author: Andrews, Judge. Beasley, Judge,

text:
    A92A1855.
    WILLIAMSON v. THE STATE.
    (428 SE2d 628)
   Andrews, Judge.

Williamson was tried and convicted of child molestation and aggravated child molestation. Count 1 of the indictment charged Williamson with aggravated child molestation in that he forced the victim to perform an act of sodomy on him on July 3, 1990; and the second count of the indictment charged Williamson with child molestation in that between January 1, 1990 and July 4, 1990, he took improper and indecent liberties with the victim in order to satisfy his sexual desires.

Evidence at trial was that on July 3, 1990, Williamson was in the bedroom watching television with the mother of the four-year-old victim, with whom he shared the house. The doorbell rang and the victim’s mother left the bedroom to talk to an insurance man. When she returned to the bedroom, Williamson was seated on the edge of the bed and the victim was on the floor between his legs. Williamson looked startled and the mother of the victim noticed that he was sexually aroused. When her mother asked her what was wrong, the victim cried but did not offer an explanation. Several days later the child reported to her 16-year-old cousin that Williamson had forced her to perform oral sex on him.

The victim was examined by a pediatrician, who testified at trial. She testified that the victim had told her that Williamson had forced her to perform oral sex upon him and had put his hand in her panties and touched her bottom and put his penis on her shoulder. The results of the medical examination were consistent with the child’s report and were also consistent with the victim having been forced to have intercourse.

At trial, the clinical social worker to whom the victim was referred testified. She stated that the victim had told her that Williamson forced her to have oral sex and that the child displayed manifestations of the child abuse accommodation syndrome, including dreams involving her father and bed wetting.

The victim’s cousin, to whom the victim first related the molestation, testified. He stated that the victim related that Williamson forced her to perform oral sex and that Williamson tried to stick his penis in her bottom.

The investigating detective testified that the victim told him that Williamson touched her private parts with his penis and forced her to perform oral sex. The victim’s mother testified that the victim told her that Williamson forced her to perform oral sex on him.

The court’s narrative for the record, outside the presence of the jury, was that the victim demonstrated with the anatomically correct dolls that Williamson had forced her to perform oral sex and that he placed his penis in the area of her private parts.

The trial court denied Williamson’s motion for a new trial and he appeals.

1. In his first enumeration, Williamson claims that the trial court violated his constitutional right to be present at all stages of the proceedings against him when it allowed his attorney to waive his presence at voir dire without first ascertaining on the record whether or not he had in fact knowingly waived this right.

An accused has the right to be present during jury selection. Allen v. State, 199 Ga. App. 365 (405 SE2d 94) (1991); Fictum v. State, 188 Ga. App. 348 (373 SE2d 54) (1988). However, the right may be waived in defendant’s presence or with his acquiescence.

In the instant case, the record supports the trial court’s finding that there was no error. Williamson’s counsel filed a motion for individual voir dire and for sequestration of jurors during voir dire. When the case was called to trial, there was a bench conference during which counsel waived defendant’s presence during jury selection. Williamson was present at the start of the trial. His counsel reiterated this waiver in defendant’s presence in open court; the transcript of the proceedings contains this waiver. Thereafter, the trial court granted defendant’s motion for individual voir dire and the court and both parties’ counsel conducted voir dire in the jury room individually, while Williamson remained in the courtroom.

Williamson argues now that there is nothing in the record to indicate that he agreed to this waiver. At the hearing on the motion for a new trial, Williamson testified that he was not informed of his right to be present at voir dire and that he had not agreed to the waiver. Nevertheless, he acknowledged that he was present in the courtroom when defense counsel announced that he would waive his right to be present for voir dire. Williamson’s trial counsel testified at the hearing on the motion for new trial and stated that although he could not specifically recall the details of this case, his normal practice would have been to send Williamson a copy of the motion for individual voir dire and to explain the waiver to him.

Because the trial court did not directly address Williamson on the record, the question presented here, as in Allen, supra, is whether Williamson subsequently acquiesced to his attorney’s waiver of his presence at jury selection. We find that the record supports the trial court’s conclusion that Williamson was present for and acquiesced in the waiver. Accordingly “[b]ecause evidence was presented which would support a finding that defendant acquiesced to his attorney’s choosing a jury in his absence, the denial of the motion for new trial should not be disturbed. [Cit.]” Allen, supra at 368.

2. Secondly, Williamson argues that he received ineffective assistance of counsel in violation of his federal and state constitutional rights. Schumacher was appointed as Williamson’s attorney in March 1991. Williamson’s attorney at the time the case was originally called to trial in March 1991 was removed by the trial court because he was experiencing hearing problems. The case was called for trial again with Schumacher representing Williamson in June 1991.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). Here, Williamson must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991). “[T]o establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra at 233-234 (1). Here, Williamson has not established that he was denied reasonably effective assistance of counsel.

Williamson argues that his second attorney, Schumacher, was ineffective in the following ways.

(a) First, Williamson claims that Schumacher was ineffective in that he waived his right to be present at jury selection without first discussing such waiver. For the reasons outlined in Division 1 above, this enumeration is without merit. Further, even if the waiver fell below the standard of effective representation, such deficiency would not reasonably be likely to have produced a different outcome in the trial. See Gross, supra.

(b) Williamson claims that Schumacher failed to cross-examine a key witness for the State, the victim’s cousin, to whom she first reported the molestation. Williamson also argues that Schumacher failed to adequately prepare for the cross-examination of the five-year-old victim. At the hearing on the motion for new trial, Schumacher testified that his decision not to cross-examine Ross was a tactical decision. With regard to the five-year-old victim, Schumacher testified that he had previously tried five child molestation cases and that in specific preparation for this case he read treatises regarding cross-examining a child victim. Although Schumacher testified that in hindsight his cross-examination would have been different, his performance in this manner was not deficient. See Gross, supra; Jacobson v. State, 201 Ga. App. 749 (5) (412 SE2d 859) (1991).

(c) Williamson argues that Schumacher failed to demand a reliability ruling for those witnesses who were called to testify about hearsay statements made by the victim and that this failure constituted ineffective assistance. This contention is without merit.

First, the transcript reveals that Williamson’s contention is based on a somewhat inaccurate factual predicate in that the record reveals that Schumacher did demand a reliability ruling regarding the pediatrician’s repetition of the victim’s statement. Also, Schumacher filed a motion to invoke the procedures of Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), and when the motion was heard the State indicated that the victim would testify.

“Examination of the transcript of the . . . trial establishes a sufficient showing of indicia of reliability, within the meaning of OCGA § 24-3-16, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury.” Gregg v. State, 201 Ga. App. 238, 241 (3) (b) (411 SE2d 65) (1991). Accordingly, we find no deficiency in this respect in defense counsel’s performance. Moreover, even if the failure to request a reliability ruling on each of the statements fell below the standard of effective representation, such deficiency would not reasonably be likely to have produced a different outcome in the trial. See Gross, supra; see also Gregg, supra.

(d) Williamson argues that Schumacher failed to move for a directed verdict of acquittal as to Count 2 of the indictment and that he failed to move for a mistrial after the State argued in closing that Williamson had molested the victim on dates other than July 3. A review of the transcript reveals that there was evidence to support the State’s claims that molestation had occurred on dates other than July 3. Schumacher testified at the motion for new trial that his decision not to move for a directed verdict of acquittal was a strategical decision based on the fact that there was evidence in the record to prevent the granting of such a motion. We do not find counsel’s performance in this regard deficient.

(e) Williamson claims that Schumacher failed to prepare him for trial. At the hearing on the motion for new trial, Schumacher testified that he met with Williamson twice prior to trial and spoke with him several times on the telephone, as well as consulting with him during trial. Schumacher also stated that he consulted with Williamson’s previous attorney. Contrary to Williamson’s argument, we do not find counsel’s performance in this regard deficient and Williamson’s claims are without merit.

(f) Williamson argues that Schumacher failed to present an alibi defense. The defense was that Williamson was in jail for a traffic violation during the period from February 7, 1990 to May 22, 1990 and thus, he argues, was incapable of the acts charged in the indictment which were based on his alleged actions between January 1, 1990 and July 4, 1990. Schumacher testified at the hearing that his decision not to present evidence on this point was a tactical one. We find no deficiency in Schumacher’s failure to present evidence regarding this imperfect alibi defense and Williamson’s claims in this regard are without merit.

Secondly, Williamson claims that Schumacher failed to present evidence that the victim was “fooling around” with other children. Again, we find no deficiency in counsel’s failure to present this defense and Williamson’s claims in this regard are without merit.

(g) Williamson claims that counsel’s failure to request a mistrial after a social worker gave an opinion regarding the child abuse accommodation syndrome constituted ineffective assistance. The testimony was elicited in response to the State’s question as to whether the victim displayed typical symptoms of child abuse accommodation syndrome. The social worker responded that “in my clinical judgment, what she said had occurred had occurred and she did display manifestations of that result, yes.”

