author: Judge Harold R. Banke.

text:
    A96A0049.
    SHIPMAN v. THE STATE.
    (471 SE2d 225)
   Judge Harold R. Banke.

A jury convicted Terrance Shipman of driving under the influence of alcohol to the extent that it was less safe for him to drive. On appeal, Shipman enumerates three errors.

Viewed in a light most favorable to the jury’s verdict the State’s evidence was as follows. After Shipman was stopped at a license and insurance roadblock, Officer Jonathan Long detected noticeable signs of intoxication. Following the observation of a strong odor of alcohol, glazed and bloodshot eyes, flushed face, and slightly slurred speech, the officer administered field sobriety tests which Shipman failed. Shipman appeared unsteady on his feet, omitted some letters during his recitation of the alphabet, and failed the horizontal gaze nystagmus test. After Shipman refused to perform the one-leg stand test, he registered a positive result on the field-administered alcosensor test and was arrested.

The results of Shipman’s state-administered Intoximeter 3000 test were suppressed because of an invalid implied consent warning under State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). During the trial, Shipman testified that he had not been impaired in any way, and that he had consumed only three beers in the three-hour period preceding arrest. He explained that his eyes may have appeared bloodshot due to a long work day. He also explained that at the time of the field testing he was extremely nervous because he felt dangerously unsafe on the side of the roadway.

Over objection, Long testified as a rebuttal witness to refute Shipman’s testimony. Long maintained that Shipman’s outward physical manifestations of intoxication and the .09 test result on the intoximeter were inconsistent with Shipman’s testimony concerning the passage of time and quantity of beer consumed. Held:

1. We reject Shipman’s contention that the State could not use the intoximeter reading to rebut Shipman’s testimony regarding his alcohol consumption. Evidence should be admitted if it is admissible for any legitimate purpose and that determination rests with the sound discretion of the trial court. Krebsbach v. State, 209 Ga. App. 474 (433 SE2d 649) (1993). In this case, the intoximeter results were admissible as the basis of Long’s testimony that Shipman was not being truthful about the amount of beer he had consumed. See Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455) (1995) (previously excluded intoximeter test results admissible for impeachment).

Nor are we able to find any merit to Shipman’s argument that the evidence was used for an improper purpose. The trial court specifically restricted the use of the intoximeter test results to the rebuttal of Shipman’s testimony, and Shipman failed to present any evidence of impermissible use.

2. We find no error in the trial court’s restriction of defense counsel’s attempted cross-examination of Long regarding the technical theory and functioning of the intoximeter machine because Long indicated he was not qualified to explain its technical operation. Moreover, the State offered Long as a person knowledgeable about the metabolism of alcohol, not the intricacies of the machine.

A party seeking reversal must show not only error but injury arising from the error alleged. Durham v. State, 129 Ga. App. 5, 6 (198 SE2d 387) (1973). In this case, Shipman can show neither. His own expert attacked the machine on technical grounds, explaining in considerable detail the various technical flaws of the machine including its calibration and operation. Shipman’s expert further explicated several reasons why the machine rendered an erroneously high reading on Shipman’s sample. Thus, contrary to Shipman’s assertion, the record shows that he was not precluded from directly attacking the machine’s accuracy and technical capabilities. Under these facts we find no manifest abuse of discretion in the trial court’s limitation of defense counsel’s cross-examination of Long. Fletcher v. State, 197 Ga. App. 112, 113 (397 SE2d 605) (1990).

3. The trial court’s charge on the accuracy of the intoximeter machine was proper. The court charged that “breath alcohol measuring equipment approved by the State Crime Laboratory is considered accurate if properly operated.” This language was approved in Henson v. State, 168 Ga. App. 210, 213 (4) (308 SE2d 555) (1983). Also, considering the challenged charge in the context of the instructions as a whole, there was no error. See Jackson v. State, 214 Ga. App. 683, 684 (448 SE2d 763) (1994).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J, concur.

Decided March 28, 1996

Reconsideration denied April 17, 1996

Spruell & Dubuc, Billy L. Spruell, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Scott A. Drake, Assistant Solicitors, for appellee.


source: Caselaw Access Project

author: Johnson, Judge. Ruffin, Judge,

license: Public Domain

text:
    A96A0365.
    APPLING v. THE STATE.
    (470 SE2d 761)
   Johnson, Judge.

Fourteen-year-old Fabian Terrell Appling was tried as an adult in DeKalb County Superior Court and convicted of armed robbery. The evidence at trial showed that Appling approached two boys behind Miller Grove Middle School just as students were leaving the school at the end of the day. At gunpoint, Appling took a 13-year-old victim’s shoes and wallet while the student was standing with another student.

1. Appling’s first two enumerations are related, and will be dealt with together. He asserts that his rights to a fair trial and to effective assistance of counsel were abridged when the trial court granted the state’s motion to sequester Appling’s mother, a potential witness in the case.

This enumeration presents us with an issue of first impression in this state. Does a juvenile, when being tried as an adult, have the right to have a parent present at trial?

Under the Juvenile Court Code, as interpreted in D. C. A. v. State, 135 Ga. App. 234, 235-236 (1) (217 SE2d 470) (1975), a parent is a party to a juvenile proceeding and may not be sequestered, even if the parent is also a witness in the case. See also Marshall v. State, 248 Ga. 227, 228 (2) (282 SE2d 301) (1981). However, treatment as a juvenile is not an inherent right. It is a right granted by the state legislature. The legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved. See In the Interest of J. J. S., 246 Ga. 617, 618 (1) (272 SE2d 294) (1980). A juvenile has no absolute right to be tried as a juvenile, and appellant here is not challenging his being tried as an adult. See Bishop v. State, 265 Ga. 821, 822-823 (2) (462 SE2d 716) (1995). Likewise, the right of a parent to be present at a proceeding is not an inherent right. It is derivative of the adjudication of the juvenile’s case within the juvenile system. Once the determination has been made to try a juvenile in superior court as an adult, or, as here, where the offense committed was one within the exclusive jurisdiction of the superior court pursuant to OCGA § 15-11-5 (b) (2) (A), those statutory rights accorded juveniles in juvenile court procedures no longer apply. A juvenile being tried in superior court enjoys certain rights he does not enjoy in juvenile court. For example, he or she has the right to trial by jury. Certain other protections, however, are exclusive to the juvenile system and do not travel with a defendant when a case is transferred from juvenile to superior court. The right of the parent to be in the courtroom, being statutory only, falls into this category. We hold that a parent is not a party to criminal proceedings in which a juvenile is being tried as an adult.

There being no applicable statute entitling Appling’s mother to be present in the courtroom, we look to the general rule. A trial court has discretion with regard to sequestration of witnesses. “OCGA § 24-9-61 provides for sequestration of witnesses upon motion by a party, but the trial court has sound discretion to make exceptions to that rule, and only abuse will warrant reversal. [Cit.]” (Punctuation omitted.) Lee v. State, 214 Ga. App. 164, 165 (2) (447 SE2d 323) (1994). Because there is no evidence in the record before us that the trial court abused its discretion in granting the state’s motion for sequestration, we will not set it aside.

Appling also asserts that the sequestration of his mother caused his trial counsel to be ineffective, where otherwise she was effective. We disagree. Appling argued below that his mother was needed to help him understand the proceedings, make decisions and communicate effectively with him. However, he has not pointed to anything in the record indicating that he was unable to understand his trial counsel’s explanation of the proceedings or communicate with counsel. In addition to failing to provide us with even one example purporting to show how counsel’s representation was deficient, Appling has failed to show that his defense was prejudiced by ineffective representation. Our review of the record indicates that evidence of Appling’s guilt was overwhelming, and the absence of his mother at trial did not render counsel ineffective or prejudice his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

2. Appling contends the trial court erred in denying his motion to suppress a photographic identification. “The test of a photographic array is whether the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Corey v. State, 211 Ga. App. 333 (2) (439 SE2d 513) (1993). The photo lineup, showed separately to the two victims, consisted of six photographs of young men, close in age, hair style and general looks to Appling. All of the photographs except Appling’s were taken from the Miller Grove Middle School yearbook. The photographs were the same size. The victims were told that the robber may or may not be in the lineup. Each of the victims identified Appling’s picture.

Appling points to an inconsistency in one of the victim’s testimony as illustrative of an impermissibly suggestive or prejudicial remark made during the identification process. At the pretrial hearing one of the young victims testified on cross-examination that the detective told him “The person is in here, find him.” At trial he testified that the detective told him “If you think one of them, one of the guys are in here, pick the one you think is him.” When questioned about the inconsistency, the victim replied that he was nervous at the pretrial hearing because he was in the courtroom with Appling.

The victims had an opportunity to observe Appling during a brief conversation with the perpetrators prior to the robbery. Both picked Appling out of the lineup and identified him in court. Because there was no substantial likelihood of irreparable misidentification due to the pretrial identification procedure, the trial court did not abuse its discretion in denying Appling’s motion to suppress the photo lineup and identification procedure. See Lampkin v. State, 213 Ga. App. 589, 593 (1) (445 SE2d 324) (1994).

Judgment affirmed.

McMurray, P. J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur in the court’s judgment, but I write separately to address what I believe to be a glaring legislative oversight. I believe the trial court abused its discretion when it held that the mother of a juvenile could not accompany her son at his counsel’s table after his case was transferred to the superior court. At issue is the fundamental question of whether Appling was denied the effective assistance of counsel because he was unable to effectively consult with counsel.

