text:
    A92A0142.
    WIEDERHOLD v. SMITH.
    (418 SE2d 141)
   Pope, Judge.

In 1986, appellee/plaintiff Sheldon Smith purchased a lot in a subdivision called River Pointe. The lot. overlooked the Chattahoochee River. After purchasing the lot, plaintiff hired an architect to design a house for the lot. After conducting some preliminary studies, the architect arranged a meeting with Fulton County to discuss variances from zoning regulations for the proposed house. During that meeting, the architect was informed the county had placed a hold on the lot in 1985, and building could not commence until the street in front of that lot was laterally supported. The evidence showed the street was improperly constructed by a contractor hired by Village Centers, Inc. (“VCI”), the corporation that developed the subdivision.

When plaintiff was informed of the restriction placed on the lot, he first contacted the seller and sought rescission of the contract. The lot in question had been sold to plaintiff by Phoenix Homes of Atlanta, Inc., a corporation that appellant/defendant Hartmut Wiederhold testified he formed for the purpose of developing speculative homes on three lots in the River Pointe subdivision. Half of the stock of that corporation was held by Rodney Ramsey, a business associate of defendant and half by defendant’s wife. The seller refused to rescind the contract.

Plaintiff then reached an agreement to remedy the problem with Fulton County, installed lateral support for the street in the area of his lot, and filed this action to recover those expenses against defendant individually, Phoenix Homes of Atlanta, Inc. and VCI. Bankruptcy stays were issued as to the two corporate defendants. The case proceeded to trial with only plaintiff’s claim for fraud against the individual defendant being submitted to the jury. After plaintiff rested, defendant moved for a directed verdict. The trial court denied that motion. The jury found in favor of the plaintiff and awarded him actual damages of $34,214.98, punitive damages of $1 and attorney fees and costs of litigation of $15,538.31. Defendant appeals the denial of his motion for directed verdict.

1. The tort of fraud has five elements: (1) a false representation by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from action; (4) justifiable reliance by the plaintiff; and (5) damages. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Defendant complains the element of scienter is absent as a matter of law because, although he admits he had actual knowledge of the problem with the street, there was no evidence from which the jury could determine that he did not believe he had reached a satisfactory solution to the problem with Fulton County before the property was sold to plaintiff.

The evidence showed after the soil erosion problem at the edge of the street was discovered, VCI employed AT&E Consultants, Inc., a geotechnical and material engineering firm, to study the cause of the problem and recommend solutions. Based on that study, defendant testified a plan was submitted for a house to be constructed on that lot that would incorporate a combination home foundation wall and retaining wall sufficient to support the street. Defendant also testified VCI sought a variance from the county to allow the proposed home for that lot to be built closer to the road than was allowed under existing zoning ordinances. Based on these actions, defendant contends he had a good faith belief that the problem had been remedied and the jury’s conclusion to the contrary is not supported by the evidence.

It is well-established that “[questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977). There was sufficient evidence from which the jury could have concluded defendant did not have a good faith belief that the problems precipitating Fulton County’s imposition of a hold on the property had been resolved by receiving a variance on the set back requirement and incorporating a retaining wall into the plans for a proposed home on that lot. The evidence is undisputed neither defendant nor VCI did anything to stabilize the street before selling the lot to plaintiff. There is also no evidence that plaintiff was made aware that any proposed home design for the lot would need to incorporate a retaining wall capable of stabilizing the street. Furthermore, it is undisputed that Fulton County never lifted its hold on the lot after the alleged agreement between defendant and Fulton County was reached. Thus, defendant’s argument that the issue of fraud should not have been submitted to the jury on the basis there was no evidence of scienter must fail.

2. Defendant also argues that because Fulton County’s concerns about the street and its hold on the subject lot were matters of public record, defendant’s failure to inform plaintiff of these facts cannot constitute fraud. As this court recognized in Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) (1976), aff’d, 239 Ga. 31 (235 SE2d 532) (1977), there is an exception to the general rule of caveat emptor in cases involving passive concealment by the seller of defective realty. “That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision. [Cits.]” Id. at 818.

Contrary to defendánt’s contentions, the location of information in a file that is open to the public does not demand a holding that the passive concealment of such information cannot constitute actionable fraud. This case is distinguishable from our decision in Hill v. Century 21 &c. Realty, 187 Ga. App. 754 (371 SE2d 217) (1988) in which we held plaintiffs were not justified in relying on defendants’ representations concerning the zoning of certain property because zoning information was equally available to both parties. Although arguably the information was equally available to both parties in this case, the pertinent information was maintained in the files of the Department of Public Works of Fulton County. The evidence reveals that information from that office is generally sought in connection with obtaining a building permit. In fact, the employee who placed the hold on the subject lot testified that it was not common for potential buyers of lots to ask to see the files maintained on subdivisions in the Office of Public Works before purchasing property. We note that plaintiff performed a title search, as is typical of purchasers, but nothing concerning the hold on the lot was located in the deed records.

3. Defendant also contends that the erosion problems that caused instability problems with the street were an apparent defect and, therefore, cannot provide a basis for fraud. Wilhite, supra at 818. Plaintiff’s architect, the listing agent for the subject lot and plaintiff’s employee, who purchases commercial property for the corporation of which plaintiff is president, all testified the instability of the street was not an apparent problem. Furthermore, the evidence showed that plaintiff had not purchased an undeveloped lot before and did not otherwise profess to have real estate expertise. In light of this evidence, we refuse to hold that the trial court erred in finding that the issue of justifiable reliance was a jury question in this case.

Decided April 9, 1992.

Federal, Goetz & Cronkright, Douglas L. Cronkright, Charles M. Goetz, Jr., for appellant.

Evans & Flournoy, Charles A. Evans, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A0160.
    McCANN v. THE STATE.
    (418 SE2d 144)
   Pope, Judge.

Defendant James Rann McCann was convicted by a jury of rape, aggravated sodomy, and aggravated assault. He appeals his convictions and the denial of his motion for new trial.

The evidence adduced at trial reveals that on April 1, 1990, defendant allegedly broke up a fight between the victim and one or two unidentified men. It is undisputed that the victim was under the influence of alcohol and Valium at this time. The defendant, who had never met the victim prior to that evening, took the victim to his home where she had several more drinks with defendant, his wife, family members and friends.

Subsequently, defendant and two of the men at his house left in the defendant’s car purportedly to drive the intoxicated victim to her home several blocks away. Instead of driving the victim home, however, the defendant drove her to an open area near the river, next to a lumber dump and ordered the victim to get out of the car and dis-. robe. When the victim did not immediately respond, the defendant struck her across her face breaking her jaw and blackening her eye. Defendant then tore the victim’s clothes off, pushed her against the car and forced her to have oral sex with him. He then placed his penis inside her vagina, and at some point the victim and defendant ended up on the ground. Defendant also tried to sodomize the victim anally. The other men took no part in the assault. The men then left in the defendant’s car leaving the victim alone in the woods. They returned a short time later when the defendant realized he had lost his gun and wallet in the woods. After the victim begged to be taken home, the defendant decided to give her a ride to town. On the way to the victim’s house, the defendant stopped at a gas station to get gas. When the defendant went inside the station to get something to eat, the other men let the victim out of the car because she said she wanted “to get a beer” as a ruse to seek help. When the defendant left the store and the victim was alone, the clerk asked the victim whether anything was wrong. At that point, the victim told the clerk she had been raped. Defendant, who had returned to his car, then drove off from the gas station “squealing” his tires.

Although the defendant’s wife and the other people at his home initially signed statements corroborating defendant’s version of the evening, the witnesses later changed their statements to corroborate the victim’s testimony, claiming that they had initially lied because they were afraid of defendant. The victim’s testimony was also inconsistent with her original statement to the police, presumably because she was grossly intoxicated throughout the incident. However, the victim never had any doubts that the individual who raped her had a large build and was covered with tattoos. Evidence at trial revealed that the defendant’s body was covered with 29 tattoos. Physical evidence collected at the crime scene consisted of the victim’s broken hair brush and broken necklace, a part of her false teeth which had broken off when she was struck by the defendant, and a cigarette pack of the same brand as defendant’s. During trial, two other witnesses testified as to the circumstances of their rapes by defendant 12 years earlier in Phenix City, Alabama. Evidence about a third rape conviction in 1972 was not introduced at trial because the State was unable to provide similar transaction testimony at trial.

1. Defendant first argues the trial court erred by allowing evidence at trial of two prior rapes committed by defendant in Phenix City, Alabama, because during the pretrial hearing on the admissibility of evidence of the prior crimes, the prosecuting attorney stated in his place what the prior crime evidence would show. Defendant contends that the State should have been required to present testimonial evidence at the pretrial hearing because the prosecuting attorney’s testimony was inadmissible hearsay. We disagree. Uniform Superior Court Rule 31.3 (B) “ ‘clearly grants the trial court discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, nor any mandatory obligation to produce testimonial evidence.’ ” Loyd v. State, 202 Ga. App. 1, 2 (1) (b) (413 SE2d 222) (1991). “The trial court’s finding of sufficient similarity based on the prosecutor’s statement of what he expected to show at trial was proper. [Cit.]” Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991). Thus, this enumeration of error is without merit.