Assuming, arguendo, that the social worker’s statement was unambiguous and thus was testimony regarding the child’s credibility and the ultimate issue in the case, we recognize that the witness’ statement was offensive to the ruling of Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987); Smith v. State, 259 Ga. 135 (2) (377 SE2d 158) (1989); and State v. Oliver, 188 Ga. App. 47 (372 SE2d 256) (1988). Nonetheless, “it cannot be said to raise a reasonable probability that but for such error, the verdict would have been different. [Cits.] This is particularly so in view of the fact that the record shows the child’s statements were reasonably consistent, thus supporting the verdict found by the jury with or without this social worker’s opinion.” Stamey v. State, 194 Ga. App. 305, 306 (1) (a) (390 SE2d 409) (1990). Although, in this case, unlike in Stamey, the social worker did not exhaustively describe the criteria for determining the victim’s credibility, her statement was not a significant addition to her main testimony. Moreover, she was cross-examined thoroughly on the subject of child abuse accommodation syndrome and she recanted on her earlier testimony by stating: “What I’m aware of is that if I am not present, I cannot swear that anything did or did not take place. What I have to deal with are the symptoms that are presented to me as a result of what’s been reported. . . .” Accordingly, we conclude that defense counsel’s performance in this matter was not so deficient that there can be shown with a reasonable probability that the results of the proceedings would have been different had he performed otherwise.

3. Finally, Williamson contends that there was insufficient evidence to support his convictions for child molestation and aggravated child molestation and that the trial court erred in refusing his motion for a new trial. We find that the evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. Pope, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Johnson and Blackburn, JJ., concur. Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the record does not show that defendant waived his right to be present at the individual voir dire of the prospective jurors and the selection of the jurors who were to determine his guilt or innocence.

The right to be present “at all stages of the trial... is an important right of the defendant, guaranteed by our [Georgia] Constitution . .. .” Wilson v. State, 212 Ga. 73, 77 (90 SE2d 557) (1955). According to Wilson, supra at 74, it is derived from the portion of the Bill of Rights which then provided: “No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both.” Ga. Const. of 1945, Art. I, Sec. I, Par. IV. A brief history of that provision may be found in Bloomfield v. Liggett & Myers, 230 Ga. 484 (198 SE2d 144) (1973). This court recognized the right to be present as being derived from the same part of the 1976 Constitution, in Palmer v. State, 155 Ga. App. 368 (271 SE2d 24) (1980).

The provision was revised in 1983: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII. The revision did not change defendant’s right to be present which, as acknowledged by the Supreme Court in Wilson, is a principle which has been recognized since the establishment of that court. As quoted there: “ ‘The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.’ [Cits.]” Id. at 74-75. As written by Chief Justice Bleckley regarding the right to be present at all stages of the proceeding in a murder case, including when a jury charge is given: “The presence of the counsel was no substitute for that of the man on trial.” Wilson v. State, 87 Ga. 583, 584 (13 SE 566) (1891).

The right to be present has been acknowledged and protected. See, e.g., Tiller v. State, 96 Ga. 430 (1) (23 SE 825) (1895) (during argument of counsel to jury); Seay v. State, 111 Ga. App. 22 (3) (140 SE2d 283) (1965) (during colloquy between jury and judge); Palmer v. State, supra (during jury view); Martin v. State, 160 Ga. App. 275, 278 (2) (287 SE2d 244) (1981) (during jury view of evidence); Collins v. State, 191 Ga. App. 289 (2) (381 SE2d 430) (1989) (during recharge to jury). Compare Jones v. State, 259 Ga. 603 (2) (385 SE2d 400) (1989) (absence of defendant not shown); Stone v. State, 177 Ga. App. 750 (1) (341 SE2d 280) (1986) (brief colloquy before jury selection).

The right extends to jury selection, “when a defendant may challenge prospective jurors ‘simply on the basis of the sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.’ (Punctuation and citation omitted.) [Cit.]” Fictum v. State, 188 Ga. App. 348, 350 (373 SE2d 54) (1988).

The 1955 Wilson case held that, with respect to the right to be present, counsel could waive it for defendant but “in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.” Wilson, supra at 77-78. Earlier this court had held that the defendant’s right to be present at every stage from arraignment to verdict “can not be waived by the attorney, except by the express authority of the defendant.” Lyons v. State, 7 Ga. App. 50 (2) (66 SE 149) (1909). This principle was repeated in Palmer, supra. According to Palmer, the court may not deprive defendant of the right “in the absence of a personal waiver by him.”

“[T]he standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege” under our Constitution as well as under the federal constitution. Butler v. State, 198 Ga. App. 217, 220 (1) (401 SE2d 43) (1990) (physical precedent only but cited in Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991), in connection with waiver of counsel. The standard was first articulated in Johnson v. Zerbst, 304 U. S. 458, 464 (58 SC 1019, 82 LE 1461) (1938)). This standard has been applied to the right to be present as it is guaranteed by the Constitution of this State. Martin v. State, supra. The court held that defendant had a right to be present at a jury viewing of evidence.

In Harwell v. England, 234 Ga. 640 (217 SE2d 154) (1975), the Court ruled that under Georgia law, a waiver of the right to be present, when made by counsel in defendant’s presence, does not require that defendant know or have been specifically warned of the right being waived. That case dealt with defendant’s absence during a jury’s view of the site of a crime where agreed-upon aspects of the site were pointed out. Moreover, the court also found a subsequent acquiescence in the waiver.

In this case, on the other hand, the waiver involves the defendant’s right to be present at the crucial time when jurors are being examined for their possible prejudice and selected to decide the defendant’s guilt or innocence. Understanding the significance of his presence and personal participation at this proceeding, which is uniquely and peculiarly a trial experience, cannot be presumed to exist in the mind of the lay person. In determining what must be shown to constitute a valid waiver of presence, the questions which must be asked are, “at what?” and “what is the significance of presence?” at the particular event. Where presence would be, at the mere viewing of a site, as in Harwell, or where the meaning of absence would have little or no significance, as also was the situation in Harwell, then the waiver can more easily be acknowledged as valid. But where the event is one at which the defendant’s presence is critical, and the lay person cannot be expected to understand the significance or what part he or she would play in the event, then the waiver must be scrutinized more carefully.

Here we are concerned about the defendant’s presence at voir dire and selection, a process which would be unfamiliar to a lay person, but critically important to the fairness of his trial, and the standard as articulated in Johnson v. Zerbst should be observed.

The record on the motion for new trial shows that before trial, the district attorney and counsel discussed the motion for individual voir dire and agreed to the procedure for accommodating it. Defendant was not part of this discussion but was in the courtroom. The district attorney and counsel then left the courtroom and discussed it with the judge either in the hallway before she came into the courtroom or in her chambers. After the panel of jurors was sworn and qualified, the court announced that individual voir dire and jury selection would be conducted in the jury room.

Then defendant’s counsel stated: “For the record, the accused — his counsel waives his presence at the voir dire of the jurors.” The court asked: “And specifically requests that he not be present, is that correct?” Counsel responded “yes,” whereupon the voir dire and selection process proceeded in the jury room, in the defendant’s absence. When it was completed, the proceedings continued in open court, in defendant’s presence. Nothing was said at that time with respect to defendant’s absence.

Neither the record of the trial nor that of the motion for new trial shows that defendant knew he had a constitutional right to be present and intentionally relinquished it. He testified at the motion hearing that he did not know he had such a right, so he did not question counsel about it when counsel decided to question prospective jurors and choose the jury without him. For the same reason, and because he was very nervous, he did not say anything to the court.

Counsel, who believed that defendant was innocent and at the motion hearing still had doubts of his guilt and thought that defendant was “very candid” with him, made the decision himself to preclude defendant, as a trial tactic to encourage candor from the jurors on sensitive personal questions and because defendant was dressed “like he was going to a nightclub,” in a black silk shirt and maybe a gold jacket and pants. He was certain he discussed defendant’s absence with him but could not recall it specifically; he said he usually asks the court to expressly record a personal waiver of defendant on the record, but that was not done here. The most he could say was that “I would say that I had — did tell Mr. Williamson that he had a right to be there,” and that “probably” defendant’s response was that he would do what counsel thought best. He explained: “I say probably because I’m applying a probability theory to this.” There is no evidence that defendant was aware of what his absence from the selection process meant and no clear evidence that he knew of his right to be present unless he chose, on counsel’s advice, to be absent.

Defendant’s waiver, exercised by counsel in this case, was not shown to meet the standard. We cannot presume that, because defendant was present in court when counsel spoke the words, he knew of his right. Nor is it shown that he thereafter learned of his right and acquiesced in the process by which the jury had been questioned and selected.

This case is unlike Allen v. State, 199 Ga. App. 365, 367 (6) (405 SE2d 94) (1991). There the record showed that trial counsel informed defendant of his right to be present at jury selection and, after it was done in his absence, defendant and counsel met to discuss the impaneled jury and no complaint was made.

It also differs from State v. Phillips, 247 Ga. 246, 247 (1) (275 SE2d 323) (1981), in which defendant left the courtroom during examination of a witness, apparently as a deliberate tactical decision made by counsel. He was present again when the judge and district attorney recounted the events leading to his withdrawal. The Court held that the evidence showed that defendant acquiesced in counsel’s express waiver and that it was “both ‘knowing’ and ‘voluntary.’ ” Id. at 249-250.

