text:
    A99A0259.
    GOODROE v. THE STATE.
    (518 SE2d 139)
   Smith, Judge.

Willie Gene Goodroe was found guilty by a jury of three counts of rape and one count of aggravated assault. His motion for new trial, as amended, was denied, and he appeals. We find no error, and we affirm.

1. Goodroe raises the general grounds. Construed to support the verdict, the evidence presented at trial showed that the victim was a middle-aged neighbor of the mother of Goodroe’s girlfriend. She knew Goodroe because she had a car and had driven Goodroe’s girlfriend, and sometimes Goodroe, on various errands. On the day in question, Goodroe knocked at the victim’s door in the early morning hours and told her that his girlfriend was on her way over so that the victim could drive her home. He came in, sat down, and chatted until the victim realized that the girlfriend was not coming, whereupon she asked Goodroe to leave. Goodroe turned to leave, but as he approached the door he turned and grabbed the victim’s arms. He shoved her into the bedroom and pushed her onto the bed, scraping her leg and breaking her glasses. He then terrorized and raped her repeatedly throughout the early morning hours, choking her and threatening to kill her.

The victim is five feet three inches tall and weighed only ninety-eight pounds at the time of the incident. Although there was an emergency pull cord over her bed, she testified that she was afraid to reach up and pull it. She had a lung condition that prevented her from screaming, and she concentrated on being “nice” in an effort to stay alive. She testified that she “figured the only way I was going to come out of this alive was to talk my way out of it or bluff him.” She talked him into eating some breakfast, which she cooked. He was drinking coffee when he asked the victim to drive him to his sister’s home. She agreed, and Goodroe took the coffee with him. The victim dropped Goodroe off at his sister’s home and drove to a friend’s home, hysterical. The victim told her friend that a black man had been in her apartment all night, and the friend called the police. Officer David Robinson of the Butler Police Department responded.

Robinson testified that earlier that morning he responded to a complaint from another tenant living at the same apartment complex as the victim. The other tenant told him that she would not let Goodroe into her apartment and he was bothering her and threatening to kill her. When Robinson responded to the victim’s call, she told him only that a black man had been trying to get into her apartment. Robinson took the information and left. After Robinson left, the victim began talking more to her friend, and when she told her friend that she had been raped, the friend called Robinson and asked him to return. He did so, returning with Police Chief Stewart O’Hearn. The victim told the police officers that Goodroe had raped her and that she had driven him to his sister’s house.

The victim was taken to the hospital by ambulance. A doctor testified that the victim’s panties were bloodstained but he did not observe any trauma to the vaginal area. He noted that the victim was “upset.” A nurse testified to an abrasion on the victim’s face.

The officers drove to the home of Goodroe’s sister, found Goodroe, and took him into custody. The victim’s coffee cup was found at Goodroe’s sister’s home. In his first interview, Goodroe denied seeing the victim, being in her apartment that night, or riding in her car. After locating the victim’s coffee cup, a second interview was conducted with Goodroe. In that interview, he admitted that he stopped at the victim’s apartment and chatted with her; he claimed that he then flirted with her and offered her $20 for sex, which she accepted. After having sex with her, he concluded “the sex was not worth twenty dollars” and refused to pay. He stated that the victim agreed with him that “she got just as much out of it as he did,” and she drove him to his sister’s house.

The trial court allowed the introduction of evidence of a similar transaction that occurred in 1983. The victim in that incident, a woman who weighed approximately one hundred pounds, testified that she met Goodroe at a club one evening, he asked her to dance, and she declined. The next day, she was in a friend’s yard when Goodroe came up and lured her into nearby woods, saying her boyfriend was there. Goodroe had a shotgun, and he came up behind her, placed the shotgun at her back, and hit her with his fists when she resisted. He pulled her to an abandoned house, locked the doors, and raped her repeatedly, knocking her out each time she came to consciousness and threatening her life.

Goodroe argues, without citation to authority, that from the evidence presented, “no rational trier of fact could have found him guilty beyond a reasonable doubt.” Contrary to his unsupported argument, however, this court cannot weigh the evidence or determine the credibility of witnesses. We determine only the sufficiency of the evidence, and the evidence presented in this case, including the testimony of the victim, the physical evidence, and Goodroe’s changing statements, was more than sufficient to authorize a jury to find Goodroe guilty of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Goodroe maintains the trial court erred in admitting the similar transaction evidence. He asserts that it was too remote in time, that it was not admitted for a permissible purpose, that it was not sufficiently similar to the charged crime, and that no “proof” existed that the similar transaction actually took place. We do not agree with any of Goodroe’s assertions.

(a) In this case, the similar transaction took place approximately ten years and five months prior to the charged crime. But similar transactions more remote in time have been allowed. See, e.g., Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998) (17 years); Howard v. State, 228 Ga. App. 775, 776 (492 SE2d 683) (1997) (12 years); Moore v. State, 207 Ga. App. 412, 415-416 (1) (b) (427 SE2d 779) (1993) (22 years). In each of these cases, the defendant was incarcerated during some of the elapsed time between the similar transactions and the charged crime. We held that the evidence was admissible, and the time lapse affected only its weight and credibility. Id. Here, too, Goodroe spent time in prison between the two rape incidents.

(b) The State offered the similar transaction evidence to show Goodroe’s lustful disposition and bent of mind, among other purposes. It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for these purposes. See, e.g., Culver v. State, 230 Ga. App. 224, 229 (3) (496 SE2d 292) (1998) (lustful disposition); Brooks v. State, 230 Ga. App. 846, 847 (498 SE2d 139) (1998) (bent of mind).

Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Evidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant’s bent of mind. Such evidence would tend to rebut appellant’s claim of consent by establishing that appellant has a propensity to initiate or continue an encounter without a woman’s consent. . . . Such evidence also corroborates the victim’s testimony that appellant acted in the manner charged.

(Citations and punctuation omitted.) McBee v. State, 228 Ga. App. 16, 19 (1) (491 SE2d 97) (1997).

(c) Contrary to Goodroe’s argument, the offenses were similar in many respects. Both victims knew Goodroe; in both instances, Good-roe gained initial access to the victim using false information about the whereabouts of a third person; both victims were very small women; and each victim was raped repeatedly over the course of several hours. To be admissible, a similar transaction need not be identical. The crucial factor is its relevance to the issues at trial. Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996). The similarities in this case were relevant to the issue of consent, and they demonstrated similar use of both deception and violence in connection with the rapes.

Decided May 12, 1999.

David J. Grindle, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

(d) Ample “proof” of the similar transaction was presented. No corroboration of the victim’s testimony is required. See, e.g., Melvin v. State, 203 Ga. App. 108, 109 (3) (416 SE2d 149) (1992). And a similar transaction is admissible notwithstanding the lack of an indictment; under certain circumstances, similar transactions may be admissible even when a prior charge resulted in an acquittal. Johnson v. State, 193 Ga. App. 618, 620 (388 SE2d 866) (1989). The trial court did not err in admitting the similar transaction evidence.

3. Goodroe concedes that his contention that the trial court should have given a cautionary instruction at the time the similar transaction evidence was introduced has been decided adversely to him, given that he failed to request such an instruction. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       A previous conviction for these offenses was reversed on appeal because Goodroe was not present in court during a portion of the jury selection. Goodroe v. State, 224 Ga. App. 378 (480 SE2d 378) (1997).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A0349.
    WALLACE v. THE STATE.
    (517 SE2d 801)
   Smith, Judge.

Tony Wallace was convicted on two counts of sale of cocaine. His motion for new trial, as amended, was denied, and he appeals. We find no reversible error, and we affirm.

Evidence was presented at trial that with the assistance of a confidential informant, on April 11, 1994, GBI agent Benjamin Collins twice bought from Wallace quantities of a substance he suspected to be cocaine. The State introduced, and the trial court admitted, two certificates of drug analysis issued pursuant to OCGA § 35-3-16 (b), showing that the substances tested positive for cocaine. Wallace did not object to the admission of this evidence. After Wallace was convicted, the Supreme Court in Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996), ruled that OCGA § 35-3-16 was unconstitutional because it contravened “the defendant’s constitutional guaranty that he be confronted with the witnesses against him and be permitted to cross-examine them.” Id. at 856 (7).

1. Wallace argues that under Miller, the trial court erred in admitting the certificates and that without the certificates, the State did not present sufficient evidence to allow a rational trier of fact to convict him under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We do not agree that reversal is required. Wallace did not object at or before trial to the admission of the certificates, although the State filed a pre-trial notice of intent to submit the certificates as evidence, as required by OCGA § 35-3-16, still in effect at the time. See Miller, supra at 852 (1) (discussing requirement that State serve notice of intent). He therefore has waived further objection. See, e.g., Nealy v. State, 230 Ga. App. 747, 748 (2) (498 SE2d 119) (1998); Jones v. State, 225 Ga. App. 673, 677-678 (6) (484 SE2d 702) (1997). Moreover, although Wallace did object to the certificates on constitutional grounds during the hearing on his motion for new trial, this objection was not timely. See Hilson v. State, 204 Ga. App. 200, 203 (2) (418 SE2d 784) (1992). Wallace consequently waived appellate review of any constitutional issue. Id.

We note Wallace’s argument that admission of the drug certificates was plain error, excusing his failure to object to the admission of the certificates. But admission of the certificates, which occurred before the Supreme Court decided Miller, supra, was not “plain error,” as OCGA § 35-3-16 clearly permitted their admission. The trial court properly admitted the certificates of drug analysis, and this evidence, along with Agent Collins’s testimony showing Wallace’s involvement in the drug sales, was sufficient to authorize the jury to convict Wallace under the standard of Jackson v. Virginia, supra.