Fabian Terrell Appling, age 14 by calendar time, is a fledgling child. But by crime time, he is a convicted felon. The majority correctly asserts that “treatment as a juvenile is not an inherent right. It is a right granted by the state legislature. The legislature may restrict or qualify that right as it sees fit,. . .” Ante, p. 162. Unfortunately, the legislature has never addressed the specific issue raised here. Moreover, we should not consider the right which appellant seeks to assert merely a “derivative” right which rests on the whim of the legislature.

The majority assumes that once a case has been transferred from the juvenile court to the superior court, the “juvenile court procedures no longer apply.” While simple in assertion, it is devastating in consequences because it deprives the juvenile of parental assistance and advice at a time when the need is greatest, after the filing of charges. Moreover, the majority makes its assumption without analyzing the underlying reasons for the transfer of a case from juvenile court to superior court. Such a transfer is made based upon the nature of the offense alleged to have been committed by the juvenile, not upon the child’s level of maturity or immaturity. The juvenile’s need for protection of important rights, parental advice, and assistance in communicating with counsel do not disappear. A juvenile does not cease to be a child, nor are his unique needs and rights extinguished, simply because the forum has changed. This fact is particularly true in a situation such as this which implicates the juvenile’s constitutional rights. The mere fact that Appling was tried as an adult does not make him an adult, and legions of laws will not make him such.

Here, the juvenile’s attorney argued that the mother’s presence was necessary to assist the juvenile in making important decisions such as whether to testify, decisions counsel felt the juvenile was not mature or educated enough to make without his mother’s guidance. The attorney’s concern cannot be questioned when we realize the parent or guardian would certainly be entitled to be present if the police desired to question the juvenile about his case, because such questioning could implicate fundamental constitutional rights. See OCGA § 15-11-19 (c); Riley v. State, 237 Ga. 124, 127-128 (226 SE2d 922) (1976). His concern is reflected in our Supreme Court’s opinion of Davis v. State, 262 Ga. 578, 581 (1) (422 SE2d 546) (1992), a search and seizure case in which the court expressed concern over the abilities of children to understand our system of criminal law: “The younger a child the less likely that he or she can be said to have the minimal discretion required to validly consent to a search, much less waive important constitutional rights. Judicial vigilance is especially merited when, as here, the child is quite young.”

Appling’s counsel persuasively argues that the individual who raised the juvenile, not a court-appointed lawyer, should be the person guiding the juvenile in making such decisions. I would agree, especially in this era when even adults sometimes have difficulty putting trust in their lawyers. Parental guidance in a felony case is a necessary safeguard for a juvenile. The juvenile’s guardian, who is charged with his care and safety, must have the opportunity to give it. Given that Appling’s attorney felt the need for the mother’s aid, Appling could not receive effective assistance of counsel without her. Safeguarding these rights is a laudable goal insofar as it may help prevent a juvenile from entering a prison system which seems only to lead to juveniles becoming hardened adult criminals.

Our system is designed to ensure effective representation. For example, “[t]he Fourteenth Amendment’s due process guarantee of fundamental fairness requires that an indigent defendant be given ‘meaningful access to justice’ . . . ,” including access to experts. McNeal v. State, 263 Ga. 397, 398 (3) (435 SE2d 47) (1993). We provide interpreters for hearing-impaired defendants and for defendants who do not speak English. See, e.g., OCGA § 24-9-104; Gonzales v. State, 182 Ga. App. 594 (356 SE2d 545) (1987); Reed v. State, 249 Ga. 52 (287 SE2d 205) (1982). Surely, in the name of promoting “meaningful access to justice,” we can also make room at counsel table for a parent of a juvenile defendant.

Decided April 17, 1996.

Peters, Roberts, Borsuk & Taylor, Lynne Y. Borsuk, Abbi S. Taylor, for appellant.

J Tom Morgan, District Attorney, Barbara B. Conroy, Tamar P Stern, Assistant District Attorneys, for appellee.

While we are outraged at spiraling juvenile crime, that outrage cannot be assuaged by “warehousing juveniles.” Rather, it must be met by trying them either as juveniles or as adults where appropriate, but always within the parameters of the constitution. It is for these reasons that I disagree with the majority’s assertion that “there is no evidence in the record before us that the trial court abused its discretion in granting the state’s motion for sequestration. . . .” (Ante, p. 163.) This bland assertion fails to consider an important need — and right — of the juvenile: parental guidance. Errors are sometimes self-sequestrating from harm. This one is not. The rare rage of this error radiates harm. Accordingly, in my view, the trial judge abused his discretion in refusing to allow Appling’s mother to accompany him in court, irrespective of differences in juvenile and superior court procedures. However, constrained to follow precedent, and restrained by the legislative vacuum, I concur in the judgment.


author: Smith, Judge.

text:
    A96A0473.
    HEARD v. THE STATE.
    (471 SE2d 22)
   Smith, Judge.

Kevin Heard was found guilty by a jury of two counts of aggravated child molestation and two counts of child molestation. He was sentenced as a recidivist, and he appeals following the denial of his motion for new trial.

Construed to support the jury’s verdict, the evidence at trial showed that the seven-year-old victim, the daughter of Heard’s former girl friend, told her eleven-year-old cousin that Heard had been making her rub his genitals, and that “white stuff came out.” The victim told her cousin that Heard warned her not to tell anyone or he would kill her mother and her brother. The cousin told her father and her school counselor.

Investigator Stephanie Hill of the Rome Police Department conducted a videotaped interview with the victim after receiving a referral from the Floyd County DFACS. Anatomically correct dolls were used during the interview, and the victim described several instances of oral sodomy and masturbation performed by Heard.

1. Heard enumerates the general grounds, arguing that no physical evidence of molestation existed, that the child’s statements in the interview were not spontaneous, that inconsistencies were apparent in the child’s statement, and that motive existed for the child and her mother to accuse him falsely. We do not agree that the child’s statements during the interview conducted by Hill were not spontaneous. See Division 2, infra. Hill had never met the victim before the interview and did not suggest answers to questions. Several of the points raised by Heard do have some merit: Minor inconsistencies existed in the child’s testimony regarding the dates of the incidents; the child was not examined by a physician because no instances of penetration were alleged; and the evidence suggested that Heard’s ending a relationship with the victim’s mother might have been a possible motive for the accusations. These contentions go to the weight to be given the evidence, however, and not to its sufficiency to support the jury’s verdict. We find the evidence presented sufficient to authorize the jury to find Heard guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Heard objected at trial on several grounds to admission of the videotaped interview with the victim. On appeal, he contends the trial court erred in admitting the tape into evidence because it lacked sufficient indicia of reliability as required by OCGA § 24-3-16, and in denying his motion for new trial on this ground. We do not agree.

Relying upon Rolader v. State, 202 Ga. App. 134, 140 (413 SE2d 752) (1991), Heard complains that the victim’s statements were inadmissible. He maintains that here, as in Rolader, the interviews were conducted by a law enforcement officer for the purpose of gathering evidence for use in this criminal proceeding. According to Heard, this fact, when coupled with the minor inconsistencies in the child’s statements, the lack of spontaneity, and the lack of physical evidence, makes the statement inherently unreliable. Heard misconstrues the holding in Rolader, which was based upon its specific facts.

The factors considered in determining whether sufficient indicia of reliability exist include: (1) the conditions under which the statement was made; (2) the statement’s spontaneity; (3) the age of the child; (4) the child’s demeanor; (5) the child’s physical and mental condition; (6) the presence or absence of any threats or promises of benefit; (7) any involvement of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or others either before or during the giving of the statement; and (10) the consistency between repeated out-of-court statements. Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

Decided April 17, 1996.

Smith, Price & Wright, Sidney P. Wright, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

In Rolader, the victim was a four-year-old child who was subjected to many interviews and preparation sessions over a period of several months to ready her for trial. The sessions and interviews were with law enforcement officers and a therapist who was “assisting” the officers. Id. at 136-138, 141 (1). Inconsistencies between the child’s out-of-court statements were both substantial and material, and the child accused two other men of molesting her, undermining her credibility. Id. at 138. This court found in Rolader that under the totality of the circumstances present in that case, the child’s out-of-court statement did not display the “ ‘particularized guarantees of trustworthiness’ as would obviate the appellant’s Confrontation Clause objection.” Id. at 141 (1).

In contrast, the record here shows that the victim was older, that she was not interviewed by any other law enforcement officers prior to giving the taped statement, and that no evidence of coaching by parents or others was present; the only people present during the interview were the victim and Hill. The minor inconsistencies in the victim’s statement were not substantive in nature, and her general credibility was not called into question. We conclude that many of the factors to be considered indicated reliability.

Moreover, the victim was present in court and testified. Heard had the opportunity to cross-examine her regarding her allegations, providing him with an additional safeguard to his right to a fair trial. See Baker v. State, 211 Ga. App. 515, 517 (3) (439 SE2d 668) (1993); Gregg, supra, 201 Ga. App. at 241 (3) (c). The trial court did not err in admitting this evidence or in denying Heard’s motion for new trial on this ground.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0424.
    DAVIS v. THE STATE.
    (471 SE2d 14)
   Judge Harold R. Banke.

A jury convicted Timothy Shaw Davis of armed robbery in July 1995. On appeal, he enumerates three errors.