2. During his trial, defendant moved in limine to have the court order that defendant’s guilty pleas to the prior rapes in 1978 not be offered into evidence because the guilty pleas were obtained under false pretenses through ineffective assistance of counsel and were not freely given after a knowing waiver of rights. Relying on Pope v. State, 256 Ga. 195 (17) (345 SE2d 831) (1986) and Gadson v. State, 197 Ga. App. 315 (398 SE2d 409) (1990), defendant contends that the State must prove a valid wavier for whatever purpose the State intends to use a prior guilty plea, including the introduction of similar transaction evidence. Because the State did not meet this burden in this case, defendant argues, the trial court erred in allowing exemplified copies of his guilty pleas into evidence.

Pretermitting the substantive issue raise by defendant, we first note that contrary to defendant’s claim that he pled guilty to both of the previous rapes, the record indicates that defendant was convicted by a jury as to the first of the 1978 rapes and pled guilty as to the second. Thus, the trial court did not err in admitting into evidence the exemplified copy of defendant’s jury conviction in the first 1978 rape prosecution. Furthermore, we note that although defendant’s counsel raised the issue of intelligent and voluntary waiver with respect to the guilty pleas during the motion in limine, defendant later admitted under oath at trial as part of his defense that he did commit both of the 1978 rapes. Defendant’s admission waived any right he may have had to contest the validity of his prior guilty plea.

Addressing the substantive issue raised by defendant on appeal, we reject defendant’s argument that the requirements of Pope and Gadson should be extended to include any instance where the State intends to use a prior guilty plea in a criminal prosecution. The holdings of Pope and Gadson specifically apply to the State’s introduction of a prior guilty plea during the sentencing portion of a criminal prosecution, and we will not extend the holdings in the manner suggested by defendant. It is well settled that in order for similar crime evidence to be admissible there must be “some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more than mere speculation. [Cits.]” (Emphasis supplied.) Chastain v. State, 260 Ga. 789, 790 (3) (400 SE2d 329) (1991). The defendant’s guilty plea to one of the 1978 rapes, his conviction by a jury as to the second of the 1978 rapes, and his admission that he committed both of the prior rapes constituted sufficient proof that defendant was in fact the perpetrator of the similar crimes. See Terry v. State, 259 Ga. 165 (1) (377 SE2d 837) (1989). Thus, this enumeration of error is without merit.

3. Defendant also raises a substantive challenge to the similarity of the prior crime evidence. Because defendant admitted committing the two prior offenses, we must only look to see if there exists sufficient similarity or connection between the prior crimes and the offenses charged that proof of the former tends to prove the latter. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

The testimony of one of the victims of the prior rapes revealed that the victim had been riding in a car with a group of girls which was stopped at a service station. Defendant and another male noticed the girls at the station, chased them in defendant’s car, and forced the girls to stop their vehicle. The defendant then abducted the victim from her car at gunpoint, forced her into defendant’s car, drove her to a garbage dump in the woods, and ordered her to disrobe. The defendant pushed the victim against the car and forced her to have vaginal sex with him. He then grabbed her neck and shoved her to the ground where he raped her again. When the defendant was through, he drove the victim to her friend’s house and sped off in his car with his wheels “spinning.” Thus, although there were some dissimilarities between the two incidents, there were also significant similarities. In both incidents defendant abducted a stranger, took her to an isolated area in his car, forced her to have sex against his car and on the ground in the presence of another person, exerted physical force against the victim, allowed the victim to get back in his car and left the victim with his wheels spinning.

The testimony of the second victim of the prior rapes revealed that the victim was abducted by the defendant early in the morning in the parking lot of a nightclub. Defendant forced the victim to walk back to the nightclub. As she did, she stumbled and the defendant pulled her up, struck her on the left side of the face bruising her jaw and blackening her eye so that her injuries looked almost identical to those of the victim in this case. The witness was taken to a remote cabin in the woods where the defendant forced her to have oral and vaginal sex with him. When the defendant was through, he dropped her off at a gas station and left the scene “peeling” his tires. Thus, as in this case defendant abducted a stranger, took her to an isolated area in a car, struck the victim causing injuries to her eye and jaw, forced the victim to have oral and vaginal sex, allowed the victim to leave the crime scene with him and sped away with his wheels spinning.

“ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.]” Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991). We agree with the trial court that a sufficient similarity existed between the crime charged and the other rapes, such that proof of the latter tended to proved the former. Thus, the trial court did not err in allowing the similar transaction evidence. See McGowan v. State, 198 Ga. App. 575 (2) (402 SE2d 328) (1991).

4. After the two witnesses testified as to the circumstances of their rapes, defendant requested the trial court to give the jury limiting instructions on the use of the similar transaction evidence. The trial court ruled that it would give limiting instructions in its final charge to the jury, but it did not see any point in giving it contemporaneously. Defendant asserts on appeal that the trial court’s failure to give limiting instructions immediately after the introduction of the similar transaction evidence was error. It is well settled that “[w]hen evidence admitted for one purpose is potentially unfairly prejudicial to a party, that party is entitled to have the court instruct the jury to limit its consideration to the one purpose for which the evidence is admissible. [Cits.]” Davis v. State, 260 Ga. 338, 339 (393 SE2d 260) (1990). However, defendant has failed to cite any precedent which would require the trial court to give a limiting instruction immediately after the admission of similar transaction evidence in the manner requested by defendant, nor has he raised any arguments which would persuade this court to establish such a rule at this time. Although it is better practice for the trial court to give such limiting instructions immediately after the admission of similar transaction evidence, “[g]iven that the trial court instructed the jury fully and correctly in its charge on the limited purpose of that evidence, we find no reversible error in the failure to give a contemporaneous instruction.” Ross v. State, 199 Ga. App. 767, 769 (3) (406 SE2d 101) (1991).

Decided April 9, 1992.

Robert G. Jones III, for appellant.

Douglas C. Pullen, District Attorney, Peter B. Hoffman, Assistant District Attorney, for appellee.

5. Defendant lastly enumerates as error the trial court’s consideration of defendant’s guilty pleas in the 1978 rapes when sentencing defendant because the State did not establish that the pleas were made freely, intelligently, voluntarily and with a knowing waiver of related rights. However, defendant raises this argument for the first time on appeal and “[g]rounds which may be considered ... on appeal are limited to those which were raised at trial. [Cits.]” (Punctuation omitted.) Haynes v. State, 199 Ga. App. 288, 292 (6) (404 SE2d 585) (1991). We also note that as discussed in Division 2 of this opinion, defendant pled guilty to only one of the 1978 rapes. Thus, the trial court did not err in considering defendant’s prior jury conviction in sentencing defendant. Moreover, as also noted in Division 2 of this opinion, defendant admitted during trial that he committed both of the prior rapes. For the reasons stated above, the trial court did not err in considering defendant’s prior guilty plea in sentencing the defendant. Accordingly, this enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1719.
    McBRIDE v. GAITHER et al.
    (418 SE2d 67)
   Birdsong, Presiding Judge.

Stephen McBride, who is an inmate at the Ware County Correctional Institute, filed several civil complaints in the Ware County Superior Court, alleging that various prison policies, restraints and actions of guards caused him damages. Inter alia, he complains that the Institute’s exclusive contract with one telephone company prevented him from exercising the right to choose which telecommunications company would serve him in prison. The trial court ordered that the petitions not be filed, pursuant to OCGA § 9-15-2 (d), upon a finding that “the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.”

In reviewing the trial court’s actions on these pro se complaints, we hold the complaints to less stringent standards than formal pleadings drafted by lawyers, to determine, as with an ordinary dismissal (see Hogan v. Peters, 181 Ga. App. 670, 671 (353 SE2d 601)) whether it appears beyond doubt that appellant can prove no set of facts in support of his claims for damages against prison officials which would entitle him to relief. Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31). Yet, notwithstanding a liberal reading of appellant’s pro se allegations (id. at 567), we find that appellant has merely stated a series of grievances asserting in a conclusory fashion that these grievances variously violated his civil rights and entitle him to damages. The matters addressed in appellant’s various civil complaints are matters which are governed by the Board of Correction (see Department of Corrections v. Colbert, 260 Ga. 255 (391 SE2d 759)) and the issues cannot be reached judicially in the first instance. See Tyner v. Kelso, 260 Ga. 179 (391 SE2d 406). Appellant has not shown in any manner, nor even suggested to this court, that any of the grievances in his complaints violates or flouts rules, regulations or procedures reasonably established by the Department of Corrections, or that any such alleged grievances address matters of conduct so offensive to the usual and customary amenities or practices encountered in prison by prison habitues and approved by the Department of Corrections as to rise to the level of tortious conduct or a deprivation of constitutional rights that may be redressed by damages. In particular do we find this to be so in view of the burden which rests on an appellant to show, on appeal, actual error below. Shorter v. State, 193 Ga. App. 217 (387 SE2d 427).

Appellant’s various complaints merely listing grievances do not set forth a claim for relief (see Hogan v. Peters, supra), because nothing appears by which it may be determined that the occurrences described violate usual and customary prison practices and procedures established by the Department of Corrections for the health, safety, discipline and security of prisoners. Accordingly, the trial court did not err in refusing to allow the filing of these complaints pursuant to OCGA § 9-15-2 (d) for a complete absence of any justiciable issue of law or fact upon which it could reasonably be believed that the court could grant any relief against any party named in the pleadings. See Gonzalez v. Zant, 199 Ga. App. 13, 14, (403 SE2d 880), where we analyzed this issue consistently with the requirements necessary to state a cause of action pursuant to OCGA § 9-11-8.

Decided February 7, 1992

Reconsideration denied April 10, 1992.

Stephen McBride, pro se.

Michael J. Bowers, Attorney General, for appellees.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1999.
    IVEY v. THE STATE.
    (418 SE2d 71)
   Pope, Judge.

