthouse and available to testify.

On cross-examination of this witness, Richardson questioned him extensively regarding whether or not his mother was present during his interview with police investigators and whether she heard an investigator threaten the witness. When the witness testified that his mother was not present when this occurred, Richardson introduced for purposes of impeachment the witness’s testimony in an earlier trial that his mother heard the investigator. It was in the context of this earlier testimony that the prosecutor asked on redirect examination where the witness’s mother was and whether Richardson could call her as a witness if he wished.

The prosecutor’s questions on cross-examination were not improper. “[T]he State is permitted to bring such relevant evidence to the attention of the jury from which it can permissibly draw such reasonable inferences as it deems appropriate, regarding the defendant’s failure to produce a witness whom he has directly or indirectly claimed could support in whole or in part the theory of his defense. [Cits.]” Pardo v. State, 215 Ga. App. 317, 318 (5) (450 SE2d 440) (1994). This is particularly true when defense counsel opened the line of questioning regarding the presence of the witness’s mother at his police interview “and then stopped the questioning in such a way as to raise an inference which redirect examination showed to be incorrect. Under those circumstances, the trial court’s decision to admit the testimony falls within the narrow range of matters about which an appellant may not complain because his own procedure or conduct procured or aided in causing it. [Cit.]” Griffin v. State, 265 Ga. 552, 554 (3) (458 SE2d 813) (1995).

3. In his final enumeration of error, Richardson again attempts to raise multiple allegations of misconduct by the prosecutor and error on the part of the trial court. We again consider only one contention, that his character was impermissibly placed into evidence by references to gang-related activity during the State’s examination of a witness.

The witness in question was called on behalf of the State, but when on the stand, he disavowed his previous written statement, denied having made it, and denied having reviewed and confirmed it in conference with prosecutors two days earlier. In questioning the witness regarding this testimony, the State asked him if he recalled saying that he was afraid of Richardson and that his “homeboys would get” him if he testified. The disavowed statement was read to the jury, and the State again asked the witness about his fear of Richardson, asking if he recalled his discussion in their meeting two days earlier regarding Richardson’s “homeboys.” The witness acknowledged that “you asked me about the gang and I told you,” that he told the prosecutors about “two groups called the Fifth Ward and the Folks,” and that he told them he was a member of a group with a different name. The State then asked the witness if Richardson was a “Folks”; Richardson objected, but only on the ground that the prosecutor was leading the witness. Only after the State again asked the witness if he said Richardson was a “Folks” did Richardson object on the ground that the question “cross[ed] the character line.”

“Evidence is harmless where admissible evidence of the same fact is before the jury.” Maher v. State, 216 Ga. App. 666, 667 (1) (455 SE2d 377) (1995). Before Richardson interposed any objection, the State asked and the witness answered numerous questions regarding his fear of Richardson and gang-related activity. The witness himself first mentioned the word “gang,” without objection. “The questions and answers that followed the overruling of defendant’s objection were not substantially different. Consequently, any error in permitting the state to question [the witness on this topic] . . . was harmless. [Cit.]” Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994).

Decided July 2, 1998

Ronald R. Parker, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       While McGlohon is physical precedent only, the special concurrence agreed with the principles stated in the majority opinion but advocated expansion of the deference given to the trial court’s findings of fact in the third step of the three-step process described below. Id. at 729-732.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A0616.
    KEMPTON v. RICHARDS.
    (503 SE2d 876)
   Ruffin, Judge.

Thomas Joseph Kempton, the father of a six-year-old girl, filed a petition in Houston County, Georgia to modify a child custody provision of a divorce decree originally entered by the Circuit Court of Leon County, Florida. Kempton filed the petition against the child’s mother, Frances Janelle Richards f/k/a Frances Janelle Kempton (“Richards”). The trial court found a substantial change in circumstances warranting modification of the previous child custody and visitation orders entered in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. The trial court granted both parties joint legal custody of the child, awarded Richards primary physical custody and Kempton reasonable visitation rights. The trial court denied Kempton’s motion for reconsideration and to set aside the judgment. We granted Kempton’s application for discretionary appeal. For the following reasons, we conclude that the trial court lacked subject matter jurisdiction and thus was not authorized to modify the decree. Accordingly, we vacate the trial court’s judgment.

Our review of the record shows that Kempton filed the complaint for modification of the child custody decree and attached a copy of the Florida decree as an evidentiary exhibit to his complaint. However, there is no evidence of record that Kempton petitioned the trial court for domestication of the decree. Likewise, there is no evidence- of record that Kempton filed a certified and exemplified copy of the Florida decree with the Clerk of the Superior Court of Houston County.

Kempton argues that the Georgia court acted without authority to modify the Florida decree because the order was not domesticated. Richards maintains that Kempton was estopped from asserting that the Georgia court lacked jurisdiction because he failed to request domestication, and thus aided in causing the error of which he now complains. However, Richards’ argument is meritless since “it is rudimentary law that parties can not, by consent express or implied, give jurisdiction to a court; that as to the subject-matter the court is limited by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver. An inability to confer jurisdiction over subject-matter upon a court, by consent or waiver, has been generally recognized and applied. Subject-matter jurisdiction is established by our laws, and there is nothing parties to a suit can do to give a court jurisdiction over a matter that has not been conferred by law.” (Citations, punctuation and emphasis omitted.) Mitchell v. Mitchell, 220 Ga. App. 682, 683 (2) (469 SE2d 540) (1996).

Generally, subject-matter jurisdiction cannot be conferred unless the foreign judgment has been domesticated. Pearson v. Pearson, 263 Ga. 400, 401 (435 SE2d 40) (1993); Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979). Pursuant to OCGA § 19-9-55 (a), the Supreme Court of Georgia held that a child custody decree was “domesticated” by filing a certified copy of the foreign decree with a clerk of the Georgia court, even though the trial court had not entered an order domesticating the foreign judgment. Roehl v. O’Keefe, 243 Ga. 696 (1) (256 SE2d 375) (1979). See also McGowen v. McGowen, 231 Ga. App. 362 (498 SE2d 574) (1998) (physical precedent only). OCGA § 19-9-55 (a) further provides that a foreign order has the same effect as a custody decree rendered in Georgia where “[a] certified and exemplified copy of a custody decree of another state” is filed in the office of the clerk of any court of Georgia. (Emphasis supplied.) OCGA § 19-9-55 (a). Thus, a properly filed “certified and exemplified copy” results in the foreign judgment being treated as a Georgia judgment pursuant to OCGA § 19-9-55.

In this instance, the Florida decree was not domesticated because there was no court order domesticating the judgment nor was there a certified and exemplified copy of the Florida decree properly filed in Georgia. Thus, under Roehl and OCGA § 19-9-55 (a), the trial court did not have authority to either modify or enforce the Florida decree absent its domestication. Accordingly, we must vacate the trial court’s judgment because “ ‘a judgment rendered by a court without jurisdiction of the subject matter is absolutely void.’ ” Crotty v. Crotty, 219 Ga. App. 408 (465 SE2d 517) (1995).

Judgment vacated.

Pope, P. J., and Beasley, J., concur.

Decided July 2, 1998.

Elliott & Haskell, George O. Haskell III, for appellant.

Westmoreland, Patterson & Moseley, Roxanne M. Hinson, for appellee.


text:
    A98A0735.
    AMSTADTER v. LIBERTY HEALTHCARE CORPORATION.
    (503 SE2d 877)
   Ruffin, Judge.