Davis was indicted during the October 1994 term of court in the Superior Court of Newton County on charges of armed robbery and possession of a firearm during the commission of a felony. During the same term, he filed a demand for trial pursuant to OCGA § 17-7-171.

Davis’s initial trial commenced in March 1995 and resulted in a verdict of not guilty on the firearm charge. The jury could not reach a unanimous verdict on the armed robbery charge.

A second trial on the armed robbery charge was set for the week of April 17, 1995. Ten days before trial, the State served a timely notice of intention to present similar transaction evidence that Davis and a co-defendant had robbed the same gas station at gunpoint the month before committing the armed robbery at issue. At a hearing on the State’s motion, Davis’s counsel argued that he had not had the opportunity to interview the similar transaction witness, so the court delayed the trial until later in the term. When the State called the case for trial, Davis sought a continuance which the court granted on the condition that Davis and the State agree to an additional term of court in which to try the case. The court then stated that it would set a special term in which to try the case and adjourned court for the April term.

Although a special session of court was called in June 1995, Davis’s case was not tried until the July term of court. The record reflects that Davis’s case was not on the June calendar, but his trial counsel was present when the June calendar was called and did nothing to announce his readiness to try the case. When Davis moved to bar prosecution for failure to grant a speedy trial, the court denied the motion based upon the failure to announce Davis’s readiness for trial at the June term of court. Held:

1. The trial court did not deny Davis the right to a speedy trial. If a defendant in a capital case is not tried within the second term following his demand for speedy trial, the demand statute, OCGA § 17-7-171, requires discharge and acquittal provided “that at both terms there were juries impaneled and qualified to try the defendant and provided, further, that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.” OCGA § 17-7-171 (b); see Simmons v. State, 149 Ga. App. 830 (256 SE2d 79) (1979) (armed robbery within § 17-7-171’s predecessor’s purview). These statutory requisites are strictly enforced and the right to a speedy trial may be waived by a defendant’s action or inaction. Rice v. State, 264 Ga. 846, 847 (452 SE2d 492) (1995). The Supreme Court recently announced a bright line rule that “any continuance granted at the defendant’s request will operate as a waiver of a speedy trial demand under OCGA § 17-7-171” under the rationale that “[a]ny request for a continuance following the filing of a speedy trial demand necessarily means that the defendant will not be in court ‘announcing ready for trial’ and the continuance, if granted, will result in a waiver of the demand in a capital case.” Id. This rationale leaves unresolved the potentially troubling situation where a defendant receives a continuance which expires early in the term at which the demand is made and then is “present in court announcing ready for trial” at the two terms following the expiration of the term at which the demand was made. OCGA § 17-7-171 (b); see Rice, 264 Ga. at 848-849 (Carley, J., concurring specially). However, that issue is not presented here. In this case, it is undisputed that Davis successfully sought a continuance and failed to announce ready for trial during the special June term of court. Thus, under both the bright line rule and statutory language, the motion to bar prosecution was properly denied. OCGA § 17-7-171 (b). ■

2. The trial court properly denied Davis’s motion for plea in bar and motion to quash indictment in which he argued that, because he was acquitted on the firearms charge, the State was collaterally estopped from trying him for armed robbery. Davis’s failure to provide for appellate review a transcript of the initial trial forecloses consideration of his plea of double jeopardy based on the doctrine of collateral estoppel. Preston v. State, 257 Ga. 42, 45 (4) (354 SE2d 135) (1987); see United States v. Hernandez, 572 F2d 218, 220 (9th Cir. 1978); Doe v. State, 205 Ga. App. 322 (422 SE2d 558) (1992). The record in this case shows that Davis drove the getaway car after his two friends robbed a store at gunpoint and the State never contended that Davis actually possessed a firearm. Absent evidence from the first trial showing that Davis was acquitted of being a party to the crime of possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (3), we simply cannot determine whether the acquittal on the firearms charge would necessarily preclude a guilty verdict on armed robbery. State v. Tate, 136 Ga. App. 181, 186 (IV) (220 SE2d 741) (1975); compare OCGA §§ 16-11-106 (b) (3) and 16-8-41 (aX

3. The trial court did not err in refusing to charge the jury on theft by receiving or theft by taking as lesser included offenses. Theft by receiving is not a lesser included offense of armed robbery. Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994). “Although theft by taking has been held to be a lesser included offense of armed robbery, no charge on the lesser included offense is necessary where the evidence, as here, shows completion of the greater offense. [Cits.]” Widner v. State, 203 Ga. App. 823, 825 (4) (418 SE2d 105) (1992). Judgment affirmed. Andrews and Smith, JJ, concur.

Decided April 1, 1996

Reconsideration denied April 18, 1996.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

       The terms of court in Newton County Superior Court commence on the second and third Mondays in January, April, July, and October pursuant to OCGA § 15-6-3 (2) (A). In practice, however, the terms appear to actually begin on the third Monday of these months.


text:
    A96A0005.
    STANLEY et al. v. FIBER TRANSPORT, INC. et al.
    (470 SE2d 767)
   Judge Harold R. Banke.

William F. Stanley and Brenda W. Smith, widow of Herbert E. Smith (“Stanley”), sued Fiber Transport, Inc. (“Fiber”), Wood Chip Transport, Inc. (“Wood Chip”), and Delbert Davis, a truck driver, for personal injuries and wrongful death resulting from a trucking accident. Citing both federal and Georgia law, Stanley alleged that Fiber and Wood Chip were Davis’ statutory employers and that both trucking companies were responsible for Davis’ negligence. Stanley appeals the trial court’s grant of summary judgment in favor of Fiber and Wood Chip.

Viewed in a light most favorable to the non-movants, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was as follows: Fiber had a contract with Stone Container Corporation, its only customer, to transport pine bark. When Fiber was unable to fulfill part of its contractual obligation to deliver pine bark to Florence, South Carolina, Wood Chip agreed to transport the material for a stipulated sum.

Wood Chip, however, did not transport the material. An employee of Wood Chip called a scale operator at a local mill and left word that any available trucker could pick up the bark. In response to this offer, three trailers belonging to D & D Trucking, owned by Davis, were loaded. While on route and at night, near Columbia, South Carolina, one of the D & D Trucking tractor trailers being driven by Davis, was involved in a fatal accident when William F. Stanley, the driver of an unrelated truck, collided at high speed with the allegedly poorly illuminated rear of Davis’ truck. Stanley was seriously injured and his co-driver, Herbert E. Smith, was killed.

After the wreck, Davis submitted the weight ticket for the material delivered to Wood Chip who in turn billed Fiber. Wood Chip paid Davis $18 per ton less five percent and a workers’ compensation deduction.

In support of summary judgment, Fiber presented evidence that Fiber understood that Wood Chip would haul the bark using its own personnel and equipment and that Fiber did not discover D & D Trucking’s involvement until after the accident. An officer from Fiber testified that Fiber was unfamiliar with D & D Trucking and had never utilized D & D Trucking or Davis or leased a vehicle from either. Similarly, Wood Chip presented evidence that it did not learn that Davis was hauling the load until after the accident.

Determining that there was no legal theory on which to attribute any liability for the alleged negligence of Davis to either Fiber or Wood Chip, the trial court granted summary judgment to both Fiber and Wood Chip. Although Stanley enumerates seven errors, the key inquiry is whether either Fiber or Wood Chip was Davis’ statutory employer under any legal theory, and if Davis was operating as an independent contractor, whether either trucking company could be held liable for Davis’ alleged negligence. Held'.

1. Federal motor carrier rules and regulations had no application under these facts, and Stanley cannot rely on them to impose liability on Fiber or Wood Chip. The Interstate Commerce Commission has general jurisdiction over interstate transportation of property by a motor carrier but lacks jurisdiction over the transport of certain exempt commodities including bark. 49 USC §§ 10521 (a) (1); 10526 (a) (6) (C). It is undisputed that at the time of the accident Davis was hauling bark. Because bark is an exempt commodity, the parties were not required by ICC regulations to enter into a lease agreement.

Stanley also claims that Fiber and Wood Chip were Davis’ “employer” within the meaning of the Federal Motor Carrier Safety Regulations. However, Federal Motor Carrier Safety Regulations define an employer as “any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it . . . .” 49 CFR § 390.5. Davis, not Fiber or Wood Chip, owned the truck involved in the accident and neither Fiber nor Wood Chip entered into any lease with Davis or had any knowledge of Davis’ or D & D Trucking’s involvement in the transport until after the collision. Nor did Fiber or Wood Chip assign any employee to operate the vehicle. Thus, neither Fiber nor Wood Chip were Davis’ “employer” within the meaning of this statute. Nor was a “lease” created within the meaning of 49 CFR § 1057.11.

Federal safety rules, unlike the ICC rules, were applicable to the operation of Davis’ truck because even exempt carriers are subject to federal safety rules. However, federal safety rules do not, as a matter of law, create a lease or make Fiber or Wood Chip responsible for the safe operation of Davis’ truck.

2. Relying on the ICC’s broad definition of a lease under 49 USC § 11107, Stanley contends that the trial court erred in determining that neither Fiber nor Wood Chip entered into a lease with Davis for the use of his truck. We disagree. As we determined in Division i, ICC rules have no application since the load involved was an exempt commodity under ICC rules.