Defendant was convicted of two counts of child molestation of his teenaged daughter and appeals.

1. Defendant first argues the trial court erred in denying his motion to suppress the results of a polygraph examination defendant took before he was represented by counsel. The record shows that on the day defendant was arrested, after he had been informed of his rights to remain silent and to an attorney and had signed a written “Miranda” form, he agreed to take a polygraph test. Seven days later, after the defendant was released on bond, he voluntarily went to the sheriff’s office to give the arresting deputy information about a witness. Again, defendant agreed to take a polygraph examination. The following day the deputy accompanied the defendant to an office of the Georgia Bureau of Investigation to take the examination. Defendant signed a written form consenting to the examination and to the admission of the results into evidence at any legal proceeding against him. The deputy testified he explained to defendant that the results could be used as evidence at trial. When he arrived at the GBI office, he signed another written waiver of his right to remain silent which noted he had been informed of his right to consult with a lawyer and have a lawyer present while he was being questioned. Nevertheless, he went forward with the polygraph examination.

Defendant acknowledges that pursuant to State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977), “upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” Id. at 76-77. He argues, however, that the results of such a test should not be admitted when the defendant consented to take the test and stipulated to its use as evidence without the advice of counsel. Defendant cites no law in support of his argument and, at the hearing on his motion to suppress, defendant’s attorney admitted he had searched but found no law to support his argument. In this case, defendant repeatedly agreed to take the test. He was not in custody and had over one week to think about his agreement and to retain counsel or seek the appointment of counsel before going forward with the test. Twice he signed a written waiver indicating he had been informed of his right to remain silent and to the assistance of counsel. We hold that when the defendant makes a knowing waiver of his right to counsel and stipulates to the admissibility of the results of a polygraph examination, the results are admissible at trial.

Decided March 13, 1992

Reconsideration dismissed April 10, 1992

Bagby, Bagby & Henley, T. Lee Henley, for appellant.

William A. Foster III, District Attorney, Thomas V. Driggers, Assistant District Attorney, for appellee.

2. Defendant also argues the evidence was insufficient to sustain his conviction because evidence was presented that both the victim and her sister, who testified the defendant, her father, had also molested her, had denied defendant molested them in statements given to others before the trial. Both young women admitted they had denied mistreatment by their father when a State agent interviewed them at their home when their father was present. They explained that they were afraid of telling the truth in their father’s presence. The victim also admitted renouncing the allegations she had made against her father prior to trial when her father drove to Alabama, where she had been living prior to the trial, and took her to his attorney’s office to make a statement. She explained that she denied the allegations she had made against her father out of fear, because he had made threatening comments to her.

The credibility of the witnesses and the weight to be given their testimony is a question for the jury. See Lawrence v. State, 198 Ga. App. 287 (401 SE2d 275) (1991). Sufficient evidence was presented for the jury to find the defendant guilty beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A90A1363.
    WALTON v. THE STATE.
    (418 SE2d 148)
   Carley, Presiding Judge.

Appellant was convicted in the probate court of driving under the influence of alcohol and, pursuant to OCGA § 40-13-28, he appealed to the superior court. The superior court determined that the probate court had been without authority to try appellant, since a written waiver of trial by jury had not been secured. The proceedings were, therefore, remanded to the probate court with direction that, upon the recall of the case, appellant was to be retried if he waived trial by jury in writing or he was to be bound over for jury trial in the superior court if he did not.

Appellant appealed from this order of the superior court and, in Walton v. State, 197 Ga. App. 263 (398 SE2d 221) (1990), this court reversed. On certiorari, however, our judgment was reversed and the case was remanded to this court for such further action as might be necessary to give effect to the Supreme Court’s opinion. Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court.

The judgment of the superior court remanding the proceedings to the probate court because no written waiver of trial by jury had been secured is reversed. Appellant “did not demand a jury trial in probate court, and, thereby, waived it.” Walton v. State, 261 Ga., supra at 393 (1). The superior court is further directed to consider the merits of appellant’s appeal by “reviewing] asserted errors of law in the [probate court] proceedings . . . under general appellate principles. . . . [A]ppellant may not raise issues not litigated in the [probate] court . . . , but he is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). If the conviction is properly supported by the evidence, the conviction would stand; if not, an acquittal would be required. The superior court [is] not, however, [to] make an independent finding of guilt or innocence based on the evidence submitted, as would be done were the appeal, in fact, de novo.” Walton v. State, 261 Ga., supra at 394 (2). To the extent that our holding in Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988) is inconsistent with this opinion, it is hereby overruled.

Decided April 10, 1992.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur.


text:
    A91A0587.
    CANDLER GENERAL HOSPITAL, INC. v. LAMB et al.
    (419 SE2d 157)
    Decided April 10, 1992.

      Bouhan, Williams & Levy, Frank W. Seiler, Roy E. Paul, Peter D. Muller, for appellant.

      Jones, Boykin & Associates, Noble L. Boykin, Jr., Charles W. Snyder, Painter, Ratterree, Connolly & Bart, Paul W. Painter, Clark & Clark, H. Sol Clark, for appellees.
   Birdsong, Presiding Judge.

The Supreme Court having reversed our decision in this case, at 200 Ga. App. 314 (408 SE2d 416), by its opinion in Lamb v. Candler Gen. Hosp., 262 Ga. 70 (413 SE2d 720), the judgment of the trial court in this case is hereby affirmed.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A92A0025.
    WHITE v. THE STATE.
    (418 SE2d 149)
   Carley, Presiding Judge.

Appellant was indicted for armed robbery and possession of a knife during the commission of that armed robbery. He was tried before a jury and the evidence, when construed most strongly against appellant, authorized a finding that he used a knife to obtain money from the clerk of a convenience store. Based upon this evidence, the jury found appellant guilty of both offenses and he appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant had prior convictions for his commission of armed robberies of convenience stores by use of a knife and for other robberies and thefts. The State gave pre-trial notice of its intent to offer these prior convictions as similar transactions evidence. However, a hearing to determine the admissibility of this evidence was not held until after commencement of the trial. Although the trial court originally ruled the prior convictions to be inadmissible, it did subsequently allow them into evidence. Citing Grogan v. State, 192 Ga. App. 234 (384 SE2d 441) (1989), appellant urges that, under these circumstances, his prior convictions were “unduly emphasized.”

The record does not show that the trial court refused to determine the admissibility of the evidence until after the trial had commenced. Compare Grogan v. State, supra. Instead, the record clearly shows that appellant made no objection whatsoever to the timing of the hearing or to the timing of the admission of the evidence. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989). See also Shields v. State, 202 Ga. App. 659, 660 (2) (415 SE2d 478) (1992); Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991). Compare Lord v. State, 199 Ga. App. 814, 816 (1b) (406 SE2d 137) (1991).

Moreover, “ ‘(w)hile it is preferable that the hearing be held before trial, it is not reversible error to conduct the hearing in mid-trial where . . . appellant can show no prejudice suffered from the failure to have the hearing before trial.’ [Cit.]” Smith v. State, 198 Ga. App. 647, 650 (6) (402 SE2d 738) (1991). Here, the evidence was not admitted until after it had been determined that appellant’s identity would not be an issue and that his guilt or innocence would be dependent upon his intent and whether he used a knife to obtain the money from the convenience store clerk. “Generally, when similar transactions are being introduced to prove such issues as bent of mind, motive, intent or lack of mistake, less similarity need be shown than when identity is sought to be proved thereby. [Cit.]” Daniel v. State, 194 Ga. App. 495, 496 (1) (391 SE2d 128) (1990). See also Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). Under the circumstances, there was no reversible error. “The hearing was held prior to the introduction of evidence of [appellant’s prior convictions] , and the fact that the hearing was not held prior to trial did not prejudice appellant.” Rodgers v. State, 261 Ga. App. 33, 36 (4) (401 SE2d 735) (1991).

2. In his brief, appellant urges that, through the introduction of only certified copies of his prior convictions, the State failed to meet its evidentiary burden of showing sufficient similarity. See Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991). However, this evidentiary issue is raised in none of appellant’s enumerations of error. Those enumerations which relate to the similar transactions evidence address only the issue of the timing of the hearing as to admissibility and the timing of the admission of that evidence. Accordingly, the issue of the sufficiency of the State’s showing of similarity “is not before us on appeal. [Cit.] An enumeration of error cannot be enlarged to include other issues not made therein. [Cit.]” Ross v. State, 195 Ga. App. 624, 627 (5) (394 SE2d 418) (1990).

3. The indictment alleged that appellant had violated OCGA § 16-11-106 (b) in that he “did . . . unlawfully possess a knife having a blade of three or more inches in length. . . .” (Emphasis supplied.) The trial court instructed the jury that a violation of OCGA § 16-11-106 (b) occurs when one “has on or within arm’s reach of his person a knife having a blade of three or more inches in length. . . .’’(Emphasis supplied.) Through his reliance upon Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978), appellant apparently urges on appeal that the above-quoted instruction, in its emphasized portion, erroneously authorized the jury to find that he had violated OCGA § 16-11-106 (b) in a manner other than that which had been alleged in the indictment. “ ‘It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the (indictment) . . .’ [Cits.]” Walker v. State, supra at 244 (2).

The “possession” specifically proscribed by OCGA § 16-11-106 (b) is the act of having “on or within arm’s reach of [one’s] person . . . a knife having a blade of three or more inches in length. . . .’’(Emphasis supplied.) Since the indictment broadly charged appellant with proscribed “possession,” and not merely with the act of having a knife of sufficient length “on” his person, it obviously was not error to give the contested charge. Compare Walker v. State, supra.