Robert L. Amstadter, M.D. sued Liberty Healthcare Corporation (“Liberty Healthcare”) for breach of contract, wrongful termination, violations of his substantive and procedural due process rights, defamation, conspiracy, bad faith, and intentional infliction of emotional distress. Liberty Healthcare moved for summary judgment and Amstadter in turn filed a motion for partied summary judgment regarding his breach of contract claim. The trial court denied Amstadter’s motion for partial summary judgment and granted Liberty Healthcare’s motion for summary judgment. Amstadter appealed, and for reasons which follow, we affirm.

“ ‘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.’ Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).” Walker v. Virtual Packaging, LLC, 229 Ga. App. 124 (493 SE2d 551) (1997).

Viewed in the light most favorable to Amstadter, the record shows that Amstadter entered into a written “subcontract agreement” with Liberty Healthcare on July 3, 1995. The contract designates Liberty Healthcare as the contractor and Amstadter as the subcontractor, and further establishes that Amstadter will act as an independent contractor. The contract states that Liberty Healthcare has agreed to provide physicians to Central State Hospital (the “Hospital”). Amstadter, a practicing psychiatrist with 35 years experience, agreed in the contract to provide the Hospital with medical services for a term of three years unless the contract is otherwise canceled. The contract expressly states that Amstadter must be acceptable to the Hospital. In addition, the contract provides that either Amstadter or Liberty may terminate this agreement at any time for “cause.” Finally, the contract provides that the Hospital’s demand for the replacement of the subcontractor for any reason shall constitute “termination for cause.”

Amstadter commenced his employment under the contract on September 1, 1995. According to Amstadter’s affidavit, Liberty Healthcare placed him on “administrative leave” on October 10, 1995. On October 12,1995, the Hospital informed Liberty Healthcare that Amstadter had “experienced difficulties in adjusting to his assignment and to administrative guidelines,” and as a result, the Hospital requested Amstadter be “reassigned by Liberty Healthcare from [the Hospital].” Subsequently, Amstadter received a letter from Liberty Healthcare which stated that his contract was terminated pursuant to the Hospital’s request that he be removed, but did not provide any farther explanation. In addition, the letter stated that Amstadter would be reported to the National Practitioner Data Bank (“NPDB”). Amstadter claimed in his complaint that a report to NPDB is intended to affect the physician’s license that is involved. Moreover, Amstadter claimed that Liberty Healthcare made his employment search difficult by its failure to respond to potential employers’ inquiries about Amstadter’s qualifications. However, neither Liberty Healthcare nor the hospital ever filed a report with the NPDB.

Following Amstadter’s termination and search for new employment, he sued Liberty Healthcare, claiming that Liberty Healthcare improperly terminated his contract and intentionally inflicted emotional distress on him by terminating his employment without cause, notice or warning, by withholding Amstadter’s earned compensation, by threatening to “ruin” Amstadter, and by directly thwarting Amstadter’s efforts to find and obtain comparable employment.

Amstadter appeals the trial court’s grant of Liberty Healthcare’s motion for summary judgment, conténding that material issues of fact remain concerning his claims for breach of contract and intentional infliction of emotional distress.

1. In his breach of contract claim, Amstadter asserts that the Hospital did not request his removal, and consequently Liberty Healthcare improperly terminated his contract. In support of this contention, Amstadter asserts that the contract provides for termination for “cause”, and that “cause” is found where the Hospital, not Liberty Healthcare, “requires the replacement [of Amstadter] for any reason.” Amstadter argues that because the Hospital requested that he be reassigned rather than removed, there was no termination for cause. Liberty Healthcare asserts that the terms are interchangeable and the Hospital’s request clearly effected his termination.

“In summary judgments involving contract cases, the construction of a contract is a question of law for the trial court ‘where the language of a contract is clear and unambiguous and capable of only one reasonable interpretation as applied to the subject matter.’ ” Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 903 (3) (476 SE2d 622) (1996). “The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. Where the intent of the parties is clear and unambiguous, the court will look to the contract alone to determine the parties’ intent.” Jones v. Destiny Indus., 226 Ga. App. 6 (2) (485 SE2d 225) (1997). Thus, “[a] contract should be construed by examining the agreement in its entirety and not merely isolated clauses and provisions thereof. [Cit.]” Id.

In this instance, the language of the contract is clear and unambiguous. The contract sets forth that it is the only contract between Liberty Healthcare and Amstadter and that his services are being offered to the Hospital on the condition that he is acceptable to the Hospital. The express language of the contract further provides that termination for cause occurs where the Hospital requires the replacement of Amstadter for any reason. The Hospital’s request to have Amstadter reassigned has the same effect as replacing him: he is terminated from his work at the Hospital. The Hospital clearly expressed to Liberty Healthcare that “Amstadter has experienced significant difficulties in adjusting to his assignment and to administrative guidelines stated for him despite the efforts of his clinical supervisor, Joel Brende, M.D.,” and that the Hospital wished Amstadter to be reassigned. The only reasonable interpretation of the Hospital’s request is that Amstadter discontinue working at the Hospital. Liberty Healthcare responded to the Hospital’s request in accordance with the contract and the intent of the parties. Accordingly, the trial court did not err in granting Liberty Healthcare’s motion for summary judgment as to Amstadter’s breach of contract claim.

2. Amstadter also contends that the trial court erred in granting Liberty Healthcare’s motion for summary judgment on the claim of intentional infliction of emotional distress. We find no error.

A claim for intentional infliction of emotional distress has four elements: (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress and (4) the emotional distress was severe. Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996). “The mere termination of employment does not authorize a recovery for intentional infliction of emotional distress. [Cit.] In order to sustain a cause of action, the defendant’s actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. [Cit.]” Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 135 (6) (498 SE2d 537) (1998). A claim for intentional infliction of emotional distress will not succeed where the defendant uttered “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. [Cit.]” Jenkins v. General Hospitals of Humana, 196 Ga. App. 150, 152 (395 SE2d 396) (1990).

Additionally, we have held that neither the filing of a lawsuit or threat to file a lawsuit is sufficient to establish humiliating, embarrassing, or frightening conduct which will give rise to a claim of intentional infliction of emotional distress. Rolleston v. Huie, 198 Ga. App. 49, 51 (2) (400 SE2d 349) (1990). See also Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541) (1988) (holding that a telephone threat to resort to physical violence and to litigation does not state a claim).

In the instant case, the evidence demonstrated that Liberty Healthcare “threatened” to “ruin” Amstadter when Liberty Healthcare told Amstadter that they intended to report him to NPDB. This “threat” was made again in writing in his letter of termination. Amstadter stated in his affidavit that Liberty Healthcare failed to respond to potential employers’ inquiries about him, and consequently made it difficult for him to obtain substitute employment. Amstadter remained out of work for a six-month period. Amstadter also stated that he had never been summarily terminated from employment and threatened in this manner. Amstadter felt a “precipitous state of shock, trauma and mental depression upon his sudden termination from [the Hospital].” In addition, Amstadter stated that in response to his loss of employment and threat of being reported to the NPDB, he felt “dejection, depression, rejection, [a] loss of self-esteem and [an] inability to support himself as well as panic at the threat of potential consequences stemming from [sic] [the] report to the NPDB.”

