author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A2233.
    ROCOR INTERNATIONAL et al. v. GUYTON.
    (494 SE2d 571)
   McMurray, Presiding Judge.

In this workers’ compensation case, permission was granted for appellant Rocor International (“Rocor”), the alleged employer of claimant James Guyton, to pursue a discretionary appeal under the following circumstances:

On August 22, 1995, James Guyton filed a notice of claim for a work-related injury, alleging that he became disabled on May 7, 1995, from a “heart attack after driving [a] truck for 19 days.” Rocor International, Inc., was named as the ostensible employer and self-insurer. The notice of claim, along with requests for admission, were sent to Rocor, in care of Gary Jira as Servicing Agent, 3901 Jonesboro Road in Forest Park, Georgia. An “all issues” hearing was held in October 1995, but “[t]he listed employer, Rocor . . . was not present nor represented by counsel.”

Subsequently, defense counsel made an entry of appearance on behalf of DonCo Carriers, Inc. (“DonCo”) of Oklahoma City, Oklahoma, indicating that DonCo was claimant’s actual employer. “Rocor International, by way of explanation, ... is the parent company, and DonCo Carriers [is one of] several. . . trucking companies [that] were subsidiaries of Rocor.” These were “two separate corporations ... at that time. . . . As of January 1st of [1996], Rocor is now the name of all of the subsidiaries. ... So the actual Employer today is correctly named as Rocor International. . . [but] at the time of the employment, [claimant James Guyton] was an employee of DonCo Carriers.”

In an interlocutory order, the administrative law judge (“ALJ”) determined that “claimant’s proper employer was DonCo Carriers, Inc.” Concluding that DonCo had not received notice of the “all issues” hearing, the ALJ granted DonCo’s motion to reopen the case. After an evidentiary hearing on April 5, 1996, the ALJ denied benefits, concluding that claimant James Guyton had failed to prove he “sustained a compensable injury arising out of and in the course of his employment.”

In so deciding, the ALJ gave no weight to claimant’s Exhibit 3, which is unanswered requests for admissions propounded to “the wrong party, Rocor, since the employer at the date of the injury was found to have been DonCo.” Claimant’s Exhibit 3 was held “not served, nor admitted.” This was so even though DonCo was subsequently merged into Rocor. The ALJ deemed the “Request for Admission [a]s a nullity. Such were and are withdrawn from any consideration.” The ALJ expressly held that “any request to withdraw such admissions if necessary was granted since such request related to Rocor as the employer of [claimant] Guyton which has been found to be incorrect. . . .”

The award of the ALJ, including all findings of fact and conclusions of law, was made the award of the Appellate Division. Claimant then appealed to the superior court, which remanded the case to the Appellate Division with direction to “consider the Admissions, labeled Exhibit 3 ... as conclusively admitted, unless the same are withdrawn after proper motion and consideration [of the proper test].” The superior court reasoned that Rocor was still a party to this workers’ compensation claim, that Rocor as a party had no right to ignore the obligation to respond or object within the time allowed, that no motion to withdraw the admissions had been made and that, even if such a motion was implicitly made, the ALJ never gave claimant James Guyton “the opportunity to . . . show [he] would be prejudiced by the withdrawal of the admissions.”

Permission was granted by this Court to pursue a discretionary appeal from the judgment of the superior court, and a timely notice of appeal was filed. Held:

In its sole enumeration of error, Rocor International, formerly known as DonCo, contends the superior court exceeded its authority under OCGA § 34-9-105 (c), in remanding this workers’ compensation case for additional consideration of the evidence with direction that the requests for admission originally propounded to Rocor be deemed conclusively admitted. We agree and reverse.

1. A workers’ compensation hearing before an administrative law judge shall be conducted “in an informal manner consistent with the requirements of due process of law.” OCGA § 34-9-102 (e) (1). “Discovery procedures shall be governed and controlled by Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’ ” OCGA § 34-9-102 (d) (1). Generally, with requests for admission, “[t]he matter is admitted unless . . . the party to whom the request is directed serves ... a written answer or objection addressed to the matter. . . .” OCGA § 9-11-36 (a) (2). Any matter admitted under OCGA § 9-11-36 “is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to [OCGA §] 9-11-16 . . ., the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” OCGA § 9-11-36 (b).

Thus, in Piedmont Aviation v. Washington, 181 Ga. App. 730 (353 SE2d 847), a workers’ compensation claimant responded to requests for admissions by denying he was injured in a work-related accident at Piedmont Airlines but admitting he was injured at Lockheed Georgia Company. In so doing, that claimant “conclusively established as fact binding on him that he suffered a job-related injury at Lockheed. . . .” (Emphasis omitted.) Id. at 732 (2). This Court held that, in the absence of a motion “to contradict or amend these admissions[,] the ALJ was not at liberty to disbelieve any of them based on other evidence. They [were] facts, residing ... in the body of the court, and they cannot be contradicted, varied, or amended except on formal motion. [Cits.]” (Emphasis omitted.) Id.

We do not question the ruling of Piedmont Aviation, supra, that, even in an informal administrative setting, once a party has responded to requests for admission (by making admissions against interest), the ALJ has no authority to disregard the binding nature of matters admitted in that response, in the absence of a formal request to amend or withdraw. But we do not find that authority controlling in the case sub judice.

“ ‘The design of the [workers’] compensation act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. . . . For this reason the act makes the finding of the [ALJ as adopted by the Appellate Division] upon the facts final and conclusive. The finding of that body upon the facts can not be reviewed in the superior court, if there is evidence to support its finding. Such finding can not be reviewed in the appellate court. The finality of a finding of the [ALJ adopted by the Appellate Division] is [in the absence of fraud] conclusive and binding upon all courts. The purpose of the act in making such finding conclusive was to avoid the law’s delay, which is often the subject of complaint.’ Maryland Casualty Co. v. England, 160 Ga. 810, 812 (129 SE 75).” Continental Cas. Co. v. Caldwell, 55 Ga. App. 17, 18 (189 SE2d 408). At the April 5, 1996 evidentiary hearing, the true employer, DonCo, objected to Claimant’s Exhibit 3, the requests for admission “[w]hich were not answered and were directed to the wrong party at that time. And [the employer] requested] that the Court withdraw that exhibit.” Consequently, although there is in the case sub judice no formal written motion to withdraw the admissions, there is an express oral motion to withdraw the admissions made by Rocor’s failure to respond or object. That is, in our view, sufficient formality in an informal administrative setting for workers’ compensation benefits to authorize the ALJ’s withdrawal of any matters deemed admitted by Rocor’s failure to respond to requests for admission. Claimant Guyton took the opportunity to show prejudice and how the merits of the case would be subserved by not allowing the withdrawal before the Appellate Division and argued those points in his brief. In our view, the superior court exceeded its authority under OCGA § 34-9-105 (c) in remanding the case sub judice for consideration of the withdrawn admissions.

2. The superior court’s remand is erroneous for the additional reason that Rocor was not claimant Guyton’s immediate employer, and so Rocor was not a proper party to which requests for admission could be propounded.

In a proceeding for workers’ compensation benefits, neither the ALJ nor the Appellate Division acts as “a court of general jurisdiction, nor even of limited common-law jurisdiction, but [each] is an industrial commission made so by express terms of the act of the legislature to administer [the] provisions [of the Georgia Workers’ Compensation Act, OCGA § 34-9-1 et seq.].” Gravitt v. Ga. Cas. Co., 158 Ga. 613, 615 (1), 618 (123 SE 897). “Every claim for compensation under [OCGA § 34-9-8] shall be in the first instance presented to and instituted against the immediate employer. . . .” OCGA § 34-9-8 (c). Thus, in order to be binding due to a failure to respond or object, requests for admission and other discovery must be properly served on a proper party. OCGA § 9-11-36 (a). Generally, the proper party-respondents in a workers’ compensation proceeding are the immediate employer and the employer’s insurer, if any. OCGA § 34-9-1 (3).

It is undisputed that, at the time of this incident, James Guy-ton’s actual immediate employer was DonCo, and not Rocor as alleged in the notice of claim. In our view, the appearance of DonCo and the reopening of the evidence effectuated a substitution of DonCo as the true immediate employer for Rocor, and not merely the addition of DonCo as a proper party coupled with the retention of Rocor as an improper party. As the successor to DonCo, Rocor would be responsible to the extent that DonCo would have been, and so subsequently became a proper party. But since the requests for admission as originally propounded to Rocor were not served on a proper party, the ALJ correctly concluded those requests were a nullity in this informal administrative proceeding. In our view of the case sub judice, the superior court exceeded its appellate authority under OCGA § 34-9-105 (c) in ordering a remand to consider as conclusive evidence the unanswered requests for admission served on an improper party to a claim for workers’ compensation.

Judgment reversed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur in the judgment for the reason that when the ALJ substituted DonCo for Rocor in the interlocutory order on DonCo’s motion to reopen the OCGA § 34-9-102 hearing, upon finding that the claimant’s employer at the time of the heart attack was DonCo, the unanswered admissions became moot. The admission that Rocor was the employer had no legal effect because Rocor was no longer a party. No withdrawal pursuant to OCGA § 9-11-36 (b) was necessary.