Appellant is entitled to a new trial at which, if he does waive his presence at any stage, the waiver is shown to be a valid one.

Decided March 2, 1993.

Carla J. Friend, for appellant.

Lewis R. Slaton, District Attorney, Alfred D. Dixon, Rebecca A. Keel, Assistant District Attorneys, for appellee.

I do not reach the issues decided in Division 2 of the majority opinion but I concur in Division 3.

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

       Of course, racial discrimination is precluded. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The United States Supreme Court, in reversing a conviction because of defendant’s absence during jury challenges, stated: “The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defence may not be met by the presence of his counsel only.” Hopt v. Utah, 110 U. S. 574, 578 (4 SC 202, 28 LE 262) (1884).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1751.
    GOUSE v. WILSON.
    (428 SE2d 571)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether the trial court erred in dismissing appellant’s petition for modification of a child custody decree. This action was dismissed because the Ohio divorce decree stipulated that the Ohio court “shall always retain exclusive continuing jurisdiction over the minor children. . . . [In] all future proceedings . . . Ohio shall be considered and always remain the home state . . . and neither party shall attempt to initiate any actions under the UCCJA . . . notwithstanding the fact that such minor children will reside in the State of Georgia or any other jurisdiction.” Another paragraph provides that notwithstanding any change in residence of either party, the Ohio court “shall always be the controlling court and retain jurisdiction over all minor children. . .

Appellant mother and her two youngest children have been residents of Georgia since 1988; these children have thus lived in Georgia for most of their lives. The children’s maternal grandparents and other family live in Georgia. Appellant has remarried and apparently maintains a secure lifestyle in Savannah. The children involved in this custody matter have a new baby half-sister in Savannah. After appellant filed this modification action in Georgia, appellee-father filed an action in Ohio, seeking to have appellant held in contempt for filing this action in Georgia. The Georgia court first assumed jurisdiction of this action under the Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-40 et seq., but dismissed it after the Ohio court ruled appellant in contempt. Held:

1. The trial court erred in dismissing this action. The Ohio court’s attempt to retain jurisdiction of the matter of child custody is a nullity. Buck v. Buck, 238 Ga. 540 (233 SE2d 792) and cases cited. Such provision is a nullity even though it is based on the agreement of the parties. Banister v. Banister, 240 Ga. 513, 514 (241 SE2d 247).

Appellee contends this rule does not apply to a determination under the UCCJA, but it applies even more so in such a case, for a decree which attempts to retain jurisdiction of custody matters contravenes the letter and the spirit of the UCCJA; such provision in a decree is therefore not entitled to recognition in this state in the first instance. See OCGA § 19-9-53. Jurisdiction of interstate custody disputes is controlled in this state by the UCCJA. An attempt to predetermine the “home state” is a circumvention of the UCCJA, and is an attempt to deprive this state of its lawful jurisdiction of its citizens according to the Act. See OCGA §§ 19-9-43 and 19-9-54.

Appellee contends that § 19-9-54, as to modification of a decree of another state, requires us to defer to the foreign state’s jurisdiction whenever it retained jurisdiction for the entry of future orders. This is not so, and Mercer v. Mercer, 194 Ga. App. 846 (392 SE2d 41) does not say that it is. OCGA § 19-9-54 provides that a Georgia court may not modify a decree without first determining that the other court does not have jurisdiction under the UCCJA or similar laws, or that the other state, having jurisdiction, declines to exercise it. The question whether a foreign state has jurisdiction must be considered in determining whether we have jurisdiction to modify its decree (Mercer,, supra); but § 19-9-54 requires that a determination as to the other state’s jurisdiction be made in accordance with the UCCJA. When we determine under the Georgia UCCJA that the other state does not have jurisdiction, we may assume jurisdiction. Gordon v. Gordon, 185 Ga. App. 100, 102 (363 SE2d 353). And, according to Buck, supra, nothing requires us to defer to the other state’s null attempt to retain jurisdiction, particularly when the exercise of jurisdiction by that state is contrary to the UCCJA.

2. According to the provisions of OCGA § 19-9-43, the Georgia court has jurisdiction of this case under the facts. Appellee asserts that Georgia does not have jurisdiction because Ohio was the home state of all the parties’ children at the time of the 1987 divorce, and continues to be the home state of two older children of the parties. This assertion is not pertinent to the question. The term “home state” refers to the home of the child for at least six months prior to the action. OCGA § 19-9-43 (a) (1). Appellee’s other arguments, including that the children have a significant connection to Ohio because appellee lives there, are not persuasive. The trial court should have found that the Ohio court’s attempt to retain jurisdiction is void; that the Ohio court does not have jurisdiction under its reciprocal laws (OCGA § 19-9-53; Mercer, supra); and that Georgia does have jurisdiction under the UCCJA. See OCGA § 19-9-43, which sets out the standard for that determination.

The Ohio court bases its jurisdiction on a 1988 consent order by which, on its face, appellant Gouse was held hostage either to remain in Ohio or to submit to Ohio courts throughout her children’s minority regardless where she and they lived and however tenuous became their connections with Ohio. The Ohio court, in finding appellant in contempt for filing this modification petition in Georgia, went so far as to say that under that order “[appellant] was permitted” to remove herself and two of the minor children to Georgia, “upon [condition] that [the Ohio court] shall always retain exclusive continuing jurisdiction over the minor children during each child’s minority. For purposes of all future proceedings, Ohio law shall exclusively apply and Ohio shall be considered and always remain the home state, and the state of the most significant connections, and neither party shall attempt to initiate any actions under the UCCJA ... of any other jurisdiction notwithstanding the fact that such minor children will reside in the State of Georgia or any other jurisdiction. Any party seeking judicial review of any future dispute . . . shall initiate such review . . . only through the [Ohio court].”

OCGA § 19-9-53 requires us to give full faith and credit to the initial decree of another state which “had assumed jurisdiction under statutory provisions substantially in accordance with this article or which was made under factual circumstances meeting the jurisdictional standards of [the UCCJA].” Obviously Ohio’s attempt to retain exclusive jurisdiction is not “substantially in accordance with [the UCCJA]” or under facts meeting the standards of the UCCJA.

Although the Ohio court asserts that independent of the consent order it has jurisdiction under the UCCJA, this is not so: Section 19-9-46 of the UCCJA prohibits Ohio from exercising UCCJA jurisdiction because this custody proceeding was “pending in [Georgia] exercising jurisdiction substantially in conformity with [the UCCJA].” When appellant Gouse filed this modification proceeding in Georgia, no proceeding concerning the custody of the children was pending in Ohio and the Georgia court properly exercised its jurisdiction under the UCCJA. Under the UCCJA, Ohio was then prohibited from exercising UCCJA jurisdiction. Its attempt to retain perpetual jurisdiction of these children by an initial decree allowing appellant to move to Georgia only on condition that she submit eternally to the jurisdiction of Ohio is essentially unconstitutional for preventing appellant and her children from living wherever appellant, who has legal custody, chooses.

Moreover, the Ohio court’s attempt to bind appellant and her children hostage to the control of Ohio courts is contrary to the express terms and policies of the UCCJA, which necessarily recognizes that persons may not constitutionally be restrained to reside in a particular place, and which determines jurisdiction based on factual circumstances promoting the child’s best interests and stability. OCGA § 19-9-41. If Ohio is a reciprocal state to the UCCJA, its court will not insist on holding appellant hostage to an essentially unconstitutional “consent order” which prevents her freedom of choice to live where she will, and which at the same time, by pre-establishing exclusive jurisdiction, obliterates the UCCJA. Thus, for these reasons, we cannot recognize the Ohio court’s attempt to retain jurisdiction, for it is not made substantially in accordance with the UCCJA. OCGA § 19-9-53.

Moreover, since a modification proceeding was pending in this state and we had assumed jurisdiction substantially in accordance with the terms of the UCCJA (§ 19-9-46 (a)), the Ohio court was without authority to entertain appellee’s petition for contempt, and we cannot recognize the Ohio court’s finding in that regard.

Appellee also insists that “only OCGA § 19-9-54 is determinative in a modification proceeding and . . . home state status is not the test in such a proceeding”; and that we cannot retain jurisdiction without first determining why Ohio does not have jurisdiction as a matter of law separate from the agreed retention of jurisdiction. In fact, the finding that a Georgia court has jurisdiction under OCGA § 19-9-43 is a determination that Ohio “does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with [our UCCJA].” OCGA § 19-9-54 (a) (1). Nothing in that Code section prevents appellant from bringing a petition in Georgia for the modification of an Ohio decree: OCGA § 19-9-54 (a) (1) expressly permits a modification proceeding when the former state “does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with [the UCCJA].”

Thus, Ohio’s attempt to retain jurisdiction contravenes the terms of the UCCJA, for a proceeding for modification was pending in Georgia when Ohio entertained appellee’s contempt action (§ 19-9-46); Ohio therefore cannot claim jurisdiction in accordance with the UCCJA. Its claim of jurisdiction based on an essentially unconstitutional provision in the initial decree cannot be recognized, nor is it in accordance with the UCCJA. That appellee threatens that Ohio will retain jurisdiction and will issue conflicting orders does not influence this court to ignore the law, for if Ohio is a reciprocal state of the UCCJA, it is bound to recognize our legitimate exercise of jurisdiction in the first instance (see § 19-9-46) and will not hold appellant hostage to an unconstitutional consent decree attempting to vest exclusive jurisdiction in Ohio in direct contravention of the UCCJA.