Evidence of Amstadter’s termination and precipitating results is construed as no more than “mere insults and indignities” and therefore, does not sufficiently state a claim for intentional infliction of emotional distress. Kitfield, supra. In addition, we find the “threat” to report Amstadter to the NPDB is akin to threatening a civil lawsuit, and as such, does not support Amstadter’s claim of intentional infliction of emotional distress. Rolleston, supra. Accordingly, the trial court did not err in granting Liberty Healthcare’s motion for summary judgment on this issue.

Decided July 2, 1998.

Lipshutz, Greenblatt & King, Edward L. Greenblatt, for appellant.

Hall, Booth, Smith & Slover, Rush S. Smith, Jr., Phillip E. Friduss, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       In 1990, Liberty Healthcare contracted with the Hospital and the State of Georgia to provide services of duly qualified physicians to the Hospital, and such contract has subsequently been renewed and was effective when Amstadter contracted with Liberty Healthcare.

       This federal instrumentality is codified as 42 USCA § 11101 et seq.


text:
    A98A0761.
    KELLEY et al. v. THE STATE.
    (503 SE2d 881)
   Ruffin, Judge.

A jury found Ronald Kelley guilty of child molestation and sexual battery of his 16-year-old niece. Kelley’s wife, Shelley Kelley, was found guilty of invading the child’s privacy. The Kelleys appealed, asserting that there was insufficient evidence to find them guilty and that the trial court erred in making several evidentiary rulings at trial. For reasons which follow, we affirm.

“ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the evidence shows that the victim was the Kelleys’ niece, who had lived with them since the age of nine. She ran away from the Kelleys’ home in July 1997 at the age of 16. She testified that she left the Kelleys because she was tired of Ronald Kelley touching her breasts, buttocks and the area between her legs. According to the victim, Ronald would touch her breasts while they were driving or when he walked past her in the house. The victim said that Ronald’s attempts to either see her naked or touch her began when she was 14 or 15 years of age. She testified that Ronald’s activities in this regard occurred frequently and that Shelley Kelley did nothing to stop the conduct.

During her testimony, the victim recalled specific instances when Ronald allegedly touched her inappropriately. For example, the victim testified that Ronald would often walk around the house wearing no pants or shorts. When she was only nine years old, she saw Ronald nude and he made her hold his penis while he urinated. According to the victim, Ronald would often ask her to take her shirt off and would become angry and say that he would deny her presents or other items she wanted in the future if she did not comply. On one occasion, the victim was cleaning Ronald’s fingernails when he asked her to take off her underwear. She exited the room and returned wearing her shorts but no underwear. As she returned to her seat to continue cleaning Ronald’s nails, he moved her leg so that he could see up her shorts. According to the victim, he then reached into her shorts and rubbed her.

The victim testified that Ronald would often show her pictures of naked women in pornographic magazines and tell her that he was going to send Playboy nude pictures of the victim. According to the victim, the Kelleys left various pornographic magazines on the dining room table, in the bathroom and under the living room couch.

The victim further testified that Shelley Kelley would often shave Ronald’s testicles in the living room and that Shelley would often be topless during these events. The victim also testified that Ronald asked her to shave his testicles. According to the victim, Ronald told her once that “it hurts like hell when you have a hard-on wearing pantyhose.” The State admitted at trial a photograph that the victim found in the Kelleys’ closet depicting Ronald Kelley with an erect penis wearing a bra and pantyhose.

Finally, approximately a week before the victim ran away from the Kelleys’ home, the Kelleys allowed the victim to drink. After the victim was drunk, she said, Ronald asked her to take her clothes off and she complied. Neither Ronald nor Shelley were wearing any clothes at the time. She proceeded to sit in a child’s wading pool with the Kelleys. According to the victim, she then went inside to take a shower, but due to her inebriated state, Shelley had to enter the shower with the victim to assist her. At this time, the victim recalled, Ronald came into the bathroom, reached inside the shower and began groping for the victim’s and Shelley’s breasts and pinching them. Although Shelley made Ronald stop touching and pinching her own breasts, she failed to take any action to prevent Ronald from pinching the victim’s breasts. Later that evening, the victim was not feeling well and Shelley prepared a bath in which the victim could lay. While the victim was passed out in the bathtub, Shelley came into the bathroom and took a picture of the victim nude. This photograph was admitted into evidence at trial.

In addition to the victim’s testimony, the State introduced the pornographic magazines found in the Kelleys’ home, pictures of the location of those magazines in the home, the Kelleys’ photograph album containing numerous pictures of the Kelleys and their friends posing nude and in various stages of dress.

A friend of the victim, Stacy Floyd, testified for the State regarding the actions taken to assist the victim in leaving home. According to Floyd, the victim said that she wanted to leave home because Ronald Kelley would make her take her clothes off and look at her. Because of these circumstances, Floyd arranged for the victim to stay with the family of Floyd’s boyfriend.

The State also called deputy sheriff Glenn Presley who obtained a voluntary statement from Shelley Kelley. According to Presley, Shelley admitted that the victim complained to her about Ronald asking the victim to remove her clothes and to allow him to touch her breasts. Additionally, Shelley admitted that Ronald read pornographic magazines and kept the magazines in the house. Finally, Shelley stated that she took a picture of the victim nude in the bathtub. Presley testified that Ronald Kelley gave Presley the camera containing the film on which Shelley Kelley had taken the photograph of the victim. Presley had the film developed.

The defendants both testified at trial. Ronald testified that he never insisted that the victim walk around the house nude, that he never intentionally touched her, never asked her to remove her underwear, and never showed her pornographic magazines. According to Ronald, he shaves his groin area once a year because of his sensitivity to rashes. He further asserted that the only time he is nude in the house is when he is in his room just prior to taking a shower. Ronald testified that the victim attempted to see bim naked and that she cleaned his fingernails on occasion because she had nothing to do.

Shelley Kelley testified that she walked around the house nude at times in order to please Ronald, but only did so when the victim was not present. According to Shelley, the victim never complained about Ronald touching the victim. Shelley testified that on one occasion Ronald did tell the victim to take her bra off, but that was only because Ronald was tired of hearing the victim complain about the tightness of the bra. According to Shelley, on the afternoon they were outside sitting in the wading pool, the victim was drunk and voluntarily walked out of the house nude. Shelley admitted taking a photograph of the victim in the bathtub, but said she did this in order to show the victim what happened when one drank too much.

1. Ronald Kelley’s child molestation conviction was based on his conduct of fondling the victim’s breasts during the time that she lived with the Kelleys. Ronald’s sexual battery conviction was based on his conduct of intentionally making physical contact with the victim’s breasts approximately a week before the victim ran away.

After reviewing the evidence in the light most favorable to support the jury’s verdict, we conclude that there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Ronald Kelley was guilty of sexual battery and child molestation. Jackson, supra. Conflicts in the testimony of the victim and the Kelleys were matters of credibility for the jury to resolve, and there was competent evidence to support each element of the State’s case. Howard, supra.

2. The invasion of privacy charge against Shelley Kelley was premised on her violation of OCGA § 16-11-62 (2), which provides that it is unlawful for “[a]ny person, through the use of any instrument or apparatus, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view. . . .” Shelley’s conviction on this count was based on her admitted conduct of taking a photograph of the minor victim while the victim was passed out nude in the bathtub. Shelley Kelley argues on appeal that she only violated the law “in a technical sense” because she never had the film developed and never showed the photograph to anyone.