Although the request had been served on Rocor and had not been answered or objected to within 30 days as required by OCGA § 9-11-36 (a) (2), the representations of DonCo’s counsel and the affidavits attached to the motion to reopen convinced the court that there was good reason for the unanswered admission not to govern the case. The reason was that the request had been served on a company which did not employ claimant. That company was in effect deleted from the proceedings before the ALJ made an award based on the initial hearing at which no employer was present. The ALJ has authority “to add or delete parties with or without motion.” OCGA § 34-9-102 (c). Had Rocor been retained as the employer, there would be no reason to consider DonCo’s motion to reopen and certainly no reason to grant a new hearing.

In opposition to DonCo’s motion, claimant had argued only against the reopening of the hearing on compensability, in order to keep the admissions and resulting proven compensability and damages of the original hearing. He did not challenge the representation that DonCo and not Rocor was his employer, although he styled his pleading with Rocor as the “Employer.” He did not object to DonCo’s entering the case even though there was no motion for substitution under OCGA § 9-11-25 or motion of misjoinder under OCGA § 9-11-21. Although OCGA § 34-9-102 expressly requires only that the discovery procedures of the Civil Practice Act (CPA) govern and control the workers’ compensation administrative hearings, DonCo’s taking such steps would have made the path more clearly marked. See Chem Lawn Svcs. v. Stephens, 220 Ga. App. 239, 244 (469 SE2d 375) (1996) (“technical niceties” not strictly followed); Continental Baking Co. v. Brock, 198 Ga. App. 578, 579 (402 SE2d 331) (1991) (“The legislature intended that processes and procedures under the Workers’ Compensation Act be as summary and simple as reasonably possible.”).

After the ALJ on his own initiative implicitly substituted DonCo, as can be done pursuant to OCGA § 9-11-21 even had the CPA applied, and granted the motion of DonCo as employer to reopen the hearing, a new hearing on compensability was set and held several months later. Notice was sent to the claimant and to the actual employer DonCo but not to the originally named company, because it was not a party. Predictably, it was not present nor officially represented.

Claimant did not object to proceeding at the hearing in accordance with the rulings of the interlocutory order, which included the finding that DonCo was the employer. He has not sought an appeal from the rulings in the interlocutory order or from the superior court’s ruling on that order.

Then, when at the reopened hearing counsel for DonCo explained the relationship between the two companies, claimant did not object to proceeding against DonCo as his employer although he wished to have Rocor in the case. The court allowed it, even though it had been found that Rocor was not the employer at the time of the injury. Because, as of an intervening date, Rocor had assumed DonCo’s liabilities as its successor. According to the final award, Rocor was not added back to the case as a successor party, see OCGA § 34-9-102 (c), but doing so would not have benefited claimant at all because the ALJ awarded no compensation. Nor was it a party at the appellate decision stage. Claimant gratuitously named Rocor as the employer/self-insurer and sole appellee in his notice of appeal to the superior court. DonCo’s successor, Rocor, in its new capacity, filed briefs in the name of Rocor “f/k/a DonCo.” The ALJ’s subsequent award was that “the claim of James Guyton, Employee, against the Employer/Self-Insurer for workers’ compensation benefits is hereby denied.”

Decided December 5, 1997

There is no need to consider the law construing and applying OCGA § 9-11-36 (b) with respect to withdrawal of undenied admissions. DonCo certainly did not have to move to withdraw them, as the request was not directed to it and it had never been served with claimant’s request for admissions.. Rocor had been ruled not the proper party as employer, in the interlocutory order, so it had no further obligation with respect to the request and the admissions were of no legal consequence to it.

The fuzziness of the actions taken by the parties and by the ALJ has made the unraveling of the proceedings, to assure the procedural law was followed insofar as the enumerated error is concerned, very difficult. Even though OCGA § 34-9-102 (c) and (e) give the ALJ broad authority to conduct the hearings in an informal manner, attention to the CPA as a guide should be given at the administrative level in these workers’ compensation cases, so that it is clear what procedural steps have been taken and 'what rulings have been made. See OCGA § 9-11-81. Correct due process procedure must be followed even were it not explicitly mandated by OCGA § 34-9-102 (e) (1). Motions and rulings should be based on identified procedural authority.

Employee Guyton filed his workers’ compensation claim against an entity that was not his employer. His actual employer voluntarily entered the case with the permission of the ALJ, and Guyton never contested the fact that this was his employer. He, by counsel, participated in the new hearing on compensability held for the benefit of the actual employer. Having lost on the merits, employee Guyton seeks an award of benefits from an entity which he does not dispute was not his employer at the time of his injury. His basis is a legally created fact which he does not deny is untrue and which became inconsequential when the non-employer was deleted as the employer party. The superior court erred in remanding the case to the workers’ compensation board for a hearing on whether the admissions should be allowed withdrawn in accordance with the governance of OCGA § 9-11-36 (b).

Saveli & Williams, Jennifer H. Chapin, for appellants.

Smith, Wallis & Scott, Christopher B. Scott, for appellee.

       The motion was actually by DonCo and its servicing agent, Alexsis Risk Management, but since their interests coincide, references to DonCo include both.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A1988.
    SMITH v. THE STATE.
    (494 SE2d 757)
   Pope, Presiding Judge.

Defendant Willie Smith was convicted of aggravated assault, criminal damage to property, possession of a firearm during the commission of a crime, carrying a pistol without a license, and discharging a firearm near a public highway. During jury selection, defendant, an African-American, used 12 peremptory strikes to strike white potential jurors. The trial court properly concluded a prima facie case of discrimination had been established, and required defendant to articulate his reasons for the strikes. After defendant had done so, however, the court reseated six of the struck jurors, without explicitly considering the last two steps of the Batson analysis separately. Because of the danger that the court’s failure to consider the last two steps separately “impermissibly transform[ed] the opponent’s burden of proving purposeful discrimination into the proponents’ burden of disproving discrimination,” defendant’s conviction must be reversed. Malone v. State, 225 Ga. App. 315, 319 (484 SE2d 6) (1997). See also Jackson v. State, 265 Ga. 897, 899 (2) (463 SE2d 699) (1995).

Defense counsel explained to the court that defendant struck two of the potential jurors because they were about the same age as the victim and might identify with him, two because they were elderly, and one because of his facial expressions while defense counsel was talking. (The last of the reseated jurors was unintentionally struck, and defense counsel did not object to reseating her.) In the course of defense counsel’s explanation, the trial court indicated it did not think age was a sufficient race-neutral reason, and when the explanation was over, the court simply stated that it was reseating these six struck jurors.

“To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” (Citations omitted.) Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996).

Decided December 8, 1997.

Peter D. Johnson, for appellant.

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

In Malone, we recently recognized a natural tendency to consider the last two steps together, and held that in order to ensure the burden of persuading never shifts from the opponent of the strike, the record must show that the trial court considered each step of the three-step process separately. 225 Ga. App. at 318-319. As the record in this case does not show that the court did this, defendant’s conviction must be reversed.

Judgment reversed.

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

       Clearly, age and possible affinity with the victim are race-neutral reasons. Thus, as in Malone, the court either erred in rejecting defendant’s race-neutral reason or improperly merged the second and third steps of the analysis. Malone, 225 Ga. App. at 318-319. See also Pickett v. State, 226 Ga. App. 743 (1) (487 SE2d 653) (1997); Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997); Leeks v. State, 226 Ga. App. 227 (483 SE2d 691) (1997).


text:
    A97A2022.
    GATES v. THE STATE.
    (495 SE2d 113)
   Pope, Presiding Judge.

Defendant Ronald Howard Gates was charged with possession of cocaine and manufacturing marijuana after officers seized cocaine and drug paraphernalia from his home and nine marijuana plants from his backyard during the execution of a search warrant. The defendant filed a motion to suppress the evidence seized during the search. At the suppression hearing, the State was unable to produce the affidavit supporting the issuance of the warrant, and presented instead the testimony of one of the procuring officers who testified about the circumstances surrounding the issuance of the warrant. That officer, a member of the Gwinnett County Sheriff’s Department Drug Task Force, testified that on August 5, 1996 his office received an anonymous tip that defendant was growing marijuana in his backyard. The officers obtained permission from defendant’s neighbor to view defendant’s backyard from that adjacent property, and observed approximately three or four of what appeared to be growing marijuana plants on defendant’s property. On August 6, 1996 the officers obtained a warrant to search defendant’s yard and residence, and on August 7 or 8, 1996, the officers executed the warrant.

The trial court found no probable cause for the issuance of the warrant to search defendant’s home, and granted defendant’s motion to suppress the contraband items seized from there, but denied the motion to suppress the marijuana plants seized from the backyard. We granted defendant’s application for interlocutory review to determine whether that evidence also should have been suppressed.

Defendant argues the evidence should be suppressed because the State failed to introduce the affidavit used to obtain the warrant at the suppression hearing. We agree with the defendant that the State is required to introduce the affidavit supporting the issuance of the search warrant in response to a motion to suppress challenging the sufficiency of the affidavit and validity of the warrant. “[W]hen a motion to suppress is made on one of the three statutory grounds, challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state. This burden upon the State is satisfied by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged.” (Emphasis supplied.) State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984). The State concedes that the supporting affidavit “had to be before the court hearing the motion for consideration as to the existence of probable cause at the time the search warrant was issued,” but posits that the failure of the State to introduce the warrant at the hearing on defendant’s motion did not require suppression of the contraband in this case.