Finally, appellee’s generalized reference to the federal Parental Kidnapping Prevention Act (PKPA) is out of place. There is no “kidnapping” involved here and appellee does not show how or why a federal law relative to kidnapping would supervene the UCCJA in this case. Appellee asserts the PKPA would resolve the conflict of jurisdiction, but if the UCCJA provision prohibiting Ohio from exercising jurisdiction when there was a pending proceeding in the jurisdiction of Georgia (§ 19-9-46) had been honored by the Ohio court, there would be no such conflict of jurisdiction.

Decided January 13, 1993

Reconsideration denied March 3, 1993

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, for appellant.

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., for appellee.

The trial court erred in dismissing this action.

Judgment reversed. Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A1874.
    MATTHEWS v. DOUBERLEY.
    (428 SE2d 588)
   McMurray, Presiding Judge.

Georgia’s wrongful death statute was first enacted in 1850. Over the years, it has undergone several changes. At one time, the wrongful death law gave a widow the right to file suit alone; but it required a widower to file suit jointly with the children. See former Ga. Code Ann. § 105-1302. Because of the constitutional infirmities inherent in such a scheme, Tolbert v. Murrell, 253 Ga. 566 (322 SE2d 487), the legislature amended the statute in 1985.

The 1985 amendment provides that the surviving spouse alone has standing to bring a wrongful death action; it also provides that the surviving spouse is accountable to the decedent’s children for any damages recovered. OCGA § 51-4-2. Thus, the surviving spouse is empowered and obligated to bring a wrongful death action as a representative of the decedent’s children. Mack v. Moore, 256 Ga. 138 (345 SE2d 338).

This legislative approach is not without its problems. In light of the burgeoning incidence of divorce and remarriage, for example, it fails to recognize that the surviving spouse’s interests and the interests of the decedent’s children do not necessarily coincide. See O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, 374 (349 SE2d 382) (Justice Weltner, concurring specially). See also Comment, “Standing to Sue for Wrongful Death in Georgia When a Spouse and Children Survive the Tortious Death: Mack v. Moore,” 3 Ga. State Univ. L. Rev. 281, 296 (1987). It also fails to spell out the rights of the decedent’s children when the surviving spouse negligently contributes to the decedent’s death: Does the negligence of the surviving spouse bar his or her right to recover as the representative of the decedent’s children? This case puts the spotlight on this legislative shortcoming and brings Shakespeare to mind: “Though this be madness, yet there is method in’t.”

Plaintiff, Jerry C. Douberly, individually and as the husband of Doris B. Douberly, deceased, brought this wrongful death action against Leo Marvin Matthews III, in the State Court of Muscogee County. Defendant answered the complaint, denied liability and asserted, inter alia, that plaintiff’s negligence was equal to or greater than the negligence, if any, on the part of defendant.

The deceased was a passenger in an automobile driven by plaintiff. On the day in question, plaintiff’s automobile was struck by a bus driven by defendant. The collision occurred at an intersection. The evidence of negligence and contributory negligence was conflicting: there was some evidence that defendant was speeding and failed to keep a proper lookout; there was some evidence that plaintiff did not stop at a stop sign. The deceased was survived by plaintiff and Cynthia Douberley, the Douberley’s 14-year-old daughter.

Before submitting the case to the jury, the trial court charged the following: “Now, under the law of the State of Georgia the surviving husband is the proper party to bring a lawsuit for wrongful death of the wife. In such cases the husband holds any amount to recover subject to the laws of descent as if it were personal property descending from the . . . wife to her husband to the children, or in this situation, ‘child.’ In other words, Jerry Douberley is acting both in his individual capacity as the husband of Doris and in his representative capacity on behalf of Cynthia who is Doris’ only child. And for this reason you should assess the negligence, if any, of the Defendant Leo Matthews and of the Plaintiff Jerry Douberley in the following manner: ‘If you find by the preponderance of the evidence that the negligence of the Defendant, Leo Matthews, was the sole cause of the death of Doris Douberley, then you would be authorized to return a verdict in the favor of the Plaintiff in the amount equal to the full value of the life of Mrs. Douberley. On the other hand, if you find by the evidence that the Defendant Leo Matthews was not negligent in causing the death of Doris Douberley, then you would be authorized to find in favor of the Defendant. If, however, you find by the preponderance of the evidence that Doris Douberley’s death was caused by the combined negligence of Leo and Jerry, you should apply the following law: as to the portion of this case allocated to Mr. Douberley, that is one half of the value of the life of his wife, I charge you that Jerry Douberley is entitled to recover one half of the value of the life of the wife diminished in proportion to his own negligence and subject to the provisos that Jerry Douberley’s negligence was less than that of the Defendant, Leo Matthews, and that Jerry Douberley could not, by the exercise of ordinary care . . . have prevented the death.

“ ‘If you find the Defendant, Leo Matthews, was negligent and find that the Plaintiff, Jerry Douberley, was also negligent in contributing to this death, and that Jerry Douberley’s negligence was equal to, that is equal to or greater than that of the Defendant, then Jerry Douberley cannot recover for the portion of his claim which is one half of the value of the life of the wife.

“ ‘If, however, you find that the Defendant, Leo Matthews, was negligent so as to make him liable to Jerry Douberley on his portion of the claim, and you further find Jerry Douberley also was negligent thereby contributing to his share of the damages, but if the negligence of Jerry Douberley was less than that of the Defendant, then I instruct you this negligence on the part of Jerry Douberley would not prevent his recovery of damages on his portion of the case, but would require that you reduce the amount of damages which would otherwise be awarded to Jerry Douberley in proportion to the negligence of Jerry Douberley compared with that of the Defendant Leo Matthews.’ That’s the concept of comparative negligence.

“Now, as to the portion of the case that may be allocated to Cynthia Douberley, that is the other one half of the value of the life of Doris Douberley, I charge you that ‘if you find by the evidence that any negligence whatsoever by the Defendant, Leo Matthews, contributed to the causing of the death of Doris Douberley, then you would be authorized to return a verdict in favor of the Plaintiff in the amount equal to one half of the full value of the life of Doris Douberley, and that this amount may not be diminished or lessened on account of the negligence, if any, on Jerry Douberley.’ ”

Defendant objected to the charge on the grounds that “the law gives the sole right to bring a wrongful death action in the surviving spouse in this circumstance, and the surviving daughter does not have a separate claim that should be addressed by this jury. As a surviving child, she has only the right to share in whatever recovery the Plaintiff, the surviving husband, might make in the action. . . . [The case] should have been submitted to the jury as a simple cause of action between the Plaintiff, the surviving husband, Mr. Douberley, and the Defendant, Leo Matthews. . . .”

After deliberating, the jury returned the following verdict: “We the jury find for the plaintiff. We award damages to Cynthia Douberley in the amount of one point five million dollars [one and a half million dollars]. We award damages to Jerry Douberley in the amount of zero dollars.” Based upon that verdict, the trial court entered this judgment: “It is Ordered and Adjudged that the Plaintiff recover of the [defendant] the sum of $1,500,000.00, with interest thereon . . . and the costs of this action.”

Defendant moved to amend the verdict and enter judgment on the verdict as amended, to set aside the judgment pursuant to OCGA § 9-11-60 (b) and (d), and for a new trial. The trial court denied defendant’s post-trial motions and defendant appealed. Held:

1. Under OCGA § 51-4-2, a wrongful death action is to be brought by a surviving spouse as an individual and as a representative of the decedent’s children. Mack v. Moore, 256 Ga. 138, supra. Any amount recovered by the surviving spouse is to be held “subject to the law of descents, as if it were personal property descending from the decedent to the surviving spouse and to the children, provided that such recovery shall be equally divided, share and share alike, between the surviving spouse and the children per capita. . . .” OCGA § 51-4-2 (d) (1). Under this legislative scheme, the decedent’s children are entitled to the benefits of the action; but they do not have standing to bring or control the action. Mack v. Moore, 256 Ga. 138, supra; O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, supra. The action must be brought by the surviving spouse. Id.

Defendant argues that inasmuch as a wrongful death action can only be brought by the surviving spouse, the children’s right to recover is dependent upon the surviving spouse’s right to recover. Continuing the argument, defendant posits that if the surviving spouse’s cause of action fails because his or her negligence was equal to or greater than the negligence of the wrongdoer, then the children recover nothing. Thus, defendant concludes, the trial court erred in charging the jury that, if the negligence of plaintiff was equal to or greater than the negligence of defendant, it could nevertheless return a verdict in favor of plaintiff as the representative of the decedent’s child for one-half the value of the decedent’s life. We cannot agree.