We find that the fact the film was not developed or the photograph shown to others is of no consequence. OCGA § 16-11-62 (2) does not require that photographs be developed to complete the offense of invasion of privacy. Nor is a conviction under the Code section dependent upon showing the photographs to others. Id. However, an issue exists whether the victim was in a “private place” pursuant to OCGA § 16-11-62 (2). OCGA § 16-11-60 (3) defines “private place” as “a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” Accordingly, the question is whether the victim could reasonably expect to be safe from intrusion or surveillance by her legal guardian in the family home. As there is a lack of authority addressing a minor’s right to privacy in a bathroom in the familial home as against her parents or legal guardians, we look to authority addressing the similar right to privacy of private telephone conversations made in the home.

“ Tn 1968, the Congress enacted the Omnibus Crime Control and Safe Streets Act, a portion of which dealt with the interception and disclosure of wire or oral communications. 18 USCA § 2510 et seq. [Title III].’ ” Evans v. State, 252 Ga. 312, 315 (314 SE2d 421) (1984). Title III provided for concurrent state regulation of wiretaps. Accordingly, Georgia enacted OCGA § 16-11-64 (formerly Code Ann. § 26-3004). Id. OCGA § 16-11-64 is subsumed under Part 1 (Wiretapping, Eavesdropping, Surveillance, and Related Offenses), of Title 16, Chapter 11, Article 3 of the Georgia Code. And, OCGA § 16-11-62, under which Shelley Kelley was prosecuted, is also subsumed under Part 1 and is entitled “Eavesdropping, surveillance, or intercepting communication which invades privacy of another; divulging private message.” It is clear that OCGA § 16-11-62 is closely related to OCGA § 16-11-64 and Title III concerning eavesdropping and surveillance.

Regarding interspousal wiretapping, the Fourth, Eighth, Tenth and Sixth Circuits have ruled that Title III prohibits interspousal wiretapping within the marital home. See Heggy v. Heggy, 944 F2d 1537 (10th Cir. 1991); Kempf v. Kempf, 868 F2d 970 (8th Cir. 1989); Pritchard v. Pritchard, 732 F2d 372 (4th Cir. 1984); United States v. Jones, 542 F2d 661 (6th Cir. 1976).

Furthermore, the Supreme Court of Georgia has determined, in construing OCGA § 16-11-62, that a husband is not entitled to record his wife’s telephone conversations conducted in the marital residence. See Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985). See also Middleton v. Middleton, 259 Ga. 41 (376 SE2d 368) (1989). In Ransom, the Court concluded that “the legislature intended for [OCGA § 16-11-62] to apply to protect all persons from invasions upon their privacy, including invasions made upon the privacy of one spouse by the other in a private place. The legislature has not drawn an exception from the statute’s prohibition for one who, in a clandestine manner, records the private telephone conversations of his spouse which occur in a private place, and we decline to do so.” (Emphasis in original.) Ransom, supra at 658.

However, there is almost a total lack of authority addressing parental wiretapping. In Newcomb v. Ingle, 944 F2d 1534 (10th Cir. 1991), a mother intercepted and recorded her son’s telephone conversations within her home without the son’s permission or knowledge. The son, upon reaching the age of majority, sued his mother for violating Title III. The Tenth Circuit, noted that there were no cases addressing this situation and said that “[t]he closest analogy is where spouses have tapped one another, but that is still qualitatively different from a custodial parent tapping a minor child’s conversations within the family home.” Id. at 1535-1536. The Tenth Circuit declined to extend Title Ill’s prohibition to parental wiretapping.

But the North Carolina Court of Appeals in State v. Shaw, 404 SE2d 887 (NC 1991), concluded that a mother’s actions of taping her son’s conversations on the family phone without his consent or knowledge violated Title III. In so holding, the Court found that the clear language of Title III provided for no express exception for electronic surveillance between family members. Id. at 888-889.

Turning to the instant case, OCGA § 16-11-62 (2) is clear and unambiguous: it is unlawful for any person to photograph another in a private place and out of public view. As the Supreme Court of Georgia has noted, OCGA § 16-11-62 was intended to protect all persons from an invasion of privacy. Ransom, supra. There is no express exception for family members. The victim, although a minor, certainly was of an age to understand that she has a right of privacy in certain situations. And, it is logical to conclude that a 16-year-old girl would expect some privacy, even from her parents or guardians, when she was nude in the bathroom. A jury could conclude from the evidence that Shelley Kelley’s act of taking a photograph of the 16-year-old victim nude was a “casual or hostile intrusion or surveillance.” OCGA § 16-11-60 (3).

Accordingly, we find that the evidence was sufficient for any rational trier of fact to find Shelley guilty of violating OCGA § 16-11-62 (2). See Jackson, supra.

3. The Kelleys assert that the trial court erred in admitting the hearsay testimony of Stacy Floyd, the victim’s friend. As stated above, Floyd testified that approximately one to two weeks before the victim moved out of the Kelleys’ house, the victim told her that she wanted to run away because “sometimes [Ronald Kelley] would tell her like take her clothes off or he would like try to like look at her and stuff like that.” Floyd then testified that she spoke with her boyfriend in order to assist the victim in finding a place to stay.

We find that the victim’s statement to Floyd amounted to a prior consistent out-of-court statement admissible as substantive evidence. Knight v. State, 210 Ga. App. 228, 230 (2) (435 SE2d 682) (1993). The victim testified that she left home because she was tired of Ronald Kelley touching her and looking at her. The Kelleys called into question the victim’s veracity on this issue, highlighting throughout their cross-examination of the victim and their own testimony that just prior to the victim running away, they had restricted her social activities because she had violated curfew. The Kelleys also presented the testimony of Ronald Kelley’s niece, who stated that before the victim ran away the victim told her that she was planning to leave because “she was tired of [the Kelleys] putting her on restriction. . . .”

“[W]here the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149, 151 (2) (335 SE2d 869) (1985). The victim testified and was cross-examined relating to the circumstances surrounding her departure from the Kelleys’ home. As her veracity was challenged by the Kelleys, her prior out-of-court statement to Floyd was admissible as substantive evidence of the matter asserted. Knight, supra; Edwards, supra.

4. The defendants assert that the trial court erred in admitting the photograph album containing nude pictures of themselves and their friends.

"Georgia law is abundantly clear that a photograph which is relevant and material to the issues in the case is not excludable on the ground that it would inflame the minds of the jurors to see it. [Cits.]” Stevens v. State, 242 Ga. 34, 38 (5) (247 SE2d 838) (1978). See also Arnold v. State, 166 Ga. App. 313, 316 (5) (304 SE2d 118) (1983) (“ ‘[Relevant photographs are admissible to describe a person, place or thing, for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case.’ [Cit.]”). Furthermore, “[i]f evidence is relevant, no matter how slightly, it generally should be admitted and its weight left to the jury. [Cit.]” Buckner v. State, 209 Ga. App. 107, 108 (1) (b) (433 SE2d 94) (1993). The admissibility of photographs is left to the discretion of the trial court. Arnold, supra at 316.

During the trial, the victim testified regarding the Kelleys’ propensity to be naked around the house. Several of the photographs showed the defendants naked inside their home. Also, the victim testified that Ronald told her it hurt when he had an erect penis and wore pantyhose, and one of the photographs showed Ronald with an erect penis, wearing only pantyhose and a bra. Accordingly, the photographs were relevant to the issues at trial concerning the Kelleys’ conduct and assisted in corroborating the victim’s testimony. Arnold, supra.