4. Appellant further urges that the evidence failed to show that the knife had a blade of at least three inches in length. There was apparently no testimony as to the length of the knife. However, the knife itself was admitted into evidence. “[T]he jurors [are authorized] to exercise their primary senses of sight, taste, smell, etc., upon real objects introduced before them. . . .” Morse v. State, 10 Ga. App. 61, 65 (3) (72 SE 534) (1911). The knife has been included in the record on appeal and, we conclude that any reasonable juror could determine, merely from viewing and handling it, that its blade is at least three inches in length. Accordingly, this enumeration is without merit. A jury “is entitled to consider as proven certain matters even without any testimony being introduced. . . . Jurors . . . are entitled to use their own common sense as intelligent human beings on many questions.” Brown Transport Corp. v. Jenkins, 129 Ga. App. 457, 461 (3) (199 SE2d 910) (1973).

Judgments affirmed.

Pope and Johnson, JJ., concur.

Decided April 10, 1992.

J. Roland Dewitt, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A92A0030.
    TATUM v. THE STATE.
    (418 SE2d 152)
   Pope, Judge.

Defendant William Tatum was convicted of aggravated child molestation of his seven-year-old stepdaughter and appeals. We affirm.

1. An agent of the GBI and the sheriff’s deputy who arrested the defendant testified defendant confessed to the crime in response to their interrogation. Defendant testified at trial and denied he made the confession. On appeal, he argues the testimony concerning his confession was improperly admitted into evidence because the officers acknowledged the defendant initially invoked his right to consult an attorney. According to the deputy sheriff, however, after leaving the GBI office and getting back into the deputy’s car, the defendant asked the deputy to explain to him everything that was going on. The deputy responded that since he had invoked his right to counsel that the deputy could not discuss the case with him, for fear of violating his rights, unless he waived his right to counsel. The defendant then advised the deputy he would be willing to go back inside and talk. Defendant was taken back into the GBI office and again advised of his rights. Defendant signed a waiver of his rights and eventually made the confession. Defendant testified that the deputy tried to cajole him into talking by stating that if he cooperated the officers would talk to the prosecutor about leniency, but that he continued to refuse to respond to questions.

“ ‘(A)n accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ Edwards, v. Arizona, 451 U. S. 477, 484, 485 (101 SC 1880, 68 LE2d 378) (1981). (Emphasis supplied.) As the evidence of record shows that the officers immediately ceased their interrogation of the [defendant] when he requested counsel and that it was he who thereafter initiated further communication between them, the trial court was authorized to conclude both that the statements were made freely and voluntarily and that they were not elicited in violation of the [defendant’s] right to counsel.” Whatley v. State, 189 Ga. App. 173, 174 (2) (375 SE2d 245) (1988). The testimony at the hearing on defendant’s motion to suppress was in conflict, but the trial court’s determinations of fact and credibility of witnesses will be upheld, where, as here, they are not clearly erroneous. See Snipes v. State, 188 Ga. App. 366 (2) (373 SE2d 48) (1988).

Decided April 10, 1992.

2. Defendant also argues the trial court erred in admitting over his objection the hearsay testimony of a witness concerning statements made by another child who was not the victim in this case. The witness, one of the victim’s babysitters, testified she discovered the victim and her own three-year-old son in the bedroom crying. When she asked the victim why she was crying, the girl replied the witness’ son had hit her. When the witness asked her son why he had hit the victim, he replied that she had been trying to “kiss” his penis. Defendant argues that the testimony was inadmissible because the child hearsay statute, OCGA § 24-3-16, does not apply to the statements of a child who is not the victim of the crime, and even if it does, the requirements of the statute were not met because there was no showing that the child declarant was available to testify.

This court has already ruled that the child hearsay statute is not limited to the out-of-court statements of the actual victim in the case. Holden v. State, 187 Ga. App. 597 (2) (370 SE2d 847) (1988). We need not consider whether the requirements of availability of the child declarant were met in this case because the statement is otherwise admissible, pursuant to OCGA § 24-3-2, to explain conduct and ascertain the motives of the witness. As a defense, the defendant presented the theory that the victim’s mother, his ex-wife, had concocted the charges against him out of vindictiveness and in order to block his visitation rights to see his own daughter, the child of his marriage to the victim’s mother. Thus, the motive of the witness, the victim’s babysitter, for reporting the victim’s acts and statements to child welfare authorities was a relevant issue in the case. This is, thus, one of those “rare” cases in which the motive and intent for actions are “ ‘matters concerning which the truth must be found.’ ” Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984) (quoting Momon v. State, 249 Ga. 865, 867 (294 SE2d 482 (1982)). The trial court did not err in admitting the witness’ testimony concerning what her child told her about the victim’s acts.

3. The victim testified at trial that defendant instructed her to commit acts of sodomy on him. The evidence was sufficient to permit the jury to find he was guilty beyond a reasonable doubt.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr,, District Attorney, L. Craig Fraser, C. Keith Higgins, Assistant District Attorneys, for appellee.


text:
    A92A0044.
    BROWN et al. v. ALLEN et al.
    (418 SE2d 153)
   Pope, Judge.

This case arises from a dispute concerning ownership of a tractor, truck and trailer. Defendant Tommy Brown swore out a warrant to recover possession of the disputed property. Brown alleges a friend named Joey Brown borrowed the disputed property from him and failed to return the property to him. Brown further alleges that plaintiff Marvin D. Allen came into unauthorized possession of the property from Joey Brown and subsequently transferred the property to plaintiff Lamar Myers. Pursuant to the warrant, the Sheriff of Hart County seized the tractor.

Plaintiffs then filed this action to recover possession of the tractor. Plaintiff Allen contends he made a deal with Brown to purchase the disputed property from him. Allen acknowledges he has not paid Brown for the truck and trailer but testified at trial he stands ready to fulfill the terms of the agreement they reached concerning that property. With regard to the tractor, Allen testified that he reached an agreement with Brown to buy it for $7,000 and through a mutual friend named Joey Brown, gave Brown $5,000 toward its purchase and later gave Brown $1,000 personally.

During discovery, plaintiffs learned that Scott Brown, Tommy Brown’s son, claimed ownership of the tractor and that Joel McMullan was the purported owner of the truck. Therefore, Scott Brown and McMullan were added as defendants.

After a bench trial, the trial court found that both the trailer and truck belonged to McMullan, but McMullan had entrusted it to Brown for Brown to sell for him. The trial court also concluded that the elder Brown was the owner of the tractor because the evidence showed that the son had not purchased the tractor. Instead, the tractor was titled to the son because “Tommy Brown could not have any property in his name.” The trial court further found that Brown had entered into an agreement to sell the tractor, truck and trailer to Allen, and Allen, after possessing the property for a significant period of time, transferred it to Myers in exchange for a motor home. The trial court concluded that Myers held the status of a bona fide purchaser for value without notice. With regard to the tractor, the trial court ordered that Myers maintain possession and title of the tractor, and Allen should pay Brown the remaining $1,000 he owes on it. The trial court also ordered that either plaintiff Myers or Allen must pay Mc-Mullan $1,500 for the truck and trailer or alternatively return them to him within 30 days from the date of the order. Defendants appeal from that order.

1. Defendants first contend the trial court erred in finding that the tractor was owned by Tommy Brown rather than Scott Brown. “After the trial judge hears a case without the intervention of a jury, his findings of fact, if based upon any evidence should not be disturbed. [Cits.]” Hill v. Brooks, 133 Ga. App. 138, 140 (1) (210 SE2d 176) (1974). A review of the transcript reveals contradictory evidence concerning ownership of the tractor. Defendants introduced into evidence the bill of sale evidencing that the tractor was sold to Scott Brown. Scott testified he paid for the tractor with money he had earned and money he received from his mother. His father also testified that Scott had purchased the tractor with money he earned working on the farm and selling calves and with money his mother gave to him. On the other hand, the evidence revealed that the father acted as if he owned the tractor and exercised control over its use. Furthermore, during the testimony of the elder Brown, the trial judge made the following inquiry:

“THE COURT: Mr. Brown, I’m just a little curious as to why you would put a $12,000.00 tractor or $17,000.00 worth of equipment in a ten year old child’s name.

“MR. BROWN: Well, because I had fell and broke my ankle and I got arthritis and I had to retire, I turned it over to him. (Emphasis supplied.)”

“Where a witness, particularly one with a personal interest in the result of the case, testifies in a self-contradictory manner, that construction most unfavorable to his position should generally be adopted.” Goerndt v. State, 144 Ga. App. 93, 94 (5) (240 SE2d 711) (1977). The trial court did not err in finding that Brown rather than the son is the true owner of the tractor.

2. Defendants also contend the trial court erred in finding that plaintiff Myers was a good faith purchaser for value of the tractor. Defendants argue because Myers did not receive a bill of sale and could offer no other proof of ownership, the trial court’s finding is erroneous. Defendants offer no authority for their position nor are we aware of any authority requiring a good faith purchaser for value to receive a bill of sale or other proof of ownership before he can hold good title to a tractor. See OCGA § 11-2-403. The transcript supports the trial court’s conclusion that Myers was a good faith purchaser for value. Hill, supra at (1). Accordingly, this enumeration is without merit.