Georgia courts have long held that the “contributory negligence of one beneficiary in a wrongful death action does not defeat recovery when the right to recovery exists in multiple beneficiaries. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830 [16 SE2d 720].” Fulford v. ITT Rayonier, 676 FSupp. 252, 254 (S.D. Ga. 1987). As it is said, “The child’s right to recover is not derived from the father, and the negligence of the father does not deprive the child of its right to recover.” Happy Valley Farms v. Wilson, 192 Ga. 830, 836, supra.

In Happy Valley Farms v. Wilson, supra at 834, the Supreme Court recognized that “the great majority of the decisions [of other jurisdictions] hold that the negligence of one beneficiary can not be charged against another.” In so doing, the Court held that in a wrongful death action, brought jointly by a husband and child to recover for the death of a wife and mother, where the negligence of the husband and the defendant combined to proximately cause the death of the wife and mother, the negligence of the husband did not bar the child’s recovery even though the negligence of the husband was equal to or greater than the negligence of the defendant.

Although Happy Valley Farms v. Wilson, supra, was decided at a time when the wrongful death statute provided that a widow could sue alone but a widower could sue jointly with the children, former Ga. Code Ann. § 105-1302, we think its holding is apposite in the case sub judice. After all, the 1985 amendment to the wrongful death statute does not do away with a child’s substantive rights; it merely provides that the surviving spouse is the proper party to bring the suit as the child’s representative. Mack v. Moore, 256 Ga. 138, supra; O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, supra. See also Comment, “Standing to Sue for Wrongful Death in Georgia When a Spouse and Children Survive the Tortious Death: Mack v. Moore,” 3 Ga. State Univ. L. Rev., supra at 290 (legislature presumably believes that OCGA § 51-4-2 adequately protects children’s rights).

Our conclusion in this regard is buttressed by Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 (191 SE2d 324). In that case, a widow brought a wrongful death action under former Ga. Code Ann. § 105-1302, which provided, as noted above, that a widow could sue alone. The defendants pleaded a release given by the widow before the suit was filed. The children moved to intervene, asserting that an adverse decision on the release issue would bar their claim and that they had no mechanism to assert their rights. The motion to intervene was denied and the children appealed. The Court of Appeals affirmed.

The Court ruled that the widow wore two hats — with one she pursued her own claim, with the other she pursued the children’s. Citing Happy Valley Farms v. Wilson, supra, the Court went on to hold that the widow would be able to pursue the children’s claim even if her own claim were barred: “The only possible conclusion is that the release signed by the mother can in no way bind the children; and even if upheld as to her personally, does not bar them from proceeding for their proportionate share. The [children’s] fears of inadequate representation by the widow in this respect are therefore groundless.” Id. at 519. Significantly, the Court added: “If the widow receives an adverse determination on the release issue, she will not be thrown out of the courtroom. She will remain as her children’s representative under § 105-1302____” Id.

Just as the widow in Lynn wore two hats, so too does plaintiff wear two hats in the case sub judice — an individual hat and a representative’s hat. And just as the widow in Lynn would remain in the courtroom as her children’s representative in the event of an adverse ruling on her individual claim, so too plaintiff was to remain in the courtroom as the representative of the decedent’s child in the event of an adverse ruling on his individual claim. It follows that the trial court did not err in charging the jury that they could return a verdict for plaintiff, as the representative of the decedent’s child, even though plaintiff’s negligence was equal to or greater than defendant’s negligence. Mack v. Moore, 256 Ga. 138, supra; O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, supra; Lynn v. Wagstaff Motor Co., supra.

Decided February 16, 1993

Reconsideration denied March 3, 1993

Denney, Pease, Allison, Kirk & Lomax, John W. Denney, Long, Weinberg, Ansley & Wheeler, Dan B. Wingate, Walker, Hulbert, Gray & Byrd, Charles W. Byrd, for appellant.

Taylor & Harp, J. Sherrod Taylor, J. Anderson Harp, Jefferson C. Callier, Charles A. Gower, for appellee.

2. Defendant also contends that, even if the trial court charged the jury properly, the judgment was not entered in accordance with the verdict because it gave the entire amount awarded by the jury to plaintiff. We do not accept this contention.

The verdict awards the decedent’s child $1.5 million and the plaintiff $0. The clear import of the verdict was to give the child one-half the value of the decedent’s life, i.e., $1.5 million. The judgment of the trial court does just that by awarding $1.5 million to plaintiff — the child’s representative.

“ ‘A judgment must conform to the verdict [OCGA § 9-12-9]; and likewise it must follow the true meaning and intent of the finding of the jury.’ Taylor v. Taylor, 212 Ga. 637, 638 (94 SE2d 744). That was done here. Accordingly, it was correct. See also Roberts v. Citizens Bank &c. Co., 33 Ga. App. 626 (127 SE 621).” King v. Cox, 130 Ga. App. 91, 93 (5) (202 SE2d 216).

3. The evidence was sufficient to support the jury’s verdict. The trial court did not err in denying defendant’s motion for a new trial on the general grounds.

Judgment affirmed. Carley, P. J., and Cooper, J., concur.

       William Shakespeare, Hamlet, Act 2.


author: Blackburn, Judge.

text:
    A92A1883.
    KING v. CRAIN-DALY VOLKSWAGEN, INC.
    (428 SE2d 586)
   Blackburn, Judge.

The appellant, Richard King, brought an action based upon conversion against the appellee, Crain-Daly Volkswagen, Inc., an automobile dealership. The appellee answered and asserted several defenses, including an allegation that the automobile was lawfully seized pursuant to the terms and conditions of the sale of the automobile. After discovery was commenced, the appellee moved the court for summary judgment. The trial court granted the appellee’s motion for summary judgment from which King appeals.

The record reveals that on October 18, 1990, appellant completed a credit application for the purchase of a 1991 Subaru Loyale and further negotiated with the appellee car dealership in late October and early November 1990, for the purchase of the automobile. During negotiations, the appellee requested that the appellant provide financial information of his income in connection with the proposed transaction. As a result of the negotiations between the parties, the appellee agreed to sell appellant the car and the appellee agreed to accept as consideration for the sale a note, a trade of appellant’s 1987 Isuzu automobile and cash in the amount of $1,821.32. On December 13, 1990, the appellant executed a retail installment contract for the purchase of the automobile as well as a bailment agreement. The bailment agreement provided that the delivery of the vehicle was made as a “convenience” to the buyer and was “subject to all terms and conditions” in the sales agreement, pending credit approval of the buyer by a financing institution and completion of the sales transaction. The bailment agreement further provided that “the vehicle shall remain the property of the Dealer.”

The appellee subsequently requested additional documentation from the appellant, including a copy of his driver’s license, a list of references, and more information supporting his income allegation. It is undisputed that the appellant was informed by the appellee that the dealership was experiencing difficulties assigning the note to a financial institution and if he could not substantiate his income statement by his 1989 tax return or other information, appellee would retrieve the car. However, the appellant did not submit additional information verifying his income and the Subaru was later seized on behalf of the appellee on January 25, 1991. This action for conversion ensued.

In his sole enumeration of error, the appellant contends that the lower court erred in granting the appellee’s motion for summary judgment when genuine issues of fact remained to be decided.

“On a motion for summary judgment under OCGA § 9-11-56 the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. [Cit.] This is so even when, as in the instant case, the movant is the party on whom the burden of proof at trial does not lie: all the evidence must be construed against the movant and in favor of the party opposing the motion. . . . [Cit.]” Ga. Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). “ ‘In reviewing the grant of a motion for summary judgment, the question before this court is whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains.’ [Cit.]” Duke Enterprises v. Espy, 140 Ga. App. 527, 529 (231 SE2d 522) (1976).

Decided February 15, 1993

Reconsideration denied March 3, 1993.

Rubin & Wildau, Martin H. Rubin, for appellant.

Schwall & Ruff, Emory A. Schwall, Craig L. Schwall, for appellee.

Conversion involves an “unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 SE 849) (1908). However, “the plaintiff . . . must show title, either general or special, in himself at the time of the institution of the suit, actual possession, or right of immediate possession. [Cits.]” Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 27 (1) (177 SE 79) (1934). Although the appellant contends that the appellee failed to pierce the allegations of the complaint sufficient to authorize the grant of summary judgment, to the contrary, the appellee has shown that the appellant did not have a right to possession of the automobile and the title of the automobile remained with the appellee. The vehicle was delivered to the appellant merely for convenience but subject to the terms and conditions of the sales agreement, pending credit approval by a financing institution and completion of the sales transaction. The appellee never transferred title to the appellant and therefore an essential element of the appellant’s conversion claim was missing. Construing the evidence in the light most favorable to the appellant, we hold that the trial court properly granted the appellee’s motion for summary judgment.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1970.
    RASH v. THE STATE.
    (428 SE2d 799)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of child molestation. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds.

The victim testified that appellant had fondled her breasts and had tried to kiss her. The victim’s parents and an investigating officer testified that she had recounted the same story to them. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). There was evidence that appellant had previously molested another child by fondling her breasts. Appellant presented no evidence in his defense.

“ ‘From these facts it can be inferred that the appellant committed those acts in order to satisfy his own sexual desires. This was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant had committed the offense of child molestation. [Cits.]’ [Cit.]” Grant v. State, 193 Ga. App. 178 (387 SE2d 408) (1989). See also Salley v. State, 199 Ga. App. 358 (1) (405 SE2d 260) (1991); Baine v. State, 181 Ga. App. 856, 857 (1) (354 SE2d 177) (1987).