(a) The State argues that the officers were entitled to seize the marijuana plants when they first observed them in plain view from defendant’s neighbor’s yard, and that therefore under the “independent source” doctrine, the fact that the subsequent seizure under a warrant may have been “defective” should not require suppression of the evidence.

“The [s]tate correctly asserts that a criminal defendant has no privacy right in contraband or instrumentalities of a crime which are in ‘open view’ and exposed to the public or which a police officer views from a place he is legally entitled to be. See State v. Echols, 204 Ga. App. 630 (420 SE2d 64) (1992); State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989).” State v. David, 225 Ga. App. 541 (484 SE2d 278) (1997). In this case, the officers observed the marijuana from a place they were legally entitled to be, because they had obtained defendant’s neighbor’s consent to enter that property. “However, ‘while the characterization of an observation as a non-search plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful.’ 1 LaFave, Search & Seizure 399, § 2.2 (a) (3rd ed. 1996). ‘(N)ot only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.’ Horton v. California, 496 U. S. 128 (110 SC 2301, 110 LE2d 112) (1990); see id. at 137, n. 7. See Coolidge v. New Hampshire, 403 U. S. 443, 468 (91 SC 2022, 29 LE2d 564) (1971) (‘[E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure’ absent exigent circumstances); accord Carranza [v. State, 266 Ga. 263, 267 (1) (467 SE2d 315) (1996)]. See also Merriman v. State, 201 Ga. App. 817, 821 (1) (412 SE2d 598) (1991), cited with approval in Carranza, supra (where officers saw marijuana growing in open view on defendant’s property, proper procedure would be to obtain search and arrest warrant before seizing contraband). As Carranza makes clear, a warrant is required to enter a private residence and seize evidence or make an arrest unless the entry is with consent or exigent circumstances excuse the officer from taking the time to obtain a warrant. Id. at 268.” (Indention omitted.) State v. David, 225 Ga. App. at 542, 543.

It is obvious that there were no exigent circumstances that would have justified a warrantless seizure of the marijuana growing in defendant’s backyard in this case. Indeed, the drug task force officers waited two to three days after observing the marijuana to execute the warrant. Likewise, no issue of consent is presented by the facts of this case. Thus, we cannot conclude, as the State would have us do, that obtaining a warrant to search the premises was unnecessary, and that, therefore, any defect in the warrant was meaningless.

(b) The State also argues that it complied with Slaughter by attaching the affidavit to a subsequently filed brief. In support of this argument the State cites Bowman v. State, 205 Ga. App. 347 (422 SE2d 239) (1992), in which this Court held that the defendant was not harmed by the State’s failure to produce evidence at the outset of the suppression hearing when the defendant had attached the warrant and affidavit to his motion to suppress and produced these documents at the hearing. But Bowman does not support the State’s position. In Bowman, because the warrant and affidavit were introduced at the hearing, although by the defendant instead of the State, the defendant “was not deprived of any opportunity to confront and cross-examine witnesses [about the contents of the supporting affidavit].” Id. at 348. But in this case, submitting the affidavit to the Court after the suppression hearing does deprive defendant of these rights, and we decline to find that this procedure comports with the requirement of Slaughter. The judgment of the trial court denying defendant’s motion to suppress is reversed.

Decided December 8, 1997.

Peevy & Lancaster, Donn M. Peevy, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

       The officer testified he executed the warrant on August 7, but the return of service attached to the warrant indicated it was executed on August 8.


author: Birdsong, Presiding Judge.

text:
    A97A2474.
    ALTMAN v. THE STATE.
    (495 SE2d 106)
   Birdsong, Presiding Judge.

James R. Altman appeals his conviction of sexual battery and child molestation of his granddaughter. He enumerates six errors. Held:

1. Appellant contends the trial court erred by admitting testimony of Ms. Nelie “Granny” Gillis that bolstered the victim’s credibility. Gillis testified to prior events that at least partially corroborated the victim’s testimony; during her testimony she volunteered statements in the presence of the jury to the effect that everyone knew her, she wanted to tell the truth and would not lie, and that the victim would never lie to her about anything. There was no timely and specific objection made at trial to this testimony on the grounds of improper bolstering. Accordingly, this issue is not preserved for appellate review. Simms v. State, 223 Ga. App. 330, 331 (1) (477 SE2d 628); Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

2. Appellant contends the trial court erred in allowing certain testimony of prior sexual conduct of appellant, by Ms. Chapman, another granddaughter of appellant, to be heard by the jury. Appellant particularly asserts that the State failed to comply with the requirements of Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (409 SE2d 649). But compare King v. State, 264 Ga. 502, 503 (2) (448 SE2d 362); Grier v. State, 217 Ga. App. 409, 411 (2) (458 SE2d 139); Chezem v. State, 199 Ga. App. 869, 870-872 (3) (406 SE2d 522); compare also Lucas v. State, 215 Ga. App. 293, 294-295 (2) (450 SE2d 313).

Examination of the trial transcript reveals that, although appellant had previously objected to and the trial court had sustained an objection to the admission of similar transaction evidence, the testimony of which appellant complains was introduced as rebuttal testimony following the testimony of appellant. At the time this evidence was actually presented, appellant elected not to pose a timely and specific objection to its admission in evidence. Further, the record does not reveal that appellant had a continuing objection authorized as to the admission of this evidence. See generally State v. Larocque, 268 Ga. 352 (489 SE2d 806). “If the court does not specifically grant a right to a continuing objection, it is counsel’s duty to object to testimony as it is offered.” Id. at 353. Moreover, at the point the original objections were made the “purpose” for which the testimony was being offered, that is, as rebuttal, was not apparent, and this particular issue was not addressed by the trial court. Compare Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160). By failing to pose a timely and specific objection at the time this testimony was elicited, appellant failed to preserve this alleged error for appellate review. See generally Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722); Ledford v. State, 264 Ga. 60, 67 (18) (a) (439 SE2d 917).

3. Appellant contends that the trial court erred in denying his mistrial motion after the victim testified that appellant committed oral sodomy on her when she was sleeping in her nightgown in the guest bedroom.

Following the testimony of the victim, the State asked and the victim answered two more questions before appellant called for an out-of-court hearing and tendered his mistrial motion. As neither the request nor the motion was made immediately following the allegedly improper testimony, the issue was waived. Dye v. State, 177 Ga. App. 824 (341 SE2d 314) (motion made two questions later); compare Anderson v. State, 199 Ga. App. 559, 560 (2) (405 SE2d 558). A mistrial motion not made at the time the testimony objected to is given is not timely. Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841).

Assuming the issue had been preserved for appellate review, we are satisfied that the trial court did not err in ruling that the testimony was part of the res gestae of the criminal transaction at issue. Compare Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470). “ ‘(T)he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.’ (Citations and punctuation omitted.)” Id.; accord Fitzgerald v. State, 201 Ga. App. 361, 364 (4) (411 SE2d 102) (surrounding circumstances constituting part of res gestae may always be shown to the jury). The trial court did not abuse its discretion in admitting the res gestae evidence.

Additionally, assuming arguendo error had resulted, it would have been “harmless under the standards of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).” Gentry v. State, 212 Ga. App. 79, 82 (3) (441 SE2d 249). The victim’s answer could not have shocked the jury “given all of the sordid details of this case that were [legitimately] introduced into evidence.” Chastain v. State, 262 Ga. 178, 179 (3) (415 SE2d 629).

4. When a defendant is charged with sexual offenses, pornographic videotapes and pictures found lawfully in his possession are relevant and admissible, after a sufficient foundation has been laid, to show defendant’s lustful disposition. Miller v. State, 219 Ga. App. 213, 218 (3) (464 SE2d 621).

The fact that one of the videotapes depicted an incestuous relationship between siblings and their parents does not alter this holding. Moreover, appellant’s possession of one particular movie depicting an incestuous relationship, which “started out by the brother having sex with the daughter,” had additional relevancy as it would partially corroborate the victim’s testimony that appellant had shown her x-rated movies and that one of those movies “was like an incest movie. . . . Because his daughter was doing his brother and all that.” If evidence is competent for any purpose, it is not erroneous to admit it; even evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395). Roose v. State, 182 Ga. App. 748 (356 SE2d 675), where the tapes at issue depicted the appellant and another male, both nude from the waist up, lying on a bed kissing each other, is distinguishable. Appellant’s fourth enumeration of error is without merit.

5. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

6. The trial court initially charged the jury erroneously that the statute of limitation period was three years for child molestation. The jury commenced deliberation; however, before any verdict was reached, the trial court recalled the jury and gave them a corrected charge as to the statute of limitation period for the child molestation counts at issue. The trial court can call the jury back in from its deliberation for curative instruction; generally, the trial court may correct errors in a charge by calling attention to the erroneous parts of the charge and giving the jury the correct rule. Tuggle v. State, 165 Ga. App. 53, 54 (1) (299 SE2d 121). “The trial court is obliged to charge the jury on the law applicable to the case. [Cit.] Therefore, the trial court was authorized to correct any errors in the charge [cits.], and could do so sua sponte.” Green v. State, 208 Ga. App. 1, 2 (1) (429 SE2d 694). A proper instruction on recharge may correct an improper instruction given in the original charge to the jury, where, as in this case, the correct instruction given on recharge explains away the defect in the previous improper charge. Tuggle, supra. Further, a corrective recharge may be given even though a jury has reached and is ready to announce its verdict, as no legal verdict occurs until it is received and published in open court. Green, supra. The trial court did not err in recharging the jury sua sponte, after the jury commenced its deliberation, to correct an erroneous charge. Id.