2. Wallace also contends that his trial attorney's failure to object to the drug certificates constituted ineffective assistance of counsel. We do not agree. To succeed on an ineffectiveness claim, a defendant must show that his trial counsel’s performance was ineffective and that, but for this deficiency, a reasonable probability exists that the trial’s result would have been different. See, e.g., Scott v. State, 234 Ga. App. 378, 379 (2) (506 SE2d 880) (1998). Wallace has failed to show that his trial counsel’s performance was deficient. First, it appears that trial counsel’s failure to object to the certificates may have been merely an issue of trial strategy: his decision to present Wallace’s defense of misidentification rather than defend the case by attacking the certificates. And trial tactics or strategy does not constitute ineffectiveness. Id. More importantly, as discussed above, admission of certificates of drug analysis was clearly provided for by OCGA § 35-3-16. See also Miller, supra.

3. Relying in large part on Muff v. State, 210 Ga. App. 309 (436 SE2d 47) (1993), Wallace contends that he was denied effective assistance because his trial counsel failed to notify him of the State’s intention to introduce evidence in aggravation of his sentence. He claims that had he known this fact, he would have considered entering a guilty plea.

After the jury found Wallace guilty, the State informed the trial court that Wallace had four previous felony convictions. Trial counsel stated that he had received the State’s notice of intent to introduce the convictions. The trial court concluded that it must sentence Wallace to the maximum penalty because he was a recidivist and sentenced Wallace on each count to 30 years. During his motion for new trial, Wallace testified that his trial counsel never informed him of the State’s intention to introduce these convictions. He also stated that if he had been aware of this fact, he might have taken “a plea for a lesser charge, a lesser sentence.”

Although Wallace’s testimony is unrebutted that his counsel failed to advise him of the State’s intent to introduce the convictions, we do not agree with Wallace that reversal is required under Muff, supra. In Muff, this court considered the issue of whether trial counsel’s failure to advise appellant concerning the consequences of rejecting a plea constituted ineffective assistance of counsel. This court, however, did not reach the issue of whether appellant was denied effective assistance. Relying on Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988), we remanded the case for an evidentiary hearing on appellant’s ineffectiveness claim, because no such hearing had occurred in the trial court. Muff, supra at 311. In Lloyd, the Supreme Court stated that it would grant relief on an ineffectiveness claim “where there is at least an inference from the evidence that the defendant would have accepted the [plea] offer as made or something similar.” Id. at 648 (2) (b). A plea offer was made but not communicated to appellant in that case, but the Supreme Court affirmed the trial court’s conclusion that trial counsel was “reasonably effective,” id. at 649, on the ground that no inference existed that appellant would have accepted any plea offer.

This case is distinguished on its facts from both Lloyd and Muff. Lloyd involved counsel’s failure to communicate a plea offer, and Muff addressed counsel’s failure to advise the defendant of the consequences of rejecting such an offer. This case involves the failure to communicate to Wallace the State’s notice that it intended to use prior crimes in aggravation of sentence. Even assuming this was deficient, Wallace has not met his burden of showing a reasonable probability that the .outcome of his case would have been different. Assuming that Wallace might have considered accepting an offer, he has not shown the existence of any offer to be accepted; Wallace has not shown that the State made or was amenable to any plea negotiations. The trial court did not err in denying his motion for new trial on ineffectiveness grounds.

Decided May 12, 1999.

Westmoreland, Patterson & Moseley, John L. Strauss, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, James L. Wright III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Wallace claimed he was caring for his grandmother on the day of the incident and that he did not match the description given at trial by Agent Collins.

       In fact, the Supreme Court found that appellant’s “remand hearing yielded . . . the unmistakable conclusion that [appellant] would not have accepted or even considered” the State’s plea offer.” Id. at 648-649.


author: Johnson, Chief Judge.

text:
    A99A0646.
    WEAVER v. NORTH GEORGIA REGIONAL EDUCATIONAL SERVICE AGENCY.
    (517 SE2d 794)
   Johnson, Chief Judge.

Linda R. Weaver sued North Georgia Regional Educational Service Agency (“RESA”) in superior court asserting a claim under OCGA § 45-1-4, the whistleblower statute, after the Executive Director of RESA terminated her employment. The trial court granted summary judgment in favor of RESA, and Weaver appeals. For the following reasons, we reverse.

The evidence construed in a light most favorable to Weaver is as follows: Weaver worked for RESA for approximately 15 years. At the time of her termination, she was RESA’s Dissemination Coordinator for the Vocational Educational Curriculum Center. In this capacity, she was responsible for receiving orders for and distributing curriculum materials. In September 1994, Weaver went to the Center’s copying room to copy materials needed to fill an order. She found one of the Center employees using the copier. The employee had been using the machine for several hours. When Weaver told the employee that she needed to use the copier, the employee said that he was making copies for the Executive Director, Charles Gibson. Weaver asked what the employee was copying, and the employee said that he did not ask questions. Weaver then asked who was going to be billed for the copies, and the employee again said that he did not ask questions. Weaver went to discuss the matter with Gibson, but he was not in his office.

That afternoon, Gibson called Weaver into his office. Weaver’s immediate supervisor, John Vail, was present. Gibson said he had been told that Weaver was accusing him of having materials copied for his personal use. Weaver denied this. Weaver explained that she had asked what the copies were for and the employee said that he did not ask questions. Gibson asked Weaver twice why she thought the copying was for his personal use, but she evaded his question. Weaver said she was evasive because she wanted to be nice and was afraid that Gibson would fire her.

Later that afternoon, Weaver decided to explain the situation to Vail. After admitting that she had been evasive in answering Gibson, Weaver told Vail why she thought the copying was personal work. During this conversation, she also told Vail that on previous occasions, Gibson asked employees to take care of personal matters for him. Vail replied that even if Gibson was having personal copying done, he was sure the RESA Board of Control would approve it. Vail also told Weaver that if she believed something needed to be done about the situation, she should do whatever she thought necessary. Weaver did not subsequently discuss this matter with any other RESA supervisor or member of the Board of Control.

A few days later, Weaver teased a RESA secretary about unrelated matters. The next morning, the secretary was still upset and left work crying. The following day, Gibson asked for Weaver’s resignation, and when she refused to give it, he terminated her employment with RESA. The RESA Board of Control subsequently ratified Gibson’s action.

1. The trial court granted summary judgment to RESA on the grounds, inter alia, that it was not a state agency within the meaning of the whistleblower statute and therefore was not a public employer under OCGA § 45-1-4 (a) (2). Weaver asserts the trial court erred in granting summary judgment to RESA on this ground, because RESA is a public employer subject to OCGA § 45-1-4.

(a) What constitutes a public employer: On its face, OCGA § 45-1-4 applies only where a public employee makes a complaint or provides information to his or her public employer “concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.” OCGA § 45-1-4 (b). The statute provides:

“Public employer” means the executive branch of the state and any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees except the office of the Governor, the judicial branch, or the legislative branch.

OCGA § 45-1-4 (a) (2). A “public employee,” under the statute is any person who is employed by a public employer. See OCGA § 45-1-4 (a) (1).

Regional educational service agencies, established pursuant to OCGA § 20-2-272, are local units of administration to implement a quality basic education curriculum in public schools state-wide and establish and maintain state-wide standards which ensure that each student has access to a quality program. OCGA §§ 20-2-131 (1) & (4); 20-2-242; see generally State Board of Education Regulation 160-5-2-.05 (2) (a). Although RESA does not have state-wide jurisdiction, it is part of a state-wide network created to improve the effectiveness of educational programs and services to local schools. OCGA § 20-2-270 (a). It directly implements state educational programs within its administrative area of responsibility, and it obtains a substantial part of its operational funds from the state. See, e.g., OCGA § 20-2-274; State Board of Education Regulation 160-5-1-.13 (2) (g) 1. As RESA has responsibility for administering state educational programs and dispensing certain state funds within a local area of jurisdiction, it appears to be a hybrid agency.

RESA contends that to qualify as a state agency and thus be a “public employer,” under OCGA § 45-1-4 (a) (2), it must have statewide jurisdiction over some state program or operation. We are not persuaded by this argument. One of the legislative purposes of the whistleblower statute is to prevent retaliatory action against a public employee who makes a complaint or provides information regarding those activities defined in OCGA § 45-1-4 (b). By enacting OCGA § 45-1-4, the legislature intended “to regulate the receiving and investigating of complaints or information from public employees concerning fraud, waste, and abuse in or relating to any state programs or operations” and “to prohibit retaliatory action” against public employees who report or provide information concerning such activities. Ga. L. 1993, p. 563. To effectively accomplish its regulatory purpose, OCGA § 45-1-4 has to apply to a broad group of state programs. We conclude that OCGA § 45-1-4 applies to any state programs or operations, including those state programs over which an agency has administrative jurisdiction that is less than state-wide in its scope. Where, as here, the language of a statute is plain and does not lead to absurd or impractical consequences, the court simply construes the statute according to its terms. See McDaniel v. Elliott, 269 Ga. 262, 264 (1) (497 SE2d 786) (1998). The trial court erred in finding that RESA was not a “public employer” under OCGA § 45-1-4.

(b) Report of waste, fraud, and abuse: RESA contends that even if it could be considered a public employer, the trial court correctly granted summary judgment because Weaver did not make a report or give information regarding any activity constituting waste, fraud, and abuse. See OCGA § 45-1-4 (b). We disagree.

By deposition, Weaver testified that she told Vail why she thought it was Gibson’s personal work that was copied. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Construing the evidence and all inferences most favorably to Weaver, we find that she did make a complaint or provide information to Vail, within the meaning of the whistleblower statute, as to the possible existence of an activity constituting fraud, waste, and abuse. See OCGA § 45-1-4 (b). Although the evidence is in conflict, there exists some circumstantial evidence that Weaver was terminated because of the information which related to the copying incident.