2. The admission of the evidence of appellant’s commission of the similar offense is enumerated.

“[T]he State introduced . . . the . . . prior . . . [offense] through testimony of the victim . . . and . . . the investigating officer. . . .” Henderson v. State, 204 Ga. App. 884, 887 (2) (420 SE2d 813) (1992). Contrary to appellant’s contentions, the record demonstrates that the State did “inform the trial court of the purpose for which the evidence was being offered and, therefore, it was [possible] for the trial court to make the essential preliminary determination as to whether the [S]tate was introducing the evidence for an appropriate purpose.” Williams v. State, 261 Ga. 640, 643 (2d) (409 SE2d 649) (1991). Appellant likewise erroneously contends “that the prior offense . . . was insufficiently similar to the present offense to be relevant. ... In a child molestation case, ‘ “(t)he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Cit.)’ [Cit.]” Smith v. State, 193 Ga. App. 196, 198 (5) (387 SE2d 571) (1989). See also Rodgers v. State, 261 Ga. 33, 35 (3) (401 SE2d 735) (1991). Appellant’s further contentions “that the span of ten years [between the two offenses] renders the [prior offense] dissimilar to the [crime] charged [is also without merit]. As our Supreme Court recently stated in Gilstrap v. State, 261 Ga. 798, 799 [(1b)] (410 SE2d 423) (1991), ‘Where “similar transaction” evidence has been admissible otherwise, lapses of time of 11 years ([cit.]) and of 19 years ([cit.]) have not demanded that the evidence was inadmissible.’ Accordingly, a lapse of ten years in this case does not render the evidence inadmissible.” Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992).

3. In closing argument, counsel for the State stated that “the purpose of showing [the prior offense] is to show the lustful disposition of [appellant], but beyond that, to corroborate [the victim]" (Emphasis supplied.) This argument prompted a motion for mistrial, the denial of which appellant enumerates as error.

It is well-settled that “[i]n crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. [Cit.]” (Emphasis supplied.) Kilgore v. State, 195 Ga. App. 884, 885 (2) (395 SE2d 337) (1990). Thus, there was no error in the trial court’s denial of appellant’s motion for mistrial. Compare Singleton v. State, 143 Ga. App. 387, 388 (4) (238 SE2d 743) (1977).

4. Over objection, a “book-in” photograph of appellant taken in conjunction with his arrest for the prior offense was admitted into evidence as probative of his identity as the perpetrator of that prior offense. Appellant urges that the photograph was inadmissible because his identity as the perpetrator of the prior offense had already been proven.

“ ‘Photographs which are material and relevant to any issue are admissible even though they may be duplicative and inflame the jury.’ [Cit.]” (Emphasis supplied.) Harris v. State, 260 Ga. 860, 864 (5) (401 SE2d 263) (1991). The photograph of appellant was relevant and admissible to prove his identity as the perpetrator of the prior offense. Compare Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987).

5. Appellant enumerates as error the trial court’s refusal to give a requested charge on the law of circumstantial evidence.

“[W]here the [S]tate’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). The only evidence which was arguably circumstantial is that regarding appellant’s commission of the prior offense. This was certainly direct evidence of appellant’s perpetration of the prior offense, but appellant urges that it was only circumstantial evidence of his intent to commit the instant crime of child molestation. However, even assuming that to be true, the “prior offense” evidence was merely cumulative. The direct evidence, standing alone, was sufficient to prove appellant’s commission of a prohibited act with the requisite intent. See Grant v. State, supra. Moreover, the direct evidence of appellant’s guilt was overwhelming. Compare Robinson v. State, supra. “[N]o new trial is required for failure to charge [on circumstantial evidence] where the case is not close or doubtful and the charge on reasonable doubt is full and fair. [There is] yet another reason for not reversing this case for failure to charge the law [of circumstantial evidence]. That is, no other reasonable hypothesis save that of the guilt of the accused has been suggested. Should the case be retried so a jury can hear those words when no other reasonable hypothesis has been offered? Our answer is in the negative.” Germany v. State, 235 Ga. 836, 843-844 (2) (221 SE2d 817) (1976). See also Playmate Cinema v. State, 154 Ga. App. 871, 872 (2) (269 SE2d 883) (1980). “In view of the overwhelming [direct] evidence of the appellant’s guilt. . ., we find it ‘highly probable that [any] error did not contribute to the judgment.’ [Cit.]” Howard v. State, 202 Ga. App. 574, 576 (415 SE2d 45) (1992).

Decided February 19, 1993

Reconsideration denied March 3, 1993

Alden W. Snead, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

6. Appellant requested charges on simple assault, simple battery and sexual battery as lesser included offenses. The trial court’s refusal to give these charges is enumerated as error.

Assuming, without deciding, that it is ever possible for simple assault, simple battery or sexual battery to be a lesser included offense of child molestation, it was not error to refuse to give appellant’s requests to charge in the instant case. The undisputed evidence of record shows that appellant committed the crime of child molestation by fondling the victim with the requisite intent. Brooks v. State, 197 Ga. App. 194, 195 (2) (397 SE2d 622) (1990).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1913.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MACHETT et al.
    (428 SE2d 636)
   Carley, Presiding Judge.

At issue in the instant declaratory judgment action is the existence of coverage under a homeowner’s policy issued by appellant-plaintiff (Insurer) to appellee-defendant (Insured). When the Insured was sued by his son-in-law for injuries inflicted in a domestic dispute, the Insurer undertook the defense of that action pursuant to a reservation of rights and then brought the instant action, seeking a declaration that it afforded no coverage under the policy’s exclusion for such bodily injury as was “expected or intended by the [I]nsured.” The trial court denied the Insurer’s motion for summary judgment, but certified its order for immediate review. The Insurer applied for an interlocutory appeal and this case results from the grant of that application.

Construing the evidence most favorably for the Insured, he did not commit an intentional battery because, after his son-in-law had struck the first blow, he acted in self-defense. In his deposition, the Insured testified that he had “picked [a hammer] up to try to keep [his son-in-law] off [him]. [He] tried to fend [his son-in-law] off. [He] had intended to hit at [his son-in-law] the first time.” The Insured had not known that the object in his hand was a hammer until his son-in-law “went down.” “The hammer was the first thing that [he] got in [his] hand.” The Insured also denied intending to hurt or injure his son-in-law. He “was trying to block because [his son-in-law] was throwing these punches at [him]. The only thing [he] was doing was just hitting at [his son-in-law].”

“[A]n insured who knowingly shoots another, but who does so in self-defense, causes bodily injury ‘expected or intended by the insured.’ ” Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510) (1984). The Insured in the instant case did not shoot his son-in-law. He did, however, intentionally strike his son-in-law with an instrument capable of inflicting serious injury or death. Compare Ga. Farm Bureau Mut. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989). The Insured may not have realized that the object that he was wielding against his son-in-law was actually a hammer. However, it is undisputed that he intended to use the hand-held object “to hit at” his son-in-law and that, by doing so, he caused an injury for which his son-in-law seeks damages. Nowhere in the Insured’s testimony does he deny the intent to commit the act of “hitting” which underlies his son-in-law’s tort action. He merely denies having any intent that his act of “hitting” with the hand-held object cause bodily harm to his son-in-law. See Roe v. State Farm Fire &c. Co., 259 Ga. 42 (376 SE2d 876) (1989), aff’g 188 Ga. App. 368 (373 SE2d 23) (1988). Compare State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988). The Insured’s “claim of self-defense may have . . . raised the criminal defense of justification for an intentionally caused injury, but it did not vitiate his admitted, actual intent to [strike his son-in-law with whatever object he held in his hand].” Brown v. St. Paul Fire &c. Ins. Co., 177 Ga. App. 215, 216 (338 SE2d 721) (1985). The instant exclusionary provision is “inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. [Cit.]” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (2) (291 SE2d 410) (1982).

The Insured’s reliance on Ga. Farm Bureau Mut. Ins. Co. v. Hurley, supra, is misplaced. Only four judges concurred in the majority opinion in Hurley and it is, therefore, a physical precedent only. Moreover, the insured in Hurley testified that his intent had not been to deliver a kick to the groin, but merely to use his foot to push his fraternity brother in the chest. Thus, the insured in Hurley denied “the intent to commit the act complained of [by the plaintiff in the underlying tort action].” Roe v. State Farm Fire &c. Co., supra at 42. In contrast, the insured in the instant case does not deny that he intentionally used an object, which he later realized was a hammer, “to hit at” his son-in-law. Thus, the Insured concedes “the intent to commit the act complained of [by his son-in-law in the underlying tort action.” Roe v. State Farm Fire &c. Co., supra at 42. Accordingly, the instant case is not controlled by Hurley, but by Stein. “ ‘[T]he possible legal justification of self-defense does not save an otherwise intentional act from the “intentional injury exclusion” (Cits.). . . . (The [I]nsured’s) own statement demonstrates that he intended to [strike his son-in-law with the hand-held object] and to cause injury [if necessary]. Whether he intended the precise injuries which occurred is immaterial.’ [Cits.]” Stein v. Mass. Bay Ins. Co., supra at 813-814. It follows that the trial court erred in denying the Insurer’s motion for summary judgment.