Moreover, the photographs were admissible to impeach Ronald Kelley, who claimed that he never walked around the house nude. OCGA § 24-9-82 (“[a] witness may be impeached by disproving the facts testified to by him.”). Finally, the photographs were relevant and admissible to show Ronald Kelley’s lustful disposition. See Altman v. State, 229 Ga. App. 769, 771 (4) (495 SE2d 106) (1997) ("[w]hen a defendant is charged with sexual offenses, pornographic videotapes and pictures found lawfully in his possession are relevant and admissible ... to show defendant’s lustful disposition. [Cit.]”); see also Miller v. State, 219 Ga. App. 213, 217-218 (2) (464 SE2d 621) (1995).

Accordingly, we do not find that the trial court abused its discretion in admitting the photograph album. See Arnold, supra.

5. The defendants also assert that the trial court erred in granting the State’s motion in limine excluding the testimony of C. B. Dougherty regarding a prior false accusation the victim made against him. We disagree.

Evidence of prior false accusations of sexual misconduct made by the prosecutrix “is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. [Cits.]” Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989). However, “[b]efore evidence of a prior false accusation can be admitted, the trial court ‘must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.’ [Cit.]” Ney v. State, 227 Ga. App. 496, 498 (2) (489 SE2d 509) (1997). Defendants have “the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of [sexual misconduct].” Postell v. State, 200 Ga. App. 208, 212 (4) (a) (407 SE2d 412) (1991), reversed on other grounds, 261 Ga. 842 (412 SE2d 831) (1992). Finally, a trial court’s ruling upon the admissibility of such evidence will not be overturned absent an abuse of discretion. Ingram v. State, 211 Ga. App. 252, 255 (5) (438 SE2d 708) (1993).

In response to the State’s motion, the Kelleys proffered the testimony of Dougherty concerning the alleged false accusation. Dougherty testified that the victim accused him of trying to make her wear a bathing suit and trying “to mess with her or something.” While Dougherty denied the alleged accusations made against him, he admitted that he did not recall the victim’s specific accusations.

The defendants also proffered the testimony of deputy sheriff Presley, who stated that when the victim complained to him about the Kelleys’ conduct, she told him that on one occasion Dougherty gave her a bikini and that after she put it on, he fondled her genital area and played a pornographic movie. According to Presley, Dougherty was never charged with any crime.

In excluding evidence of the alleged false accusation, the trial court found that there was insufficient evidence to establish a reasonable probability of falsity. See Ney, supra. We agree. The only evidence tending to show falsity was Dougherty’s denial of the allegations, but this evidence has limited value since Dougherty admitted he could not remember the specific allegations. And, the deputy sheriff’s testimony that no charges were brought against Dougherty does not necessarily establish that the accusations were false, only that there was insufficient evidence to charge Dougherty. Accordingly, we do not find the trial court abused its discretion in excluding the evidence. Ingram, supra.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided July 2, 1998

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., Frank K. Martin, for appellants.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

       There was clearly no consent as the minor victim was passed out and so we do not reach the issue of whether the victim had the capacity to consent in this situation. However, we note that while children in Georgia remain minors until they reach 18 years of age (OCGA § 39-1-1), they can consent to sexual intercourse at the age of 16. See OCGA § 16-6-3. Moreover, minors can enter into contracts, although the contracts are voidable. OCGA § 13-3-20. And, minors can draft wills once they turn 14 years of age. OCGA § 53-4-10. Given that the Georgia legislature has determined that minors upon reaching a certain age are capable of understanding and comprehending the ramifications of making a will and having sexual intercourse, it is certainly possible that a 16-year-old minor would have the capacity to consent to having her legal guardian take a nude photograph of her.


author: Eldridge, Judge.

text:
    A98A1500.
    D. N. GARNER COMPANY, INC. v. GEORGIA PALM BEACH ALUMINUM WINDOW CORPORATION.
    (504 SE2d 70)
   Eldridge, Judge.

D. N. Garner Company, Inc. (“Garner”) brought suit against Georgia Palm Beach Aluminum Window Corporation (“Georgia Palm”) to recover damages for an alleged breach of contract. Georgia Palm filed a motion for summary judgment. The trial court determined that a contract did not exist between the parties and granted summary judgment to Georgia Palm. Garner appeals, asserting that the trial court erred in granting Georgia Palm’s motion.

“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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). 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).

Garner, who is a general contractor, alleged in its complaint that it won a contract to renovate The Little River Apartments for the Carrollton Housing Authority. In submitting its bid for the renovation, Garner relied on an offer in the amount of $40,027 from Georgia Palm for the sale and installation of the windows. Garner further alleged that, before it was awarded the contract for the renovation, it entered into a contingent contract with Georgia Palm to furnish windows for the renovation project which met the specifications of the architect at the price set out in their initial offer, plus tax. Garner claimed Georgia Palm breached the contract and sought damages for the additional price it had to pay for the windows from another source and for its delay in completing the renovation timely.

On Georgia Palm’s motion for summary judgment, the following evidence was adduced via affidavits: Georgia Palm ascertained through an industry service entitled the “Dodge Daily Bulletin” that the Carrollton Housing Authority was engaged in the modernization of some of its apartments and that Garner intended to bid on the project as the general contractor. Prior to making a written offer to Garner, Georgia Palm submitted the specifications for its model S-1100 window to the architect for the Carrollton Housing Authority. On June 27, 1996, Georgia Palm made a written offer to Garner to sell certain sizes and quantities of its model S-1100 aluminum windows for the price of $40,027, plus tax. This offer stated that it was open to Garner for a 30-day period. The model S-1100 window in Georgia Palm’s offer was identical to the model S-1100 window submitted to the architect for approval.

Georgia Palm’s president, W. M. Jordan, Jr., averred that Georgia Palm’s offer to sell to Garner was only for the model S-1100 windows in the size and quantity shown on its offer; that Georgia Palm never offered to sell or provide Garner with any windows except the model S-1100; that the model S-1100 window did not have and had never had a tilt sash that could be removed; and that such offer was never accepted by Garner and was specifically refused. Mr. Jordan further averred that at all times Georgia Palm stood ready, willing, and able to sell to Garner the model S-1100 windows at the price and quantities set out in its offer.

In further support of its position, Georgia Palm also submitted the affidavit of its attorney, Ben Kirbo, who averred that Garner never produced a copy of any contract in response to its request for production of documents seeking a copy of the contract it allegedly had with Georgia Palm for windows which met the specification of the architect. In response to such request, Garner stated that “the specifications of the architect was [sic] obtained by [defendant directly from the architect. Enclosed is a letter from Georgia Palm where the shop drawings made to the specification were sent” to the architect. A copy of the letter is not part of the record in this case. On October 1, 1996, Georgia Palm submitted shop drawings and sample windows to the housing authority.

In response to Georgia Palm’s motion for summary judgment, Garner submitted two affidavits of the president of the corporation, Dale Garner. According to Mr. Garner, on at least two occasions, the parties agreed that Georgia Palm would supply and install the windows necessary to complete the renovations. Mr. Garner further averred that Garner’s acceptance of Georgia Palm’s offer was conditioned upon Georgia Palm satisfying the condition precedent of assuring that the windows met project specifications and were approved by the architect and the housing authority.

