text:
    A95A2379.
    ALLSOUTH STEVEDORING COMPANY et al. v. WILSON. STRACHAN SHIPPING COMPANY et al. v. WILSON.
    A95A2541.
    (469 SE2d 348)
   Smith, Judge.

AllSouth Stevedoring Company (AllSouth) and Strachan Shipping Company (Strachan) and their respective workers’ compensation insurance carriers, Travelers Insurance Company and Legion Insurance Company, filed two separate applications for discretionary appeal from the decision of the superior court affirming an award of workers’ compensation to James Wilson. We granted those applications, and these appeals ensued.

The claimant, James Wilson, was employed as a stevedore superintendent for AllSouth. In that capacity, he supervised and instructed longshoremen in loading and unloading ships and sometimes performed the work of stevedores; his duties were carried out both aboard ships and on the docks. He was first injured in April 1991 when he slipped and fell aboard a ship moored at a pier on the Savannah River. Wilson applied for and received compensation under the Longshoremen’s & Harbor Workers’ Compensation Act (LHWCA), 33 USC § 901 et seq., from July 1991 until September 1991. After undergoing a diskectomy in July 1991, he returned to work in September 1991. The surgery resolved Wilson’s leg pain, but some residual back pain continued, and after the surgery he began experiencing muscle spasms or cramps in his leg.

Although Wilson was an AllSouth employee when he was injured in 1991, the agreement under which AllSouth and Strachan merged ended while Wilson was out of work. As a result, when he returned to his job, he did so as an employee of Strachan. In January 1993, in the course of his employment with Strachan, Wilson was on a ladder in the hold of a ship when he experienced a severe spasm in his leg. The leg “cramped,” and Wilson was unable to move either up or down the ladder. He left work at that time, and he has not worked in that capacity since.

He once again applied for benefits under the LHWCA. He also applied for benefits under the Georgia Workers’ Compensation Act, claiming that his current disability constituted a change in his original condition. AllSouth, his original employer, controverted the claim for state benefits, both on the ground that exclusive jurisdiction over the claim existed under the LHWCA and on the ground that the January 1993 injury was a new injury for which Strachan was responsible. Because of the latter claim by AllSouth, Strachan was brought into the action. Strachan concurred with AllSouth on the jurisdictional issue, but agreed with Wilson that his 1993 claim constituted a change in condition.

The administrative law judge ruled in favor of Wilson on both grounds and against AllSouth on the issue of change of condition. The appellate division affirmed, as did the superior court. We granted All-South’s and Strachan’s applications for discretionary review to resolve an issue that no Georgia case has addressed: whether concurrent jurisdiction exists under the LHWCA and the Georgia Workers’ Compensation Act, OCGA § 34-9-1 et seq., for injuries sustained by a stevedore on navigable waters within this state. We have consolidated the appeals for review in this opinion.

1. We first address the issue of jurisdiction. To better understand the background of the dispute in this case, a brief history is helpful. In 1917, the United States Supreme Court’s ruling in Southern Pacific Co. v. Jensen, 244 U. S. 205 (37 SC 524, 61 LE 1086) (1917), created a line at the water’s edge beyond which states were barred by the admiralty clause of the United States Constitution from applying their workers’ compensation schemes to maritime workers. In the interest of promoting uniformity in the national maritime law, all injuries to maritime workers occurring seaward of the water’s edge were required to be addressed only under federal law. Although Jensen has been criticized severely, it has never been overruled. It has, however, been narrowed considerably.

Seeking to avoid the harsh result imposed under Jensen and to render some injured maritime employees eligible for state workers’ compensation benefits, the Supreme Court held in Western Fuel v. Garcia, 257 U. S. 233 (42 SC 89, 66 LE 210) (1921), that it was constitutionally permissible to apply state law to such employees even where the employment in issue was “maritime” if the employment was “local” in character. In such cases, it was reasoned, application of state law would not imperil the uniformity of the national maritime law. Id. at 242. In fact, in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 (42 SC 157, 66 LE 321) (1922), the Supreme Court held, relying on Garcia, that a proceeding in admiralty would not lie to recover damages for an injury on Oregon’s navigable waters to the employee of a shipbuilding company; the employee was restricted to a remedy under Oregon’s workers’ compensation law. Rohde, supra at 477. If employment could not be described as “maritime but local,” however, no compensation remedy was available.

In 1927, after the Supreme Court had declared two prior legislative attempts unconstitutional, Congress succeeded in enacting the LHWCA. The primary purpose of the Act was to bring under a federal compensation scheme workers barred by Jensen from state workers’ compensation coverage. The Act provided compensation coverage to maritime workers injured on navigable waters “if recovery . . . through workmen’s compensation proceedings may not validly be provided by State law.” 33 USC § 903 (a). Passage of the LHWCA did not serve, however, to erase confusion. Decisions interpreting when employment was “maritime but local” were far from uniform and less than clear. Moreover, because the LHWCA and state compensation schemes were mutually exclusive, injured maritime workers were forced to make costly guesses regarding whether federal law or state law provided a remedy for their injuries. If the wrong remedy was pursued, the other, “right” remedy might well be barred by the running of the statute of limitation.