3. Defendants finally argue the trial court erred by failing to return possession of the tractor to Scott Brown, a minor child, even if the tractor was sold to a bona fide purchaser for value. Our holding in Division 1 that the trial court properly concluded that Tommy Brown rather than Scott Brown owned the tractor in question makes it unnecessary to address this enumeration of error.

Decided April 10, 1992.

Rodger E. Davison, for appellants.

Jerry N. Neal, for appellees.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0134.
    JOHNSON v. THE STATE.
    (418 SE2d 155)
   McMurray, Presiding Judge.

Defendant was charged in a three count indictment with possession of a firearm by a convicted felon (Count 1), carrying a concealed weapon (Count 2) and obstruction of a law enforcement officer (Count 3). The case was called for trial and the State announced that it would file a motion to “nolle pros [Counts 2 and 3 of the indictment], without the right to re-indict on those two counts.” The trial court indicated that it would accept any such motion and defendant acquiesced. On January 31, 1991 (December 1990 Term), a jury trial then proceeded on Count 1 of the indictment and defendant was found guilty of possession of a firearm by a convicted felon. This appeal followed the denial of defendant’s motion for new trial.

Held:

1. In his first enumeration, defendant contends the trial court erred in allowing evidence that he had been convicted of armed robbery. This contention is without merit.

Defendant’s prior felony conviction for armed robbery is the basis for the charge of possession of a firearm by a convicted felon. See OCGA § 16-11-131. Consequently, defendant’s prior felony conviction for armed robbery was admissible. Smith v. State, 192 Ga. App. 246 (1) (384 SE2d 451).

2. Next, defendant contends the trial court erred in allowing the State to “nolle pros” Counts 2 and 3 of the indictment. This contention is without merit. Any dismissal of Counts 2 and 3 of the indictment “without the right to re-indict. . .” can in no way be characterized as harmful to defendant.

3. Defendant contends in his last enumeration that the trial court erred in denying his motion for discharge and acquittal based upon the State’s failure to comply with his OCGA § 17-7-170 demand for speedy trial.

Decided April 10, 1992.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellee.

Defendant was indicted on February 7, 1990, during the December 1989 Term of the Eastern Judicial Circuit, Chatham County, Georgia. On May 22, 1990, during the March 1990 Term, defendant filed a pro se demand for speedy trial at the March 1990 Term or the next succeeding term of court (June 1990 Term). OCGA § 15-6-3 (17). On October 24, 1990, as pro se, and on December 5, 1990, by attorney, defendant filed motions seeking absolute discharge and acquittal on the charges of the indictment based on the State’s failure to try him during the “two terms [March 1990 Term and June 1990 Term] of this court as outlined under his Demand for Trial” as prescribed by OCGA § 17-7-170 (a). The trial court conducted a hearing and later entered an order denying defendant’s motions, finding that the State’s attorney had not been served with the demand for trial.

“The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. See Matthews v. State, 181 Ga. App. 819, 820 (354 SE2d 175) (1987).” Head v. State, 189 Ga. App. 111 (375 SE2d 46). OCGA § 17-7-170 (a) provides that any demand for trial shall be served on the prosecutor.

“Unless clearly erroneous, the findings of fact of the trial court will not be disturbed. Sundance, Inc. v. Guy, 174 Ga. App. 792 (1) (331 SE2d 102) (1985).” Day v. State, 187 Ga. App. 175 (1) (369 SE2d 796). In the case sub judice, the trial court’s finding that the State’s attorney was not served with defendant’s demand for trial is supported by an absence of certificates of service showing that the State’s attorney had been served with defendant’s demand for trial and by the State’s attorney’s statement that neither he nor the District Attorney’s office had been served with defendant’s demand for trial. Under these circumstances, the trial court did not err in denying defendant’s plea of autrefois acquit. See Vondolteren v. State, 184 Ga. App. 344, 345 (361 SE2d 833).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0293, A92A0294.
    CALLAHAN et al. v. THE STATE (two cases).
    (418 SE2d 157)
   McMurray, Presiding Judge.

Defendants Daniel Claude Callahan, Sr. and Cheryl Morris Callahan were charged jointly in a multi-count indictment with four counts of child molestation (Counts 1 through 4), aggravated sexual battery (Count 5), rape (Count 6), statutory rape (Count 7), two counts of aggravated child molestation (Counts 8 and 11) and two counts of aggravated sodomy (Counts 9 and 10). Defendant Cheryl Morris Callahan was charged in separate counts of the indictment with aggravated child molestation (Count 12) and aggravated sodomy (Count 13). Defendant Daniel Claude Callahan, Sr. was charged in separate counts with child molestation (Count 14), two counts of aggravated child molestation (Counts 15 and 17), two counts of aggravated sodomy (Counts 16 and 18), rape (Count 19), statutory rape (Count 20) and possession of a firearm by a convicted felon (Count 21). Defendants were tried jointly before a jury and found guilty on Counts 1 through 20. Defendant Cheryl Morris Callahan was sentenced on Counts 1 through 13 and defendant Daniel Claude Callahan, Sr. was sentenced on Counts 1 through 11 and Counts 14 through 20. (The trial court later granted the State’s motion to nolle prosequi Count 21 of the indictment.) These appeals followed the denial of defendants’ separate motions for new trial. Defendant Cheryl Morris Callahan appeals in Case No. A92A0293 and defendant Daniel Claude Callahan, Sr. appeals in Case No. A92A0294. Held:

Case No. A92A0293

1. Defendant Cheryl Morris Callahan first contends the trial court’s sentence is erroneous, arguing that Counts 6 and 7 involve the same transaction; that Counts 8 and 9 involve the same transaction; that Counts 10 and 11 involve the same transaction and that Counts 12 and 13 involve the same transaction.

The State does not challenge this enumeration and the record shows that the above counts of the indictment involve lesser and greater offenses of the same criminal conduct. Consequently, the trial court erred in sentencing defendant Cheryl Morris Callahan separately on Counts 6 and 7, Counts 8 and 9, Counts 10 and 11 and Counts 12 and 13. The case must therefore be remanded for resentencing. See Bowens v. State, 171 Ga. App. 364, 365 (1) (320 SE2d 189).

2. Defendant Cheryl Morris Callahan contends in her second enumeration that the trial court erred in charging the jury on aggravated sodomy. However, there was no exception to the court’s charge nor was there a reservation of the right to except when the trial court asked for exceptions. Consequently, this enumeration presents nothing for review. Harmon v. State, 259 Ga. 846, 848 (3) (388 SE2d 689).

3. In her last enumeration of error, defendant Cheryl Morris Callahan challenges the sufficiency of the evidence with regard to her convictions for aggravated sodomy, arguing that she did not forcefully require her 13-year-old daughter to commit the separate acts of sodomy as alleged in Counts 9, 10 and 13 of the indictment. This contention is without merit.

“Sexual acts directed to children are, in law, forcible and against the will. See Cooper v. State, 256 Ga. 234 (347 SE2d 553) (1987).” Richardson v. State, 256 Ga. 746, (2), 747 (353 SE2d 342). Further, evidence of a victim’s lack of resistance induced by fear authorizes a finding of force. Drake v. State, 239 Ga. 232, 235 (2) (236 SE2d 748). In the case sub judice, defendants acted in concert, compelling defendant Cheryl Morris Callahan’s 13-year-old daughter to submit to and perform the acts of sodomy as alleged in Counts 9, 10 and 13 of the indictment. This evidence and evidence that the victim feared defendant Daniel Claude Callahan, Sr. is sufficient to authorize the jury’s finding that defendant Cheryl Morris Callahan is guilty, beyond a reasonable doubt, of aggravated sodomy by forcefully inducing the victim to endure the acts of sodomy alleged in Counts 9, 10 and 13 of the indictment. Jackson v. Virginia, 443, U. S. 307 (99 SC 2781, 61 LE2d 560).

Case No. A92A0294

4. In his first enumeration of error, defendant Daniel Claude Callahan, Sr. contends the trial court erred in admitting evidence of a handgun, ammunition, pornographic literature and other sexually related material that were discovered in defendants’ bedroom. This enumeration provides no basis for a new trial.

At trial, defendant complained that the above evidence is irrelevant and that it would only serve to inflame the jury. “ ‘ “It has been repeatedly held by the Supreme Court and this court that an objection that evidence is irrelevant and immaterial is insufficient to show reversible error. (Cits.)” (Cit.)’ Singletary v. State, 194 Ga. App. 266 (2) (390 SE2d 611) (1990). Accord Brinson v. State, 191 Ga. App. 151 (2) (381 SE2d 292) (1989).” Barton v. State, 199 Ga. App. 363, 364 (2) (405 SE2d 92).

5. Defendant Daniel Claude Callahan, Sr. contends in his second enumeration that the trial court’s sentence is erroneous, arguing that Counts 6 and 7 involve the same transaction; that Count 8 and 9 involve the same transaction; that Counts 10 and 11 involve the same transaction; that Counts 15 and 16 involve the same transaction; that Counts 17 and 18 involve the same transaction and that Counts 19 and 20 involve the same transaction.

Decided April 10, 1992.

Walter J. Clarke, for appellant (case no. A92A0293).

The State does not challenge this enumeration and it appears from the record that the above counts of the indictment involve lesser and greater offenses arising from the same criminal conduct. Consequently, the trial court erred in sentencing defendant Daniel Claude Callahan, Sr. separately on Counts 6 and 7, Counts 8 and 9, Counts 10 and 11, Counts 15 and 16, Counts 17 and 18 and Counts 19 and 20. The case must therefore be remanded for resentencing. See Bowens v. State, 171 Ga. App. 364, 365 (1), supra.