Mr. Garner further stated that, prior to submitting its bid, Georgia Palm had assured him that its windows met project specifications and that it had obtained the necessary approval from the architect. Mr. Garner averred that, when he was initially contacted by Georgia Palm, Mr. Jordan stated that he had checked the specifications, that the windows on his offer complied with the specifications, and that he had been in contact with the architect and had everything worked out on the windows with the exception of: (1) whether a thermal break would be required and (2) the exact number and sizes of the windows. Mr. Garner further averred that he determined the exact window count and size for Georgia Palm and that Mr. Jordan later stated to him that the housing authority would not require that the windows have a thermal break. Georgia Palm then submitted to Garner its written offer to supply and install the model S-1100 window. After Garner received Georgia Palm’s written offer, the parties agreed that, if Garner was awarded the contract, Georgia Palm would furnish and install the windows under Georgia Palm’s written offer.

It is undisputed by the parties that, prior to submitting its offer, Georgia Palm had forwarded to the supervising architect for the project drawings and written specifications for the model S-1100 window. There is no evidence in the record that, prior to Garner submitting its bid as the general contractor, either the housing authority or the architect communicated with either party as to whether the model S-1100 window was acceptable. Mr. Garner averred that the model S-1100 is not a standard model number used in the industry and that such number is used only by Georgia Palm. Mr. Garner stated that, in submitting his company’s bid on the project, he relied on Mr. Jordan’s representations that he had checked the specifications for the project, that the model S-1100 windows complied with such specifications, and that he had received approval for the model S-1100 window from the architect. A copy of the project specifications is not part of the record.

Relying on these representations and accepting the quote in Georgia Palm’s offer, Garner then submitted its bid for the renovation job. Garner was awarded the contract for the renovation project. Mr. Garner averred that after Garner was awarded the contract, the parties once again agreed that Georgia Palm would furnish and install the windows and that, at such time, Georgia Palm, once again, assured Mr. Garner that it would get any further approval that was necessary from the housing authority.

Georgia Palm submitted both shop drawings for and a model of its model S-1100 window to the housing authority. The model, drawings, and written specifications submitted to the architect and the housing authority, both prior to and subsequent to Georgia Palm’s offer, did not show that the model S-1100 window had a tilt down sash that was removable.

After the renovation project was commenced, the housing authority rejected the model S-1100 window because it did not have a tilt down sash which could be removed and repaired at another location. Georgia Palm refused to furnish a window with a tilt down sash that could be removed at the bid price. Garner purchased the window from another supplier.

1. Before this Court can address the issue of whether a contract did, in fact, exist between the parties, we must determine if the provisions of the Uniform Commercial Code (“UCC”) apply.

The alleged contract involved a mixed sale of goods and services. In such mixed contracts, “[w]hen the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and the UCC applies even though a substantial amount of service is to be rendered in installing the goods. When, on the other hand, the predominant element of a contract is the furnishing of services, the contract is viewed as a service contract and the UCC does not apply. As it is said: A contract for services and labor with an incidental furnishing of equipment and materials is not a transaction involving the sale of goods and is not controlled by the UCC. Factors to be considered in determining the predominant element of a contract include the proportion of the total contract cost allocated to the goods and whether the price of the goods is segregated from the price for services. A smaller proportion of the total price assignable to services, or a failure to state a separate price for services rendered, suggest a contract for the sale of goods with services merely incidental.” (Citations and punctuation omitted.) Southern Tank &c. Co. v. Zartic, 221 Ga. App. 503, 504 (471 SE2d 587) (1996); J. Lee Gregory v. Scandinavian House, 209 Ga. App. 285 (433 SE2d 687) (1993).

Georgia Palm’s bid did not segregate the total price of the windows from the total price of the services to be rendered. Under the facts of this case, “[i]t can hardly be said that the sale of the windows was ‘incidental’ to the transaction. Rather it would appear that the rendition of services was the incidental factor.” J. Lee Gregory v. Scandinavian House, supra at 288. Therefore, even though a substantial amount of service was involved in installing the goods, the predominant character of the transaction was the sale of goods, and the provisions of the UCC apply.

2. Having determined that the UCC applies, we must look to the UCC to determine if Georgia Palm and Garner had entered into a contract for the sale and installation of windows that meet the project’s specifications and if these specifications required windows with tilt sashes.

“The UCC provides, in part: ‘A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.’ OCGA § 11-2-204. It adds: An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.’ These (and other) provisions make it clear that the UCC ‘expands our conception of contract. It makes contracts easier to form, and it imposes a wider range of obligations than before. Contract formation is easier in several ways. Parties may form a contract through conduct rather than merely through the exchange of communications constituting “offer and acceptance.” Further, Article Two reduces the formalities required for contract formation. The statute of frauds (section 2-201) requires only a writing that “indicates” a contract was made, and 2-206 and 2-207 (1) abandon the requirement that an acceptance must coincide precisely with all terms of the offer. Section 2-204 (3) states: “Even though one or more terms are left open[,] a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” ’ [Cit.]” J. Lee Gregory v. Scandinavian House, supra at 288-289.

Under these expanded concepts of contract formation, Garner has produced sufficient evidence in rebuttal to Georgia Palm’s motion for summary judgment to establish that material issues of fact exist for determination by a jury. Material issues of fact exist as to whether there was an acceptance of the written offer by Georgia Palm to furnish and install windows for the project and whether such offer was simply for model S-1100 windows or for windows which met the specifications for the project. If it is determined that the offer was for windows which met the specifications of the project, a material issue of fact exists as to whether the model S-1100 windows met the project specifications.

From the pleading and the evidence, it is apparent that, on remand, Georgia’s equity doctrine of promissory estoppel may arise. Therefore, material issues of fact also exist as to whether Georgia Palm made promises to Garner which Garner relied upon, whether Georgia Palm reasonably expected to induce action or forbearance on the part of Garner, and whether such reliance on the part of Garner was reasonable.

Decided July 2, 1998.

Michael E. Garner, for appellant.

Kirbo & Kendrick, Ben Kirbo, for appellee.

Since material issues of fact exist, the trial court erred in granting summary judgment to Georgia Palm.

Judgment reversed.

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


text:
    A98A1559.
    OSBORN v. THE STATE.
    (504 SE2d 74)
   Eldridge, Judge.

On October 27, 1993, the defendant, Houston Wayne Osborn, was convicted by a jury of: (1) Count 1, aggravated assault by placing a knife at Donna Osborn’s (his wife) throat, and (2) Count 2, aggravated assault by charging toward Michael Osborn (his son) with a knife and pointing a knife at his throat. The defendant was sentenced to twenty years, to serve ten years, with the balance on probation on each count to run concurrently.

The defendant filed a motion for new trial on November 8, 1993. An amended motion for new trial was filed on November 24, 1997. After a hearing, the defendant’s motion for new trial was denied on January 6, 1998. It is from this order that the defendant appeals. Without challenging the sufficiency of the evidence, the defendant enumerates four errors of law. We find each of these enumerations without merit and affirm.

On August 29, 1993, the defendant’s son went to his parents’ home with his roommate, Steven Pierce, to work on his truck. While he was there, his parents got into an argument about the presence of pets in the house and the resulting hair in the defendant’s food. The defendant began throwing items that were within his reach at the wall. While the defendant was berating his wife, he took a knife and hit the door frame with the blade.

As the defendant’s son left the house, the defendant walked in a fast pace up to his son, put the knife to his throat and threatened to “cut him.” When the defendant’s wife attempted to intercede on their son’s behalf, the defendant grabbed her and held the knife to her throat.

The son got a gun from his truck, approached the defendant and requested that the defendant leave his mother alone. The defendant and the son began struggling over possession of the gun. The defendant gained possession of the gun. The gun was fired three times. The first shot went through the son’s hand and hit the trailer. The second and third shots were blank.