RESA argues, however, that in order to file a complaint or provide information to her public employer, Weaver had to file a complaint with or provide information to the RESA Board of Control. The provisions of OCGA § 45-1-4 do not support such a narrow interpretation. In many cases, it would render the protection of the whistleblower statute meaningless to require a public employee to make a complaint or give information about suspected fraud, waste, and abuse to a supervisory entity or person operating at a managerial level several echelons above that of the employee. “[W]e cannot endorse a statutory interpretation that renders a statute meaningless.” Crossroads Bank &c. v. Corim, Inc., 262 Ga. 364, 366 (418 SE2d 601) (1992). Neither can we adopt a statutory construction that will defeat one of the primary purposes of the legislation. See Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (ii) (418 SE2d 367) (1992).

In his deposition, Vail testified that he was head of the Curriculum Center, managed its budget within policy constraints, and supervised and evaluated its staff. In this capacity, Vail supervised and evaluated Weaver. We find that because Vail could officially evaluate Curriculum Center employees and thus take or recommend adverse personnel action against them, he was operating at that level of management authorized to receive potential fraud, waste, and abuse complaints and information on behalf of RESA. See OCGA § 45-1-4 (b) & (d). While we recognize this holding may place a heavy burden on certain supervisors, it is necessary to effectively accomplish the purpose underlying the whistleblower statute.

2. Weaver contends the trial court erred in granting summary judgment to RESA on the grounds that she was precluded from successfully pursuing her claim by the doctrine of collateral estoppel. For the following reasons, we agree.

Weaver originally sued RESA in superior court asserting a claim under OCGA § 45-1-4. While suit was pending, she also filed suit in federal district court against RESA and Gibson asserting a violation of her First Amendment rights and a claim under OCGA § 45-1-4. She then voluntarily dismissed her suit in superior court. The district court granted summary judgment in favor of RESA and Gibson as to the First Amendment claim and declined to exercise supplemental jurisdiction over Weaver’s state claim under the whistle-blower statute. Weaver appealed to the Eleventh Circuit Court of Appeals. While her appeal was pending, Weaver filed her current suit in superior court; this suit was stayed pending resolution of her federal appeal. The Eleventh Circuit affirmed the district court’s grant of summary judgment, and the present litigation continued.

As to the First Amendment claim, the district court concluded that Weaver’s speech on the occasions at issue was not a matter of public concern and thus was not constitutionally protected. In support of this holding, the district court found, inter alia, that Weaver did not make any formal complaint to her superiors, including any member of RESA’s Board of Control, and she never expressed that she was exposing waste or fraud in any of the conversations at issue. The district court also concluded, as an alternative ground, that Weaver’s evidence failed “to create a genuine issue of material fact as to whether her expression was a substantial factor in the decision to terminate her.” The Eleventh Circuit Court of Appeals affirmed, concluding only that “Weaver’s speech did not address matters of public concern and was therefore, not protected by the first amendment.”

(a) Collateral estoppel regarding district court’s determination as to whether Weaver’s expression was a substantial factor in the decision to terminate her: We will not apply the doctrine of collateral estoppel to this alternative holding, as the Eleventh Circuit Court of Appeals affirmed the district court only as to its primary holding that Weaver’s speech did not address matters of public concern and thus was not constitutionally protected. In the case of Humana, Inc. v. Davis, 261 Ga. 514, 515 (1) (407 SE2d 725) (1991), the Supreme Court held that:

if a trial court bases its judgment on alternative grounds, and an appellate court affirms the judgment on only one of the grounds, the ground omitted from decision is not considered to have been finally adjudicated and is not conclusively established for purposes of res judicata.

We find this principle is equally applicable to cases involving collateral estoppel because “collateral estoppel attaches only when an issue actually has been litigated and decided, or when an issue necessarily had to be decided in order for the previous judgment to have been rendered.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995); see Restatement, 2d, Judgments § 27, Comment O (1982).

(b) Collateral estoppel regarding the Eleventh Circuit and the District Court’s determination that Weaver’s speech did not address matters of public concern: We find that these determinations did not result in collateral estoppel in this case.

First, the district court expressly declined to exercise jurisdiction over Weaver’s state whistleblower claim. By this declination, the district court inherently determined not to adjudicate issues relative to the disposition of the state claim.

Second, the district court’s First Amendment determination did not include a final adjudication regarding whether Weaver’s statements to her immediate employer failed to relate to the possible existence of any activity constituting an “abuse in or relating to any state programs and operations.” OCGA § 45-1-4 (b). Although the district court made a finding in support of its determination that Weaver had “never expressed” that she was exposing “fraud or waste,” this finding does not address the issue of whether she had filed a complaint or provided information to her immediate supervisor regarding an abuse relating to a state program or operation. Rather, the district court focused on whether Weaver had made a formal complaint of “waste or fraud” and did not determine whether Weaver had provided information concerning “the possible existence of any activity constituting fraud, waste, and abuse.” OCGA § 45-1-4 (b). Collateral estoppel does not bar consideration of an issue that has not been actually decided. See MTW Investment Co. v. Alcovy Properties, 228 Ga. App. 206, 209 (1) (b) (491 SE2d 460) (1997); Toporek v. Zepp, 224 Ga. App. 26, 28 (1) (479 SE2d 759) (1996). The case of Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996) is distinguishable because, unlike this case, the issue in Langton had been fully litigated.

Third, because the holding of the federal district court if applied to OCGA § 45-1-4 would greatly reduce the scope of protection provided to public employees by that statute and could potentially reduce the reporting of fraud, waste and abuse by public employees, the consideration of the issues in this case would not be precluded by the doctrine of collateral estoppel. This is particularly true as most of the issues raised under OCGA § 45-1-4 pertain to questions of first impression. Parties are not precluded from relitigating issues in subsequent actions between the parties when there is a clear and convincing need for a new determination of the issue because of the potential adverse impact of the determination on the public interest. Restatement, 2d, Judgments, supra at § 28 (5) (a).

Decided May 12, 1999 — Cert. applied for.

E. Wycliffe Orr, for appellant.

Harben & Hartley, Phillip L. Hartley, for appellee.

Because the trial court erred by concluding that RESA was not a public employer within the meaning of OCGA § 45-1-4 (a) and that Weaver was precluded from pursuing her whistleblower claim by the doctrine of collateral estoppel, we reverse.

Judgment reversed.

Andrews and Ruffin, JJ, concur.


author: Judge Harold R. Banke.

text:
    A99A0848.
    NORTH GEORGIA MEDICAL CENTER v. FOOD LION, INC.
    (517 SE2d 799)
   Judge Harold R. Banke.

North Georgia Medical Center obtained default judgment against Food Lion, Inc. when Food Lion failed to answer a summons of continuing garnishment. Food Lion paid all accrued costs of court and moved within the required 60 days to modify and reduce the judgment. See OCGA § 18-4-91. North Georgia opposed the motion on the ground that the attorney signing the motion was not licensed in Georgia.

Outside the 60-day period, Food Lion moved to amend its motion by substituting in the name and signature of a licensed Georgia attorney. The court allowed the amendment and reduced the judgment. North Georgia appeals, contending the original motion was a nullity and could not be resurrected after the 60 days had run. Held:

An attorney licensed in Georgia must represent a corporation in a proceeding in a Georgia court of record. Eckles v. Atlanta Technology Group, 267 Ga. 801 (485 SE2d 22) (1997). Under OCGA § 9-11-15 (a) of the Civil Practice Act, a pleading signed by an unlicensed attorney or by a non-attorney may be cured by an amendment substituting in a licensed attorney prior to the entry of the pre-trial order. Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556, 557 (1) (b) (332 SE2d 46) (1985); see McCormick v. Acree, 232 Ga. App. 834, 836 (503 SE2d 88) (1998) (physical precedent only). The amendment relates back to the filing date of the original pleading. Id.

Decided May 12, 1999.

Joseph D. Buccellato, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellee.

Does this principle apply to OCGA § 18-4-61 motions filed in garnishment proceedings? The Civil Practice Act, and specifically OCGA § 9-11-15 (a), applies in garnishment proceedings. OCGA § 18-4-1; Horizon Credit Corp. v. Lanier Bank &c. Co., 220 Ga. App. 362, 363 (1) (469 SE2d 452) (1996). OCGA § 18-4-3 also provides that garnishment pleadings are amendable any time before judgment thereon. Motions to modify filed under OCGA § 18-4-61 are considered garnishment pleadings. See Accredited Assoc. v. Shottenfeld, 162 Ga. App. 575, 576 (1) (292 SE2d 417) (1982); Chambers v. Almond, 146 Ga. App. 46, 47 (1) (245 SE2d 336) (1978).

Accordingly, prior to judgment thereon, a motion filed under OCGA § 18-4-91 may be retroactively amended to substitute in the name and signature of a licensed Georgia attorney.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The cases cited by North Georgia (Howell v. Styles, 221 Ga. App. 781, 783 (3) (472 SE2d 548) (1996); Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 858-859 (5) (b) (459 SE2d 592) (1995); Leasefirst v. Paulk, 200 Ga. App. 497, 498 (1) (408 SE2d 707) (1991)) are distinguishable, for in none of these did the offending party seek to amend the defective filing by substituting in a licensed attorney.


author: Blackburn, Presiding Judge.

text:
    A99A1077.
    POSTELL v. THE STATE.
    (517 SE2d 789)
   Blackburn, Presiding Judge.

This is the second appearance of this case before us. In Postell v. State, 233 Ga. App. 800 (505 SE2d 782) (1998), Timothy Postell’s conviction of shoplifting was affirmed, his sentence was vacated, and the case remanded for a hearing to determine whether Postell’s prior guilty pleas, used to sentence him as a recidivist, were made freely and voluntarily. Id. at 801-802 (3). Postell, pro se, now appeals his new sentence after the trial court determined that his previous guilty pleas were freely and voluntarily given.

1. Postell contends that a typographical error on the indictment which listed one of his previous convictions as Case No. 93-R-346 rather than Case No. 93-R-345 precludes consideration of such conviction for recidivist sentencing. However, this issue was one which could have been raised in his earlier appeal and was not. This case was remanded for a determination on the sole issue of whether Postell’s previous guilty pleas were given freely and voluntarily. Therefore, that is the issue which is presently before us.