Nor do we find Georgia authority creating a lease. It is undisputed that there was no written lease for the use of Davis’ truck. Wood Chip agreed to haul the material for Fiber then extended an open offer for any available trucker to haul the material at a stipulated rate per ton and D & D Trucking accepted. Stanley has offered no Georgia authority and we have found none for the proposition that this informal arrangement created an oral lease. Compare Nationwide Mutual Ins. Co. v. Holbrooks, 187 Ga. App. 706 (371 SE2d 252) (1988) (to protect general public, motor carriers must assume full direction and control over leased trucks).

3. No employer/employee relationship between Davis and Fiber or Davis and Wood Chip existed under federal statutory law or Georgia common law. Stanley’s reliance on federal trucking regulations which for public policy reasons virtually eliminate the distinction between an employee and an independent contractor is misplaced because ICC regulations do not apply when an exempt commodity is being transported.

As to the applicability of Georgia common law, we are unable to find support for Stanley’s contention that Davis was an employee. The distinction between employer/employee and carrier/independent contractor lies in the degree of control the trucking company exercises over the driver and his truck. See Wright v. Transus, Inc., 209 Ga. App. 771 (434 SE2d 786) (1993). Fiber and Wood Chip’s control was nonexistent. There was no lease between Davis and either trucking company; Davis drove for himself; Davis was not on-call for anyone; and Davis, the truck owner, controlled the use of his own equipment and drivers. Compare Wright, 209 Ga. App. at 772-773. See Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746 (449 SE2d 141) (1994) (physical precedent only, Court of Appeals Rule 33 (a)).

4. The trial court properly determined that the Georgia Forest Products Trucking Rules are inapplicable. Those rules apply only to the extent that they do not conflict with Georgia law and cannot be used as a separate basis of liability in conflict with Georgia statutory and common law.

5. Liability cannot be imputed to either Fiber or Wood Chip under any of the subsections of OCGA § 51-2-5. “An employer is liable for the negligence of a contractor: (3) [i]f the wrongful act is the violation of a duty imposed by express contract upon the employer; (4) [i]f the wrongful act is the violation of a duty imposed by statute; (5) [i]f the employer retains the right to direct or control the time and manner of executing the work . . .; or (6) [i]f the employer ratifies the unauthorized wrong of the independent contractor.” Id.

Decided April 18, 1996.

Johnson & Ward, John C. Dabney, Jr., Debbie C. Pelerose, for appellants.

Because it is undisputed that there was no express contract between the parties, OCGA § 51-2-5 (3) had no application. See Toys ‘R' Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 196 (1) (A) (393 SE2d 44) (1990) (OCGA § 51-2-5 (3) requires express obligation by the employer to be responsible for the independent contractor’s conduct).

OCGA § 51-2-5 (4) did not apply because Stanley failed to show there was a violation by either Fiber or Wood Chip of a duty imposed by a federal or Georgia statute. See Divisions 1 and 4.

Nor did OCGA § 51-2-5 (5) apply because neither Fiber nor Wood Chip ever possessed or retained the right to direct or control the time and manner of executing the work. Davis owned the truck he was driving when the collision occurred and provided the insurance for his truck. In addition, Davis chose the driver of this truck as well as D & D’s other two trucks making the out-of-state delivery. Davis selected the route. Fiber had no connection with Davis other than reimbursing Wood Chip for Davis’ work. Accordingly, Fiber cannot be held responsible under this subsection. Compare Peachtree-Cain Co. v. McBee, 254 Ga. 91 (327 SE2d 188) (1985) (employer liable for intentional torts of an independent contractor where subject to employer’s immediate direction and control).

Moreover, Stanley presented no evidence that Wood Chip retained a right to supervise D & D Trucking and that Davis was not entirely free to do the work his own way. See Englehart v. OKI America, 209 Ga. App. 151, 152 (1) (a) (433 SE2d 331) (1993). Although it is true that Wood Chip had used D & D Trucking’s services before, especially in the month prior to the incident at issue, there is no evidence that Wood Chip retained any right to control the time, manner, or method of D & D Trucking’s operation, or directed and supervised Davis. Englehart, 209 Ga. App. at 152.

As to the application of OCGA § 51-2-5 (6), neither Fiber nor Wood Chip ratified the alleged unauthorized wrong of Davis. Ordinarily, in order to ratify an act, one must have knowledge of it. Southern Mills v. Newton, 91 Ga. App. 738, 743 (2) (b) (87 SE2d 109) (1955). In this case, both Fiber and Wood Chip were unaware that Davis and D & D Trucking were transporting the bark until after the accident.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Fulcher, Flagler, Reed, Hanks & Harper, Ronald C. Griffeth, All-good, Childs, Mehrhof & Millions, Richard R. Mehrhof, Jr., for appellees.


text:
    A96A0293.
    CLINE v. THE STATE.
    (471 SE2d 24)
   Judge Harold R. Banke.

Jesse Max Cline was convicted of two counts of simple battery and one count of misdemeanor obstruction of an officer. He appeals only the misdemeanor obstruction conviction.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Cline no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows: After police were unable to execute an arrest warrant lodged against Cline for domestic violence, they returned the following morning to arrest him. As Deputies Michael Shinall and Mike Pressley entered Cline’s mobile home park, Cline said, “Here they are,” then fled and attempted to conceal himself in a patch of kudzu located down a steep embankment near his trailer. When the officers approached Cline’s hiding place, Shinall lost his footing, fell down the kudzu-covered embankment and Cline struck him in the face as he landed. Both officers testified that while they were attempting to arrest Cline a brief struggle ensued.

A witness testified that Cline ran because he knew the police were looking for him due to the problems he had with the victim the previous night. Cline admitted that after he observed the police, he jumped into some weeds and lay on a stump. Cline further testified that he was hiding to avoid being arrested.

Cline’s sole enumeration of error is that the trial court erred in allowing the jury’s verdict to stand as to misdemeanor obstruction of an officer because the police never ordered him to halt. He contends that there was nothing inherently wrong with his leaving the scene immediately prior to the arrival of the police. Held:

The essential elements of OCGA § 16-10-24 (a) obstructing or hindering law enforcement officers are: that the act constituting obstruction or hindering was knowing and wilful and that the officer was lawfully discharging his official duties. Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985). Misdemeanor obstruction or hindering does not require evidence of violence to the person of an officer. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992).

In this case, Cline knew that the officers had come to effectuate his arrest and he was attempting to elude them. By Cline’s own admission, his conduct in fleeing and concealing himself was deliberate and intentional because he wanted to avoid going to jail. By his flight and effort to evade arrest, Cline hampered and delayed the police in the lawful execution of their duty. See Tankersley v. State, 155 Ga. App. 917, 919 (4) (273 SE2d 862) (1980). We find the evidence was sufficient for a rational trier of fact to find all the essential elements of the crime of misdemeanor hindering of an officer. OCGA § 16-10-24 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err.

Decided April 18, 1996.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Andrews, Judge.

text:
    A96A0100.
    ANDERSON v. THE STATE.
    (470 SE2d 778)
   Andrews, Judge.

Harvey Anderson appeals from the judgment entered on his convictions of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)), carrying a concealed weapon (OCGA § 16-11-126 (a)), and carrying a pistol without a license (OCGA § 16-11-128 (a)). We affirm.

1. The first and second enumerations contest the sufficiency of the evidence on the charges of carrying a concealed weapon and carrying a pistol without a license.

Viewed with all inferences in favor of the findings of the trial judge, the factfinder, the evidence was that MARTA Officers Albarron and Momon were patrolling the MARTA station at the airport when Officer Albarron saw Anderson sitting on a platform bench with an open container of beer in his hand. A black book bag was on the platform near Anderson. The officers advised Anderson he would have to dispose of the alcohol and asked if there were any additional bottles. Anderson said there were some in the book bag. Officer Albarron asked Anderson to remove them from the bag and Anderson told the officer to “go ahead.” When the bottles were removed from the bag, the officers saw a Regent .22 handgun. Anderson had been previously court-martialed for selling heroin.

Anderson contests the sufficiency of the evidence because the gun was not found on his person, relying on Hayes v. State, 28 Ga. App. 67 (110 SE 320) (1922).

Decided April 19, 1996.

Austin A. Hammond, for appellant.

Robert E. Keller, District Attorney, D. Brandon Hornsby, Assis tant District Attorney, for appellee.

Both OCGA §§ 16-11-126 (a) & 16-11-128 (a) require the State to prove the person was carrying a weapon “on or about his person.” In Hayes, supra, the evidence was that the gun was in the pocket of a coat which was rolled up under the front seat of the accused’s buggy which had been left at the livery stable. This was held insufficient under the 1910 version of OCGA § 16-11-126 (a) because the gun was “not in contact with his hands or any other portion of his person.”

This case is factually distinguishable from Hayes. Here, Anderson was in a public place with the weapon instead of having it under the seat of his private mode of transportation. As reiterated in Moody v. State, 184 Ga. App. 768, 769 (1) (362 SE2d 499) (1987), “ The legislature intended to compel persons who carried such weapons to so wear them about their persons that others who came in contact with them might see that they were armed and dangerous persons, who were to be avoided in consequence.’ [Cit.] The amount of exposure of the weapon is not as important as the method in which the gun is carried.” Id.

In Moody, the conviction of carrying a concealed weapon was affirmed when the gun only partially protruded from under the seat of an automobile. See Simpson v. State, 213 Ga. App. 143, 145 (3) (444 SE2d 115) (1994); Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992).

These contentions are without merit.

2. Anderson’s third enumeration argues that the court erred in denying his motion in limine which sought to exclude the gun on the grounds it was improperly seized.