Decided December 8, 1997.

Mary P. Melton, for appellant.

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

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2502.
    SWIFT v. THE STATE.
    (495 SE2d 109)
   Birdsong, Presiding Judge.

Appellant, Lester Swift, Jr., appeals his conviction of aggravated child molestation, aggravated sodomy, and incest of his four-year-old stepdaughter. He enumerates two errors. Held:

1. Appellant contends the evidence is insufficient to sustain his conviction of aggravated child molestation, aggravated sodomy, and incest. The child victim, who was the stepdaughter of appellant, testified at trial that appellant had hurt her “[r]ight here.” (Note: The State for reasons unknown to this Court failed to identify for the record the exact places on the body to which the witness had pointed.) A pediatrician gave expert testimony that the child’s vaginal and anus areas had been traumatized. The injuries which the child had received were consistent with a penis coming in contact with the child’s anus or vagina. Further, although the laboratory tests for syphilis, gonorrhea, and HIV were negative, the tests revealed the child had contracted (genital) herpes simplex virus type two — which is most commonly transmitted by sexual contact. The day after the incident, the child’s teacher, who has had nurse’s training, took the child to the bathroom. During that time, the child spontaneously stated appellant had hurt her and when asked if appellant had spanked her, the child said no and volunteered that appellant had hurt her with his “thing.” She subsequently identified the vaginal and anus areas of her body as the places where she had been hurt by appellant. The child repeated her statements to the lead teacher and the school’s social services worker who notified DFACS. A police detective was called to the school. The child made a detailed statement to the detective that appellant “had taken a bath with her, and that afterwards he put her in her mother’s bed; that he laid on top of her; that he tried to put his thing in her anal area, her buttocks area and her vaginal area”; and “when [appellant] was on top of her and trying to . . . put it into her, that it hurt her and she started to cry and that [appellant] had slapped her in the face and told her to be still.” The child also depicted the event using a doll, and she pointed to the frontal area of the doll to demonstrate her knowledge of what appellant’s “thing” was and stated that it was located “in his drawers.” The detective talked with the child three times — once at school, once the same day at the doctor’s office, and once the next day — the child never changed her version of what had occurred.

Pursuant to the pertinent provisions of OCGA § 24-3-16, “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Appellant contends that the child’s testimony and statements she made to adults about the incident lack credibility and are insufficient in weight to sustain his conviction. We disagree. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of aggravated child molestation, aggravated sodomy, and incest of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred in admitting similar transaction evidence that, over ten years earlier, appellant had committed anal sodomy upon his younger brother and had sexual intercourse with his two younger sisters. We disagree.

(a) The requirements for admissibility of Williams v. State, 261 Ga. 640, 642 (409 SE2d 649), that is, proper purpose for admissibility, identity of the perpetrator and that the prior transaction be sufficiently similar or logically connected, can be established by the prosecutor’s statement in place and by witness testimony. Compare Phillips v. State, 220 Ga. App. 248 (469 SE2d 292); Allison v. State, 213 Ga. App. 195, 196 (1) (b) (444 SE2d 347). (Note: In sexual abuse cases involving young children, a specifically averred indictment for which a defendant has been convicted, in certain limited circumstances, may also establish the requisite degree of similarity or logical connection. Adams v. State, 208 Ga. App. 29, 33 (3) (a) (430 SE2d 35) (whole court) (physical precedent only).)

Although appellant makes reference to the three factors required for the admission of similar transaction evidence pursuant to Williams, supra, the only Williams factor which he adequately asserts on appeal as constituting reversible error is the alleged failure of the State to establish the requisite degree of similarity of the prior transactions. Accordingly, all other issues regarding the requirements of Williams are deemed abandoned. Court of Appeals Rule 27 (c) (2).

(b) The trial court found that the State was offering the similar transaction evidence to prove appellant’s bent of mind. This is a proper purpose for admissibility. “[E]vidence of a conviction for incest with either a natural child or stepchild of unspecified age involves a lascivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation.” Oller v. State, 187 Ga. App. 818, 821 (2) (371 SE2d 455).

(c) The fact that the transactions at issue occurred over ten years previous does not preclude their admissibility. Mere lapse of time does not render a prior transaction automatically inadmissible; lapse of time between the prior transaction and the offenses being brought to trial is but one factor to be considered in determining admissibility. Oiler, supra at 820 (2). The similar transactions at issue in this case were not rendered inadmissible due to lapse of time. Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (19-year time-lapse between incestuous relationships with defendant’s daughters and granddaughters); compare Phillips v. State, 220 Ga. App. 248 (1) (469 SE2d 292) (testimony of defendant’s prior sexual conduct occurring 12 or 13 years earlier with victim’s half-sister).

(d) Appellant’s contention that the other transaction evidence was not sufficiently similar for admissibility is without merit. Compare Oiler, supra. “ ‘(T)he issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. . . .’ In this regard, ‘(t)he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.] And, ‘(t)he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible.’ [Cits.] ‘The reason for this rule rests not only in the legal difficulty encountered with a child victim[, as can most readily be seen in the case at bar,] but because a sexual offense committed against a young child requires a special “lascivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation.” ’ Adams v. State, [supra], citing Oller, supra. . . . Pretermitting the issue of ‘similarity,’ these extrinsic sexual offenses against [appellant’s younger brother and two sisters] per force have ‘logical connection’ with the sexual offense perpetrated against appellant’s young [stepdaughter] and of which appellant was indicted and convicted.” Watts v. State, 211 Ga. App. 774, 775-776 (1) (440 SE2d 700).

(e) Appellant states in his appellate brief that one of the defense’s main concerns was that allowing the jury to hear the testimony of the prior victims could prove to be unduly prejudicial to appellant. Appellant’s contention is without merit. The trial court expressly entered findings as to the three Williams factors and also, very astutely, performed a balancing test and entered a specific finding as to legal relevance of the similar transaction evidence. Moreover, “[a] trial court’s finding that ‘other transactions’ evidence is relevant necessarily constitutes an implicit finding that the probative value of that evidence outweighs its prejudicial impact. Such evidence should be admitted and the prejudicial impact of that otherwise relevant evidence is a matter for jury instruction, and is not a factor in its admissibility vel non.” Farley v. State, 265 Ga. 622, 625 (458 SE2d 643). Appellant has failed to establish affirmatively by the record, that the trial court manifestly abused its discretion in allowing the three siblings to testify regarding these prior similar transactions and in subsequently admitting the similar transaction evidence. Additionally, examination of the record reveals that the trial court did not err in performing the balancing test as to legal relevancy — the probative value of the similar transaction evidence was not outweighed by any potential for prejudicial impact.

(f) Contrary to appellant’s contention, there exists no reversible error on the grounds that the record fails to establish that appellant’s guilty plea to the prior sexual offenses of which he was convicted was entered voluntarily. Appellant testified that he was represented by counsel, had all of his rights explained to him as evidenced by the plea transcript, signed that he had understood his rights, and had, in fact, committed the acts and was guilty of them. Further, authenticated documentary evidence of appellant’s indictment, plea transcript, and final disposition, regarding the prior offenses, establish that appellant pled guilty and that he “freely, understandingly, and voluntarily authorize^] and instructed] [his] attorney to enter, on [his] behalf, a plea” of guilty to the prior offenses of which he was convicted. These authenticated records of the office of the clerk of courts are presumed to speak with verity. Oller, supra at 820 (2). Accordingly, appellant’s assertions did not impair the admissibility of the documents. Id.

Decided December 8, 1997.

John D. Staggs, Mary E. Lysak, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Additionally, the testimony of appellant’s younger brother and sisters which was legitimately admitted in evidence, independently established appellant’s commission of the prior offenses. It is not a prerequisite to the admission of similar transaction evidence that the defendant was either charged or convicted of the extrinsic offense. Smith v. State, 206 Ga. App. 184 (2) (424 SE2d 864). Assuming that the admission of appellant’s conviction for the prior offenses had been error, it would have been merely cumulative of the testimonial evidence admitted regarding appellant’s prior sexual conduct with siblings. Evidence admitted erroneously is harmless where it is in effect cumulative of other admissible evidence. Compare Tuggle v. State, 211 Ga. App. 854, 857 (2) (d) (440 SE2d 740); see Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328); see also Hayes v. State, 215 Ga. App. 81, 84 (2) (449 SE2d 663).

Appellant’s various contentions in support of his enumerations of error are without merit.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A97A1433.
    GREEN v. WHITE.
    (494 SE2d 681)
   Ruffin, Judge.