Decided May 12, 1999.

Timothy Postell, pro se.

John R. Parks, District Attorney, for appellee.

2.

A plea of guilty that is invalid under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969) may not be used to enhance punishment in a subsequent trial. Once the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver. Presuming waiver from a silent record is impermissible.

(Punctuation omitted.) Postell, supra at 802.

In the present case, the State introduced waiver of rights forms in connection with each prior guilty plea. On the forms, Postell indicated that he was represented by a lawyer. He also indicated that he understood that he was waiving: (1) his privilege against compulsory self-incrimination, (2) his right to a trial by jury, and (3) the right to confront his accusers and to cross-examine them. Postell further responded negatively when asked whether his attorney, the district attorney, or anyone else had promised him anything or threatened him in any way in return for the guilty plea. He also testified at the hearing that he understood he was waiving his rights. Therefore, the trial court did not err in finding that Postell’s previous guilty pleas were given freely and voluntarily. See Jones v. State, 161 Ga. App. 620, 623 (4) (288 SE2d 795) (1982) (showing by State sufficient where guilty plea documents affirmatively state defendant was represented by counsel and was advised of constitutional rights).

3. Postell’s third enumeration of error regarding the county probation office’s use of the word “recidivist” is without merit.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A99A0100, A99A0244.
    ELROD v. THE STATE (two cases).
    (517 SE2d 805)
   Ruffin, Judge.

Following a jury trial, Matthew Shane Elrod was convicted of aggravated assault and possession of a firearm during the commission of a crime. Elrod contends his trial counsel was ineffective, the evidence was insufficient to support the verdicts, and the trial court erred in giving or refusing to give certain jury charges. Because the trial court gave an erroneous and harmful recharge, we reverse.

Viewed in the light most favorable to support the verdicts, the evidence reveals that during the afternoon of September 24, 1996, Walker County Sheriff’s deputies responded to a domestic violence 911 call involving Matthew Shane Elrod and his stepfather, Richard Scott. Several of Elrod’s neighbors and their children witnessed the incident, gave statements, and testified at trial. Elrod, who had been drinking, arrived at his mother’s home in the Round Pond Trailer Park, saw his clothes airing on the clothesline, and accused his mother of selling his personal belongings. Elrod and his mother got into a heated argument. Scott initially told the deputies that when he attempted to break up the fight, Elrod struck him on the back with a broom handle. Scott wrestled the broom away from Elrod and attempted to subdue him with a head lock, but Elrod broke free and pulled a handgun from his pocket and pointed it at Scott’s face. Scott managed to push Elrod’s hand away before Elrod pulled the trigger. Scott ran to his truck and drove away. Elrod followed him on foot, firing several shots at the back of the departing truck. Elrod then got into a car and drove away.

A neighbor testified she heard Elrod yelling as he ran after Scott: “I’ll kill you you . . . SOB.” She also heard Elrod’s mother shouting: “Shane, quit, quit.” And, when Elrod’s mother noticed the neighbors were watching, this same witness heard her say: “Keep your noses out of my business.” Scott, who denied at trial that Elrod fired at him, was impeached with the prior inconsistent statements he gave police when he was interviewed immediately following his 911 call for help. Elrod’s mother admitted that Elrod had a gun, but that it was a toy cap gun. Elrod testified that he did not shoot at Scott, that he had no gun during the incident, and that he and Scott had simply been wrestling. A deputy noticed several scratches on the back of Scott’s dump truck but apparently could not determine whether any of them were made by bullets. No gun, bullets, or shell casings were introduced into evidence.

1. On appeal, this Court determines evidence sufficiency. We do not weigh the evidence or determine witness credibility. Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997). The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The offense of aggravated assault consists of two essential elements: (1) an assault and (2) aggravation by use of “a deadly weapon or . . . any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Elrod does not deny that he assaulted Scott; rather, he argues there was insufficient evidence that he fired a handgun because none of the witnesses who testified got close enough to actually see the gun. Scott, of course, got close enough to see the gun, and his prior inconsistent statement on that point was admissible as substantive evidence. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Moreover, given the testimony of the many witnesses who either heard the gunshots or saw Elrod firing what looked like a handgun at Scott and his truck, the jury was authorized to infer that Elrod assaulted Scott by firing a handgun at him. OCGA § 24-4-9; see Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979). Thus, the evidence in this case was sufficient to support Elrod’s convictions for aggravated assault and possession of a firearm during the commission of a crime beyond a reasonable doubt. See Jackson v. Virginia, supra.

2. Elrod argues that the trial court erred in recharging the jury on aggravated assault in response to a question posed by the jury. Elrod’s attorney preserved the right to object to the recharge by reserving exceptions to it. The jury asked whether they could find Elrod guilty of aggravated assault if the gun was not discharged even though the indictment alleged that Elrod committed the aggravated assault “by shooting said firearm at Richard Scott and the vehicle he was driving.” One of the jurors elaborated as follows: “At the bottom of the indictment it read[s] aggravated assault, but then it continues on to give the specifics of what the assault was, and that’s where we have the problem. Is finding him guilty of the aggravated assault the same as agreeing to those specifics?” The court told the jury it could not answer questions about the facts, but only about the law. The jury then asked to hear the law of aggravated assault again. The court gave the jury a recharge on aggravated assault that included this statement: “If the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred. It makes no difference if the weapon was loaded or could, in fact, be fired.” The recharge was not followed by a limiting instruction that informed the jury they were authorized to find Elrod guilty only if they found he committed the aggravated assault in the way and manner alleged in the indictment.

Although it is not error to limit a recharge to the question asked, Davis v. State, 209 Ga. App. 755, 760 (5) (434 SE2d 752) (1993), it is error to give a charge stating that an offense may be committed in more than one manner when (1) only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment. See Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997); Levin v. State, 222 Ga. App. 123, 126-127 (6) (473 SE2d 582) (1996); Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978).

In this case, Elrod was charged with committing an aggravated assault by “shooting,” and not by “pointing,” a handgun. As we have explained, “no averment in an indictment can be rejected as surplus-age which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.” (Punctuation omitted.) Walker, supra at 242 (1). Given the way the indictment was drafted, the jury was required to find beyond a reasonable doubt that Elrod shot a handgun at Scott in order to find him guilty of aggravated assault. Id.; see also Griffin v. State, 214 Ga. App. 813, 815 (2) (449 SE2d 341) (1994). The jurors’ questions reveal they were particularly interested in whether they could find Elrod guilty of aggravated assault if they found he simply pointed the gun at Scott. Given the State’s lack of physical evidence that a gun was actually fired, the jury may have believed the State failed to carry its burden of proof in that regard yet nevertheless believed Elrod committed an aggravated assault by pointing a handgun at Scott. Therefore, a reasonable probability exists that the jury may have convicted Elrod of committing the offense in a manner not charged in the indictment. See Levin, supra at 127 (6). The court’s recharge informed the jury that an aggravated assault could be committed in a way not set forth in the indictment, and it contained no remedial instruction limiting the jury’s consideration to the facts alleged in the indictment. Id.; compare Griffin v. State, supra at 815-816 (2) (no remedial instruction given) and Lumpkin v. State, 249 Ga. 834, 836 (2) (295 SE2d 86) (1982) (remedial instruction given). Further, we cannot say the recharge, when considered with the original charge and taken as a whole, fairly instructed the jury. Cf. Martin v. State, 268 Ga. 682, 685-686 (8) (492 SE2d 225) (1997). In this case, the jury’s confusion was revealed in a specific question after the original charge was read. The trial court did not remedy that confusion with its recharge; rather, it misled the jury by giving a recharge that in essence answered its question in the affirmative. Under these circumstances, it is probable that Elrod was deprived of his substantial right to be tried only on charges presented in the indictment. Levin, supra; Walker, supra at 244 (2). Consequently, the conviction for aggravated assault as well as the conviction predicated upon it, possession of a firearm during the commission of the crime of aggravated assault, must be reversed. Levin, supra.

Decided May 13, 1999.

Amy A. Petulla, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

3. Elrod’s remaining enumerations of error are rendered moot by this ruling.

Judgment reversed.

McMurray, P. J., and Smith, J., concur. Andrews, J., disqualified.

       Pursuant to the trial court’s order granting him an out-of-time appeal, Elrod appealed both to this Court and to the Supreme Court of Georgia, which transferred its case here. Because the appeals are identical, we consolidate them.


text:
    A99A0186.
    DAVIS v. THE STATE.
    (517 SE2d 808)
   Smith, Judge.

Edward Thomas Davis was charged in Gilmer County with two counts of child molestation, enticing a child for indecent purposes, aggravated child molestation, aggravated sodomy, terroristic threats, and cruelty to children in the first degree. The trial court directed a verdict of acquittal on the charge of terroristic threats. A jury found Davis guilty on the remaining charges, and judgments of conviction and sentences were entered thereon. Davis filed a motion for new trial, which was subsequently amended. The trial court denied the motion but vacated Davis’s sentence pending resentencing. At the resentencing hearing, the trial court again imposed the same sentence. Davis filed this appeal, raising 22 enumerations of error. We find that none of his enumerations has merit, and we affirm.

The record shows that at the time these crimes were committed, Davis was living with a girlfriend and her three children from a prior marriage. The victim was his girlfriend’s 11-year-old daughter. She testified that Davis molested her on two occasions while her mother was working. On one occasion, she and her brother and sister were riding home with Davis in his Jeep after visiting their mother. The victim was riding in the front seat with Davis, and her brother and sister were in the back seat. Davis took the victim’s hand and placed it inside his shorts on his penis. On another occasion, she was home with a stomach ache, and Davis called her into his bedroom, where he was under the covers. He told her to get into bed with him and instructed her to perform oral sex because her mother “didn’t do it enough.” She did so until “white stuff came out,” and he threatened to kill her and her family if she told anyone. Shortly after that, while visiting her father in North Carolina, she told her stepmother of the molestation, and she was interviewed by a social worker from the local county social services agency.