At the time the gun was introduced into evidence, however, counsel stated that there was no objection to it. Therefore, this issue cannot be considered here. Harper v. State, 180 Ga. App. 20, 21 (3) (348 SE2d 318) (1986).

3. Finally, Anderson contends that he did not personally and intelligently waive his right to a trial by jury. This contention, however, is refuted by the record which shows a knowing and intelligent waiver. Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) (1995); Lawal v. State, 201 Ga. App. 797 (2) (412 SE2d 864) (1991).

Judgment affirmed.

Pope, P. J, and Smith, J., concur.


author: Beasley, Chief Judge.

text:
    A96A0200.
    DEPARTMENT OF TRANSPORTATION v. HALL et al.
    (470 SE2d 775)
   Beasley, Chief Judge.

The sole question brought by the Georgia Department of Transportation is whether its complaint for reformation of a deed was a compulsory counterclaim in another suit. The DOT filed the complaint after the court denied its motion to counterclaim and add parties. The court in the instant case held that the new complaint should have been brought as a counterclaim in the earlier suit and granted summary judgment to the Halls and Ropers.

The DOT obtained a right-of-way deed from the Ropers, predecessors in title to the Halls, for road widening. It paid the Ropers $26,400 for fee simple title to certain described property and a temporary easement for the purpose of accommodating the highway improvement by “embankments, cuts and slopes as may be deemed proper. . . .” The next year, the Halls purchased 1.824 acres from the Ropers, Debra Hall’s parents, including their house. Thereafter, the DOT began grading the property in front of the house. The Halls allege that the new slope, located in the portion of Halls’ front yard within the temporary easement, comes within about seven feet of their front porch and drops approximately 22 feet to the new road level. The Halls sued the State and the DOT, alleging trespass, inverse condemnation, an unconstitutional taking, permanent alterations to the property, and damages. Count 6 alleged that the DOT obtained title from the plaintiffs’ predecessors in title by coercion and misrepresentation and that the right-of-way deed should be set aside.

The DOT answered but failed to counterclaim or move to add the Ropers as parties. Later it moved for summary judgment arguing that as successors in title the Halls had no right to bring a claim because a right of action does not run with the land unless a specific assignment is made. The court denied the motion and rejected the DOT’s position that the Halls lacked standing to sue for inverse condemnation or for claims occurring after they purchased the property.

The DOT again moved for summary judgment on the ground that there were no genuine issues of material fact regarding its purchase of the right-of-way and the temporary easement. In reply to plaintiffs’ opposition to the DOT’s earlier summary judgment motion, the DOT claimed that due to a scrivener’s error by a DOT employee, the deed misdescribed the property the Ropers conveyed to the DOT and the accurate plat/survey should control. The DOT in effect asked the court to correct the deed as a matter of law, relying on Riley v. Griffin, 16 Ga. 141 (60 AD 726) (1854).

The Halls also moved for summary judgment, on the basis that inverse condemnation had occurred by the DOT’s encroachment beyond the property described in the right-of-way deed. The Halls further claimed that the DOT had exceeded its right to a temporary easement by removing massive amounts of soil, thereby creating a permanent slope easement. They claimed that during negotiations between the DOT and the Ropers, the Ropers relied upon the DOT’s survey stakes, which were much farther from their front porch, and stated it was understood that the temporary easement would not come closer than 35 feet from the front porch.

The court granted partial summary judgment to the Halls on the right-of-way issue and to the DOT on the temporary slope easement issue. It held that the descriptions of both property interests in the deed were unambiguous and, as to the right-of-way, the court specifically rejected the DOT’s contention that a description in a plat attached to a deed controls over a description in a deed. It cited Johnson v. Willingham, 212 Ga. 310 (92 SE2d 1) (1956). See also McCook v. Council, 202 Ga. 313 (43 SE2d 317) (1947). The court noted that the DOT’s effort to correct the deed to conform to the survey/plat could not be done in the manner employed but would need a petition for reformation in which the Ropers were joined with the Halls.

Thereafter, the DOT moved to amend its pleadings under OCGA § 9-11-13 (e) to assert a counterclaim for deed reformation, and it also moved to add the Ropers under authority of OCGA § 9-11-13 (h). The court denied the motions, and no appeal was taken by any party in that suit. In particular, as it relates to this appeal, the DOT did not challenge the trial court’s refusal to entertain, as a petition for deed reformation, its attempt to obtain deed correction by way of its reply to plaintiffs’ opposition to summary judgment.

The DOT then filed the instant petition for reformation of deed against both the Halls and the Ropers. The defendants sought summary judgment, claiming the DOT failed to file a compulsory counterclaim when it initially answered Halls’ complaint in the first suit. The court agreed, noting that the DOT’s “Petition for Reformation of Deed” was a compulsory counterclaim that should have been asserted before the court granted partial summary judgment in the first action.

The DOT claims that the court erred in dismissing its suit for deed reformation, after denying its motion to bring a permissive counterclaim in the “related suit” and indicating that DOT’s claim should be brought as an equitable claim. It further contends that the claim for deed reformation did not mature until the court disallowed the counterclaim in the first suit, so that it is governed as a permissive counterclaim by OCGA § 9-11-13 (e). At issue, according to the DOT, is whether the court’s insistence on the equitable basis for correcting the deed could be brought as a permissive counterclaim under OCGA § 9-11-13 (e) or whether it was a compulsory counterclaim under OCGA § 9-11-13 (f). If the claim was permissive, then the DOT claims it could bring this separate action for reformation of the deed based on Jenkins v. Martin, 142 Ga. App. 573 (236 SE2d 542) (1977). If the claim was compulsory, then the DOT claims the court in its discretion may permit the separate action in the interest of justice.

The DOT argues that the misdescription in the deed was an obvious error because the Ropers signed a warranty deed for property belonging in part to their next door neighbor and the error should have been corrected by the court pursuant to Riley v. Griffin, supra. The DOT further argues that it has been harmed by the court’s decision that the DOT could not correct the deed because it paid the Ropers for the land acquired but misdeeded and is now left without a remedy in law or equity for correcting a clerical error.

The Halls contest the DOT’s assertion that the misdescription is a clerical error is inaccurate and not supported by the record. They argue that the relief sought by the DOT is a compulsory counterclaim which should have been filed earlier in response to the Halls’ suit. The Halls argue that in attempting to amend its answer and add a counterclaim after the grants of partial summary judgment, the DOT seeks to circumvent the ruling. The DOT admits that it was aware of the scrivener’s error prior to filing its answer to Halls’ complaint.

OCGA § 9-11-13 (a) provides: “Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” Clearly, the DOT’s reformation claim arose out of the same transaction or occurrence that was the subject matter of the Halls’ suit. That suit alleged the DOT had committed trespass, inverse condemnation and an unconstitutional taking of the property at issue in the right-of-way deed. See P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3 (251 SE2d 72) (1978). Furthermore, the action did not require for adjudication of any parties over whom the trial court could not obtain jurisdiction in the original case because the Ropers are also residents of Paulding County.

“A party may not ‘decline to litigate’ in the original action and seek to bring a separate suit.” Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357, 360 (203 SE2d 304) (1973). If initially omitted in the pending first action, the proper procedure is to seek leave of court to amend and bring the counterclaim under OCGA § 9-11-13 (f) as an omitted counterclaim. Holcomb v. Ellis, 259 Ga. 625 (385 SE2d 670) (1989); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 (222 SE2d 878) (1975). When the DOT finally acted, it did so on insufficient grounds and on the wrong legal basis. It assumed it could do so after the court had ruled on the summary judgment motions. But see Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 606 (203 SE2d 173) (1974). It did not invoke OCGA § 9-11-13 (f) for oversight or excusable neglect but elected instead to proceed under OCGA § 9-11-13 (e), contending that the counterclaim did not mature until after the DOT filed its answer and the trial court granted summary judgment in favor of the Halls on the deed issue. It is undisputed that the alleged mistake which the DOT seeks to reform occurred prior to the filing of the DOT’s answer to the original complaint. Although the DOT attempted to correct its mistake by labeling the alleged deed misdescription “an unknown fact,” the claim had matured because the deed was executed in 1990, and the DOT’s answer was filed in 1993, when it knew of the misdescription. Because the DOT did not seek to file on the grounds of oversight or excusable neglect but rather on the grounds of maturity, and its claim had indisputably matured at the time it answered, the DOT’s claim was compulsory.

Decided April 19, 1996.

Michael J. Bowers, Attorney General, Carol A. Callaway, George P. Shingler, Assistant Attorneys General, for appellant.

Jeffrey B. Talley, for appellees.

Accordingly, the decision of the trial court in granting summary judgment in favor of the Halls on the right-of-way deed was conclusive. OCGA § 9-12-40 provides: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” The record demonstrates that the DOT repeatedly failed to follow proper procedure. It neither filed the compulsory counterclaim nor corrected its omission by asking for leave to amend under OCGA § 9-11-13 (f). The DOT did not even appeal the court’s adverse summary judgment entered in the first suit in February 1995. It was not error to refuse to extricate the DOT from the predicament of its own making. Jenkins v. Martin, supra; Summer-Minter & Assocs. v. Giordano, supra.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A96A0304.
    JOHNSON v. COLLINS et al.
    (470 SE2d 780)
    Decided April 19, 1996.
    Otis Johnson, Jr., pro se.

      Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Barbara E. Nelan, Assistant Attorney General, for appellees.
   Blackburn, Judge.

Otis Johnson, Jr., pro se, appeals the trial court’s order dismissing his complaint. In the underlying action, Johnson and his wife alleged that Marcus Collins, Sr., the State Revenue Commissioner; Donald Steele, the Director of the Income Tax Division of the Georgia Department of Revenue; Michael Bowers, the Attorney General of the State of Georgia; and Barbara Nelan and Warren Calvert, both Assistant Attorneys General, violated Georgia’s Open Records Act by failing to make requested records available to him. The trial court determined that the complaint failed to state a claim upon which relief could be granted, that the action was barred under the doctrine of sovereign immunity and official immunity, and that plaintiffs’ prior pending action on the same subject matter abated the present complaint.

Based on the record on appeal, we must affirm the trial court’s order dismissing Johnson’s complaint due to the pendency of a former action. See OCGA § 9-2-5 (a). Although the record before us does not contain a copy of the prior pending action, such action is referred to in Johnson’s deposition as a companion case. Apparently the companion case involves the Johnsons’ tax refund claims. However, we are unable to ascertain from the record the extent of the claims made in the Johnsons’ previously filed action.

“The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where evidence is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) White v. Arthur Enterprises, 219 Ga. App. 124 (2) (464 SE2d 225) (1995). Based on the record before us, we cannot say that the trial court erred in finding that the Johnsons’ prior pending action abated the present action.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


text:
    A96A0472.
    MITCHELL v. THE STATE.
    (470 SE2d 771)
   Blackburn, Judge.

Herman Gene Mitchell a/k/a Cleveland Williams was indicted and tried for the offenses of selling cocaine, possession of cocaine with the intent to distribute, possession of marijuana, possession of a firearm while in the possession of cocaine, and possession of a firearm by a convicted felon. Mitchell was found guilty by a jury of selling cocaine and possession of a firearm by a convicted felon. This appeal followed the denial of Mitchell’s motion for new trial.

1. In his first enumeration of error, Mitchell contends the trial court erred in its charge to the jury regarding the proper use of similar transaction evidence.

Although it is undisputed that the trial court gave the exact instruction requested by Mitchell, he contends the trial court erred in including identity as a proper purpose for consideration because it was not identified at the hearing on the motion to suppress as a proper purpose by the State. We find that by requesting the charge as given, Mitchell waived, any error brought about by the trial court’s use of it. Furthermore, under appropriate circumstances, the issue of identity is a proper purpose for the use of similar transaction evidence. Therefore, by requesting that the trial court include “identity” in the limiting instruction, we find that Mitchell waived any objection to the trial court’s inclusion of identity in the charge. “One cannot complain of an error which his own conduct aided in causing.” (Citations and punctuation omitted.) Patterson v. State, 202 Ga. App. 440, 441 (414 SE2d 895) (1992).

Mitchell contends that because the trial court assured him at the motion to suppress hearing that the proper limiting instruction would be given, he did not waive any error in the trial court’s instruction. However, our review of the motion to suppress transcript does not reveal such an assurance. At the hearing, the trial court determined that the same plan, scheme, or design was used in the similar transactions as in the present case. Upon the defendant’s notice that he would request limiting instructions, the trial court stated that it would “entertain” such a request. The trial court did not indicate what the jury charge would include. Therefore, Mitchell’s argument is without merit.

2. In his second enumeration of error, Mitchell contends the trial court erred in instructing the jury that it could consider his previous convictions and contradictory statements for impeachment purposes because he did not place his character in issue. This issue is controlled adversely to Mitchell by Sultenfuss v. State, 185 Ga. App. 47, 49 (5) (363 SE2d 337) (1987), wherein we determined that this charge was not reversible error because there was no such evidence introduced which the jury could use to impeach the defendant. In Sultenfuss, this was true, despite the introduction of the defendant’s prior drug conviction, because the prior drug conviction was introduced as similar transaction evidence and was accompanied by a charge that limited the jury’s consideration of it solely to the enumerated evidentiary purposes, not including impeachment. Id. at 50. As Mitchell’s enumeration is controlled by Sultenfuss, we find it to be without merit.

3. Mitchell contends the trial court erred by refusing to give his requested jury instruction on the lesser charge of possession of cocaine. “The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). The Supreme Court in Edwards determined, however, that the failure to give a requested lesser included offense charge was not reversible error where, as therein, “it [was] highly probable that the failure to give this charge did not contribute to the verdict.” Id.

In the present case, Mitchell argues that because evidence was introduced that he was the manager of the boarding house where the cocaine was found, collected rent for the owner, and checked on the tenants every day, he had constructive possession of the cocaine thereby meriting the charge on the lesser offense of possession. We cannot agree that this evidence established Mitchell’s control over the property to the extent required for constructive possession. See Mitchell v. State, 150 Ga. App. 44, 47 (256 SE2d 652) (1979) (premises must be “occupied by and under the control of the accused with no equal right of access and occupancy in others”). Furthermore, we find that it was highly probable that the trial court’s failure to charge on simple possession did not contribute to the verdict in light of the jury’s not guilty verdict on the charge of possession of cocaine with the intent to distribute.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, C. J., concurs in the judgment only.

Decided April 19, 1996.

E. Stephanie Stuckey, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

       Under another indictment (no. Z56822), Mitchell was charged with criminal use of an article with an altered identification number, to which Mitchell pled guilty. Although none of Mitchell’s enumerations of error address his guilty plea, by his notice of appeal, Mitchell also attempted to appeal his conviction under this indictment. Mitchell’s appeal relating to indictment no. Z56822 was dismissed by this Court as untimely and will not be addressed herein.


text:
    A96A1109.
    SMITH v. THE STATE.
    (471 SE2d 591)
    Decided April 19, 1996

      Howard J. Weintraub, for appellant.

      Louise T. Hornsby, Solicitor, Marcelle A. Castillo, Assistant Solicitor, for appellee.
   Blackburn, Judge.

On July 19, 1995, Graham Smith was arrested for driving under the influence of alcohol, and an Administrative License Suspension proceeding was initiated. Because the arresting officer failed to appear at the Administrative License Suspension hearing, the proposed suspension was rescinded. On August 29, 1995, Smith filed his plea in bar based upon double jeopardy to stop the criminal prosecution of the DUI charge. The trial court denied Smith’s plea.

On appeal, Smith contends that the trial court erred when it held that the State’s criminal prosecution, following an Administrative License Suspension action, does not constitute double jeopardy. Smith’s position was decided adversely to him in Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995), and we decline to reconsider our holding therein. See also Jackson v. State, 218 Ga. App. 677 (462 SE2d 802) (1995).

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J., concur.


text:
    A96A0306.
    UNDERWOOD v. DUNN.
    (470 SE2d 781)
   Judge Harold R. Banke.

Mary C. Dunn, a former employee at Underwood’s Personal Care Home, a Prewett Industries, Inc. (“Prewett”) facility, suffered a work-related injury and was awarded workers’ compensation. Because the award was uncollectible due to Prewett’s insolvency, Dunn initiated this action against the corporate officers, Irene Underwood and Michael Prewett, alleging that, because they breached their statutorily imposed duty to procure workers’ compensation insurance, they were individually liable. The trial court reserved ruling on the issue of damages until after a bench trial on liability which resulted in a plaintiff’s verdict. Underwood appeals this verdict and the trial court’s grant of summary judgment as to the amount of damages, which were identical to those awarded in Dunn’s workers’ compensation case.

The record shows that Dunn was awarded $72.98 weekly and medical expenses for her workers’ compensation claim. Prewett was also directed to pay a 15 percent penalty on all accrued income benefits, an additional 10 percent of all income benefits owing for wilful failure to procure workers’ compensation coverage, and $5,000 in attorney fees. Both the State Board of Workers’ Compensation and the superior court affirmed. It is undisputed that Prewett was insolvent and lacked workers’ compensation insurance. Held:

1. The trial court did not err in finding Underwood personally liable for the failure to obtain coverage. OCGA § 34-9-120 requires employers insure the payment of workers’ compensation to their employees. When an insolvent employer’s failure to carry workers’ compensation insurance renders an injured employee’s compensation award uncollectible, the employee may seek recovery from the employer’s agent who failed to procure such insurance coverage. Crawford v. Holt, 172 Ga. App. 326, 327 (1) (323 SE2d 245) (1984).

Dunn established the elements of this cause of action with proof of (1) her valid workers’ compensation claim; (2) her valid award granted by the Board; and (3) Prewett’s insolvency. Myers v. Wilson, 167 Ga. App. 340, 342 (1) (306 SE2d 401) (1983). She also provided evidence that Underwood was a stockholder and chief financial officer of Prewett and was the agent responsible for the day-to-day management and operations of the Underwood Personal Care Home where the injury occurred, which included the purchase of workers’ compensation coverage. This evidence precludes a finding that the trial court’s decision to find Underwood personally liable as Prewett’s agent responsible for procuring the insurance was clearly erroneous. Garmon v. First Nat. Bank of Atlanta, 172 Ga. App. 528, 529 (323 SE2d 712) (1984).

2. No genuine issues of material fact remain to be tried on the damages issue. The measure of damages in this type of case is an amount equal to the workers’ compensation award. Samuel v. Baitcher, 247 Ga. 71, 74 (274 SE2d 327) (1981). Underwood is not entitled to relitigate the propriety of the amount awarded in the underlying workers’ compensation action. Boyette v. Elmer, 184 Ga. App. 108, 109 (1) (361 SE2d 3) (1987).