In 1942, the Supreme Court acknowledged that the border between the mutually exclusive federal and state compensation schemes was not, in fact, a line, as was held in Jensen, but rather was a “twilight zone in which the employees must have their rights determined case by case.” Davis v. Dept. of Labor, 317 U. S. 249, 256 (63 SC 225, 87 LE 246) (1942). Not until the decision in Calbeck v. Travelers Ins. Co., 370 U. S. 114 (82 SC 1196, 8 LE2d 368) (1962), however, did the Supreme Court hold that the LHWCA was applicable to all injuries on navigable waters, regardless of whether they were “maritime but local” and irrespective of whether state compensation schemes could also constitutionally apply. Id. at 126-127. Calbeck thus established an area in which federal and state jurisdiction overlapped.

It was clear, though, that the LHWCA did not cover injuries when they happened to occur on land, even to workers in such traditional maritime occupations such as longshoremen. Jurisdictionally speaking, prior to 1972, three categories of maritime-related injuries existed. One category, falling strictly under Jensen, consisted of injuries on navigable waters to maritime employees whose employment was not “local” in nature. These injuries were covered exclusively under the LHWCA. The second category, “maritime but local” injuries on navigable waters, could be compensated either under the LHWCA or under a state scheme. In the third category were injuries to maritime workers that occurred on land, even if they occurred within the usual range of federal admiralty jurisdiction. These injuries fell under the exclusive jurisdiction of state workers’ compensation schemes.

In 1972, Congress amended the LHWCA to extend its coverage landward in just such cases. In 1980, the Supreme Court held that the extension of federal jurisdiction under these amendments “supplements, rather than supplants, state compensation law.” Sun Ship v. Commonwealth of Pa., 447 U. S. 715, 720 (100 SC 2432, 65 LE2d 458) (1980). In Sun Ship, the court held that concurrent federal and state jurisdiction exists under the 1972 amendments for land-based injuries sustained by a shipyard worker at the yard, located on land along the Delaware River. Sun Ship is the latest relevant pronouncement of the United States Supreme Court with regard to the issue of jurisdiction.

Bearing in mind this history, we turn to the jurisdictional issue presented by this case. Federal cases have been primarily concerned with the extension of federal jurisdiction. That is not at issue here; under Calbeck, supra, 370 U. S. at 126-127, Wilson’s injury clearly is compensable under the LHWCA because it occurred on navigable waters, regardless of whether it is also of local concern and therefore also compensable under Georgia workers’ compensation law. The issue here is extending state jurisdiction to an injury over which federal jurisdiction has already been established. We must decide whether either federal or Georgia law precludes coverage for this injury under the Georgia workers’ compensation law.

AllSouth and Strachan correctly point out that Sun Ship held only that federal jurisdiction now exists under the 1972 amendments to the LHWCA for icmd-based injuries that are also covered under state law. The 1972 amendments and Sun Ship removed the third pre-1972 exclusive jurisdiction category, composed of those injuries exclusively within the jurisdiction of state law because they occur on land, rather than on navigable waters. Concurrent jurisdiction now exists for that category of injury. AllSouth and Strachan argue, however, that the first jurisdictional category was unaffected by either the 1972 amendments or Sun Ship and that this category is still governed by Jensen. They argue further that Wilson’s injury must fall in that first, Jensen-governed category, because Wilson was engaged in stevedoring, an occupation that is traditionally and strictly maritime, rather than “maritime but local.” We do not agree.

The superior court correctly noted that a split of authority exists among jurisdictions that have dealt with this issue. That split results from differing interpretations of the meaning of the phrase “maritime but local,” a zone in which the United States Supreme Court has held that concurrent jurisdiction exists. Compare, e.g., Norfolk Shipbuilding & Drydock Corp. v. Duke, 420 SE2d 528 (Va. App. 1992), with Wellsville Terminals Co. v. Workmen’s Compensation Appeal Bd., 632 A2d 1305 (Pa. 1993). In Duke, an employee was injured on navigable waters in the course of his employment with a shipbuilder; the work was a maritime activity and the injury occurred on navigable waters. The employment was held to be “maritime but local” because both the injured employee and the corporate employer were Virginia citizens, the work was performed in Virginia waters and resulted from a local employment contract, and the employer/employee relationship was a proper subject of state interest and control. In Wellsville Terminals Co., a welder was injured on navigable waters in the course of his employment with a company that repaired barges floating on a river. His work was held not to be “maritime but local” because it was traditional maritime work.