Decided March 3, 1993.

Young, Clyatt, Turner, Thagard & Hoffman, William A. Turner, Jr., Daniel C. Hoffman, for appellant.

Alexander & Vann, William C. Sanders, J. Converse Bright, James E. Jarvis, Jr., for appellees.

Judgment reversed. Pope, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A1949.
    ANDERSON v. THE STATE.
    (428 SE2d 803)
   Johnson, Judge.

Robert Wesley Anderson pled guilty to trafficking in cocaine, possession of marijuana, and possession of a firearm by a convicted felon. His pre-trial motion to suppress evidence was denied by the trial court, and Anderson properly reserved his right to appeal from the order denying his motion to suppress when he entered his plea.

Although the testimony presented at the suppression hearing was conflicting, the trial court was authorized by the evidence to find that on the evening of July 17, 1989, a police officer operating a radar unit detected two cars speeding northbound on 1-75. The cars appeared to be traveling together because they were traveling in tandem. The officer stopped the first car for speeding, searched it incident to the traffic arrest and found $26,063 inside. He then radioed other officers in the vicinity to be on the lookout for the other car. While enforcing traffic on 1-75, another officer received the lookout for a blue Chevrolet Cavalier with a Fulton County tag being driven by a black male. Approximately one hour later, he clocked a car traveling 75 mph in a 65 mph zone and stopped it for speeding. The car was a gray Chevrolet Celebrity and the driver was Anderson, a black male. After pulling the car over, the officer remembered the lookout call. At the officer’s request, Anderson produced his driver’s license and an insurance card. Suspecting that Anderson’s car was the subject of the lookout, the officer called for a “back-up” officer who arrived on the scene. He then issued a traffic warning to Anderson for speeding and handed it to him along with his license and the insurance card. He obtained oral consent from Anderson to search the car and found 20 kilograms of cocaine in the trunk. Anderson was charged with trafficking in cocaine. Subsequently, a search warrant was issued for Anderson’s apartment. A search resulted in the additional charges of possession of marijuana and possession of a firearm by a convicted felon.

Decided March 3, 1993.

Thomas L. Washburn III, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

1. Anderson contends that the trial court erred in denying his motion to suppress because the stop was a pretextual stop based upon an impermissible drug courier profile. This contention is without merit. There is no evidence in the record indicating that the drug courier profile was used in making the traffic stop. To the contrary, the court found that the car was speeding and that it was stopped for that reason. It is well settled that the trial court’s ruling on questions of fact at a hearing on a motion to suppress will not be disturbed unless clearly erroneous. Hamil v. State, 198 Ga. App. 869, 870 (1) (403 SE2d 828) (1991). We find no error.

2. Anderson further contends that the trial court erred in denying his motion to suppress because he did not consent to the search of the car. The arresting officer testified that after handing Anderson the traffic warning, his driver’s license, and the insurance card, he asked for and obtained consent to search the car. The trial court was therefore authorized by the evidence to find that Anderson had consented to the search, and the order denying the motion to suppress shall not be disturbed. See Hamil, supra.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2182.
    JONES v. SOLOMON.
    (428 SE2d 637)
   Blackburn, Judge.

The appellee, Dr. Emmanuel Solomon, brought a suit based upon the breach of an employment contract against Dr. J. Gregory Jones, the appellant, and sought a declaratory judgment on a covenant not to compete contained in the employment contract. The appellant responded, asserting several defenses and a counterclaim. After discovery was commenced, the appellant moved for summary judgment and the trial court denied the motion. Following a bench trial, the court found that the appellee’s actions and statements at and about the time that he received notice of his termination did not constitute an anticipatory repudiation of the contract. In addition, the trial court found that the appellant’s termination of the appellee was in violation of the employment agreement and warranted the payment to the appellee of $15,610 in damages. On appeal, the appellant asserts that the trial court erred in failing to find that the appellee’s actions constituted an anticipatory repudiation of the employment contract.

The evidence is undisputed that the appellee began working with the appellant in a practice known as Associates of Ophthalmology on September 1, 1989, pursuant to an agreement executed by the parties on August 4, 1989. The contract at issue provided that employment between the parties would continue for a period of a year and at the end of such year, the contract would renew automatically unless earlier terminated. Either party could terminate the agreement upon 90 days written notice or at any time by mutual written agreement. Paragraph 15 of the agreement contained a “Covenant Not To Compete” clause, specifically providing that upon leaving the practice, the appellee “agree[d] not to practice ophthalmology within Bibb County, Georgia for a period of two (2) years from the date of his termination.” According to the contract, the appellant retained the right to seek an injunction, monetary damages, and other appropriate relief for appellee’s breach of the covenant. The parties stipulated to the validity of the covenant at trial.

The appellee practiced medicine with Associates of Ophthalmology pursuant to the contractual agreement until August 1990, at which time the parties were unable to reach an agreement as to the appellee’s salary. On August 20, 1990, the parties met and the appellant provided the appellee with 90 days written notice of his intent to terminate the employment relationship based upon the appellant’s inability to pay the appellee the salary and bonus that the appellee was expecting. During the meeting, the appellee discussed with the appellant the possibility of working in the Bibb County area and requested that the appellant waive the covenant not to compete. The appellant indicated that he would think about it.

On August 22, 1990, the appellee discussed the possibility of working in the Bibb County area with Damon King, the president and chief executive officer of the Medical Center of Central Georgia which is located in Bibb County. The appellee informed Mr. King of the covenant not to compete clause contained in the employment contract and stated that he thought that the appellant would waive it. The appellee did not have any further discussions with the hospital president about the possibility of employment with the hospital. On August 27, 1990, the appellee discussed the possibility of establishing a medical practice with medical offices located in an adjoining county. Later that same day, the appellant delivered another letter to the appellee and indicated that he would abide by all of the terms of the contract, including the covenant not to compete. He further requested that the appellee sign a form acknowledging the terms of the contract, particularly the covenant not to compete. The appellant had been informed that the appellee had discussed the possibility of employment in the Bibb County area. During the conversation, the appellee stated that he questioned the validity of the covenant while the appellant maintained that the covenant was valid.

In a letter of August 29, 1990, the appellee informed the appellant of his intention to complete the 90-day termination period. Upon his receipt of the letter, the appellant telephoned the appellee and asked him of his intentions. The appellee responded that he wanted to keep his options open. On August 31, 1990, the appellant terminated the appellee effective on that day pursuant to the provision of the contract governing immoral or unethical conduct, because the appellee was injuring the reputation of the practice by setting up a competing practice and by diverting existing patients from the practice. The appellant informed the appellee that he was not entitled to any further salary or fees. The appellee subsequently opened a practice in an adjoining county. Based upon the appellant’s failure to pay the appellee for 60 days of the 90-day termination period and failure to reimburse the appellee for continuing education expense incurred before the appellee’s termination, this action ensued.

1. In his first enumeration of error, the appellant contends that the trial court erred as a matter of law by failing to find that the actions and statements of the appellee after the appellee was provided 90 days notice of the termination of the employment contract constituted an anticipatory repudiation of the contract. We disagree.

“(T)he ‘anticipatory repudiation’ of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract^]. . . Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part[.]. . . The breach which will form the basis for (an anticipatory breach of contract) action is an unqualified repudiation of the entire contract prior to the time for performance. [Cits.]” Coffee Butler Svc. v. Sacha, 258 Ga. 192, 193 (366 SE2d 672) (1988). It is a question for the trier of fact as to whether any action of one party is sufficient to constitute a repudiation of the contract and amount to an anticipatory breach. Esquire Carpet Mills v. Kennesaw Transp., 186 Ga. App. 367, 370 (3) (367 SE2d 569) (1988).

We agree with the trial court that the statements and actions of the appellee after his receipt of his notice of termination did not constitute an anticipatory repudiation of the contract between the parties. The record is devoid of any evidence of an unqualified repudiation of the entire contract by the appellee. Although the appellee discussed the possibility of working in the Bibb County area with the president of a Bibb County hospital after he was informed by appellant of the appellant’s intention of terminating the contractual relationship, the appellee did not pursue any additional conversation with the administrator after the initial meeting of August 22, 1990. In addition, the appellant admitted at trial that the appellee did not say that he was going to open up a practice in Bibb County immediately after his termination, but merely indicated that he was going to keep his options open. On the contrary, the appellee indicated in his letter of August 29, 1990, that he intended to complete his 90-day termination period in a professional and courteous manner, and merely suggested that the appellant waive the covenant not to compete clause contained in the contract. “ ‘A willingness to negotiate an offer of performance at variance with the terms of the agreement demonstrates the offering party’s intention to abide by the contract and does not result in an anticipatory breach. [Cits.]’ [Cit.]” J. M. Clayton Co. v. Martin, 177 Ga. App. 228, 231 (2) (339 SE2d 280) (1985).

We conclude that the trial court properly found that the statements and actions of the appellee after his receipt of notice of termination did not constitute an anticipatory repudiation of the contract. Consequently, this enumeration is without merit.