Decided April 23, 1996

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellant.

Nelson & Lord, Ellis M. Nelson, Lawton Miller, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       Michael Prewett’s defensive pleadings were stricken because he failed to respond to discovery requests. He did not appeal.


author: Birdsong, Presiding Judge.

text:
    A96A0389.
    STEGALL et al. v. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORPORATION.
    (470 SE2d 782)
   Birdsong, Presiding Judge.

Appellants Michelle and Bob Stegall appeal from the order of the superior court granting summary judgment to appellee Central Georgia Electric Membership Corporation (EMC). This is a suit for money damages for the full value of the life of appellants’ six-month-old child who in August 1994 was electrocuted in the improperly grounded mobile home which appellants rented; electricity to the home was being provided by EMC.

In September 1993, appellants Michelle and Robert Stegall rented and moved into a mobile home owned by and located in the trailer park of defendant David Buice. Within a couple of weeks thereafter, appellants noticed they were receiving an electric shock of a “tingling” nature whenever, for example, they simultaneously touched two pieces of metal in or on the mobile home. Appellant Michelle Stegall reported this situation repeatedly to defendant Buice to no avail. On June 1, 1994, she telephonically reported the matter to an EMC office. The EMC employee who received the call sent a trained EMC service technician, Donald Yost, to the premises. Yost was informed of the circumstances under which appellees were receiving shocks both inside and when entering the mobile home. Yost tested several areas of the mobile home and determined that the voltage reading being obtained ranged from 95 volts to 105 volts. Yost considered this a hazardous condition which had the potential to injure seriously or kill someone. Yost conducted further tests and concluded that the problem originated either from the main inside the mobile home or one of the circuits that feeds the mobile home. He continued his inspection until he found that shutting off one particular circuit breaker caused the voltage reading to register zero. Monroe County does not have any governmental inspectors to whom Yost could report the problem. While Yost did not report the problem directly to his supervisor, he followed normal procedure and filed his report with the EMC dispatcher for entry into the trouble log. Although he had the authority immediately to shut off the power to the mobile home, or to cause a notice letter to be written by EMC’s engineering department stating electricity would be cut off if the deficiency was not corrected within a certain time period, he did not do so. Rather, Yost personally informed Michelle Stegall of how dangerous the situation was, told her that his friend had been killed by that same level of voltage, and advised her not to turn the circuit breaker back on until someone had checked and repaired it. Yost is not an electrician and is not licensed to make such repairs. Appellant Michelle Stegall discussed the situation with Yost and caused him to believe she was going to call David Buice and tell him that someone needed to look at the circuit which had been cut off. She also caused him to believe she had called EMC as a last resort, although she did not tell him she had repeatedly called David Buice previously to no avail. Although he could have done so, Yost made no re-inspection of the premises to determine if the problem had been corrected, and neither did he request that someone else in EMC make a follow-up call; such procedures are not required and he has never done this in the past.

EMC policy no. 305 pertinently provides: “Each member is responsible for all premises receiving electrical service to become and remain wired in accordance with the specifications and requirements of the Central Georgia EMC, the National Electrical Code, the National Electrical Safety Code, and any requirements of local government agencies having jurisdiction over the installation of electrical wiring. ... In the event of a known hazardous condition or potentially hazardous condition because of a violation of requirements, electrical service will not be connected until the condition is corrected. In the event service is being received, the member will be notified by certified mail or personal delivery, with copy to County or City Inspections Departments, if applicable, that if deficiencies are not corrected within a stated time, service may be discontinued. Employees noting unsafe conditions should notify their immediate supervisor who will take appropriate action to follow up on circumstances. Responsibility: All Employees.” Yost identified and professed familiarity with EMC policy no. 305; however, it was his understanding that the policy did not apply to problems outside EMC’s area of responsibility, that is, it applies to conditions existing in EMC lines and equipment located outside the customer’s home.

Although he did not fix the circuit deficiency, Yost also testified that after he had turned off the circuit breaker he informed Michelle Stegall of the nature of the danger, informed her that if the circuit breaker was turned on before being fixed that lives would again be in danger, and advised her of the corrective action that needed to be taken. She appeared to understand the seriousness of the situation. Michelle Stegall stated in an affidavit that she did not understand the shock she was receiving could kill anyone; and, while Yost did tell her a friend of his had been killed by “120,” she did not understand the person had been killed under conditions similar to those in her trailer or that “120 had anything to do with our trailer.” As long as the breaker was switched off, there no longer existed a life-threatening condition in the mobile home. In fact, Michelle Stegall confirmed that she received no electrical shocks while the breaker was off.

Michelle Stegall called Buice who initially sent a man named “Peanut” Price to the trailer. Michelle testified by way of deposition that the breaker had remained off since the visit of Yost until after Price arrived on the premises. Buice and Price replaced all the receptacles on the identified circuit. Buice states that the defective circuit breaker was on when he initially arrived at the trailer. Michelle Ste-gall testified inter alia that the breaker was not on when Buice first arrived but she later turned it on after Price told her to do so and instructed her she could keep it on; thus, the breaker was on when Buice returned to the trailer the next day. Buice testified by way of deposition that the electrical system seemed to be working properly after the receptacles were changed and at no time, either before or after the repairs, had he received a shock from the trailer. Michelle Stegall testified that within a day or two following the repairs she again received electrical shocks from touching objects in the premises; she called and reported the situation to Buice. She also testified that, although Yost had told her to keep the circuit off, Buice then told her she could turn it on because she needed air conditioning but to “stay away from the thing,” and that he would have it fixed. Thereafter, she kept the circuit breaker on for two months, until the child was electrocuted. Buice admits he may have told her that she could turn on the circuit after the receptacles were changed; in any event, when he left the premises he knew the circuit was on. Buice, however, asserts he never heard anything more about the situation from appellants until after their daughter was killed.

Following the repairs made by Buice and Price, no one ever called Yost or EMC to report that the detected problem still existed, until after the child was killed on August 9, 1994. Yost went back to the premises to assist the sheriff in his investigation; the circuit breaker was turned on and the same voltage problem originating from the same circuit occurred. The breaker was turned off, and once again the dangerous condition was abated. Appellants were still residing in the trailer at the time their depositions were taken, and appellant Michelle Stegall believed that the previously existing dangerous condition was no longer dangerous as Candy, an independent master electrician, had looked at the circuit breaker and had in some fashion “turned it off.”

Subsequent to the child’s death and at the request of the sheriff’s department, Candy examined the premises and opined that the child’s death occurred because the mobile home was not properly grounded; there was no ground wire attached to the ground bus inside the mobile home and there was no ground rod driven into the soil outside the home. This improper grounding violated the National Electric Safety Code. An EMC supervisor testified that under EMC policy if a serviceman goes to a premise and knows there is not a driven ground rod grounding the meter base, either he should not hook up the electric service or he should discontinue any existing service; however, it may not be known whether there exists a driven ground rod because specifications require the rod to be 18 inches underground. Candy drove a ground rod outside the trailer and connected the ground bus inside the service panel to the proper ground.

Appellants enumerate five errors. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Pretermitting whether EMC owed a duty of care to appellants and their deceased child and if so, whether they breached such duty (compare Hatcher v. Ga. Power Co., 40 Ga. App. 830 (151 SE 696)), is the question whether any existing breach of duty by EMC was a proximate cause of the child’s death (compare Ga. Power Co. v. Kinard, 47 Ga. App. 483, 486 (170 SE 688)).

“Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.” Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810). The proximate cause requirement constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, such as an intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16). We find based on plain, palpable, and undisputed evidence of the conjunctive intervening acts of parties other than EMC that, as a matter of legal policy, the acts or omissions of EMC were not the proximate cause of the child’s death; EMC’s conduct and the appellants’ injury are too remote for the law to countenance recovery. While, “[t]he mere negligence of a third person in failing to guard against the defect or specific act or omission of the defendant which caused the injury will not constitute an intervening efficient act which will relieve the defendant from liability . . . where the evidence^ as in this case,] plainly and manifestly shows that the injury was caused by the intervening efficient act of the third person or the conjunctive acts or omissions of such person and the plaintiff, the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.” Kinard, supra at 486 (3); cf. Stroud v. Willingham, 126 Ga. App. 156 (190 SE2d 143). We find from the undisputed evidence of record that when Yost departed the premises, the defective circuit breaker had been turned off and Michelle Stegall had been adequately warned of the dangerous nature of the previously existing condition and of those steps necessary to be taken before the circuit was turned on. The acts and statements of third parties which resulted in the breaker being turned on over two months later by a person or persons other than an agent of EMC, constituted an intervening act that, as a matter of law, was not foreseeable to EMC particularly in view of the detailed warning given Michelle Stegall by Yost. Even if a negligent breach of duty had occurred by defendant’s agent in June 1994, we further find as a matter of law that it would have been too remote, under the existing circumstances of this case, for the law to countenance a recovery by either of the appellants/plaintiffs. Shaffer v. Ga. Power Co., 128 Ga. App. 84 (195 SE2d 758); Wooten v. Central Ga. Elec. &c. Corp., 214 Ga. App. 290 (447 SE2d 672). Although this is a case of most tragic consequences, “the appellate process affords us no latitude to make adjustments for the ill-éarned good fortune of the lucky or the heart-rending misfortune of the unlucky [cit.].” Floyd S. Pike Elec. &c. v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67). It is the duty of this Court to see that justice is fairly dispensed to all parties concerned, and this creates an equally important judicial obligation not to render judgments born only of generosity or compassion.