1. In his first enumeration of error, the defendant alleges that the trial court erred in refusing to grant a mistrial when the defendant’s son testified that the defendant had been in prison.

During cross-exámination of Michael Osborn by the defense, the following testimony was given by the witness. “Q: Did you go to Colorado first? When did you go to Colorado? A: It’s been several years ago. I’m not — Q: How long ago? A: It’s been several years. I’m not sure right off the top of my head. It’s been quite awhile. We did go to Colorado before we went to Wyoming. Q: Who’d you go with? A: I went with my mother, my brother, and my father. Q: How long did you stay out there? A: Well, we stayed there about a year and a half. Q: And your father went with you? A: No, sir. I was mistaken. He was in prison there. So we left here to go to there to see him.”

The defense attorney did not object at this time to the witness’ response about the defendant being in jail. The following day, the defense counsel made a motion for a mistrial based on the unresponsive answer of Michael Osborn about the defendant being in prison. The trial court denied the motion for mistrial but offered to give a corrective charge. The defense attorney refused the corrective charge, asserting that it would draw more attention to the statement.

“[T]he decision of whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. [Cit.]” Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538) (1984). “There was no error in denying the motion for mistrial after the defendant declined curative instructions.” (Citation omitted.) Collins v. State, 229 Ga. App. 210, 213 (493 SE2d 592) (1997); Fitzgerald v. State, 193 Ga. App. 76, 78 (386 SE2d 914) (1989).

Further, the defendant’s objection to the witness’ response and motion for mistrial was not timely made. “In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” (Citations and punctuation omitted.) Doughty v. State, 175 Ga. App. 317, 321 (333 SE2d 402) (1985). “It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.” (Citations and punctuation omitted.) Howell v. State, 179 Ga. App. 632, 635 (347 SE2d 358) (1986).

2. In two enumerations of error, the defendant asserts that the trial court erred in admitting a statement made by the defendant while he was incarcerated because it was not provided to the defense prior to trial pursuant to the provisions of former OCGA § 17-7-210, and it was intended for his attorney and, therefore, privileged under the attorney-client privilege.

On a Sunday, about three weeks prior to trial, the defendant’s wife went to visit the defendant at the jail. The defendant gave a document to Mrs. Osborn that he had written which purported to be Mrs. Osborn’s statement of what had occurred, asked her to recopy the document in her own handwriting, sign the document and have it notarized, and give it to his attorney. The defendant then placed the document in an envelope with his attorney’s name on the outside of the envelope. Mrs. Osborn testified that the defendant addressed the envelope to his attorney “so that he could give — so they wouldn’t open it and go through it in the visiting room if they found it when he handed me his dirty clothes.”

Mrs. Osborn testified that she refused to recopy the document and sign her name to it because “I’m not going to sign something that’s going to perjure me because that’s not my — the way I saw things. That’s not the way it happened, and I’m not going to write something that’s not in my own words — and what happened that’s not true.” At some point after the document came into Mrs. Osborn’s possession, she went by defense counsel’s office and told defense counsel that the defendant had written a document for her to sign and have notarized. Mrs. Osborn further testified that a few days before trial, she met with the prosecutor and told him about the document. At such time, she gave the statement to the State.

(a) Former OCGA § 17-7-210, now repealed, applies to this matter, as it was docketed prior to January 1, 1995. See Ga. L. 1994, p. 1895, § 13. Under former OCGA § 17-7-210, if a defendant makes either a written or oral statement while in custody, the defendant is entitled to a copy of any statement and a written summary of all relevant and material portions of an oral or partially oral statement at least ten days prior to trial, if a timely proper demand is made under the statute. OCGA § 17-7-210 (e) provides that “[t]his code section shall not apply to evidence discovered after a request has been filed. If a request has been filed, such evidence shall be produced as soon as possible after it has been discovered.”

The document in question in this case was not, however, an in-custody statement made by the defendant, but was a document which the defendant prepared for his wife to sign which purported to be the statement of his wife about the way the altercation and assault occurred — according to the defendant. Under the plain wording of the statute, the defendant is only entitled to copies of statements made by him while in police custody. This Court, in Williams v. State, 202 Ga. App. 728, 729 (415 SE2d 327) (1992), found that the defendant was not entitled to a copy of the letter he wrote to the victim’s mother while he was in jail and held that “[a] letter voluntarily written to a party other than the state or law enforcement officers is prima facie not a ‘statement given by defendant while in police custody’ which is subject to OCGA § 17-7-210.” (Punctuation omitted.) Likewise, in this case, the defendant was not entitled to a copy of a document he prepared while in jail for one of the victims to sign stating what that victim purportedly observed.

Decided July 2, 1998.

Kathleen J. Anderson, for appellant.

(b) “Communications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court.” OCGA § 24-9-24. “It is axiomatic that the [attorney-client] privilege belongs to the client, not the attorney.” (Citation and punctuation omitted.) Moclaire v. State, 215 Ga. App. 360, 363 (451 SE2d 68) (1994). Therefore, the attorney-client privilege can be waived by the client. Mikart v. Marquez, 211 Ga. App. 209 (438 SE2d 633) (1993). A communication made to an attorney “with the intention of having this communication imparted to the opposite party, can not be considered a confidential communication between client and attorney.” (Citation and punctuation omitted.) Griffin v. Williams, 179 Ga. 175, 178 (175 SE 449) (1934). The defendant’s act of delivering the document to his wife who was one of the victims, requesting her to read the document, rewrite it in her own handwriting, sign the document, and have it notarized prior to giving it to his attorney is certainly a waiver of the attorney-client privilege.

3. Finally, the defendant argues that the trial court erred in failing to grant a new trial because two of the State’s witnesses, Michael and Donna Osborn, perjured themselves on the stand at trial. “The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” (Citations and punctuation omitted.) Brown v. State, 209 Ga. App. 314, 316 (433 SE2d 321) (1993). Accordingly, the trial court did not err in denying the defendant’s motion for a new trial on this ground.

Judgment affirmed.

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

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       The defendant also was indicted in Counts 3, 4, and 5 for aggravated assault and in Count 6 for criminal attempt to commit murder. All of these counts arose from the defendant allegedly firing a pistol at Michael Osborn. However, the jury returned a verdict of not guilty on these counts of the indictment.


text:
    A98A1578.
    In the Interest of M. D., a child.
    (503 SE2d 888)
   Eldridge, Judge.

On December 15, 1997, Officer R. Hembree of the Clayton County Police Department was dispatched to Morrow Middle School upon a request by the school’s principal, who had received information about an incident involving appellant M. D., a 13-year-old student. After interviewing M. D., the victim, and other witnesses, the officer filed a petition in Clayton County Juvenile Court which alleged that M. D., while in possession of a gun, pushed, struck, and threatened a fellow student on December 12, 1997, when both students were on school grounds after a basketball game.

On February 9, 1998, the court held an adjudicatory hearing, during which several witnesses testified regarding the incident. Following the presentation of evidence and arguments, the juvenile court found that M. D. committed the offenses of carrying a weapon at a school function or on school property (OCGA § 16-11-127.1), simple battery (OCGA § 16-5-23), and terroristic threats and acts (OCGA § 16-11-37).