Brooks Green sued attorney William J. White for fraud and professional malpractice allegedly arising out of White’s filing of a bankruptcy petition on Green’s behalf. White moved for summary judgment on the grounds (1) that Green’s claims were barred by the applicable statutes of limitation and (2) that his conduct could not constitute fraud as a matter of law. The trial court granted White’s motion, and Green appeals. For reasons which follow, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Green, the evidence in this case shows that Green retained White in August 1991 to file a bankruptcy petition. According to Green, he told “White several times that [his] main concern was being able to discharge [his] 1985 and 1986 tax debts . . . and White stated . . . that he understood this.” Green contended that when White filed the bankruptcy on August 2, 1991, White assured him that he was familiar with the regulations concerning the discharge of federal tax liens and that the 1986 federal tax assessment against Green would be discharged under the proceedings. The bankruptcy court entered Green’s discharge on November 21, 1991. Unbeknownst to Green, however, the 1986 tax assessment was not discharged. On July 30, 1993, Green was notified in a letter from the Internal Revenue Service (“IRS”) that because he filed his bankruptcy before the expiration of a three-year period in which the 1986 taxes could be collected, the taxes were not discharged. On September 7, 1993, after reviewing the IRS letter, White informed Green that he “had identified this problem in the early stages of [his] bankruptcy filing and . . . probably notified [Green] of that fact.” On August 14, 1995, Green filed his complaint against White, asserting that White misrepresented to him that the taxes would be discharged and that this misrepresentation, upon which he relied to his detriment, constituted fraud and professional malpractice.

In his motion for summary judgment, White argued that Green’s claims were subject to four-year statutes of limitation which began to run on August 2, 1991, the date he filed Green’s bankruptcy petition. Accordingly, White contended that Green’s complaint, which was filed approximately two weeks after the four-year limitation period expired, was time barred. The trial court, without elaboration, granted White’s motion.

In his appeal, Green asserts that the trial court erred because (1) the limitation periods commenced less than four years before the date he filed his complaint, (2) White’s fraud tolled the statutes of limitation, and (3) genuine issues of material fact exist concerning the merits of his claims.

1. Green’s claim for legal malpractice.

(a) We note initially that we agree with the parties that Green’s complaint for legal malpractice is subject to a four-year statute of limitation. See OCGA § 9-3-25; Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 65 (3) (473 SE2d 501) (1996); Brown v. Kinser, 218 Ga. App. 385, 387 (2) (461 SE2d 564) (1995). As for commencement of the limitation period, it is well established that “the period within which a suit may be brought is measured from the date upon which the plaintiff could have successfully maintained the action. [Cits.]” Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16) (1980). “In legal malpractice cases, this court has followed the doctrine that a right of action arises immediately upon the wrongful act having been committed, even though there are no special damages. [Cits.]” Id. at 806. See also Morris, supra at 65.

It is clear in this case that White’s first alleged negligent act which gave rise to Green’s cause of action occurred no later than August 2,1991, when White filed Green’s bankruptcy petition. Green contends that White advised him prior to the filing that the tax lien would be discharged, and evidence shows that this filing is what caused the 1986 tax lien to be nondischargeable. Accordingly, we find that the four-year statute of limitation on Green’s legal malpractice claim initially began to run no later than August 2, 1991. See id.

Green nevertheless contends that White could have dismissed the bankruptcy at any time prior to the November 21, 1991 discharge date. According to Green, White’s failure to dismiss the petition constituted a separate, subsequent act of legal malpractice which triggered a new four-year limitation period, presumably commencing immediately prior to the discharge date. This allegation, however, is based upon the same allegedly erroneous advice White provided prior to filing the bankruptcy petition. “In Jankowski, the Georgia Supreme Court held that such an ‘omission on the part of (the attorney) was a failure to avoid the ultimate effect of the earlier breach and a failure to mitigate . . . damages (but) was not an act inflicting new harm.’ [Cit.]” Long v. Wallace, 214 Ga. App. 466, 468 (2) (448 SE2d 229) (1994). Accordingly, the court in Jankowski refused to hold that the subsequent acts gave rise to a new cause of action that triggered a new limitation period. See Jankowski, supra. See also Long, supra. We likewise find that in this case, White’s subsequent conduct did not inflict any new harm which could constitute a new cause of action for legal malpractice. See id.; Jankowski, supra.

(b) We agree with Green, however, that a fact issue remains concerning whether White’s alleged fraud tolled the statute of limitation on his professional malpractice claim. OCGA § 9-3-96 provides that “[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” Although we have held that “ ‘[t]he fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action[,]’ . . . ‘[a] confidential relationship between the parties . . . lessens, if not negates, the necessity for showing actual fraud. [Cit.]’ ” Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 792-793 (2) (399 SE2d 565) (1990). And, “[wjhere a person sustains towards another a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.” (Citation and punctuation omitted.) Id. at 793.

The evidence in this case, viewed in a light most favorable to Green, creates a jury issue concerning whether White committed such fraud. We note initially that our conclusion here is not based solely on the alleged impropriety of White’s original advice that the 1986 taxes would be discharged by the bankruptcy filing. It is clear that “ ‘[fjraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. (Cits.)’ [Cit.]” Id. at (2). Rather, we base our decision on the additional evidence presented by White’s September 7, 1993 letter to Green and Green’s affidavit. As stated above, in the letter White acknowledged that he “identified [the] problem in the early stages of [Green’s] bankruptcy filing and [he] believe[d] that [he] probably notified [Green] of that fact.” (Emphasis supplied.) In his affidavit, however, Green denied that White informed him of the problem.

Under these circumstances, a jury could find that White, who was Green’s attorney, (1) knew that one of Green’s primary concerns was discharging the 1986 taxes, (2) knew that the 1986 taxes would not be discharged, and (3) that he nonetheless informed Green that the taxes could be discharged or failed to inform Green that they could not be discharged. White’s own letter equivocally states only that he “probably” notified Green of the problem. “ Where the fraudulent concealment. . . is in breach of a confidential relation involving a duty to make full disclosure, the statute (of limitation) does not begin to run until the discovery of the fraud. (Cit.)’ [Cit.]” Arnall, supra at 793. Because the record shows that it was not until September 1993 that Green discovered that White knew of the problem but failed to disclose it, there remains a question of fact about whether White’s conduct during the bankruptcy proceedings tolled the statute of limitation on Green’s professional malpractice claim. See id.

(c) White contends that summary judgment was nevertheless appropriate because his affidavit shows that his recommendation to Green concerning when to file the bankruptcy was based on White’s good faith exercise of professional judgment. However, such an assertion ignores evidence of record that White knew there was a problem with his advice and that he failed to inform Green of that problem. Accordingly, a genuine issue of material fact exists concerning whether White’s representation in this regard constituted professional malpractice. See Lau’s Corp., supra.

Accordingly, we conclude that the trial court erred in granting White summary judgment on Green’s professional malpractice claim. See Arnall, supra.

2. Green’s fraud claim.

(a) Although it is clear that Green’s fraud claim is governed by a four-year statute of limitation, it is unclear when the cause of action accrued. See OCGA § 9-3-31; Shapiro v. Southern Can Co., 185 Ga. App. 677 (365 SE2d 518) (1988) (limitation period for fraud resulting in economic loss is same as for recovery of personal property). Unlike Green’s professional malpractice claim, his fraud claim did not arise immediately upon the wrongful act having been committed. A claim for fraud is dependent on the accrual of actual damages, and until such damages are sustained, the cause of action is not complete and the prescriptive period cannot run. See Brooks v. Dime Savings Bank &c., 217 Ga. App. 441, 442 (1) (457 SE2d 706) (1995); Hardaway Co. v. Parsons, Brinckerhoff &c., 267 Ga. 424, 427-428 (1) (479 SE2d 727) (1997). Compare Jankowski, supra (cause of action allowing nominal damages is complete when wrongful act committed).

In this case, White has not shown when Green’s fraud claim matured. Moreover, for the same reasons stated in Division 1 (b), a jury issue exists regarding whether White’s alleged conduct tolled the limitation period governing Green’s fraud claim. See Arnall, supra. Accordingly, the trial court erred in granting White summary judgment on this ground.

(b) We also find a genuine issue of fact remains concerning the merits of Green’s fraud claim. Although White’s initial advice concerning the dischargeability of the 1986 taxes may constitute “erroneous conjecture as to future events,” in light of the confidential relationship of the parties and evidence, albeit disputed, that White knew his advice was inaccurate and that he failed to inform Green of this fact, his conduct could constitute fraud. See id. And, although White asserts on appeal that summary judgment was appropriate on Green’s fraud claim for numerous other reasons, he never moved for summary judgment on these grounds below and “[i]t is axiomatic that a ground urged for the first time on appeal will not be considered.” (Citations and punctuation omitted.) Kennedy v. Johnson, 205 Ga. App. 220, 222 (1) (421 SE2d 746) (1992). For these reasons, a factual issue remains concerning whether White’s conduct constituted fraud. See Arnall, supra.

Judgment reversed.

Birdsong, P. J, and Eldridge, J., concur.

Decided October 28, 1997

Reconsideration denied December 9, 1997.

Mottern & Van Gelderen, Leon A. Van Gelderen, Sheri M. Rosen-thal, for appellant.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellee.


text:
    A97A1575.
    LITTLE et al. v. GENERAL MOTORS CORPORATION et al. LITTLE et al. v. DELTA CHEVROLET, INC.
    A97A1576.
    (495 SE2d 572)
   Pope, Presiding Judge.