Davis consented to take a polygraph examination, and he stipulated to the admissibility of the results. GBI Special Agent Paul Log-gins, a polygraph expert, testified that the examination showed that Davis was not truthful when he denied touching or molesting the victim. The trial court also admitted evidence of several similar transactions, consisting of the testimony of other young girls that Davis forced them to engage in oral sex, had intercourse with them, or had conversations with them about sex.

1. Davis contends the trial court erred in failing to grant a continuance at three different points in the trial, based upon his incompetence to stand trial. We do not agree.

On the night before Davis’s trial was scheduled to begin, he had a dispute with his wife and swallowed a bottle of prescription tranquilizers. He was taken to the hospital, where his stomach was pumped. The hospital notified the State that Davis might be released on the afternoon of trial, and at approximately 4:27 p.m. that afternoon, Davis was brought to court by the Sheriff’s Department. The court questioned him and learned that he knew where he was and recognized the judge, the prosecutor, and his attorney, although he did not remember being brought to the court.

The trial began the following morning. Defense counsel renewed a motion for continuance he had previously made, and it was denied. In denying the motion, the judge placed on the record that he had conferred with Davis’s physician, who stated that although Davis would need treatment for depression, she did not feel that anything prevented him from standing trial. Defense counsel stated his concern that chemicals from the ingested tranquilizers were still in Davis’s system and would affect his ability to assist counsel. He noted that Davis appeared to be “visibly shaking.” The court noted that he had seen Davis outside the courtroom and that Davis was not shaking at that time. The court ruled that since the chemicals had been “pumped out” and that Davis responded appropriately to questioning and appeared to be capable of standing trial, no continuance would be granted.

We find no error. In ruling on the motion for continuance, the trial court stated that the situation was of Davis’s own making. We held in Yancey v. State, 219 Ga. App. 116 (464 SE2d 245) (1995), that the trial court did not abuse its discretion in denying a continuance even though the defendant was completely absent from court, because the evidence indicated that the defendant voluntarily took enough medication “to rise to toxic levels in his blood thereby causing his hospitalization.” Id. at 117. Similarly, in Frazier v. State, 257 Ga. 690, 695-696 (12) (362 SE2d 351) (1987), the defendant intentionally stockpiled Dilantin issued to him at the jail and took it all on the day before his trial was to start. In court, he appeared to pass out and was taken to the hospital for examination. His stomach was pumped, he returned to court the next day, and his attorney requested a continuance because the defendant still felt the effects of the overdose. The Supreme Court held that the denial of a continuance was not an abuse of discretion, given “[t]he length of time that had elapsed since appellant’s intentional overdose, the doctor’s evaluation and report, appellant’s own coherent testimony, and the trial court’s observations of the appellant that day and the day before.” Id. at 696. Here, as in Frazier, all those factors support the trial court’s conclusion that Davis was capable of proceeding.

2. For the reasons stated in Division 1, it was not error to allow the testimony of Sherry Treywick, the North Carolina social worker, to be preserved on videotape despite the defendant’s absence and to be played for the jury at trial. Treywick was subpoenaed to appear on the morning trial was scheduled, and she appeared for trial in Georgia at considerable inconvenience. The prosecutor stated her testimony was essential, and Treywick testified that it would cause substantial hardship for her to remain overnight in Georgia because of an impending snowstorm and the fact that she had very young children for whom she had not made care arrangements. Although OCGA § 24-10-130 (e) provides that “not less than one day’s notice” of the hearing on a motion to preserve testimony under that Code section must be given to the opposite party, we are persuaded that the trial court correctly found that Davis waived the requirement of notice by intentionally delaying the trial. It is well established that one cannot complain of a ruling that one’s own conduct causes or helps bring about. See, e.g., Herndon v. State, 229 Ga. App. 457, 458 (4) (494 SE2d 262) (1997), overruled in part on other grounds, Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998).

3. Davis also appears to complain that it was error to admit Treywick’s testimony regarding a third act of molestation related to her by thé victim, when the victim herself testified to only two incidents. Any conflict, however, does not render the testimony inadmissible but was for the jury to consider in determining the weight to give the testimony.

Davis also appears to argue that this testimony from Treywick should have been excluded because it was not described in the indictment. It is true that Counts 1 and 2 of the indictment refer to two different occasions, and Counts 3, 4, and 5 specifically state they refer to the same occasion as Count 2 but a different occasion from Count 1. But Count 7 of the indictment, charging Davis with cruelty to children, does not specify the occasion or occasions on which the acts took place. This count simply states that at some time between January 1, 1995 and June 30, 1995, Davis caused the victim “cruel and excessive mental pain by committing at least one of the following acts: (a) causing her to place her hand upon his penis, (b) placing his penis into her mouth.” Even if Treywick testified to a third occasion, therefore, it would not constitute a variance from the allegations in the indictment.

4. In four enumerations of error, Davis challenges the admissibility of the similar transaction evidence, arguing specifically that the testimony of two witnesses did not constitute evidence of similar transactions. We do not agree. Both witnesses testified that Davis, a substitute teacher, had inappropriate conversations with them when they were in middle school.

It is true that these two witnesses did not testify that Davis touched them or had sex with them. But similar transactions need not be identical to be admissible. Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996). The exception to the general rule of inadmissibility for similar transactions has been liberally extended in cases involving sexual offenses. And when sexual abuse of children is involved, sufficient similarity exists to make the evidence admissible regardless of the precise type of conduct involved. Swift v. State, 229 Ga. App. 772, 774-775 (2) (d) (495 SE2d 109) (1997). The State offered this evidence to show Davis’s bent of mind and lustful disposition. As such, it was admissible.

Davis also argues either that the trial court misconstrued the law regarding the introduction of similar transactions or that the law itself is unconstitutional. But he did not raise these arguments below. He sought to exclude them only on the ground that they were not similar.

5. As to a third similar transaction witness, Davis contends either that the trial court misconstrued the rape shield law, OCGA § 24-2-3, or that the statute itself is unconstitutional. His contention concerns the testimony of a young woman who stated that she met Davis at a country dancing club when she was 15 years old and that eventually he brought her to his home, where they had sex. She was asked on direct examination how she met Davis, and she responded: “Through the Blue Rodeo. On Thursday nights is family night.” On cross-examination, Davis’s lawyer asked her: “Isn’t it true that you go to the Blue Rodeo on more than just family night?” The trial court stopped him, saying: “Whoa.” The prosecutor then objected, and the court cautioned defense counsel not to go into “character.” This was not error. Trial counsel stated at the time, and appellate counsel repeats now, that the question was designed to show that the witness was lying when she testified that she went to the club only on family night. But the record shows, and the trial court correctly noted, that the witness did not say that she went to the club only on that night. Furthermore, the issue of the statute’s constitutionality was not raised below or ruled on by the trial court, and it cannot be considered on appeal. Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991).

6. Davis’s former girlfriend testified that after she moved out of state, she came back to Georgia and stayed at Davis’s trailer. The trial court asked her whether they were “still intimate,” and she replied “not at that time.” The questioning continued, and the district attorney asked if she had slept in the same bed with him. She responded that she had not; that “[h]e came back there and got in the bed with me.” The court again interposed a question, asking her: “Well, you didn’t run him out, did you?” The witness answered that she had told him “no,” but he was “pretty forceful.” Davis objected at that point and moved for a mistrial, which was denied.

After denying the mistrial, the trial court instructed the jury to disregard anything the witness said about this incident, and the questioning resumed. Davis did not renew the motion for mistrial after the court’s curative instruction. Even assuming that the testimony was harmful, it is well established that to preserve any error for review, a motion for mistrial must be renewed after a curative instruction. Maddox v. State, 227 Ga. App. 602, 604 (2) (490 SE2d 174) (1997). Moreover, the grant or denial of a mistrial is within the discretion of the trial court, and when a curative instruction is given immediately, this court will not disturb the trial court’s judgment denying the mistrial. Mosier v. State, 218 Ga. App. 586, 589-590 (4) (462 SE2d 643) (1995).

Decided May 13, 1999 — Cert. applied for.

Barry E. Billington, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, Abernathy & Ballinger, Joe W. Hendricks, Jr., for appellee.

7. We find no evidence in the record that Davis’s trial counsel rendered ineffective assistance, as urged by him. To prevail on such a claim, Davis must show both that his counsel’s performance was deficient, and that but for that deficiency the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). A strong presumption exists that trial counsel’s performance was within the wide range of reasonable professional assistance and that challenged actions might be considered sound trial strategy. Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). We need not “address specifically and individually each and every one” of the challenges enumerated by Davis. Id. at 122. They clearly refer to trial strategy decisions, and many were the result of the difficult trial situation Davis caused by his own conduct. The evidence clearly supports the trial court’s ruling that Davis received effective assistance of counsel.

8. Davis’s assertion that the cumulative effect of all these errors was harmful is without merit. “The cumulative error doctrine is not recognized in Georgia. [Cit.]” Johnson v. State, 236 Ga. App. 61, 66 (3) (e) (510 SE2d 918) (1999).

9. Davis contends that the sentences imposed were too harsh “under the circumstances,” because he suffers from several chronic conditions and the state of his general health is poor. We will not review for error any sentences within the statutory limits. Rehberger v. State, 235 Ga. App. 827, 830 (4) (510 SE2d 594) (1998). The sentences imposed, 30 years for aggravated child molestation and 20 years for the remaining offenses, are within the statutory limits. See OCGA §§ 16-6-2 (b); 16-6-4 (b); 16-6-5 (b); 16-5-70 (c).

Judgments affirmed.

Pope, P. J, and Eldridge, J., concur.

       A number of Davis’s enumerations of error are duplicative, and we have combined them for review.