Both lines of authority have merit, but as the superior court noted, both are premised upon the individual state’s compensation laws. No Georgia case is on point. Absent controlling Georgia authority, the decision regarding whether concurrent jurisdiction exists must be based upon policy considerations. We find the policy considerations favoring concurrent jurisdiction most persuasive, and we therefore affirm.

In addition to the policy relied upon by the trial court of liberally construing the Georgia Workers’ Compensation Act in order to bring employers and employees within its coverage, we have considered as well the type of employment covered in this case. This court has recently decided, in Atlantic Container Svcs. v. Godbee, 218 Ga. App. 594 (462 SE2d 465) (1995), that concurrent jurisdiction exists for land-based injuries, and that a state compensation remedy may be sought despite the claimant’s previous receipt of benefits under the LHWCA for such injuries. Godbee is factually distinguishable from this case because the injury in that case occurred on land. Even so, it is clear that under Godbee, Georgia compensation law covers a stevedore injured on shore, notwithstanding previous receipt of compensation under the LHWCA.

In light of Godbee, AllSouth’s and Strachan’s argument that the LHWCA is the exclusive remedy for a stevedore such as Wilson who is injured while aboard a ship on navigable waters leads to an anomalous result. Were we to hold that exclusive jurisdiction over such injuries exists under the LHWCA, two stevedores employed by the same company, loading or unloading the same ship’s cargo, and suffering identical injuries would be treated differently if the injury of one occurred on the dock and the other occurred in the ship’s hold. This distinction is indefensible; in the performance of a stevedore’s work, he would literally walk in and out of state compensation coverage many times each day. Employers must purchase state workers’ compensation coverage for their stevedore employees because the possibility exists that such employees will be injured on land. Covering those same employees for identical injuries aboard ships will place no new burdens on employers.

We find additional support for finding concurrent jurisdiction in the 1972 amendments themselves. Significantly, these amendments, in addition to extending LHWCA coverage to certain land-based injuries to maritime workers, also removed the language in § 903 (a) providing that the LHWCA would apply if recovery could not validly be provided under state workers’ compensation acts. The Sun Ship court, while conceding that the state law clause removed in the 1972 amendments was subject to opposing interpretations, noted that under either interpretation, its deletion in the 1972 amendments “if it indicates anything — may logically only imply acquiescence in Cal-beck’s conclusion that the LHWCA operates within the same ambit as state workers’ remedies.” (Footnote omitted.) Sun Ship, supra, 447 U. S. at 721. For these reasons, we affirm the superior court’s ruling that concurrent jurisdiction exists and that Wilson is not precluded from obtaining state benefits.

2. AllSouth also contends the decision below is erroneous in that Wilson’s “injury” in 1993 is not a change in condition but a new injury, for which Strachan is responsible. We find no merit in this contention.

The duties performed by Wilson when he returned to work in September 1991 as a Strachan employee were exactly the same as those he performed for AllSouth before his injury. After the 1991 injury, he began having muscle spasms, or cramps, in his leg and back pain. The pain and spasms occurred at home, as well as at work. They have gradually worsened. They occur closer together, last longer, and encompass a greater body area. He had no other traumatic incident or injury that caused him to stop work. Although we can agree with All-South that a specific, discernible spasm occurred on the ladder, it was not caused by an accident or other trauma; it occurred while Wilson was performing his regular duties, and it was no different from other spasms he had continued to endure since his original injury. The incident simply convinced Wilson he could no longer work as a stevedore superintendent.

This was not a new accident. “The proper classification of the basis of a claim as an accident, change of condition, or new accident hinges generally upon two factors: (1) Whether the claim seeks initial or additional compensation for the injury; and, (2) the proximate cause of the injury for which compensation is being sought. ... A change in condition claim for additional compensation is predicated upon the claimant’s gradually worsening condition, from the wear and tear of performing his usual employment duties and of ordinary life, to the point that he can no longer continue to perform his ordinary work.” (Citations and punctuation omitted.) Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 157 (338 SE2d 742) (1985). Evidence exists to bring Wilson’s injury within the classic definition of a change in condition. A finding of change in condition is unaffected by the fact that Wilson changed employers, because his job duties and working conditions were the same. Slattery Assocs. v. Hufstetler, 161 Ga. App. 389 (288 SE2d 654) (1982). The superior court did not err in affirming the award to Wilson based upon a change in condition.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

Decided February 14, 1996

Karsman, Brooks & Callaway, Shari S. Miltiades, for appellants (case no. A95A2379).

Barrow, Sims, Morrow & Lee, Charles Barrow, for appellants (case no. A95A2541).

Bouhan, Williams & Levy, Edwin D. Robb, Jr., for appellee.

       No possibility exists for double recovery, because benefits under either scheme are credited against each other.

        Atlantic Container Suvs. v. Godbee, infra, noted by the superior court as factually distinguishable, was at that time pending in this Court.