We granted this discretionary appeal from an award of attorney fees (Case No. A97A1576) to answer the following question: When a trial court grants judgment for a defendant on one count of a multi-count complaint and expressly directs entry of a final judgment under OCGA § 9-11-54 (b), must the defendant move for attorney fees relating to that claim within 45 days of the entry of final judgment under OCGA § 9-11-54 (b)? We answer this question in the positive and therefore reverse the portion of this attorney fee award relating to a claim on which final judgment was entered under OCGA § 9-11-54 (b) more than 45 days before defendant requested attorney fees.

Under OCGA § 9-15-14 (e), attorney fees for frivolous actions may be requested at any time during the course of the action “but not later than 45 days after the final disposition of the action.” The Supreme Court has held that “final disposition of the action” as it is used in OCGA § 9-15-14 (e) is synonymous with “final judgment” as that phrase is defined in OCGA § 5-6-34 (a) (1). Fairburn Banking Co. v. Gafford, 263 Ga. 792 (439 SE2d 482) (1994); see also Gist v. DeKalb Tire Co., 223 Ga. App. 397 (1) (477 SE2d 616) (1996); Marshall v. Ricmar, Inc., 215 Ga. App. 470 (451 SE2d 515) (1994). And it has further held that a final judgment entered under OCGA § 9-11-54 (b) is a final judgment under OCGA § 5-6-34 (a) (1). See Thompson v. Clarkson Power Flow, 243 Ga. 140 (252 SE2d 513) (1979). From these precedents, it logically follows that a final judgment entered under OCGA § 9-11-54 (b) is a final disposition of the action for purposes of OCGA § 9-15-14 (e), and a request for attorney fees must be made within 45 days of entry of the judgment.

In this case, plaintiff sued defendant in 1987, alleging fraud, breach of warranties, and violation of the Fair Business Practices Act (“FBPA”). The trial court granted defendant’s motion for partial summary judgment on the FBPA claim in January 1991, expressly finding that there was no just reason for delay in entry of final judgment and directing entry of final judgment on that claim. See OCGA § 9-11-54 (b). And in June 1991, it also granted partial summary judgment for defendant on plaintiff’s claims for emotional distress and damage to his reputation and credit. A jury trial was held on the remaining claims in December 1993, resulting in a defense verdict on all counts; and a final judgment was entered for defendant on December 13, 1993. Defendant moved for attorney fees under OCGA § 9-15-14 on January 25,1994, and the trial court awarded fees with respect to the FBPA claim, as well as the emotional distress and damage to reputation claims and several discovery disputes.

Because the final judgment on the FBPA claim was entered in January 1991 and defendant did not move for attorney fees until January 1994, the motion was untimely, and the award of attorney fees with respect to the FBPA claim was unauthorized and must be reversed. Contrary to plaintiff’s contention, however, it does not appear from the record that a final judgment under OCGA § 9-11-54 (b) was entered on the emotional distress and damage to reputation claims. Plaintiff’s other arguments are also without merit. Accordingly, the remainder of the attorney fee award is affirmed. As the appealed order does not state how much of the award is allocated to the FBPA claim, the trial court will need to issue a new order to specify how much the new award will be.

Judgment affirmed in part and reversed in part in Case No. A97A1576. Appeal dismissed in Case No. A97A1575.

Johnson and Blackburn, JJ, concur.

On Motion for Reconsideration.

Little takes issue with our statement that “it does not appear from the record that a final judgment under OCGA § 9-11-54 (b) was entered on the emotional distress and damage to reputation claims.” Contrary to Little’s arguments, the 1991 order granting summary judgment on these claims was not final because it left several of Little’s claims pending against the defendants. “The entry of a judgment as to one or more but fewer than all the claims or parties is not a final judgment. . . .” Culwell v. Lomas &c. Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). While Little cites cases showing that grants of partial summary judgment may be appealed, this appeal is “an exception to the finality rule” provided by OCGA § 9-11-56 (h). Id. Little correctly states that a summary judgment disposing of fewer than all claims is considered a final judgment if the trial court has made “an express determination that there is no just reason for delay and . . . an express direction for the entry of judgment.” OCGA § 9-11-54 (b). The 1991 order at issue, styled “Order and Judgment,” dismisses these claims with prejudice but contains no language which could be considered an express direction that final judgment be entered for the defendants on these claims. See Church v. Bell, 213 Ga. App. 44 (443 SE2d 677) (1994) (partial dismissal of claims is not final judgment); Madan v. Damiano, 213 Ga. App. 736 (445 SE2d 831) (1994) (grant of summary judgment which does not dispose of all claims and counterclaims is not final judgment). Little’s reliance on Cherry v. Hersch, 193 Ga. App. 471, 472 (1) (388 SE2d 64) (1989), is misplaced. In that case, one party requested direction of final judgment and obtained an order from the court directing the clerk to enter final judgment in the party’s favor. In Cherry, unlike the case at hand, the circumstances and language of the order showed the trial court’s clear intent that the order be designated a final judgment pursuant to OCGA § 9-11-54 (b).

Decided November 7, 1997

Reconsideration denied December 10, 1997

Barnes, Browning, Tanksley & Casurella, George T Smith, Sammy J. Hawkins, for appellants.

Thomas, Kennedy, Sampson & Patterson, Myra H. Dixon, Richard C. Freeman III, for appellees.

       Case No. A97A1575 is a direct appeal from the judgment underlying the award of attorney fees under OCGA § 9-15-14. It has been abandoned and is therefore dismissed.


author: Blackburn, Judge.

text:
    A97A2199.
    ROBERTS v. THE STATE.
    (494 SE2d 689)
   Blackburn, Judge.

James Dorsey Roberts was convicted of three counts of child molestation. The victim, his stepdaughter, who was twelve years old at the time of trial, testified that the molestation occurred from the time she was six years old until she was around eleven years old. Roberts appeals the denial of his motion for new trial, contending that he received ineffective assistance of counsel. For the reasons discussed below, we affirm.

“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency.” Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551) (1996). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Punctuation omitted.) Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992). “Review of counsel’s performance . . . must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them.” Howard v. State, 220 Ga. App. 267, 271 (4) (469 SE2d 396) (1996). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

1. Roberts contends that trial counsel was deficient by failing to subpoena investigatory records of the Department of Family & Children Services (DFCS), which he claims would have shown that, in 1988 or 1989, the victim made a false allegation of molestation against him.

This enumeration is without merit for several reasons. As an initial matter, such investigatory records are confidential and not subject to direct subpoena by a defendant. See OCGA § 49-5-40 et seq. “The proper procedure for obtaining access to such records in cases such as the one at bar is to petition the trial court to subpoena the records and conduct an in camera inspection as to whether the records are necessary for determination of an issue before the court and are otherwise admissible under the rules of evidence. OCGA § 49-5-41 (a) (2); see Ray v. Dept. of Human Resources, 155 Ga. App. 81 (1) (270 SE2d 303) (1980).” Davidson v. State, 183 Ga. App. 557, 559 (4) (b) (359 SE2d 372) (1987).

Even if trial counsel had petitioned the court to subpoena such records, Roberts has not shown that such action would have changed the outcome of the trial. Roberts’ appellate counsel sought to subpoena such records in connection with his motion for new trial. The trial court conducted an in camera review of the documents pursuant to OCGA § 49-5-41 (a) (2) and found that the documents contained no exculpatory material. Thus, even if trial counsel had petitioned the court to subpoena the DFCS records, it appears that the court would not have required production of the documents. Accordingly, Roberts has not carried his burden of showing that the result of the trial would have been different had trial counsel sought to obtain these documents.

Furthermore, at the hearing on Roberts’ motion for new trial, his trial counsel testified that some of the DFCS records had been voluntarily produced during discovery, including records of interviews with the victim. Roberts’ appellate attorney did not question trial counsel about whether the documents he had seen contained refer-enees to prior false allegations by the victim. Accordingly, Roberts has not carried his burden of showing that counsel’s failure to subpoena such documents resulted in his being deprived of any relevant information or changed the outcome of the trial.

2. Roberts also contends that his trial counsel was ineffective because he failed to properly investigate and present evidence of prior inconsistent statements by the victim.

(a) Roberts claims that the victim made inconsistent statements during a medical examination at Scottish Rite Hospital, and that trial counsel was deficient in failing to subpoena the Scottish Rite records. This contention is without merit. First, nowhere in his appellate brief does Roberts specify what inconsistent statements he is referring to. He merely asserts conclusorily that the Scottish Rite records show that the victim made inconsistent statements. It is not this Court’s responsibility to comb through the medical records in an attempt to guess which statements Roberts is referring to and then compare such statements to the victim’s entire trial testimony to see if there is any inconsistency. See Melton v. State, 222 Ga. App. 555, 559 (6) (474 SE2d 640) (1996) (“ ‘it is not the function of this court to cull the record on behalf of a party in search of instances of error’ ”).

Furthermore, the transcript of the hearing on the motion for new trial reveals that Roberts’ appellate attorney abandoned these grounds at the conclusion of the hearing. The attorney indicated that, with respect to the Scottish Rite documents, he was limiting his claim of ineffective assistance to trial counsel’s failure to have such documents placed into the record and to his failure to introduce evidence that such documents showed no physical injury to the victim. He abandoned any argument that such documents would have revealed inconsistent statements, which is the only ground asserted on appeal.