       Davis married after he and this girlfriend broke up, and at the time of trial he was married.

       One witness testified only that he asked her to be his girlfriend. Another testified that they discussed his sex life, and a GBI agent testified that this witness told him that Davis propositioned her, telling her that “sex with his wife was good and it would be good with her, also.”

       It appears that Davis is arguing that this evidence was not proper as evidence of “prior difficulties,” either. In Loggins v. State, 260 Ga. 1 (388 SE2d 675) (1990), the Supreme Court held that USCR 31.1, governing notice of the State’s intention to introduce evidence of similar transactions, applies as well to evidence that is introduced to show prior difficulties between the accused and the victim. (The Supreme Court has since reconsidered that rule, at least as to “prior difficulties” between the defendant and the victim in the charged crime.) Wall v. State, 269 Ga. 506, 507-509 (2) (500 SE2d 904) (1998). In this case, however, we find no mention of any such “prior difficulties” or any suggestion that the State introduced the evidence for that purpose.

       We note, however, that the constitutionality of the rape shield statute was upheld by the Supreme Court before its amendment in 1989. Harris v. State, 257 Ga. 666 (362 SE2d 211) (1987).


author: Eldridge, Judge. Smith, Judge,

text:
    A99A0419, A99A0459.
    WESLEYAN COLLEGE v. WEBER et al.; and vice versa.
    (517 SE2d 813)
   Eldridge, Judge.

Wesleyan College (“Wesleyan”) owns a narrow strip of land between four-lane Forsyth Road (U. S. 41) and a parallel railroad. This strip of property was across the highway from Wesleyan’s president’s house. Such strip was undeveloped and contained a large number of trees, primarily loblolly pines.

On February 7, 1995, at approximately 7:45 p.m., Paulette Weber was killed when one of the pine trees fell across Forsyth Road in front of her car, causing her to crash into the tree blocking the roadway. The tree was 94 feet tall and was approximately 47 feet from the edge of the road within the strip. The tree was 18 inches in diameter. Heavy vines and undergrowth surrounded the tree, and vines grew up the tree. In the general area where the tree fell, the trees looked blighted, and there were 15 to 25 trees that were leaning, looked dead, or had fallen. Prior to the incident, laypeople had observed dead trees in this area of the strip, and the bad condition of the trees should have been readily apparent to a non-expert. Not far from the fallen tree, a tree leaned out over the road. Many trees were covered with heavy vines that robbed moisture and blocked sunlight, so that the tops of the trees had little more than a small green fringe on them. Some 70 to 85 percent of the tree canopy surrounding the fallen tree was dead. Hartel, Wesleyan’s expert, counted 19 dead trees in the area of the fallen tree.

On the railroad side of the fallen tree in question was a four-foot-long rotten cavity two feet above the base of the tree. Such rotten cavity had existed between ten and fifteen years. Tree fungus had entered the point of damage and traveled in all directions, including the root system. The tree was nearly dead, and root rot had destroyed the root system. Root rot caused the tree to fall; however, expert opinion differed as to whether the rotten cavity caused the root rot. The tree was down an embankment, and vines covered the cavity; the cavity was not observable from the road because of its location. The cavity was observable from the railroad side, which could be reached by crossing 50 feet from the roadway. A layperson in a walk-by could see the cavity in the winter or when leaves were not on the vines. The root rot was not observable externally. The man who cut up the tree testified that trees next to the fallen tree looked dead from the base to the top, sawed like they were rotten, and had little bark on them. The expert testimony was that the tree was actually alive and had few green needles at the top, although it was not healthy, but other witnesses testified that they saw no green needles on or around the tree. The tree crown growth was between a five and ten percent ratio to the entire height of the tree. A healthy loblolly pine should have a green leafy crown between 25 and 30 percent of the tree. The tree was between 35 to 40 years old, which was approximately halfway through its normal life span. The tree was in a state of decline. A cross section of the trunk showed growth in each year of its life; however, in recent years the growth rings had become smaller and smaller, almost merging, which indicated that the tree was not healthy. From the growth rings, it was apparent that the tree had been damaged in its tenth year of growth, which moderated the growth over the next eight years, and in the last nineteen years of life, the growth rings showed a decline; the last six years of growth rings showed an advanced state of decline. According to the Wesleyan expert, the bark was tight, intact, and free from pine beetle infestation, but laywitnesses stated that the bark was dead, brown looking, and bug eaten. The core, where the city workers cut it from the road, appeared rotten.

Starley, a motorist who first collided with the tree, did not consider the weather “real windy,” although it made the trees move, but not “bad weather” or “blowing real hard.” Meteorologist Laing reviewed 25 sites across the state and Bibb County on the date in question and found maximum gusts of wind no greater than 35-40 mph; this was a brisk wind. From his experience, it took winds in excess of 60 mph to knock over a healthy tree; and winds in excess of 58 mph are classed as a “severe thunderstorm.” Winds of 35-40 mph were not uncommon throughout Georgia in February.

Wesleyan occupied a 200-acre campus, and part of the campus was heavily wooded. The strip where the tree fell was away from the main campus. The ground crew took down trees as necessary; however, after a piece of tree removal equipment failed, Wesleyan used an outside tree service.

William Singleton was the leader of the grounds crew and reported to Don Boughton, Physical Plant Director. While inspecting the strip before the incident, Singleton observed a dead and leaning tree in the general area of the fallen tree and reported this and numerous other dead and dying trees in the area of the fallen tree to Boughton. Boughton asked if Singleton could cut down the trees, but Singleton told him that traffic would have to be stopped to take down the trees, so it was not done. Boughton testified that Singleton’s report came after the incident. However, Singleton could not identify the fallen tree as the dead and leaning tree. An expert witness testified in his opinion that the tree that fell had not been leaning prior to the fall. A defense expert witness stated that in his opinion he would not have advised the cutting down of the tree prior to its fall.

On February 7,1997, Thomas Weber, individually and as next of kin, surviving spouse, and administrator of the estate of Paulette Weber, deceased, brought suit against Wesleyan in the Bibb Superior Court. The jury tried the case from January 8 through 13, 1998, and returned a substantial verdict. Wesleyan moved for judgment notwithstanding the verdict or, in the alternative, a new trial. On June 22, 1998, the trial court denied the j.n.o.v. but granted the new trial on the grounds of newly discovered evidence. Both parties sought discretionary appeals, which were granted.

Case No. A99A0419

Wesleyan contends that the trial court erred in denying its motion for directed verdict and for j.n.o.v., because the tree had no “visible, apparent, and patent” decay sufficient to give rise to a duty to cut down the tree and provide notice of a premises defect. We do not agree.

The standard [s] for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the verdict. Id.

Pendley v. Pendley, 251 Ga. 30-31 (302 SE2d 554) (1983).

As owner and occupier of the strip of land, Wesleyan had a duty to keep the premises and approaches safe for persons placed in danger from a dangerous condition on the premises. OCGA § 51-3-1. Thus, approaches to the strip include property along the adjoining highway. See Motel Properties v. Miller, 263 Ga. 484, 486 (2) (436 SE2d 196) (1993); Todd v. F. W. Woolworth Co., 258 Ga. 194, 196-197 (1) (366 SE2d 674) (1988); Elmore of Embry Hills v. Porcher, 124 Ga. App. 418, 419-420 (183 SE2d 923) (1971). The owner of the premises is under a duty to make a reasonable inspection of the premises to protect invitees. Fulton Ice &c. Co. v. Pece, 29 Ga. App. 507, 515 (1) (116 SE 57) (1923). However, the common law duty as to individuals who are not on the premises at the time of injury but are injured by a dangerous defect on the premises differs.

“This is well illustrated by the cases of dangerous trees. It is still the prevailing rule that the owner of rural land is not required to inspect it to make sure that every tree is safe, and will not fall over into the public highway and kill a man, although there is already some little dissent even as to this, and at least if the defendant knows that the tree is dangerous he will be required to take affirmative steps. But when the tree is in an urban area, and falls into a city street, there is no dispute as to the landowner’s duty of reasonable care, including inspection to make sure that the tree is safe. The cases of trees therefore suggest that the ordinary rules as to negligence should apply in the case of natural conditions, and that it becomes a question of the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented.” ... “A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger, even if the tree grew on and became part of the land by natural condition.” . . . We are specifically limiting liability in this case to patent visible decay and not the normal usual latent micro-non-visible accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.

(Citations omitted.) Cornett v. Agee, 143 Ga. App. 55-57 (237 SE2d 522) (1977); accord Wade v. Howard, 232 Ga. App. 55, 58 (499 SE2d 652) (1998); Willis v. Maloof, 184 Ga. App. 349, 350 (2) (361 SE2d 512) (1987). “The only duty imposed upon defendant was that of the reasonable man; defendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees.” Id. at 350-351; accord Wade v. Howard, supra at 58.

(a) The evidence raised an issue as to “visible, apparent, and patent” decay, because there existed a four-foot-long rotten cavity two feet above the base of the tree trunk. While the tree’s fall was caused by root rot and not the rotten cavity, the landowner was charged with the knowledge and understanding of a reasonable person. Thus, a four-foot-long cavity observable to a layperson in a ninety-four-foot-tall pine would raise a jury question as to whether or not the tree was seriously diseased and dangerous. Willis v. Maloof, supra at 350-351; Wade v. Howard, supra at 58. While the expert opinions differed as to whether the rotten cavity caused the root rot and whether the tree should be taken down, such evidence created a jury question that was resolved adversely to Wesleyan. Further, the testimony of the workmen who removed the tree was that the tree appeared to be dead or rotten, had bark falling off, and had no green needles.

(b) The pines in the general area where the tree fell were blighted and many were dead, diseased, dying, or had fallen, so that a drive-by inspection would reveal to a reasonable landowner that this was a problem area. A problem area would give notice to the reasonable owner that an individual inspection of each tree was necessary in the blighted area. While the rotten cavity was not observable from the road, it was large enough to be seen from the railroad side.