       The 1972 amendments also changed the definition of “employee” by adding a “status” requirement not present before (“any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net”). 33 USC § 902 (3). This change, however, is not germane to our analysis.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A2755.
    CANNON et al. v. STREET et al.
    (469 SE2d 343)
   McMurray, Presiding Judge.

Plaintiff Brenda D. Street brought this tort action against defendants Michael Dewaine Cannon and Kenneth Joe Cannon, seeking to recover for personal injuries she sustained which she contended resulted when Michael Dewaine Cannon negligently drove his father’s 1989 Ford F-150 pickup truck “through an official traffic control device, thereby disregarding a . . . signal and colliding] his vehicle . . . into that vehicle being driven by plaintiff [Brenda D. Street],” at an intersection where plaintiff had the right-of-way, in Griffin, Georgia. Defendant Kenneth Joe Cannon was alleged to be liable under the family purpose doctrine. At the behest of defendants, plaintiff’s husband, Ronnie L. Street, was added as an indispensable party. Defendants jointly denied the material allegations but admitted that, “[a]t the time and place of the collision, there was nothing to obstruct defendant Michael Dewaine Cannon’s vision of the roadway ahead.”

After discovery, plaintiffs moved for partial summary judgment as to defendant Michael Dewaine Cannon’s liability, supporting their motion with the following evidence: John Favors, an eyewitness to the collision, deposed that while proceeding west, he stopped for a red light at the intersection of West Taylor and South 16th Street in Griffin, Georgia. There, to his right, he saw a woman (plaintiff Brenda D. Street) proceeding south “after the light had turned green on her side. . . .” As plaintiff proceeded through the intersection on the green light, John Favors saw a Ford pickup truck coming east “in affiant’s direction, . . . which had a red stop signal. ...” This truck, driven by defendant Michael Dewaine Cannon, was “traveling at an unusually high rate of speed. ...” The Ford truck “proceeded through the red signal and the [plaintiff’s] Chevrolet pickup truck hit the Ford pickup truck. . . .” John Favors noticed that, as defendant Michael Dewaine Cannon approached the intersection, defendant was “looking to his right at [some] cheerleaders and [that] driver Cannon continued to look at the cheerleaders as his vehicle proceeded under and through the red traffic light signal.” Officer Brian Drake was dispatched to the scene. He asked Michael Dewaine Cannon “ ‘What happened.’ Driver Cannon stated to [Officer Drake] in the presence of others . . . : T (Cannon) ran the red light and she hit me in the side.’ ” Officer Drake then “issued a citation citing Michael [Dewaine] Cannon with violating O.C.G.A. Section 40-6-72.” Officer Drake further deposed that, thereafter, defendant Michael Dewaine Cannon “paid a fine on said citation, did not request a bond of said charges, did not request a jury trial, did not request a bench trial, and did not further appear to answer the charges.” Defendant Michael Dewaine Cannon admitted that, “after having been issued a traffic citation under O.C.G.A. [§] 40-6-72, [he] paid a cash fine and failed to appear at the court hearing. . . .” The disposition on the back of the traffic citation is noted as “Bond forfeiture,” in the amount of $35.

At his deposition, defendant Michael Dewaine Cannon “couldn’t tell you for sure,” whether plaintiff had the green light or whether he had the red light. Consequently, he could neither confirm nor deny whether he went through a red light. Similarly, while Michael Dewaine Cannon did not believe that he told the police officer that he ran a red light, neither could he dispute Officer Drake’s word that defendant had made such an admission. Defendant did contend that plaintiff could have avoided the collision by “[a]pplying brakes.” He had no evidence that the traffic light was malfunctioning that day.

The trial court granted plaintiffs’ motion for partial summary judgment as to defendant Michael Dewaine Cannon’s liability and this direct appeal followed. In the sole enumeration of error, defendants contend the trial court erred because genuine issues of material fact remain “regarding Michael Dewaine Cannon’s negligence, Brenda [D.] Street’s negligence, [and their respective] percentage[s] of comparative negligence and the proximate cause of the collision.” Held-.

1. Defendants first argue that the evidence does not establish Joe Kenneth Cannon’s liability under the family purpose doctrine. See generally Wingard v. Brinson, 212 Ga. App. 640 (1) (442 SE2d 485). Defendants also contend “there is also a question of whether Plaintiffs are entitled to punitive damages.” In our view, however, the partial grant of summary judgment is limited solely to defendant Michael Dewaine Cannon’s liability for compensatory damages and does not purport to address punitive damages or adjudicate the liability, if any, of defendant Kenneth Joe Cannon. Consequently, there is nothing respecting punitive damages or defendant Kenneth Joe Cannon’s liability for this Court to affirm or reverse. See, e.g., Giallanza Realty v. Rosebud Properties, 209 Ga. App. 571, 572 (3) (434 SE2d 130) (physical precedent). These contentions are without merit.