6. In his last enumeration, defendant Daniel Claude Callahan, Sr. asserts the general grounds with regard to his convictions for aggravated sodomy and rape, arguing there is insufficient evidence that he forcefully raped and sodomized the victim. In this vein, defendant Daniel Claude Callahan, Sr. challenges the evidentiary basis of the trial court’s charge that “[f]orce may also be inferred by evidence of intimidation arising from familial relationship,” arguing that he was not married to defendant Cheryl Morris Callahan at the time of the alleged acts of aggravated sodomy and rape. This enumeration is without merit.

The evidence shows that the victim’s mother and defendant Daniel Claude Callahan, Sr. were residing with the victim in the same household at the time of the alleged acts of aggravated sodomy and rape. This evidence and evidence that defendants acted in concert in order to compel the victim to endure acts of sodomy and rape authorized the trial court’s charge that “[f]orce may also be inferred by evidence of intimidation arising from familial relationship.” Further, the evidence authorizing this charge and evidence that the victim feared defendant Daniel Claude Callahan, Sr. was sufficient to authorize the jury’s finding that defendant Daniel Claude Callahan, Sr. is guilty, beyond a reasonable doubt, of aggravated sodomy and rape as alleged in Counts 16, 18 and 19 of the indictment, i.e., that defendant Daniel Claude Callahan, Sr. forcefully induced the victim to endure acts of sodomy and intercourse against the victim’s will. Jackson v. Virginia, supra. See Richardson v. State, 256 Ga. 746 (2), supra.

Judgment affirmed in Case No. A92A0293 and case remanded for resentencing on Counts 6, 7, 8, 9, 10, 11, 12 and 13. Judgment affirmed in Case No. A92A0294 and case remanded for resentencing on Counts 6, 7, 8, 9, 10, 11, 15, 16, 17, 18, 19 and 20.

Sognier, C. J., and Cooper, J., concur.

James R. Van Meerten, for appellant (case no. A92A0294).

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A92A0514.
    GREENWOOD v. THE STATE.
    (418 SE2d 160)
   McMurray, Presiding Judge.

Defendant Greenwood appeals his conviction of the offenses of criminal attempt to commit burglary, possession of tools for the commission of crime, and theft by receiving stolen property. Held:

1. Immediately prior to trial, Stevens, a co-indictee, was called to testify outside the presence of the jury in order that the trial court and counsel might determine whether he intended to testify in the case against defendant or to avail himself of the Fifth Amendment right not to incriminate himself. Stevens, who had been previously tried and convicted on the three counts of the indictment announced his intention to “plead the Fifth from here on.” Over defendant’s objection, the court then granted the State’s motion for a grant of immunity from information received from such testimony and ordered Stevens to testify truthfully in defendant’s trial.

When Stevens was called to testify at trial by the State, some doubt remained as to whether he would obey the trial court’s order that he testify. In the absence of the jury, the prosecuting attorney attempted to elicit testimony from Stevens, who continued to insist that he was not going to testify. Stevens refused to comply with the order of the trial court to answer the questions put to him and was held to be in direct criminal contempt and punishment ordered, including incarceration and a fine. Nonetheless, no response to any substantive question was forthcoming following Stevens’ statement of his name, age, and residence. Stevens also stated that he would not answer any of defense counsel’s questions on cross-examination.

Over defendant’s objections claiming a violation of his Fourth and Sixth Amendment rights, particularly his right to confront witnesses against him, the State was allowed to question Stevens before the jury. After stating his name and age before the jury, the following exchange occurred between Assistant District Attorney Thompson and Stevens: “Q. Where do you live, sir? A. Like I told you before, Mr. Thompson, my case is under appeal and I’m not going to testify. You can ask as many questions as you want, but I’m going to say the same thing over and over. Q. As I told before — [Defense counsel]: Objection. THE COURT: Don’t go into that. Mr. Stevens, answer the questions. Q. Do you know Richard Greenwood? A. I plead the Fifth and won’t answer questions. Q. Do you know Matthew Handte? [a third co-indictee]. A. I won’t answer your questions, sir. Q. Did you, Matthew Handte, and Richard Greenwood conspire — I mean agree to pick up this pick-up truck parked at the Handte Realty Company to go to David Harper’s driveway and wait until that family went to church, take the saw and go in to saw the vault out of the house? A. I’ll not answer your questions. THE COURT: Mr. Thompson, I think that’s all.” Subsequently, Stevens testified that he would not answer any questions posed by defense counsel on cross-examination.

Defendant moved for mistrial on the basis of the areas gone into by the prosecuting attorney’s questions, the inferences which would arise therefrom with the jury, and the denial of cross-examination. The trial court denied the defendant’s motion for mistrial and instructed the jury not to consider the testimony of Stevens in reaching a verdict.

On appeal, defendant relies upon the cases of Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) and Lawrence v. State, 257 Ga. 423 (360 SE2d 716). As in those cases, the trial court permitted the State to call a witness who had notified the court and counsel that he would not answer any question and ask leading questions, predicated on the witness’ prior statements, which suggested the defendant’s guilt of the crimes charged. Under the circumstances of those cases, the procedure whereby the prosecutor was allowed, in effect, to testify for the witness and circumvent meaningful cross-examination as to obvious inferences was soundly condemned. See Lawrence at p. 425 (fn. 3).

The issue before this Court is whether the holdings in Lingerfelt and Lawrence are applicable, or are they distinguishable, as the State argues, due to the grant of immunity to the witness in the case sub judice. Since the witness’ clearly stated refusal to testify was not altered by the grant of immunity, the trial court’s order, or the adjudication of contempt, we fail to discern any manner in which the grant of immunity can be said to have altered the circumstances in the case sub judice from those in Lingerfelt and Lawrence. The knowledge of the trial court and prosecuting counsel that the witness would not answer the questions posed remained the same, as were the consequences of allowing the prosecuting attorney to call the witness and ask leading questions based on the witness’ prior statement. The trial court erred in denying defendant’s motion for mistrial.

2. The remaining enumeration questions the sufficiency of the evidence to authorize defendant,’s conviction. The evidence stated in the light most favorable to the verdict shows that defendant, along with a companion, was observed on rural property owned by Harper. The pair was seen to stealthily approach an old house used for storage of personal property. Defendant remained outside while the companion entered the old house. Meanwhile, Harper had been alerted by a neighbor to the presence of the trespassers. When Harper approached the old house in his vehicle, defendant began to walk away. Harper intercepted defendant while defendant’s companion exited the opposite side of the old house and left the area. Defendant, who was armed with a handgun, gave a false name and told Harper that he was looking for a place to deer hunt. During the conversation, the neighbor who had alerted Harper arrived on the scene and Harper learned that it was not defendant but defendant’s companion that had entered the old house. Harper sent the neighbor to have his wife call the sheriff. Defendant protested that it was his companion who had created a problem by entering the old house, and that, consequently, it was his companion who should talk to the sheriff. Defendant, in asking that he be allowed to go find his companion and bring him back, identified a pickup truck parked by a nearby telephone relay station as his, and argued that he would not run off and leave his truck sitting there. Defendant was allowed to leave and shortly thereafter a sheriff’s deputy arrived on the scene. It was soon established that the pickup truck had been stolen and that the tag on the truck had been stolen from a separate vehicle. The truck contained a concrete cutting saw along with several accessories, a ski mask, handcuffs, duct tape, and a pair of binoculars. A patrol of the vicinity resulted in the arrest of Stevens. The truck was shown to have been stolen from a friend of defendant’s. Also, there was evidence.as to the existence of and defendant’s possible knowledge of a large safe or vault in Harper’s residence which was located near the old house used for storage.

The State’s theory is that defendant and his companion had taken up a surveillance position to observe when Harper and his family left their residence, and intended, after the Harpers’ departure, to use the equipment in the stolen pickup truck to break into the vault in the residence. However, since the evidence is consistent with any number of alternative hypotheses, it fails to establish the intent to burglarize the Harper residence which is essential to the charged offenses of criminal attempt to commit burglary and possession of tools for the commission of crime. The verdict, as to these two offenses, is insupportable as a matter of law under the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

As to the offense of theft by receiving stolen property, the jury was authorized to consider defendant’s statement to Harper, that the stolen truck was his, as evidence of possession or receipt of the stolen property. Defendant’s own testimony showed his knowledge that the truck was stolen. The evidence is sufficient to authorize a rational trier of fact in finding defendant guilty beyond a reasonable doubt of the offense of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307, supra; Fair v. State, 198 Ga. App. 437, 438 (4) (401 SE2d 626).

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Cooper, J., concur.

Decided April 10, 1992.

Frank J. Petrella, for appellant.

Roger G. Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge. Cooper, Judge, dissenting.

text:
    A92A0620.
    THE STATE v. WALKER.
    (418 SE2d 384)
   McMurray, Presiding Judge.

Defendant Walker is charged by indictment with the offense of aggravated assault with intent to rape. Following a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing, the superior court entered an order excluding from evidence at trial one of two statements made by defendant to police. The State filed this direct appeal from this exclusion of evidence pursuant to OCGA § 5-7-1 (4). See State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864). Held:

At the Jackson v. Denno, supra, hearing, the State presented evidence that on the day that the alleged victim had made her complaint, a police officer had telephoned defendant and asked him to come speak to her at the police station, which he did. The officer testified that defendant was not under arrest at that time, was not arrested until two months later, and had been free to leave at any time. The officer stated that she did not threaten or coerce the defendant in any way, promise him anything, or give defendant any reason to believe that he was not free to go at any time, although there is no indication that the officer explicitly stated to him that he was free to leave at any time. Defendant did not appear to be under the influence of intoxicants or to be laboring under any mental or physical handicap. The officer stated that she knew of no reason that defendant’s statement was anything other than freely and voluntarily made. After a 25-minute interview, defendant left the police station. No Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) warnings were given to defendant at any point during this interview.