Decided April 24, 1996

Evans & Evans, Larry K. Evans, Crumbley & Chafin, R. Alex Crumbley, for appellants.

Haygood, Lynch, Harris & Melton, C. Robert Melton, Kushinka, Calhoun & Godwin, George Kushinka, for appellee.

In view of the above holding, we decline to address each of appellants’ enumerations of error seriatim; a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746).

Judgment affirmed.

Beasley, C. J, and Blackburn, J, concur.


text:
    A96A0710.
    CABELL v. THE STATE.
    (471 SE2d 222)
    Decided March 25, 1996
    Reconsideration denied April 29, 1996.

      Shandor S. Badaruddin, James H. Potts II, for appellant.

      Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.
   Judge Harold R. Banke.

Stephen Douglas Cabell pleaded guilty to possession of cocaine with intent to distribute and the court pronounced judgment and imposed sentence. In June 1995, four terms later, Cabell moved to withdraw his plea. The superior court denied the motion, and this appeal ensued. Held-.

A superior court’s jurisdiction to consider a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction is rendered. Stuckey v. State, 204 Ga. App. 793, 794 (1) (420 SE2d 655) (1992). The judgment in the instant case was pronounced during the September 1994 term of court and the motion to withdraw was filed during the May 1995 term. OCGA § 15-6-3 (20). Because the court lacked jurisdiction to consider the substantive issues Cabell raised in his motion, the order appealed from is a nullity. OCGA § 17-9-4; see State v. Mohamed, 203 Ga. App. 21 (2) (416 SE2d 358) (1992); compare Stargell v. State, 204 Ga. App. 45 (418 SE2d 372) (1992) (affirming denial of motion to withdraw guilty plea for lack of jurisdiction). The motion cannot be construed as a motion in arrest of judgment because it was not filed during the term the judgment was obtained. OCGA § 17-9-61 (b). Nor can it be considered a habeas petition because Cabell filed it in the county of his conviction rather than against his warden in the county where he is incarcerated. Stargell, 204 Ga. App. at 45; see Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995). Because the order denying Cabell’s motion is void, the trial court is directed to strike it from the record and dismiss this action for lack of jurisdiction. See State v. James, 211 Ga. App. 149, 150 (438 SE2d 399) (1993).

Judgment vacated and case remanded with direction.

Beasley, C. J., and Birdsong, P. J., concur.


author: Johnson, Judge.

text:
    A96A0004.
    HINES v. THE STATE.
    (470 SE2d 787)
   Johnson, Judge.

Jeffrey Hines appeals from his conviction on various child molestation charges involving two eight-year-old girls, to whom we will refer in this opinion as “T. H.” and “K. I.” At trial a videotape of statements given by the girls was admitted into evidence. T. H. also testified at trial, completely recanting her videotaped statement. T. H. explained the inconsistency between her trial testimony and her statement to investigators by claiming that K. I. had threatened to tell people that she had been chasing boys. K. I. did not testify at trial. Hines contends the trial court erred in refusing to admit evidence that K. I. had previously made false allegations of molestation against other men.

“In Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) [(1989)], the Supreme Court of Georgia held that, subject to a threshold determination, evidence of prior false allegations by a [molestation] victim does not fall within the proscription of rape-shield laws and that such evidence may be admitted. However, before admitting evidence of prior false accusations the trial court, outside the presence of the jury, must determine that a reasonable probability of falsity exists. The threshold determination is included in the procedure mandated by the Supreme Court for the express purpose of protecting the prosecutrix from unfounded allegations that she has made false allegations in the past. ... A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312) (1992).

The State filed a motion in limine to prevent the defendant from introducing any evidence of prior child molestation or any other matter which would violate the provisions of OCGA § 24-2-3 (c), the rape shield statute. In response, Hines informed the trial court that he had evidence that one of the alleged victims, K. I., had previously made false accusations of child molestation, that such evidence would be admissible under Smith v. State, and that admitting this evidence would not violate the rape shield statute. In connection with this motion, the court allowed a proffer of evidence from the child’s aunt prior to trial. The aunt testified that she had taken the girl to live with her because she was concerned about the conditions in which the girl was living. She stated that the child lived in a trailer with her father, who drank too much, and several other men. There the child had access to pornographic magazines, which she had brought to her aunt’s home on previous visits. The aunt told the court that K. I. had reported to a babysitter, who then reported to her, that K. I.’s 17-year-old cousin, the aunt’s son, had “touched” and “messed with” her. The aunt testified that she questioned the child about the details which had been reported to the babysitter. The aunt determined that the alleged molestation could not have occurred at the time and in the place the child had reported. Specifically, the aunt testified that she had confronted K. I. with inconsistencies in the details of the story she had told the babysitter. For example, the babysitter was told by K. I. that her cousin had “messed with” her on a day it turned out the cousin was at work and not even with K. I.; that when confronted with that fact, K. I. changed her story and said the incident had occurred in the woods beside the aunt’s house when K. I. was six years old. When it was pointed out that there were no woods near the house, K. I. changed her story again, this time saying that the incident had occurred in a playhouse. When it was pointed out that there was no playhouse near the cousin’s house, K. I. allegedly changed her story yet again. This time she said it happened in her “pawpaw’s” trailer, but the aunt pointed out that not only did the grandfather not have the trailer at the time the incident allegedly occurred, but that the cousin lived with his father at the time in a different community, not with the aunt or grandfather. As the aunt continued trying to confirm the details, K. I. told her “[I]f it didn’t happen, it’s going to.” The defense also produced the alleged perpetrator, who unequivocally denied any improper conduct with the girl. The trial court’s ruling disallowing the testimony is somewhat confusing because it appears from what he said that the judge found that the child-victim’s allegation of abuse by the cousin was unreliable. The court nevertheless refused to admit evidence of this unreliable allegation apparently because he thought the rape shield statute required him to keep this testimony from the jury. Thus, we can only conclude that the court failed to make the required determination as to whether there is a reasonable probability that the child’s accusation against her cousin was false. From the testimony presented, we find a reasonable probability of falsity of that accusation sufficient to undermine confidence in the outcome of this trial. See Smith, supra. Accordingly, we find that the testimony should have been admitted for the jury’s consideration of K. I.’s credibility. It was error to exclude this evidence.

A second man K. I. had also accused of molesting her was allowed to testify, but that testimony was ultimately stricken and the jury instructed not to consider it. The witness was still under indictment in another county on charges of molesting K. I. The case was several years old at the time of this trial. It was unclear whether the case was going to be pursued; K. I.’s father indicated that he had been advised by a counselor to let the matter drop. The witness testified on direct examination about the charges and stated that he had never committed any of the acts alleged. After completing direct examination, the State and the court inquired whether he had discussed testifying in this case with counsel and informed him his testimony could be used against him in any subsequent proceedings. After this warning, the witness refused to submit to cross-examination, and the court instructed the jury to disregard the testimony elicited on direct examination. “The true rule is that when a witness declines to answer on cross examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken.” (Citations, punctuation and emphasis omitted.) Brown v. State, 139 Ga. App. 466 (1) (228 SE2d 602) (1976). We find no error in the trial court’s treatment of this witness and his testimony, and comment upon it only for purposes of retrial.

Finally, K. I.’s father testified that his daughter had also accused his brother, her uncle, of molesting her. The father did not report these allegations to anyone. Although a jury may have interpreted the father’s decision not to pursue the incident as evidence that he did not find the report credible, he testified that he believed his daughter. The defense had not been informed of this incident prior to trial, and presumably had not interviewed this uncle or secured his attendance at trial. See Eason v. State, 215 Ga. App. 614, 615 (1) (451 SE2d 820) (1994). Because no evidence had been presented at the time of this proffer to support a theory that the allegations against the uncle were false, the trial court did not err in keeping this incident from the jury.

Ironically, in a previous case involving Hines, the Supreme Court found that the trial court abused its discretion by refusing to allow the defense to cross-examine a State’s witness about the existence of a negotiated sentence with the State. Because that witness was the only person who could identify Hines as the perpetrator of the crime, his credibility was key to the defense. Again in this case, the grant of a motion in limine prevented Hines from presenting his only real defense, challenging the victim’s credibility as a result of at least one probable false accusation of molestation. While we find no error in the exclusion of evidence regarding the second and third men at this trial, the trial court’s refusal to allow K. I.’s aunt and cousin to testify about prior false allegations made by K. I. interfered with a fair determination of Hines’ guilt or innocence, and deprived him of a fair trial. We conclude that the trial court abused its discretion in apparently determining that there was insufficient probability that the evidence of this prior false accusation could affect the outcome of the case and in excluding that evidence from the jury. Because the testimony was not admitted, Hines is entitled to a new trial.

Decided April 29, 1996.

Edward F. Hurley, for appellant.

Ralph Van Pelt, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

Judgment reversed.

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

       Quoting verbatim from the transcript, we note that in ruling, the trial court said, “The court finds, under the testimony at this point, there is insufficient evidence before this court to show that the statements of the child are indicia of reliability, that there is not sufficient evidence to show that the child is reliable in the statements made, and therefore, the Court will uphold the Rape Shield Statute and not permit the testimony.”