2. Defendant Michael Dewaine Cannon “maintains that a factual issue exists as to his negligence[, namely,] Did [he] run the red light?” We disagree, because Michael Dewaine Cannon did not contest his criminal culpability for ostensibly violating OCGA § 40-6-72 by his “[f]ailure to stop for red light,” as alleged in the citation issued by Officer Drake.

“Where a defendant cited for a traffic violation posts a cash bond according to the schedule set up by court order and fails to appear in court at the term of court and on the day set in the original citation and complaint, then and in that event, such failure shall be construed as an admission of guilt and the cash bond may be forfeited. . . .” OCGA § 40-13-58. “The rule, as to parties to a suit, is that, while convictions for criminal offenses are inadmissible in a civil action of this kind, a plea of guilty may be shown as an admission against interest. Roper v. Scott, 77 Ga. App. 120 (2) (48 SE2d 118); Henderson v. Henderson, 94 Ga. App. 64 (1) (93 SE2d 822).” Akin v. Randolph Motors, 95 Ga. App. 841, 848 (5) (99 SE2d 358). In the case sub judice, Michael Dewaine Cannon admitted that he ran the red light as alleged in the traffic citation, by failing to appear in court and by forfeiting his $35 bond. Consequently, no factual question remains as to that point.

3. Nevertheless, Michael Dewaine Cannon contends that, while his failure to stop at the red light amounts to negligence per se, the jury should still determine whether his negligence per se was the proximate cause of the collision, since the physical evidence is that plaintiff’s vehicle struck defendant’s in the rear. From this circumstance, Michael Dewaine Cannon argues that plaintiff could have braked and prevented the collision altogether.

“ ‘[E]ven where negligence per se has been shown, proximate cause must still be proved. (Cits.)’ Central Anesthesia Assoc., P.C. v. Worthy, 254 Ga. 728, 731 (2), 733 (333 SE2d 829).” Holbrook v. Executive Conference Ctr., 219 Ga. App. 104, 107 (2) (464 SE2d 398). “ ‘While we are fully aware of the beneficent and salutary rule, to which this court scrupulously adheres in proper cases, that ordinarily questions of diligence and negligence, including proximate cause, are for the jury, we also recognize it to be the duty of the court to determine those questions in clear, palpable, and indisputable cases. Evans v. Georgia Northern R. Co., 78 Ga. App. 709, 712 (52 SE2d 28).’ ” McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 209 (464 SE2d 645). In our view, the case sub judice is controlled by the recent decision in Morgan v. Braasch, 214 Ga. App. 82, 84 (2) (446 SE2d 746): “Even if it is assumed that [plaintiff Brenda D. Street] should have seen [defendant Michael Dewaine Cannon] approaching, there is no evidence that she or anyone reasonably observing [Michael Dewaine Cannon] approach would have had any reason to anticipate that he was going to run the [red light], nor is there any evidence to dispute that [plaintiff] had entered the intersection [with the right-of-way]. ‘ “A review of the record demonstrates that [defendant] produced no evidence to (create an issue of material fact) that, in the exercise of ordinary care, [plaintiff Brenda D. Street] could have avoided the collision after she saw or should have seen that [defendant] had entered into the intersection and was crossing [plaintiff’s] lane of traffic.” ’ Leonard v. Miller, 207 Ga. App. 602, 603 (2) (428 SE2d 646) (1993), quoting Kicklighter v. Jones, 202 Ga. App. 654, 655 (415 SE2d 302) (1992). . . . One who has the right-of-way may assume that others will obey the rules of the road absent some factual indicia that such is not the case. Id.; Harrison v. Ellis, 199 Ga. App. 199, 201 (404 SE2d 348) (1991). . . . Here, [defendant Michael Dewaine Cannon] failed to [demonstrate the existence of] a material dispute of fact that would have created a basis for denial of [plaintiffs’] partial summary judgment [as to liability].” (Emphasis supplied and in original.)

Decided February 14, 1996.

Beck, Owen & Murray, William M. Dallas III, for appellants.

William R. L. Latson, Stephen B. Wallace II, for appellees.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A95A2215.
    PARK v. THE STATE.
    (469 SE2d 353)
   Blackburn, Judge.

James Park appeals his conviction of driving under the influence of alcohol and driving with an unlawful alcohol concentration. Park was found not guilty of failure to maintain lane.

1. In his first enumeration of error, Park contends the trial court erred by denying his motion to suppress evidence of the breath test he took at the time of his arrest. Based on recent amendments to OCGA § 40-5-67.1, Park challenges the sufficiency of the implied consent rights read to him by the arresting officer.

Park was arrested on September 5, 1994, for DUI and failure to maintain lane. Park was tried and convicted on February 28, 1995. Thereafter, he filed a motion for new trial on March 6, 1995, an amended motion for new trial on May 30, 1995, and a second amended motion for new trial on June 2, 1995. The trial court denied Park’s motions for new trial on June 2, 1995.