Finally, the trial transcript reveals that trial counsel did in fact examine the Scottish Rite records and attempted to question the victim regarding certain statements therein. In a proffer made outside the presence of the jury, counsel questioned the victim about a statement she purportedly made at Scottish Rite that her brother had also molested her a couple of times. In questioning the victim about such statement, counsel quoted from the Scottish Rite medical records. The trial court ruled that such testimony was inadmissible. As it is apparent that trial counsel reviewed the Scottish Rite records and attempted to question the victim regarding them, Roberts has not shown how his failure to subpoena the records constitutes deficient performance.

(b) Roberts also contends that the DFCS investigatory records may have contained inconsistent statements by the victim, and that trial counsel was thus deficient in failing to subpoena such records. However, as discussed above, trial counsel testified that DFCS records of interviews with the victim were voluntarily produced and reviewed by him. Appellate counsel did not question trial counsel about whether such documents contained inconsistent statements by the victim. Therefore, Roberts has not shown that the failure to subpoena the documents resulted in any harm or changed the outcome of the trial. Moreover, as discussed above, the DFCS records were confidential and not subject to subpoena by the defendant, and it appears that the trial court would not have subpoenaed such documents if requested. Accordingly, this contention is without merit.

3. Roberts contends that his trial counsel was deficient by failing to contradict the State’s expert testimony regarding Roberts’ failure of a stipulated polygraph test. In particular, he contends that counsel should have consulted and presented testimony from an expert in opposition to the State’s expert.

At the hearing on the motion for a new trial, Roberts’ trial counsel indicated that his strategy with respect to the polygraph results was to attack the credibility and partiality of the examiner and to show that polygraph results are not infallible but merely represent the interpretation of the examiner. He indicated that in his experience it was ineffective to present opposing expert testimony regarding a polygraph. He also testified that it was his strategy to present several character witnesses to show that Roberts was not likely to have committed the offenses charged.

The trial transcript reveals that counsel conducted an extensive cross-examination of the polygraph examiner. He was able to elicit an admission that, after the test was completed, the examiner called Roberts a “low-down, stinking, conniving, good-for-nothing scum.” The examiner also admitted that he had talked with the investigator about the case and read the incident report before the examination. The examiner admitted that polygraphs merely measure physical reactions which must be interpreted by the examiner. He testified that he asked ten questions — four relevant questions, four irrelevant questions, and two control questions. He admitted that his conclusion that Roberts lied on the four relevant questions was based on his assumption that he had lied on the two control questions, although the polygraph test did not actually determine whether the responses to the control questions were truthful. Counsel also questioned the examiner about alternative methods of conducting a polygraph test that were not used in this case.

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Punctuation omitted.) Cauley v. State, supra at 301 (2). Under the above facts, we cannot say that trial counsel’s decision to avoid a battle of the experts and rely upon cross-examination of the State’s expert was “so patently unreasonable that no competent attorney would have chosen [such strategy]. . . . The trial court’s findings [that Roberts was not denied effective assistance of counsel] are not clearly erroneous and therefore must be upheld.” Howard, supra at 271 (4) (tactical decision not to engage expert to contradict State’s expert held not deficient).

Decided November 6, 1997

Reconsideration denied December 10, 1997

Word & Mitchell, Gerald P. Word, Maryellen S. Mitchell, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2596.
    DAVIS v. THE STATE.
    (494 SE2d 702)
   Blackburn, Judge.

Kenneth Leon Davis was convicted of child molestation, aggravated child molestation, and enticing a child for indecent purposes. On appeal, he contends the trial court erred in failing to disqualify a juror or declare a mistrial, in allowing evidence of a similar transaction, and in allowing certain expert testimony.

1. Davis contends that the trial court erred in failing to grant a mistrial or disqualify a juror who revealed during trial that the father of one of the victims was a friend of his children.

Voir dire was conducted and a jury selected on December 16, 1996. These proceedings were not recorded by a court reporter. The following day, after opening statements, juror Dyer informed the judge that Woody Stephens, the father of one of the victims, was a friend of his children. Apparently, Dyer had recognized Stephens that morning as one of the potential witnesses. Dyer told the court that his acquaintance with Stephens would not render him unable to be fair and impartial to both sides.

Davis’ attorney declined the judge’s request to question Dyer about his relationship with Stephens, but instead moved for a mistrial because of Dyer’s failure to reveal the relationship during voir dire. The judge denied the motion, finding that Dyer did not intentionally fail to answer any question and that he could be fair and impartial to both sides. The judge also stated that he would not remove Dyer as a juror.

In order to evaluate Davis’ contention that the trial court erred in denying a mistrial and refusing to disqualify Dyer, it is necessary to consider two separate questions: (1) whether Dyer’s relationship with Stephens was sufficient to require his dismissal for cause, and (2) whether Dyer’s failure to reveal the relationship during voir dire deprived Davis of his right to exercise a knowledgeable use of his peremptory strikes.

(a) With respect to the first question, “[i]n order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.” (Punctuation omitted.) Heath v. State, 223 Ga. App. 680, 682 (3) (478 SE2d 462) (1996). “The decision as to whether or not to discharge the prospective juror is within the discretion of the trial court.” (Punctuation omitted.) Sapp v. State, 222 Ga. App. 415, 418 (3) (474 SE2d 233) (1996).

To establish a denial of his right to an impartial jury, a defendant must show either actual juror partiality or circumstances inherently prejudicial to that right. Jones v. State, 157 Ga. App. 163, 164 (2) (276 SE2d 674) (1981). Davis contends that, under the circumstances of this case, Dyer must be considered partial as a matter of law, notwithstanding his representation that he could be impartial and fair to both sides. This contention is without merit. The fact that a juror knows a victim does not require dismissal for cause if the juror indicates that he can be fair and impartial and decide the case on the basis of the evidence presented. See Lee v. State, 258 Ga. 762, 763 (2) (374 SE2d 199) (1988). Even where a juror has a preconceived notion of the defendant’s guilt or innocence, dismissal is not required if the juror “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Punctuation omitted.) Brooks v. State, 244 Ga. 574, 577 (261 SE2d 379) (1979), citing Irvin v. Dowd, 366 U. S. 717, 722 (81 SC 1639, 1642-1643, 6 LE2d 751) (1961).

In this case, Dyer told the court that his knowledge of Stephens would not cause him to be unable to be fair and impartial to both sides. Contrary to Davis’ contentions, Dyer did not indicate that he had a relationship with Stephens’ daughter, but only that Stephens was a friend of Dyer’s children. The fact that Dyer voluntarily came forward with this information is a factor that could be considered by the court in determining his impartiality. See Sapp v. State, supra at 418 (3). Furthermore, Davis’ counsel declined the court’s offer to question Dyer to determine the nature of his relationship with Stephens or his daughter. Under these circumstances, we cannot say that the trial court abused its discretion in finding Dyer impartial and refusing to dismiss him for cause.

(b) A separate but related question is whether Dyer’s failure to reveal his relationship with Stephens during voir dire deprived Davis of his right to exercise knowledgeable peremptory strikes. “A defendant is entitled to be tried by a fair and impartial jury, and to exercise knowledgeable challenges in the pursuit of this judicial ideal. It does not follow, however, that every incorrect answer given on voir dire calls inexorably for a new trial; the question of bias and resultant prejudice remains to be determined. If the answer was given in good faith with no deliberate intent to mislead, the trial court may well find that no prejudice resulted, even though the lack of disclosure might have impaired defendant’s right to exercise a knowledgeable peremptory challenge. Although the question of juror impartiality is a mixed question of law and fact, the trial court’s findings of impartiality will be set aside only where manifest prejudice to the defendant has been shown.’ (Citations and punctuation omitted.) Jones v. State, 247 Ga. 268, 270 (2) (b) (275 SE2d 67) (1981).” Gilbert v. State, 262 Ga. 840, 842 (5) (426 SE2d 155) (1993).

In this case, the trial court found that Dyer did not intentionally fail to answer any questions on voir dire. As the voir dire was not recorded, we cannot say that this finding is in error, or that Dyer was even questioned about his relationship with Stephens or the victims. As discussed above, the trial court did not abuse its discretion in determining that Dyer could be an impartial juror. Accordingly, as Davis has not shown manifest prejudice, the trial court did not err in refusing to grant a mistrial.

2. At trial, the State presented evidence that Davis had previously molested a 14- or 15-year-old girl while she was babysitting at his house. Davis contends that this incident was not sufficiently similar to the present charges to be admissible.

However, “[Davis] has not cited any portion of the record showing how this enumeration was preserved for appellate consideration, and our review of the transcript does not reveal that [Davis] objected to the testimony at trial. See Court of Appeals Rule 27 (a) (1) and (c). Although [Davis apparently] made a lack of similarity objection at the pretrial similar transaction hearing, he waived this ground by failing to make this objection when the similar transaction evidence was introduced at trial.” Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996). See also White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997).