2. In his second enumeration of error, the appellant contends that the trial court erred as a matter of law by failing to find that the appellee’s failure to give the appellant adequate assurance of his intention to comply with the covenant not to compete constituted an anticipatory breach of the contract. In support of this proposition, the appellant has cited authority that addresses adequate assurance under the Uniform Commercial Code, which governs the sale of goods. We find that these cases are not controlling because the contract at issue involves the sale of services, not goods. Further, assuming arguendo that these cases apply to the facts presented in this case, we find that this enumeration is likewise without merit. “[I]n order for a party to demand adequate assurance, he must first have ‘reasonable grounds for insecurity.’ ” SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 96-97 (1) (366 SE2d 410) (1988); see also OCGA § 11-2-609 (1). “ ‘Whether in a specific case a [party] has reasonable grounds for insecurity is a question of fact.’ [Cit.]” Id. at 97. Reviewing the record, we can find no evidence showing the reasonableness of any insecurity that the appellant may have had. Accordingly, we conclude that the decision of the trial court is without error.

Decided March 3, 1993.

Adams & Hemingway, David A. Garland, David M. Baxter, for appellant.

Roy W. Griffis, Jr., for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2185.
    WILLIAMS v. THE STATE.
    (428 SE2d 648)
   Blackburn, Judge.

Cedric Williams was tried before a jury and convicted of aggravated assault and aggravated assault with intent to rob. He appeals from the denial of his motion for new trial.

In his sole enumeration of error, appellant contends the trial court erred by refusing to permit appellant to represent himself at trial. The trial transcript reveals that after the court had heard arguments on pre-trial motions, a jury had been selected and sworn, and the prosecutor had completed direct examination of the State’s first witness, appellant’s counsel informed the court that appellant had expressed a desire to proceed pro se. The court excused the jury and conducted a detailed inquiry into the request. Appellant’s counsel explained that appellant had initially stated this wish several weeks earlier, but counsel had discouraged the idea and appellant had acquiesced. Appellant stated he wished to serve as his own counsel because he did not like the insanity defense counsel was asserting. The prosecutor objected to the timing of the request, arguing that his voir dire questions would have been different had he known appellant was proceeding pro se. The trial court denied appellant’s request on the basis that he had not timely asserted his right to represent himself.

“Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. [Cits.] An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. [Cits.]” (Emphasis supplied.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). In the case at bar, as in Thaxton, the trial court was authorized to conclude that appellant had not unequivocally asserted his right to represent himself prior to the commencement of the trial. See id. and nn. 3, 4; see also Clark v. State, 145 Ga. App. 119, 120 (243 SE2d 97) (1978) (not error to deny defendant’s request to represent himself made after trial testimony began; “defendant cannot frivolously change his mind in midstream. [Cit.]”) Moreover, appellant’s conversation with the trial judge showed his complete lack of knowledge of the law and the basic essentials of conducting his own defense and demonstrated his lack of understanding of the nature of the defense being offered. See Clark, supra. Under such circumstances, the trial court was authorized to conclude that, even if the request had been timely, appellant was not waiving his right to counsel knowingly and voluntarily. Consequently, we find no error.

Decided March 3, 1993.

George M. Johnson, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Vivian D. Hoard, William C. Akins, Assistant District Attorneys, for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A2230.
    JOSE ANDRADE PAINTING et al. v. JAIMES.
    (428 SE2d 640)
   Cooper, Judge.

We granted appellants’ application for discretionary appeal in this workers’ compensation case to determine whether the superior court erred in reversing the full board’s denial of benefits to appellee on the ground that he was not injured in the course of his employment.

Appellee was employed as a painter for appellant Jose Andrade Painting (“the employer”). Jose Andrade would meet his employees every morning at an apartment complex to give out work assignments. The apartment complex was chosen as a meeting point because many of the employees lived in or around the complex. After receiving their work assignments, the employees would form car pools to travel to the various job sites, using their own vehicles, the employer’s vehicle and another vehicle furnished by the employer. On occasion, the employer would give employees money for gas. At the end of the work day, some employees would return to the complex to drop off co-workers from the complex. The workers were only paid for time at the job site. Appellant was injured returning to the apartment complex at the end of a work day in a co-worker’s car. On the day of the accident the co-worker was not given any money for gas.

Relying on American Mut. Liability Ins. Co. v. Curry, 187 Ga. 342 (200 SE 150) (1938), the ALJ and full board denied appellee’s claim for benefits, finding that it was “only by custom that [appellee] caught rides with other workers at the [apartment complex],” that the employer did not furnish transportation to the employees, and that like the employee in Curry appellee was free to travel to work in a private automobile or other mode of transportation; therefore, appellee’s accident did not arise out of or in the course of his employment. Reversing the full board, the superior court held that the board misread Curry and Hamner v. White, 80 Ga. App. 648 (56 SE2d 653) (1949) and applied an erroneous legal standard. The trial court concluded that the test is not whether the employer furnished the vehicle or whether the employees ride together by custom but “whether the transportation to and from work served the mutual benefit of the employer and the worker in order to facilitate the progress of the work,” citing Curry. In this appeal, appellants, the employer and its workers’ compensation carrier, contend the superior court erred in failing to apply the “any evidence” rule and in substituting its own legally erroneous test to review appellee’s claim.

It is well settled that “ ‘a workman injured going to or [coming] from the place of work is not “in the course of his employment.” There is an exception, however, as well established as the rule itself. The exception, which is supported by overwhelming authority, is this: When a workman is so injured while being transported in a vehicle furnished by his employer as an incident of the employment, he is within “the course of employment,” as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.’ [Cit.]” (Emphasis supplied.) Curry, supra at 353-354 (2); Lockhart v. Liberty Mut. Ins. Co., 141 Ga. App. 476, 482 (4) (233 SE2d 810) (1977). Appellants contend the superior court ignored the first prong of the test, that the vehicle be furnished by the employer, and point out that because the board did not find that the employer furnished transportation for the employees it was not necessary to reach the question of whether the transportation mutually benefitted appellee and the employer. We agree.

Appellee argues that because the employees met each morning at the apartment complex to receive job assignments, made travel arrangements and then immediately proceeded to the job sites, that the car pooling done by the employees was for the employer’s convenience and thus was travel in the course of employment. If appellee is correct, then it must be proven that the employer used his employees’ vehicles in furtherance of his own business interests (see Curry, supra at 359) because although the evidence demonstrates that the employer allowed his personal vehicle and another vehicle to be used to transport employees to the job sites, the fact remains that appellee was injured in a car which belonged to another employee. Relying on Cooper v. Lumbermen’s Mut. Cas. Co., 179 Ga. 256 (175 SE 577) (1934), for the proposition that injuries sustained while riding in the vehicle of a third party may arise in the course of employment, appellee stresses the importance of the morning meetings and also argues that if he had been injured between the apartment complex and the job site in the morning, his injury would have been compensable; therefore, injuries sustained between the job site and the apartment complex at the end of the day should also be compensable because they were sustained during the completion of the transportation cycle. In Cooper, however, the court found that the employee’s employment began at a mill near his home although his duties were performed at a location 20 miles away and that his injury was sustained between the mill and his place of work; thus, the court concluded that he was in furtherance of his employer’s business when he was injured. In the instant case, the evidence demonstrates that some employees go directly to the job sites in the morning without meeting at the apartment complex; that the employees could participate in the car pooling effort as passengers and drivers solely at their option according to personal convenience; that the employer did not bear any expense for appellee’s transportation on the day of his accident; and that the employees were only paid for time at the job site. Therefore, it appears that the employees who attended the morning meetings were merely informed at those meetings of the destination of the car pools and then were provided with the opportunity to catch rides with other workers willing to transport them. Moreover, the evidence supports findings that appellee’s employment or place of work was at a given job site; that he was free to arrange transportation with the car pools or make other arrangements; “that at the time of his injury his work for the day had been completed; that he had left the premises of his employer and was on his way to his home; that his time was his own, unrestricted and unaffected by his employment to go whence and how he pleased; that he was doing nothing in furtherance of the company’s business.” Curry, supra at 359. Appellee argues further that if the employer avails himself of his employees’ vehicles to get his employees to work in the morning, then there is an implied obligation to get the employees back home or to the point of origin at the end of the day; therefore, travel to the point of origin at the end of the work day is within the course of employment. However, the employer’s participation in the car pooling effort was not of such a character so as to require the conclusion that car pooling, while certainly a convenience, was more than a custom or by implication a part of the employment contract.

Decided March 3, 1993.

Croy, Harris & Hammond, Judy G. Croy, for appellants.

Harris, Van Gelderen & Cruz, Ruben J. Cruz, Laurence L. Christensen, for appellee.

We do not find that Hamner v. White, supra, requires a different result because in that case, the board concluded that the evidence showed that the employee’s employment began when he boarded the employer’s truck to go to the work place. “ ‘Upon appeal, the evidence will be construed most [favorably] to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. (Cits.) Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses. (Cits.)’ [Cit.]” Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991). The board held that appellee’s injuries were not in the course of his employment, and there is evidence to support that decision. Accordingly, the superior court erred in reversing the award of the full board.

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