In Park’s second amended motion for new trial and at the hearing on his motion he asserted that the trial court erred in denying his motion to suppress the breath test because the arresting officer had failed to inform him of his right to a second test by a “qualified” person of his own choosing. The arresting officer informed Park of his right to have a second test by personnel of his own choosing, omitting the word “qualified.” On appeal, Park abandons the argument he raised in the trial court and, instead, asserts that our opinion in Martin v. State, 217 Ga. App. 860 (460 SE2d 92) (1995), requires reversal. Because we decided Martin and the legislature amended OCGA § 40-5-67.1 after the docketing of this case, we address this enumeration of error.

During the regular 1995 legislative session, the legislature amended OCGA § 40-5-67.1 and thereby required that specific language be used as the implied consent warning in all cases pending at the time of its approval by the Governor on April 21, 1995. See Martin, supra. Thereafter, the legislature, in a special session held in August 1995, passed an amendment to OCGA § 40-5-67.1, which the Governor signed into law, adding subsection (b.l) which provided that subsection (b), requiring the specific language, would apply only to offenses committed on or after April 21, 1995. Offenses committed prior to that date, as in the present case, are governed by former Code sections 40-5-67.1 and 40-6-392. OCGA § 40-5-67.1 (b.l).

On February 12, 1996, the Georgia Supreme Court reversed our decision in Martin, supra. State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996). Therein, the Supreme Court determined that while our opinion was correct at the time it issued, the subsequent August amendment was retroactive and could be applied in Martin. Such application did not violate federal or state ex post facto constitutional provisions, the uniformity provision of the Georgia Constitution, Art. Ill, Sec. VI, Par. IV (c), or federal or state equal protection rights. Id. Therefore, this case is controlled by the above Supreme Court holding.

Under former OCGA § 40-5-67.1, the implied consent warning read to Park by the arresting officer was sufficient. See Howard v. Cofer, 150 Ga. App. 579 (2) (258 SE2d 195) (1979). The trial court did not err in denying Park’s motion to suppress.

2. Park contends the trial court erred in its charges to the jury regarding a less safe driver. Specifically, Park argues that the trial court’s charge that “a driver who is less safe is less efficient. Such a driver is less skillful, less competent, less able, less qualified and less proficient,” constituted a comment on the evidence as to his guilt. Immediately following the objected-to portion, the trial court further charged that “[t]his and all other questions of fact are for you, the jury, to decide.”

In Anderson v. State, 226 Ga. 35, 36-37 (172 SE2d 424) (1970), the Georgia Supreme Court noted that “[o]bviously a driver who is less safe is less efficient. He is less skillful, less competent, less able, less qualified, less proficient and less efficient. Each of the words would convey the same message to the jury. The driver must be so affected by the intoxicant that it adversely affected his operation of the motor vehicle.” Park argues that mere recitation in an appellate opinion does not create a proper charge. While recognizing that Park’s argument is true, we find that the charge given in the present case reviewed as a whole, did not improperly comment on the evidence and did not infringe on the jury’s decision-making authority. See Jackson v. State, 214 Ga. App. 683 (448 SE2d 763) (1994).

Park contends that the trial court gave inconsistent and conflicting charges. Specifically, he argues that the charge: “The manner of driving may be taken into account where there is evidence that the Defendant has been drinking. Merely showing the Defendant has been drinking without proof of Defendant’s driving or manner of driving is not sufficient,” is inconsistent with the charge: “There is no requirement that a person actually commit an unsafe act in order to be charged with driving under the influence of alcohol and that he is a less-safe driver.” However, Park does not address why the charges are confusing. As the charges given were correct statements of the law, and we do not believe that the charge as a whole would mislead a jury of average intelligence, we find no error. See State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990).

3. Park contends the trial court erred in granting the State’s motion in limine which limited his cross-examination of the arresting officer regarding the standards of the National Highway Transportation and Safety Administration. The arresting officer testified at the motions hearing that he was not aware of any NHTSA guidelines which he was required to follow. This enumeration of error is controlled adversely to Park by our decision in Torrance v. State, 217 Ga. App. 562 (1) (458 SE2d 495) (1995).

4. In his final enumeration of error, Park asserts the trial court erred in granting the State’s motion in limine which limited his cross-examination of the officer conducting the breath tests regarding the Taguchi cell.

In Lattarulo v. State, 261 Ga. 124, 127 (401 SE2d 516) (1991), the Georgia Supreme Court recognized that the Intoximeter 3000 currently approved for use in Georgia has the Taguchi cell disengaged. The Taguchi cell is “a device that measures acetone and other substances that might interfere with the test result[s].” Id. During the hearing on the pretrial motions in the present case, Park’s counsel stated “we do not have any scientific evidence to offer in the way of acetone ingestion or foreign substances.”