Even if Davis had preserved this objection for appellate review, it is without merit. “There is no requirement that the other transaction must be identical in every aspect. . . . Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Punctuation omitted.) Sessions v. State, 207 Ga. App. 609 (1) (428 SE2d 652) (1993). “Generally, when similar transactions are being introduced to prove such issues as bent of mind, motive or intent, less similarity need be shown than when identity is sought to be proved thereby.” (Punctuation omitted.) Hargrove v. State, 202 Ga. App. 854, 856 (1) (415 SE2d 708) (1992). Furthermore, “[t]he exception to the general rule that evidence of independent transactions is inadmissible has been most liberally extended in the area of sexual offenses. In crimes involving sexual offenses, evidence of similar transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony.” (Punctuation omitted.) Hathcock v. State, 214 Ga. App. 188, 192 (8) (447 SE2d 104) (1994).

Decided November 26, 1997

Reconsideration denied December 10, 1997.

Cook & Connelly, Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

The prior incident was sufficiently similar to the charges in the present case so as to render the former admissible. One of the counts in the present case involved charges that Davis molested his wife’s 11-year-old niece while she was spending the night at Davis’ house. The similar transaction involved charges that Davis molested his then-wife’s 14-year-old cousin while she was babysitting at his house. The fact that the prior incident occurred several years earlier does not render it inadmissible to show Davis’ state of mind and course of conduct. See Guinn v. State, 224 Ga. App. 881, 883 (1) (a) (482 SE2d 480) (1997). Accordingly, this enumeration is without merit.

3. Davis contends the trial court erred in allowing expert testimony regarding child abuse accommodation syndrome, arguing that it improperly bolstered the testimony of one of the victims. However, Davis did not object to the expert’s testimony during trial, and so cannot raise this issue on appeal. See Williams v. State, 217 Ga. App. 636, 637 (1) (458 SE2d 671) (1995).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1822.
    VALENTINE v. THE STATE.
    (495 SE2d 116)
   Pope, Presiding Judge.

William Valentine was convicted of driving a vehicle after being declared an habitual violator. On appeal he argues the State failed to introduce competent evidence showing he was properly notified of his habitual violator status on the date alleged in the indictment. He also claims the court erred by introducing evidence of his habitual violator status because the State did not provide those documents in discovery and because some of the documents were never shown to be relevant. Finding no error, we affirm the conviction.

1. Valentine claims a fatal variance between the indictment and the proof at trial. We disagree. The indictment alleged that he drove a vehicle on July 10, 1995, after being notified “on December 20, 1993” that he was declared an habitual violator. But the evidence at trial, Valentine argues, showed at best that he was notified of his status on August 19, 1993. No fatal variance exists because the indictment did not allege that the notice date was material to the charge. See Moore v. State, 207 Ga. App. 892, 894 (1) (429 SE2d 335) (1993). Absent a showing that the date was material, the State could prove the elements of the indictment by proof that Valentine drove a vehicle within five years of the time he was notified of his habitual violator status. Id.; see Hyde v. State, 205 Ga. App. 754, 755 (1) (424 SE2d 39) (1992).

2. Valentine also argues that the State produced no competent evidence showing he was ever notified of his habitual violator status. This claim is meritless because the State introduced a record, certified as true and accurate by the Department of Public Safety (“DPS”), which stated that Valentine was personally served with notice of his habitual violator status on August 19, 1993. Contrary to Valentine’s objection at trial, this document was “admissible as evidence in any civil or criminal proceeding as proof of the contents thereof” under former OCGA § 40-5-2 (f) (1) (effective at the time of this trial in October 1996). See Ragan v. State, 264 Ga. 190, 191 (1) (442 SE2d 750) (1994); Key v. State, 166 Ga. App. 546, 547 (305 SE2d 20) (1983). This document satisfied the State’s burden of showing Valentine had been notified of his habitual violator status within the five years prior to the day he was stopped while driving. See Corbin v. State, 225 Ga. App. 269, 270 (1) (483 SE2d 678) (1997). At trial, Valentine did not challenge the constitutionality of former OCGA § 40-5-2 (f) (1), nor did he argue (as he does here) that the notice is insufficient because it indicates a court clerk, rather than a judge or prosecutor, delivered it. Therefore, those additional contentions are waived. Garren v. State, 220 Ga. App. 66, 67 (3) (467 SE2d 365) (1996).

3. Because the State did not produce the notice document in discovery, Valentine contends the trial court should have excluded it from evidence. The trial court specifically found no bad faith on the State’s part and no prejudice to Valentine. The court offered Valentine a continuance, which he did not accept. No error resulted. Absent proof of prejudice to the defense and bad faith by the State, the trial court is not required to exclude the evidence and may offer the defendant lesser relief, including a continuance, to review the unproduced discovery. See Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997); OCGA § 17-16-6. As Valentine refused to accept the offer of continuance, he may not complain of the court’s failure to grant additional relief. See Bell, 224 Ga. App. at 192.

Decided December 10, 1997.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

4. In his remaining enumeration, Valentine claims the trial court erred by introducing two irrelevant and unauthenticated exhibits: State’s Exhibit 1, an “official notice of revocation” addressed to Valentine and dated August 19, 1993; and State’s Exhibit 3, a copy of a receipt for certified mail bearing Valentine’s signature and showing a delivery date of December 20, 1993. The State offered this evidence to prove Valentine received notice of his habitual violator status. As discussed in Division 2, the documents were admissible because they were certified copies of DPS records. See former OCGA § 40-5-2 (f) (1). Valentine, however, argues that the documents were irrelevant because the State never proved Exhibit 1 was mailed and never connected Exhibit 3 to Exhibit 1. Even were we to accept those arguments, we would find no reversible error. As discussed in Division 2, the State provided proof that Valentine was notified of his status on August 19,1993. Valentine did not counter this proof. Given the overwhelming evidence that Valentine received notice of his status on August 19, any additional evidence on this issue was at most cumulative. Because it is highly probable that Exhibits 1 and 3 did not contribute to the verdict, their allegedly erroneous admission was at most harmless error. See Key, 166 Ga. App. at 547.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A1913.
    BLANKENSHIP v. THE STATE.
    (494 SE2d 758)
   Judge Harold R. Banke.

Marvin Blankenship was acquitted of kidnapping and convicted of simple assault. On appeal, he challenges the denial of his motion for mistrial.

The evidence, when viewed in a light to support the verdict, showed that after Blankenship unexpectedly appeared at his estranged wife’s office, she accompanied him to her apartment so that he could retrieve some of his personal belongings. After Blankenship and his wife became embroiled in an argument, she left to contact police. When Officer Terry Blackmer responded to the scene, the victim warned that Blankenship had been drinking, was likely on crack cocaine, was violent and destroying things inside. She advised “approaching] [Blankenship] with caution.” As the two officers confronted Blankenship, he kept his right hand concealed behind his back. After repeated requests, he finally brought his hand around revealing a box cutter with its blade exposed and began screaming belligerently. Both officers retreated and repeatedly entreated him to drop his weapon. Ignoring their multiple requests, Blankenship continued advancing toward the officers waving the blade. When Blankenship cornered the officers, they shot him in the legs. Blankenship was indicted for kidnapping his estranged wife from her office, aggravated assault on a police officer, and simple assault on another officer. At trial, the victim, who had reconciled with Blankenship and was living with him, provided somewhat equivocal testimony about the events.

During the State’s examination of its first witness, a detective who interviewed the victim, the State and Blankenship discovered the existence of a handwritten statement by the victim which had been made nearly simultaneously with an audiotaped interview. According to the prosecutor, he did not realize a written statement existed until a photograph which depicted the victim writing on a piece of paper was admitted into evidence without objection. Blankenship moved for a mistrial and a continuance based on the State’s failure to comply with his discovery requests. After hearing the State’s explanation, the trial court was unable to find any bad faith and observed, “I really can’t see how it [the handwritten statement] can prejudice you; in that if it’s consistent with the audio, it’s cumulative; and if it’s inconsistent, it’s to your advantage. So I see no prejudice.” The court granted Blankenship a continuance until the next morning and did not require that counsel cross-examine the detective until he had an opportunity to review the statement as well as to interview the victim. Held'.

Decided December 10, 1997.

Patrick G. Longhi, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In his sole enumeration of error, Blankenship contends that the trial court erred in denying his motion for a mistrial. When the State fails to comply with the discovery statute, “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” OCGA § 17-16-6. In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial. See Hammitt v. State, 225 Ga. App. 21, 22 (482 SE2d 437) (1997) (physical precedent only).

Here, the trial court determined that a continuance was the appropriate remedy. Compare Livingston v. State, 266 Ga. 501, 503 (1) (467 SE2d 886) (1996). Under these circumstances, we are unable to conclude that the trial court abused its discretion in refusing to grant a mistrial. Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996).

Notwithstanding Blankenship’s contention to the contrary, in order to trigger the harsh sanction under OCGA § 17-16-6, of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the State. Tucker, 222 Ga. App. at 518 (3). Here, Blankenship failed to satisfy either requirement. The written statement was merely cumulative evidence that was virtually identical to the victim’s audiotaped remarks played to the jury. Given the overwhelming evidence of the assault, in light of the victim’s statements, as well as the officers’ testimony, Blankenship cannot show the requisite prejudice. Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973) (party seeking reversal must show not only error but injury arising from the error alleged). Nor was there any showing of bad faith on the part of the State.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       After the jury was unable to reach a verdict on the aggravated assault count, the State agreed not to retry him.