While “there is no duty to consistently and constantly check all pine trees for non-visible rot,” as a reasonable landowner, the presence of blighted pine trees with “visible, apparent, and patent” decay among a stand of pine trees gives rise to a duty to inspect. Wade v. Howard, supra at 58; Willis v. Maloof, supra at 350; Cornett v. Agee, supra at 57. “[O]nly if [the landowner] knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition,” did the owner become liable. Wade v. Howard, supra at 58; Willis v. Maloof, supra at 350. Thus, the landowner has constructive notice of what a reasonable inspection would reveal as to individual trees within the blighted area. Therefore, a jury was free to conclude, as it did, that a reasonable inspection should reveal the rotten cavity in the tree that fell, which had been present for ten to fifteen years.

(c) Singleton testified that he gave Boughton notice of the blighted trees, if not the actual tree that fell, prior to February 7, 1995. Boughton denied such notice was given prior to that date as to the tree that fell. This created a factual dispute for jury resolution. Such evidence of the dead and leaning tree as well as other diseased trees put Wesleyan on notice of a hazardous condition on its property, requiring an inspection. Thus, what it “reasonably should have known” from such inspection was not only that many trees in the general area were diseased, dead, or dying but that the specific tree that fell had a four-foot rotten cavity and was unhealthy, making it hazardous to the public because of its ninety-four-foot height and its proximity to the four-lane road. While the Singleton testimony may not have demonstrated actual notice as to the tree, that fell, such testimony evidenced constructive notice as to that tree’s condition. “ ‘[N]otice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led.’ ” Smalls v. Blueprint Dev., 230 Ga. App. 556, 558 (497 SE2d 54) (1998); Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (2) (469 SE2d 242) (1996); Delk v. Tom Peterson Realtors, 220 Ga. App. 576, 577 (469 SE2d 741) (1996); see generally OCGA § 23-1-17. Wesleyan “is held to a standard of reasonable care in inspecting trees to ensure safety. [Cit.]” Wade v. Howard, supra at 58; see also Cornett v. Agee, supra at 55-56. “The jury was also authorized to find that this condition of the tree had existed for such a period of time that [Wesleyan] in the exercise of ordinary care should have discovered and removed this hazard to the users of the street.” City of Bainbridge v. Cox, 83 Ga. App. 453, 457 (1) (64 SE2d 192) (1951); accord City Council of Augusta v. Hammock, 85 Ga. App. 554, 561 (4) (69 SE2d 834) (1952).

Case No. A99A0459

Weber contends that the trial court abused its discretion in granting Wesleyan a new trial on the grounds of newly discovered evidence.

Ragnar William Johansen was not a factual witness prior to the occurrence and was not a factual expert witness as an actor or observer, either. See Austin v. Kaufman, 203 Ga. App. 704, 709 (7) (417 SE2d 660) (1992); Jones v. Scarborough, 194 Ga. App. 468, 470 (3) (390 SE2d 674) (1990); Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 457-458 (2) (349 SE2d 756) (1986). Johansen was an expert retained by counsel for Weber in anticipation of litigation to assist in trial preparation and not to testify. OCGA § 9-11-26 (b) (4) (B). As such, Johansen came within the limited attorney work product/trial preparation exception of OCGA § 9-11-26 (b) (4) (B) and (C), which mandates two conditions that must be shown prior to allowing discovery of his knowledge and opinion: (1) exceptional circumstances and (2) manifest injustice would otherwise result. Neither of these conditions was met by Wesleyan as to Johansen prior to talking to him when it was known that he was Weber’s former expert and that Weber did not want him to testify.

In his affidavit, Johansen testified that “I examined the tree and determined that it had been alive. The bark was intact. Green needle debris was still present in the area. The cut end of the tree disclosed no evidence of internal rot or damage. I did note a cavity, but in my opinion it played no role in the tree falling. It was also my opinion that the landowner, which was unknown to me at that time, could not have foreseen that this tree would fall.” The inspection was made less than a week after the tree fell, which was close in time to Hartel’s inspection. Thus, the expert witness’ testimony merely noted: (1) what he observed as to the tree’s condition, which was what the other experts testified to seeing; and (2) what his opinion was based on such observation, which was the same as the trial testimony of Wesleyan’s expert Hartel.

Wesleyan amended its motion for new trial on the basis of what it alleged was newly discovered evidence.

Mr. Johansen’s information is material and would probably produce a directed verdict. Three foresters testified in this case, two of whom did not go to the scene until over a year following the fall of the tree. Dudley Hartel, who was called by the defendant, was at the scene a couple of weeks later, but was impeached by his testimony that he had only a “cursory” examination of the tree. Mr. Johansen, on the other hand, was there even sooner, and according to the information in his affidavit, conducted a thorough examination. This information would be extremely persuasive, and would likely produce a different result. For these reasons too, it is not cumulative, but is fresh evidence that should be considered by the jury. The purpose of Mr. Johansen’s testimony is not to impeach any witness.

Since Wesleyan had an expert witness who had examined the tree within weeks of its fall, then it failed to establish exceptional circumstances or that Johansen’s testimony was unique and not cumulative.

OCGA § 5-5-23 provides:

[a] new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

Cumulative evidence is evidence tending to establish a fact in relation to which there was evidence at trial. Baumbach v. Dickens, 213 Ga. 745, 746-747 (1) (101 SE2d 702) (1958); Distrib. Concepts Co. v. Hunt, 221 Ga. App. 449, 451 (2) (471 SE2d 539) (1996). Johansen’s testimony is cumulative of Wesleyan’s other expert witness, Hartel, and even Weber’s own experts as to what they observed, and Johansen’s opinion is for the purpose of impeaching Weber’s other expert witnesses’ opinions.

Such proposed testimony will not make clear and positive that which previously was equivocal and uncertain, because the evidence is the same as produced at trial, even from Weber’s experts. Dougherty v. State, 7 Ga. App. 91-92 (66 SE 276) (1909). Johansen’s testimony is not “new and material facts” but constitutes expert opinions. Therefore, such opinion evidence fails to constitute newly discovered evidence within OCGA § 5-5-23. Allen v. State, 187 Ga. 178, hn. 1 (200 SE 109) (1938); Battle v. State, 73 Ga. App. 476, 480 (36 SE2d 873) (1946). Further, Johansen’s testimony is not newly discovered evidence within the ambit of the statute. See Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980); Fields v. State, 212 Ga. 652 (94 SE2d 694) (1956); Aycock v. State, 188 Ga. 550 (4 SE2d 221) (1939); Lawrence v. State, 227 Ga. App. 70, 73-74 (7) (487 SE2d 608) (1997); Collins v. Kiah, 218 Ga. App. 484, 485-486 (2) (462 SE2d 158) (1995).

Further, “[a]lleged newly discovered evidence is no cause for a new trial, unless it shall appear that the evidence itself is newly discovered, not merely that certain named witnesses by whom the facts can be proven were unknown until after the trial. [Cits.]” Bass v. State, 154 Ga. 112, 116-117 (113 SE 524) (1922); accord Waters v. Narcarti, 239 Ga. 545, 546 (3) (238 SE2d 83) (1977).

The sole purpose of tendering Johansen’s testimony is that he derives his credibility from the rejection by Weber’s counsel, and such testimony seeks to taint Weber’s case by letting the jury know that he was Weber’s expert who was not used because his opinion was favorable to Wesleyan and potentially harmful to Weber. Since Johansen’s testimony failed to satisfy all six criteria of OCGA § 5-5-23, the trial court manifestly abused its discretion in granting a new trial on such grounds. See Hegedus v. Hegedus, 255 Ga. 44, 46 (2) (335 SE2d 284) (1985); Aycock v. State, supra at 550; Cantrell v. Red Wing Rollerway, 184 Ga. App. 506, 507-508 (1) (361 SE2d 720) (1987); Exchange Bank of Oakfield v. Cone, 18 Ga. App. 432 (89 SE 489) (1916). The grant of a new trial is reversed and vacated and the judgment reinstated.

Judgment affirmed in Case No. A99A0419. Judgment reversed in Case No. A99A0459.

Johnson, C. J., Pope, P. J., Barnes, J., and Senior Appellate Judge Harold R. Banke concur. Blackburn, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. While I agree fully with the affirmance of the trial court’s denial of Wesleyan’s motion for directed verdict and j.n.o.v. in the first appeal, Case No. A99A0419, I believe the trial court’s grant of a new trial in Case No. A99A0459 should also be affirmed.

There is a well-established rule of deference to the trial court’s decision in a grant or denial of new trial. The trial court heard all the evidence and observed the witnesses, and in ruling on a motion for new trial based on newly discovered evidence “[that] determination is entitled to great consideration.” Humphrey v. State, 252 Ga. 525, 529 (3) (314 SE2d 436) (1984).

In determining whether any newly discovered evidence would probably produce a different verdict, a trial court should not consider new evidence in isolation. Rather, it should consider the strength and weaknesses of both the state’s and the defendant’s case and the nature and strength of a defendant’s new evidence.

(Citation omitted.) Carl v. State, 234 Ga. App. 61, 62 (1) (506 SE2d 207) (1998). “Furthermore, a motion for new trial based upon alleged newly discovered evidence is addressed to the sound discretion of the trial judge, and the reviewing court will not reverse his judgment overruling the motion, except where there is a manifest abuse of discretion.” (Citations omitted.) Aycock v. State, 188 Ga. 550, 565-566 (4 SE2d 221) (1939). Cantrell v. Red Wing Rollerway, 184 Ga. App. 506 (361 SE2d 720) (1987), appears to require a finding as a matter of law that the trial court’s finding was without evidentiary support, clearly erroneous, and an abuse of discretion. Finally, “[o]n the hearing of a motion for a new trial based on newly discovered evidence the trial judge becomes the trier of the facts. A reviewing court will not in such a case control his discretion as to the credibility of the witnesses.” (Citations and punctuation omitted.) Young v. State, 194 Ga. App. 335, 336 (1) (a) (390 SE2d 305) (1990).