While it is true that Park could cross-examine the testing officer regarding possible malfunction of the Intoximeter 3000, see id., cross-examination regarding the Taguchi cell would be irrelevant in a case where acetone or foreign substance ingestion was not in issue. “The right of cross-examination is not abridged where examination is limited by the trial judge to relevant matters by proper questioning. [Cits.] Controlling the scope or extent of cross-examination is a matter resting within the sound discretion of the trial court [cit.] and, in the absence of an abuse of discretion in controlling the scope or extent thereof, an appellate court will not interfere [cit.].” Stephens v. State, 207 Ga. App. 645, 646 (428 SE2d 661) (1993). In the present case, the trial court did not abuse its discretion in limiting cross-examination to relevant matters.

Decided February 15, 1996.

Teddy R. Price, for appellant.

Ralph T. Bowden, Jr., Solicitor, Shannon L. Goessling, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A2159.
    SIEVEKING v. THE STATE.
    (469 SE2d 235)
   Beasley, Chief Judge.

Sieveking appeals from his conviction and sentence on charges of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and making an illegal U-turn, OCGA § 40-6-121 (1).

On appeal, the State did not timely submit a brief in compliance with Rule 26 (b). Upon being ordered to file a brief, the State filed a two-page document containing a mixture of factual and legal contentions, devoid of reference to the record or citation to authority as required by Rule 27 (b) & (c). Such dereliction of duty courts contempt, Rule 7, and leaves the State virtually unrepresented.

Viewed in favor of the verdict, a roadblock had been set up and Sieveking, after passing a sign advising the roadblock was ahead, made a U-turn on a curved portion of the road before reaching the roadblock. He was followed and stopped. When the officer approached the car, he detected emission of the odor of alcoholic beverage. He asked Sieveking to perform field sobriety tests, to which he agreed. The officer administered the Horizontal Gaze Nystagmus test (“HGN”) and an alco-sensor field breath test. He also had Sieveking take nine linear steps, touching heel to toe, and return to his beginning point in the same manner. An Intoximeter 3000 test was also administered but its results were suppressed because of an inadequate implied consent warning.

1. Sieveking concedes the officer could testify at trial about the results of the HGN test and that those results “show a symptom indicative of, although not determinative of, the presence of alcohol.” Manley v. State, 206 Ga. App. 281, 282 (424 SE2d 818) (1992). He contends, however, that this was as far as the officer could go and it was error to allow testimony that the results showed a certain level of impairment caused by alcohol.

The HGN test involves asking a suspect to follow an object with his eyes when it is moved horizontally near his face, watching for a jerking movement of the eyes. See Kerr v. State, 205 Ga. App. 624 (423 SE2d 276) (1992); Mendoza v. State, 196 Ga. App. 627, 628 (1), 630 (396 SE2d 576) (1990) (Deen, P. J., concurring specially). This Court’s precedents do refer to “the presence of alcohol” in discussing the admissibility of HGN test results on grounds of scientific reliability. See Lorio v. State, 216 Ga. App. 255 (454 SE2d 164) (1995); Manley, supra. That is not the limit of the testimony allowed on the subject. Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of OCGA § 40-6-391 (a) (1). See Holcomb v. State, 217 Ga. App. 482, 483 (2) (458 SE2d 159) (1995); In the Interest of C. P. M., 213 Ga. App. 761, 763 (446 SE2d 242) (1994); Rylee v. State, 210 Ga. App. 314, 315 (436 SE2d 52) (1993). Mere presence of alcohol is not the issue; the quantity is needed because the issue is effect. To illustrate, if a chemical test shows a concentration of alcohol lower than 0.05 grams, there is a statutory presumption that a person is not impaired by alcohol such that it is less safe for him to drive, despite the test result showing alcohol is present. OCGA § 40-6-392 (b) (1).

Field sobriety tests such as the HGN are often “scored” with a number of “clues” indicating conditions that suggest impairment, and it is not error to inform the jury about the test results, including the “scores.” Lorio, supra. In his testimony, Sieveking’s arresting officer used the term “level of impairment” when explaining the HGN and its six “score” points. He stated a suspect’s level of impairment would interfere with his ability to smoothly track the indicator with his eyes, would cause the eyes to jerk when looking at the indicator at its maximum deviation, and would affect the point at which nystagmus (jerking of the eyes) occurs. Each of these is considered a clue of impairment and is scored for each eye, making a total of six clues on the HGN test. Sieveking exhibited all six clues; four is considered an indication of impairment.

The officer was permitted to testify that, in his opinion, the suspect was under the influence of alcohol to the extent that it was less safe for him to drive. Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994). He merely explained what he had observed from the field sobriety tests and how those observations led to his opinion, thus laying a foundation for it. The officer had undergone specialized training in DUI detection and worked with a DUI task force for two years.