Other than cross-examining the police officer who was the State’s sole witness, defendant presented neither evidence nor argument at the hearing. The superior court ruled that the defendant’s statement was voluntary but inadmissible due to the absence of Miranda warnings.

Miranda warnings “are required only when a law enforcement officer initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom.” Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459). See Riviera v. State, 190 Ga. App. 823, 824-825 (1) (380 SE2d 353). “The issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply. [Cit.]” Childs v. State, 257 Ga. 243, 245 (3), 247 (357 SE2d 48). “In deciding the admissibility of a statement during a JacksonDenno hearing, the trial court ‘must consider the totality of the circumstances’ and must determine the admissibility of the statement under the ‘preponderance of the evidence’ standard. Unless the factual and credibility findings of the trial court are ‘clearly erroneous,’ the trial court’s decision on admissibility will be upheld on appeal. [Cit.]” Fowler v. State, 246 Ga. 256, 257 (3), 258 (271 SE2d 168). See also Kincey v. State, 191 Ga. App. 300, 301 (2), 302 (381 SE2d 439).

In the case sub judice, the State contends that the superior court improperly took judicial notice of disputed facts relating to routine police procedures and to other cases before that court. However, the superior court’s order does not reflect any decision to take judicial notice of any specific fact, but instead shows that the superior court was merely taking into account its own knowledge, learning and experience, which was not improper in its role as trier of fact. State v. Mallory, 180 Ga. App. 815, 816 (350 SE2d 823).

Nonetheless, the record is devoid of any evidence supporting the superior court’s finding that defendant “could reasonably conclude that his presence at the police station when he made his first statement was not subject to termination by unilateral action on his part.” Apparently, the superior court’s view of the circumstances was influenced by a number of factors, including the fact that the interview with defendant occurred at a police station, that the police requested defendant’s appearance at the police station for the interview, and that defendant was suspected of having committed the alleged crime under investigation. However, none of these factors required that defendant be given Miranda warnings. See Leach v. State, 259 Ga. 33, 35 (4) (376 SE2d 667) and California v. Beheler, 463 U. S. 1121 (103 SC 3517, 77 LE2d 1275). The procedure utilized by the police in the case sub judice did not invade defendant’s rights, therefore, the superior court erred in excluding evidence concerning the first police interview of defendant.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Andrews and Johnson, JJ., concur. Beasley, J., concurs in the judgment only. Pope and Cooper, JJ., dissent.

Cooper, Judge, dissenting.

The majority concludes that the record is devoid of any evidence supporting the trial court’s finding that the defendant could not have reasonably concluded that he was free to terminate the interrogation. Because I find that the record amply supports the trial court’s decision to suppress the confession, I must dissent from the majority opinion.

As noted by the majority, “ ‘(u)nless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.’ [Cit.]” Harper v. State, 193 Ga. App. 551 (388 SE2d 379) (1989). The majority correctly points out that standing alone, neither the fact that the interrogation occurred at the police station nor the fact that the police initiated the contact with defendant is a basis for requiring that defendant be given the Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694 (1966)) warnings. However, the flaw in the majority’s reasoning is the failure to recognize that the trial court considered the totality of the circumstances in arriving at its conclusion. While factors such as the place of the interrogation and the party who initiated the interrogation were considered by the trial court, the record contains other facts which, in addition to those mentioned above, constitute the totality of the circumstances. First, defendant was never advised that he was free to leave, that he could terminate the interrogation at any time or that he was not under arrest. Secondly, at the time the police initiated the questioning, defendant had been positively identified by the victim as the perpetrator of a specific crime. Consequently, defendant was more than a mere “suspect” in the case. The police may have chosen to wait two months before arresting defendant, but considering the victim’s positive identification, the police could have chosen to arrest defendant immediately. Also, it is hard to imagine in light of the victim’s identification, that the subsequent interrogation was anything less than an attempt to obtain information establishing defendant’s guilt. It is therefore reasonable to conclude that defendant, when faced with questioning initiated by the police, at the police station, after he had been positively identified by the victim of the crime, did not feel that he was free to terminate the interrogation. I believe that the trial court recognized a flagrant attempt by the police to circumvent the protection afforded under Miranda. Because I cannot conclude that the trial court’s findings were “clearly erroneous,” I must respectfully dissent.

Decided April 10, 1992.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellant.

Lane, Tucker & Crowe, Grayson P. Lane, for appellee.

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


author: Sognier, Chief Judge.

text:
    A90A1553.
    HOSPITAL AUTHORITY OF FULTON COUNTY v. LITTERILLA. HOSPITAL AUTHORITY OF FULTON COUNTY v. HYDE et al.
    A90A1814.
    (418 SE2d 391)
    Decided April 13, 1992.

      Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Love & Willingham, Daryll Love, Hezekiah Sistrunk, for appellants (case no. A90A1553).

      Davis, Gregory & Christy, Hardy Gregory, Jr., William Q. Bird, for appellee.

      Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., for appellants (case no. A90A1814).

      England, Weaver & Kytle, J. Melvin England, James W. Kytle, for appellees.
   Sognier, Chief Judge.

In Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992), the Supreme Court reversed the judgment of this court in Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 SE2d 796) (1991). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgments affirmed.

McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur.


text:
    A92A0052.
    PHILLIPS v. THE STATE.
    (418 SE2d 392)
    Decided April 13, 1992.

      J. Tracy Ward, for appellant.

      Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was jointly indicted with co-defendant Tawanna Denise Hill for violating Georgia’s Controlled Substances Act, selling cocaine. The evidence adduced at a jury trial showed that defendant and the co-defendant sold cocaine to an undercover police informant. Defendant was found guilty of selling cocaine. This appeal followed the denial of defendant’s motion for new trial. Held:

In her sole enumeration, defendant challenges the sufficiency of the evidence.

At trial, Brenda Stokes was called by the State, but she refused to testify. Narcotics Investigator Mike Key of the Dalton Police Department testified that Brenda Stokes, a paid undercover police narcotics informant, was given money to purchase illegal drugs and was wired for audio surveillance on December 19, 1990. Investigator Key testified that at about 9:30 that evening he monitored a $24 drug buy transmitted over the audio device wired to Brenda Stokes. Investigator Key testified that the informant soon returned with a description of defendant and the co-defendant and a quantity of “crack” cocaine. Investigator Key testified that Brenda Stokes later informed him that defendant participated in the drug transaction by collecting and counting the drug money. This testimony was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of violating Georgia’s Controlled Substances Act, selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0212.
    OWENS v. THE STATE.
    (418 SE2d 631)
   McMurray, Presiding Judge.

Defendant was indicted for arson in the first degree (Count 1) and interference with government property (Count 2). The case was tried before a jury and defendant was found guilty but mentally ill on both counts of the indictment. Defendant appeals his convictions. Held:

1. Defendant contends the trial court erred in denying his motion for mistrial after a fire scene investigator testified that he prepared a report of his findings and gave it to the State’s attorney. Defendant argues that the State’s failure to provide him with a copy of the fire scene investigator’s report was violative of his OCGA § 17-7-211 demand for any scientific reports. This enumeration is without merit.

Decided April 13, 1992.

W. Dennis Mullís, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

“The remedy for a violation of OCGA § 17-7-211 is the exclusion of the evidence rather than the grant of a mistrial. Pontoon v. State, 177 Ga. App. 868, 870 (341 SE2d 505) (1986).” Green v. State, 194 Ga. App. 343, 345 (6), 346 (390 SE2d 285). In the case sub judice, defendant did not object to the fire scene investigator’s testimony nor did he make a motion to strike the testimony offered by the fire scene investigator. Consequently, the refusal to grant a mistrial was proper. Green v. State, 194 Ga. App. 343, 345 (6), supra.

2. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal on Count 1 of the indictment, arguing the State failed to prove that he burned the victim’s house without permission or consent.

In Count 1, defendant was charged with arson in the first degree in that he knowingly burned the victim’s unoccupied dwelling house. At trial, the victim testified that he owned a farm house near his home in Dodge County, Georgia, and that during the early evening of February 8, 1991, his wife noticed that a security light at the farm house did not appear to be functioning properly. The victim testified that he investigated and discovered that the farm house “was completely burned to the ground.” The victim testified that he suspected arson when he saw the burned farm house. Defendant testified and admitted that he vengefully burned the victim’s farm house. This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of arson in the first degree by burning the victim’s farm house without authority or consent. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0283.
    McDONALD v. GLYNN-BRUNSWICK MEMORIAL HOSPITAL.
    (418 SE2d 393)
   Sognier, Chief Judge.

Myrtle Lee McDonald brought suit against the Glynn-Brunswick Memorial Hospital Authority seeking damages for injuries inflicted on her by another patient while she was an inpatient at Glynn-Brunswick Memorial Hospital. The case was tried before a jury, which returned a verdict in favor of the hospital authority, and this appeal ensued.

The evidence adduced at trial showed that a patient whose room was near appellant’s became agitated during the night and began walking down the corridor. Hearing noise in the hall, appellant left her bed to investigate. As she was closing her door, the other patient suddenly pushed the door open, and the injury to appellant occurred when the door struck appellant’s forehead.