In virtually every case cited by the majority, the appeals courts followed this well-established rule and affirmed the trial court’s decision on a motion for new trial. The sole exception cited by the majority to this pattern of deference to the trial court’s discretion is Hegedus v. Hegedus, 255 Ga. 44, 46 (2) (335 SE2d 284) (1985), in which the Supreme Court reversed the trial court’s denial of a new trial because the wife in a divorce case concealed the fact of her remarriage when alimony, child support, and property distribution were in dispute. In Distrib. Concepts Co. v. Hunt, 221 Ga. App. 449, 451 (2) (471 SE2d 539) (1996), we held merely that the superior court did not have the authority under the law to remand a workers’ compensation case to an administrative law judge on the ground of newly discovered evidence. In Dougherty v. State, 7 Ga. App. 91 (66 SE 276) (1909), this court reversed an order denying a motion for new trial, but one judge dissented and one concurred dubitante. While the latter decision has been cited recently by the Supreme Court of Georgia, it was cited in support of the proposition that “‘evidence which removes all doubt upon a material point which was before doubtful is not in a legal sense cumulative.’ [Cit.]” Brown v. State, 264 Ga. 803, 806 (3) (450 SE2d 821) (1994). That holding is particularly apt in the case of this newly discovered witness, Johansen.

Reviewing the standard established in Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980), it does not appear that the trial court manifestly abused its discretion in granting a new trial on the basis of the proffered testimony of Johansen. While the trial court’s order granting the motion for new trial is quite brief, the trial court in an earlier letter to all counsel placed on the record its concerns regarding this witness’s testimony. It is apparent that the trial court considered the elements of the Timberlake test and reviewed the new evidence in the context of other evidence presented at trial, as required by Carl v. State, supra.

There was ample evidence from which the trial court could have concluded that the purpose of Johansen’s testimony was not to show his status as a plaintiff’s expert, or to taint Weber’s case. The testimony presented supports the conclusion that those facts were presented to explain the delay in discovery of the witness and Wesleyan’s due diligence. See Wade v. Howard, 232 Ga. App. 55, 56-57 (499 SE2d 652) (1998).

Moreover, substantial evidence was presented that Johansen was a discoverable fact witness. He did not merely give an opinion as an expert based on the observations of others, nor did he simply act in a consultative capacity so as to not be subject to discovery. He was the first forester on the scene, at his estimation within a “couple of weeks”; the debris was still fresh and would have yellowed if as much as three weeks had passed. He also testified that he had examined the tree “quite thoroughly,” while the expert who testified for Wesleyan acknowledged at trial that he had made only a “cursory” examination of the tree. The experts testifying on behalf of Weber at trial examined the tree over a year after the incident. The testimony of Johansen therefore established facts which he had a unique opportunity to observe; he was not merely an opinion witness. This court should not appear to encourage in any way the withholding of factual testimony in discovery. See Wade, supra at 60.

Decided May 13, 1999 — Cert. applied for.

Chambless, Higdon & Carson, Mary M. Katz, King & Spalding, Frank C. Jones, John P. Brumbaugh, for appellant.

On these facts, the trial court clearly had an ample basis for deciding that Johansen had a unique opportunity to observe the tree shortly after its fall and that his testimony as to what he observed was material to the case and not merely cumulative or impeaching. As the trial court specifically observed, Johansen testified in detail to factual observations which contradicted the factual support for the theory proposed by plaintiff to explain what was wrong with the tree and the reasons for its fall. This countervailing explanation of the condition leading to the deterioration and ultimate collapse of the tree, if believed by the jury, could well have produced a different verdict. Johansen’s testimony was unique, formed the basis for a different theory of causation, and did not impeach another witness.

In short, the trial cpurt heard all the evidence presented at trial and had the benefit of hearing Johansen’s testimony in person. On a motion for new trial based on newly discovered evidence, the trial court is the trier of fact and judges the credibility of the witnesses. The trial court here was in the best position to judge the relative value and importance of Johansen’s evidence and its potential effect on the verdict. Wesleyan has presented evidence supporting each element of the Timberlake test, and I do not believe the trial court manifestly abused its discretion in granting a new trial.

For these reasons, I respectfully dissent.

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

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Charles M. Cork III, for appellees.

        Heyde v. Xtraman, Inc., 199 Ga. App. 303, 308 (404 SE2d 607) (1991), held that the trial court could exclude testimony of an expert witness retained for trial preparation only for the movant, where the opposite party sought to compel his testimony at trial as their witness without first satisfying the OCGA § 9-11-26 (b) (4) (B) and (C) conditions of exceptional circumstances and that manifest injustice would otherwise result. Such exclusion of testimony was a proper sanction for discovery abuse. The facts of that case were similar to this case, where Wesleyan made no showing prior to talking to Johansen. Jones v. Scarborough, supra, dealt with a non-expert witness, a private investigator, being called to testify. The party for whom the investigator worked objected under OCGA § 9-11-26 (b) (4) (B), which the trial court ruled did not apply to a non-expert. In Sherrill v. Martin, 161 Ga. App. 558, 559-560 (2) (288 SE2d 648) (1982), one party’s expert witness, a questioned document examiner, was called as a witness for deposition and the other side moved for protective order under OCGA § 9-11-26 (b) (4) (B) to prevent the testimony, because the condition for discovery had not been met. This Court held “that the requirements of [OCGA § 9-11-26] (b) (4) (B) did not apply and there was no necessity that appellee show exceptional circumstances to authorize the taking of the deposition” of a witness for use in evidence. Id. at 560 (2) (A). No authority was cited for such proposition. Such case is distinguished on the same basis as Jones v. Scarborough, supra at 470. “The expert in Sherrill [v. Martin, supra at 559-560] was to be called as a witness at trial];] therefore],] the statutory showing of exceptional circumstances did not apply.” Heyde v. Xtraman, Inc., supra at 308.

       “A witness may be impeached: a. By disproving the facts to which the witness testifies; b. By proof of contradictory statements previously made by the witness about matters relevant to the testimony and to the case; c. By evidence as to-the witness’s general bad character; or d. By the conviction of the witness for an offense involving moral turpitude.” Suggested Pattern Jury Instructions, Vol. I: Civil Cases, prepared by the Council of Superior Court Judges, p. 16 (3rd ed. 1995); see also OCGA §§ 24-9-82 through 24-9-84. The latter three methods of impeachment are clearly irrelevant; as to the first, Johansen’s testimony did not disprove any facts testified to by another witness, although the opinion he gave differed from that of plaintiff’s experts, who did not observe or testify to the same facts at the same time.


text:
    A99A0438.
    JAMES v. THE STATE.
    (518 SE2d 142)
   Ruffin, Judge.

Following a bench trial, the trial court convicted Dante James of one count of simple battery for biting Joy Monroe. On appeal, James contends the trial court erred in failing to consider his sole defense of justification. As James’ contention lacks merit, we affirm.

On January 29, 1998, Monroe, who lived with James, was talking to a friend on the phone. Although James said that he needed to use the phone to make a business call, Monroe refused to relinquish the phone. The two began struggling over the phone. According to Monroe, James grabbed her by her shirt, ripped the shirt, scratched her neck, and hit her. Monroe testified that when she attempted to push James away, he bit her on her finger, drawing blood.

According to James, Monroe assaulted him after he took the phone from her, and he attempted to defend himself. He denied that he ever hit Monroe, but said that she struck him with the telephone. With respect to the bite, James testified that Monroe’s hand must have gotten in his mouth while she was attacking him, but that he had no specific recollection of biting her. On cross-examination, James testified that the bite “was certainly not intentional.”

Following the altercation, Monroe called the police. The responding officer testified that when he arrived at the house, he saw that Monroe had scratches on her neck, her finger was bleeding and her shirt was torn and had blood on it. The officer questioned both James and Monroe and arrested James after determining that he was the aggressor. James was charged with three counts of simple battery — one count for biting Monroe, one count for hitting her, and one count for grabbing her. The trial court found James not guilty of simple battery for hitting or grabbing Monroe, but found James guilty of simple battery for biting her.

James contends the trial court erred as a matter of law in refusing to distinguish between his defense of justification and the defense of accident. This contention is without merit. In acquitting James on the charges of hitting and grabbing Monroe, the trial court noted that “maybe one gets as good as one gives.” In addition, the trial court indicated that it did not believe that James intended to harm Monroe by hitting and grabbing her. Thus, it appears that the trial court essentially accepted James’ defense of justification with respect to those charges. With respect to the biting charge, however, the court stated that “[a] bite like that is not defensive. ... I find that there was an intentional causing of physical harm to this woman when she gets bitten.” Accordingly, the trial court considered, but rejected, the defense of justification as well as the defense of accident with respect to James biting Monroe. See McMichael v. State, 194 Ga. App. 225 (390 SE2d 120) (1990) (whether the defendant’s response is justified is a question for the factfinder); Richards v. State, 263 Ga. 65 (428 SE2d 84) (1993) (factfinder authorized to reject defenses of self-defense and accident).

Decided May 13, 1999.

James S. Lewis, for appellant.

Gwendolyn R. Keyes, Solicitor, D. Max Hirsh, Thomas E. Csider, Assistant Solicitors, for appellee.

Here, the evidence was sufficient to authorize the finder of fact to find James guilty beyond a reasonable doubt of simple battery. Reynolds v. State, 231 Ga. App. 33, 34 (1) (497 SE2d 580) (1998). In a bench trial, the judge serves as the finder of fact, and we will not set aside his findings unless they are clearly erroneous. Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). As the trial court’s finding that James was guilty of simple battery is not clearly erroneous, we affirm.

Judgment affirmed.

McMurray, R J, and Andrews, J., concur.