The court then immediately moved into the dispositional phase. However, the probation officer notified the court that he was not prepared to make a recommendation regarding disposition, explaining that the Clayton County Juvenile Court generally conducted dispositional hearings on Wednesdays. The court responded that “I don’t know what /all’s procedure is up here, but I’ll go forth with my procedure.” The defense made no request to present evidence, argument, or other matters regarding the best interest of the child. The court then issued its dispositional order without further inquiry or evidence. Such order required M. D. to serve in restrictive custody for two consecutive periods of 90 days at a Youth Development Center, to serve 60 hours of community service, to pay supervision fees, and to abide by a 6:00 p.m. curfew.

On February 18,1998, M. D. moved the court to reduce the order of 180 days of restrictive custody, based upon the court’s failure to conduct a dispositional hearing pursuant to OCGA § 15-11-33 (c); M. D. also requested supersedeas bond. The court denied the motions. M. D. appeals. Held:

1. Without challenging the adjudication of delinquency, M. D. asserts that the court committed reversible error by failing to conduct a dispositional hearing, as mandated by OCGA § 15-11-33. We agree.

“OCGA § 15-11-33 (c) provides for a bifurcated procedure in a delinquency case. When the adjudicatory stage has been completed, the court must conduct a dispositional hearing.” In the Interest of C. W., 227 Ga. App. 763, 768 (490 SE2d 442) (1997). During such hearing, “[virtually any evidence that is material and relevant on the issue of disposition is admissible, because for purposes of making an appropriate disposition, the court needs to know as much about the child as possible.” D. C. A. v. State of Ga., 135 Ga. App. 234, 237 (217 SE2d 470) (1975). Thereafter, the court has the opportunity to “explore all available additional avenues, including psychiatric and sociological studies, which would enable [the court] to provide a solution for the youngster and his family aimed at making the child a secure law-abiding member of society.” Id. at 238. See also J. B. v. State of Ga., 139 Ga. App. 545, 547 (228 SE2d 712) (1976).

Upon motion of either party or the court’s own motion, a continuance may be granted to gather evidence for the dispositional hearing. OCGA § 15-11-33 (e). The probation officer’s protest that he was unprepared to proceed until the next Wednesday should have been treated as a motion for continuance. The adjudicatory hearing may be immediately followed by the dispositional hearing. See OCGA § 15-11-33 (b) and (c). However, for such bifurcated procedures to fulfill the intended purpose of each meaningfully, both parties must be on notice of the court’s intent to so proceed and to be prepared to proceed. To force either or both sides to proceed unprepared is to deny the dispositional hearing.

Thus, in this case, “the trial court held only one phase of the bifurcated procedure. The juvenile had a right to a dispositional hearing in which he could have presented evidence relevant to the issue of disposition. We find that the juvenile code requires both an adjudicatory and dispositional hearing. Accordingly, the trial judge erred in making a disposition in the case in the absence of a dispositional hearing. [In the Interest of J. E. H., 202 Ga. App. 29, 30 (413 SE2d 227) (1991).]” (Punctuation omitted; emphasis supplied.) In the Interest of C. W., supra at 768. See also OCGA § 15-11-33 (d). Further, “[e]rror based on the failure to hold it is neither harmless nor preserved only by objection.” In the Interest of C. W., supra at 768.

Therefore, we vacate the order of disposition and remand this case to the juvenile court for a dispositional hearing in accordance with OCGA § 15-11-33 (c) and (d), and a redetermination regarding the disposition of M. D.’s case.

2. M. D. also challenges the disposition, asserting that it exceeds the maximum allowable penalties under OCGA § 15-11-35 (b). Since this issue may again be raised during the dispositional hearing on remand, we will address the issue on its merits.

(a) The juvenile court adjudicated M. D. delinquent based upon three allegations, including one designated felony, i.e., carrying or possessing a weapon in violation of OCGA § 16-11-127.1 (b). See OCGA § 15-11-37 (a) (2) (B) (iv). However, it is clear from the record that the court’s order of 180 days of restrictive custody was entered under the provisions of OCGA § 15-11-35 (b) and not under the designated felony provisions of OCGA § 15-11-37. This is further evidenced by the fact that the court did not comply with the provisions of OCGA § 15-11-37 (b) and (c), which require written findings as to specific enumerated factors prior to committing a juvenile to restrictive custody on the basis of a designated felony. In the Interest of C. T., 197 Ga. App. 300, 302-304 (3) (398 SE2d 286) (1990); In the Interest of N. N. G., 196 Ga. App. 765, 766-767 (4) (397 SE2d 40) (1990).

(b) Therefore, the question is whether, under OCGA § 15-11-35 (b), the juvenile court judge has the power to order a juvenile to serve two consecutive 90-day terms in a youth development center for separate acts of delinquency, when the plain language of the statute states that, i£[i]f the child is adjudicated for the commission of a delinquent act, the court may in its discretion, in addition to any other treatment or rehabilitation, order the child to serve up to a maximum of 90 days in a youth development center.” (Emphasis supplied.) OCGA § 15-11-35 (b).

“The express purpose of the Juvenile Court Code is to assist, protect, and restore children whose well-being as secure members of society is threatened. OCGA § 15-11-1 (1). . . . The statutory scheme is replete with distinctions between criminal matters and matters concerning juveniles alleged delinquent. The juvenile code is concerned with the care, guidance, and well-being of children, and juveniles are declared delinquent because they need treatment and rehabilitation. OCGA § 15-11-2 (7).” (Citations, punctuation, and footnote omitted.) In re T.B., 268 Ga. 149, 150 (486 SE2d 177) (1997).

“In juvenile proceedings, the district attorney proceeds by a petition alleging delinquency based on conduct which is designated a crime or public offense under the laws. OCGA §§ 15-11-25; 15-11-39. The court adjudicates whether the child committed the delinquent act, not a crime. OCGA §§ 15-11-39 (b); 15-11-33. . . . The juvenile court disposes of the case after determining whether treatment, rehabilitation, or supervision is needed; it does not sentence the child. OCGA §§ 15-11-33; 15-11-35. And most telling of all, an order of disposition or other adjudication in a proceeding under this chapter is not a conviction of a crime. OCGA § 15-11-38 (a).” (Citations and punctuation omitted; emphasis supplied.) In the Interest of M. J. F., 191 Ga. App. 792, 793 (5) (383 SE2d 173) (1989).

Decided July 2, 1998.

Daryl W. Queen, for appellant.

Robert E. Keller, District Attorney, R. Christopher Montgomery, Jr., Assistant District Attorney, for appellee.

In other words, after hearing evidence during the adjudicatory-phase, the juvenile court makes a single determination of whether the child is delinquent, regardless of the number of offenses committed by the child. OCGA § 15-11-33 (a), (b) (2). If the court determines that the child is delinquent, then the focus turns to the appropriate disposition of the case, i.e., consideration of whether the delinquent child requires treatment, rehabilitation, or supervision, or whether the child may be discharged from detention or other restrictions. OCGA § 15-11-33 (c). This is also a single determination.

Accordingly, the juvenile court in this case did not have the option of “sentencing” M. D. to two consecutive 90-day terms in a youth development center, but was limited to the 90-day maximum provision of OCGA § 15-11-35 (b). However, this term of restrictive custody may be in addition to other treatment, rehabilitation, supervision, or suspension that is consistent with the dispositional options under OCGA §§ 15-11-35 (a), (b), (b.l), or (c) and 15-11-41 (a), (m), (n), or (o).

Order of disposition vacated and remanded with direction.

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

       The judge in this case served upon appointment after the three Clayton County Juvenile Court judges voluntarily recused themselves from hearing the case due to the fact that the victim was the child of a court employee.