In her sole enumeration of error, appellant contends the trial court erred by refusing to allow her witness Linda Ramsey, a former registered nurse, to testify regarding the standard of care for registered nurses. The trial court ruled that Ramsey was not competent to testify regarding the standard of care for nurses because she was not licensed either at the time of the incident or at the time of trial. “ ‘Whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless manifestly abused. [Cit.]’ [Cit.]” Oak Ridge Village v. La Siesta Mobile Home Park, 130 Ga. App. 539, 540 (1) (203 SE2d 748) (1974).

In Goodman v. Lipman, 197 Ga. App. 631-632 (1) (399 SE2d 255) (1990), a malpractice action, this court reversed a trial court’s ruling refusing, as a matter of law, to allow a physician who was not yet licensed at the time of the alleged malpractice to testify regarding the standard of care required of physicians. This court remanded the case with direction that the trial court exercise its discretion before determining whether the witness could be qualified as an expert. The case sub judice is distinguished factually from Goodman, however, in several respects. In Goodman the trial court exercised no discretion but excluded the testimony solely on the ground that the witness was not a licensed physician at the time of the alleged malpractice. The physician, who was licensed at the time of trial, deposed that he was familiar with the requisite standard of care prevailing at the time of the alleged malpractice, and his affidavit and deposition testimony supported this statement.

Decided April 13, 1992.

John N. Crudup, for appellant.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell, Lisa S. Godbey, for appellee.

Although Ramsey, like the witness in Goodman, testified that she was familiar with the standard of care required in her profession, “[c]onclusory statements as to a witness’ ‘knowledge’ or ‘familiarity’ in a particular art, skill or science are not probative in determining the witness’ qualifications as an expert witness. Such determination must be based on evidence of the witness’ education, training or experience in the pertinent field of study. [Cit.]” Id. at 632-633. In this case, the trial court recognized that there were certain medical matters as to which Ramsey would be competent to testify to by virtue of her training and experience even though unlicensed, but Ramsey’s testimony did not support her profession of familiarity with the appropriate standard of care. Ramsey testified that she had left nursing and was currently employed as a realtor, had not been a licensed nurse on the date of the incident in question and at the time of trial had not been licensed as a nurse for eight years, and admitted that she did not know what the standard of care was on the date of the incident because it was possible that standard had changed since she was licensed. Given this testimony, we find no error in the trial court’s exercise of its discretion to conclude that she was not competent to testify as to the standard of care for registered nurses on the date of the accident.

Judgment affirmed.

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

       McDonald died of unrelated causes during the course of the litigation, and the administrator of her estate was substituted as plaintiff.


author: Johnson, Judge.

text:
    A91A1897.
    HALL v. CAWVEY.
    (418 SE2d 77)
   Johnson, Judge.

This appeal arises from proceedings initiated by the appellant, Curtis Hall, to legitimate and obtain custody of his minor son. The appellee, Betty Ann Cawvey, is the child’s maternal grandmother. She is the named defendant in the action and as such counterclaimed for custody based on allegations that Hall is unfit to have custody and control of the child. Following an evidentiary hearing, the trial court granted Hall’s legitimation request but awarded permanent custody to Cawvey. (In addition, the court granted Hall certain specified visitation rights and ordered him to pay child support.) The case is before us pursuant to our grant of his application for discretionary appeal.

The child was born out of wedlock on August 1, 1988, and subsequently lived with the mother in Cawvey’s home. The mother died on November 11, 1990, and Hall filed the present action 18 days later. In the interim, Cawvey was named by the probate court as the child’s testamentary guardian. Hall, who was 23 years old at the time of the hearing, lives with his mother and an older brother and is employed at an auto body shop operated by the brother. While he had only sporadic contact with the child prior to the filing of the present action, he maintained that this was because the mother and her family initially refused to permit him to see the child. He has engaged in regular visitation with the child since filing the present action.

Hall did not contribute to the support of the child from the date of his birth, on August 1, 1988, until December of 1988, when he agreed to begin making support payments in response to a demand by the Child Support Recovery Unit. He subsequently fell behind in making these payments, with the result that in December of 1989 he was ordered to submit to a payroll deduction for this purpose. There was evidence that another woman became pregnant by him subsequent to the child’s birth but thereafter obtained an abortion at her own expense.

It was shown that Hall had been convicted of possession of marijuana in 1986, of DUI and speeding in May of 1990, and of driving with a suspended license in September of 1990. Moreover, in January of 1991, subsequent to the filing of the present action, a vehicle in which he was riding as a passenger was stopped by police based on an anonymous tip that it contained drugs, and a pipe containing marijuana was found under his seat during the ensuing search of the vehicle. However, the driver alone was charged with possession of this contraband, and no charges were brought against Hall as a result of the incident.

Although Hall openly admitted having used marijuana in the past, and although there was evidence that he still associated with others who did so, he testified without contradiction that he had not used the drug during the past two years. Hall further admitted that it was not unusual for him to consume six to ten beers or four to six mixed drinks on a weekend night; however, he asserted that he did not drink during the week and that he never drank at home because his mother did not allow alcohol on the premises.

The Department of Family & Children Services’ caseworker assigned by the court to investigate Hall’s home testified that it was in excellent condition and that, in her opinion, it provided a safe and healthy environment for the child to be raised in. She further testified: “It is my opinion that Mr. Hall has not always done as he should by his child. He’s not always paid support. He’s not always spent time with him, but based on the information I have; he has the capability of doing that. He is paying child support. He is visiting his child. He is willing to provide a safe home. He has thought ahead in terms of day care for his child and in terms of medical care for his child, and there is nothing that I have found that would lead me to believe that he is not fit to assume responsibility.” The trial court, however, found as follows: “The court . . . finds by clear and convincing evidence [that] plaintiff is not presently possessed of parenting skills, maturity, responsibility, and stability, and, taking into account plaintiff’s past conduct as it bears on plaintiff’s present lifestyle and associates, the Court finds plaintiff is unfit to be awarded custody of said child.”

1. The trial court found by clear and convincing evidence that the appellant was the biological father of the minor child who was the subject of the petition, and entered an order declaring the child to be legitimate and to be the legitimate child of Curtis Dewayne Hall. No appeal was taken as to that portion of the court’s order. Therefore, that portion of the judgment below stands affirmed.

2. “The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” In re Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982). “ ‘(A)n award of child custody to a third party must be based upon more than the “best interests” of the child because such an award is in derogation of the right to custody of the parent, in whose custody the law presumes the child’s best interest will be served. Thus, it is only when the present unfitness of the parent is established by clear and convincing evidence that the trial judge is authorized to consider an award of custody to third parties. (Cit.)’ . . . [Cit.]” Mitchell v. Mitchell, 184 Ga. App. 903, 906 (3) (363 SE2d 159) (1987). Moreover, “ ‘[e]vidence adduced to achieve this standard of proof must pertain to present rather than past misconduct. [Cits.]’ [Cit.]” In re S. E. H., 180 Ga. App. 849, 850 (350 SE2d 833) (1986). See generally Brooks v. Carson, 194 Ga. App. 365, 368-369 (390 SE2d 859) (1990), and cases cited therein.

While the evidence in this case certainly establishes cause for concern as to whether Hall possesses the emotional and financial resources to care for the child over the long term, we do not believe it has been established by clear and convincing evidence that he is presently unfit to have custody. In particular, we do not believe the few instances of substance abuse and sexual irresponsibility shown by the evidence are sufficient to support a finding of present unfitness on his part, given that this conduct occurred during his late teens and very early twenties, and given further that he has, from all appearances, “cleaned up his act” considerably during the past two years in an effort to demonstrate his readiness and willingness to assume the responsibilities of parenthood. Accord Doe v. Chambers, 188 Ga. App. 879 (1), 880 (374 SE2d 758) (1988). Under the circumstances, we are constrained to hold that the trial court erred in awarding Cawvey permanent custody of the child, and we accordingly reverse the judgment of the trial court with direction that custody be awarded to Hall on at least a temporary basis.

Decided March 17, 1992

Reconsiderations denied April 2, 1992 and April 15, 1992

Lambert, Floyd & Conger, L. Catharine Cox, for appellant.

Gilbert J. Murrah, for appellee.

In reaching this decision, we sympathize with the appellee’s desire to maintain contact with the child and to safeguard his welfare and happiness, and we note that the trial court is both authorized and encouraged by statute to award reasonable visitation privileges to her as a grandparent. See OCGA §§ 19-7-3 (c); 19-9-3 (d)- We assume that such will be done in this case and are hopeful that the exercise of such privileges by her, along with continued monitoring by the Department of Family & Children Services, will serve to protect the child from any deleterious effects which might otherwise result from this decision.

3. The trial court further erred in ordering Hall to pay Ms. Cawvey $4,062 as reimbursement for certain expenditures allegedly made by her on behalf of the child, inasmuch as no such relief was sought by her in her counterclaim, and she indicated during the hearing that she was not seeking such reimbursement. “It is well established that relief cannot be granted for matter [s] not alleged or prayed for.” Pray v. Pray, 223 Ga. 215 (154 SE2d 208) (1967).

4. The remaining enumerations of error are rendered moot by the foregoing.

Judgment affirmed in part and reversed in part, with direction.

Carley, P. J., concurs in Divisions 1, and 3, and in the judgment, and Beasley, J., concurs in the judgment only.