Sieveking’s objections affect the weight of the officer’s testimony, not its admissibility. He had ample opportunity to cross-examine the officer about his training and experience and how they impacted his opinion as to impairment.

2. After testimony about the HGN and heel-to-toe test, the State asked the arresting officer whether any other tests were performed. The officer responded that an alco-sensor test was given and that Sieveking registered positive for alcohol. The State then asked what happened next and the officer testified that Sieveking was placed under arrest and given an implied consent warning, he asked that his wife be allowed to take the car, the officer then gave Sieveking’s wife an alco-sensor test which she passed, and she was allowed to take the car. The State’s next question related to the implied consent warning and Sieveking objected, explaining after the jury was removed that he objected on the ground that the warning and subsequent intoximeter test had been suppressed because of an invalid warning. After this issue was resolved, he objected to the earlier testimony about the alco-sensor on the ground that no foundation had been laid. See Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985). He contends the court erred in overruling this objection as untimely.

Sieveking’s objection, because of the absence of secondary evidence, was waived because it was made too late. Mable v. State, 261 Ga. 379, 381 (1) (405 SE2d 48) (1991). See Brown v. State, 191 Ga. App. 357, 358 (1) (381 SE2d 543) (1989). The purpose of requiring a timely objection is to avoid placing improper information before the jury. Webster v. Brown, 213 Ga. App. 845, 848 (3) (446 SE2d 522) (1994). Removing from a jury’s consideration evidence it has heard is difficult at best and well nigh impossible after it has had time to sink in and the jury’s attention is drawn to another subject. If Sieveking doubted the accuracy of the alco-sensor test, he should have objected to prevent its introduction. There was ample opportunity. During the hearing on the motion to suppress, which was conducted immediately before trial, Sieveking’s counsel had stated he intended to address the foundation issue when the alco-sensor evidence was presented. He was warned to react when the State asked whether the HGN and the heel-to-toe walk were the only tests given, because the officer had testified during the suppression hearing that the only other test administered was the alco-sensor.

3. Finally, Sieveking contends the evidence was insufficient to support the conviction for driving under the influence, under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In addition to the officer’s testimony that Sieveking showed all six possible indications of impairment on the HGN test, the officer testified that he showed four of eight possible clues of impairment when performing the heel-to-toe test. The alcosensor test was positive, there was an odor of alcoholic beverage from inside the car, Sieveking’s eyes were glassy, and he was unsteady on his feet. The jury was authorized to consider these as reliable indicators that Sieveking was impaired by alcohol to the extent it was less safe for him to drive. The test of Jackson, supra, was met.

Decided January 26, 1996

Reconsideration denied February 16, 1996

Donald C. Turner, for appellant.

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

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge.

text:
    A95A2307.
    WILSON v. CHRISTIAN.
    (469 SE2d 362)
   Pope, Presiding Judge.

Joseph S. Wilson, Sr. worked for Southern Natural Gas Company. On October 8, 1992, during the course of his employment, Wilson was seriously injured when Joyce Christian struck him with her car. As a result of his injuries, Wilson recovered workers’ compensation benefits from Southern. On August 24, 1994, Wilson filed suit against Christian for negligence. Christian answered Wilson’s complaint denying liability, and later amended her answer to assert as an affirmative defense that Wilson’s suit was barred by the one-year statute of limitation set forth in OCGA § 34-9-11.1. Christian subsequently filed a motion for summary judgment on this basis, which the trial court granted on April 26, 1995. Wilson appeals and we reverse.

1. When Wilson filed his suit, “OCGA § 34-9-11.1 (c) provided that employees suing parties other than their employers must institute those actions (third-party actions) within one year of receiving the injury. Failure to file the suit within the one-year period resulted in an assignment of the claim to the employer or the employer’s insurer.” Moore v. Savannah Cocoa, 217 Ga. App. 869, 870 (459 SE2d 580) (1995); see OCGA § 34-9-11.1 (c). During the suit’s pendency, however, the General Assembly clarified and revised OCGA § 34-9-11.1. It rewrote subsection (c), changing the period within which an injured employee may pursue third-party actions from one year to whatever period is permitted by the applicable statute of limitation, which in this case is two years. See OCGA § 9-3-33. The legislature also deleted the language in that subsection that any third-party action not instituted by the employee within the appropriate period was “assigned” to the employer or the employer’s insurer. Instead, the revised statute provides that the employer or its insurer may, but is not obligated to, pursue the third-party action if the employee has not done so within one year of being injured. If the employer or its insurer institutes such an action, they must immediately notify the employee who then may opt to intervene in the action. See OCGA § 34-9-11.1 (c).

In adopting the above revisions, the legislature expressly provided that the revisions would apply retroactively to all injuries occurring on or after July 1, 1992. OCGA § 34-9-11.1 (e). As noted above, Wilson was injured in October 1992. The legislature also provided that all prior laws in conflict with the revised act were expressly repealed. Moore, 217 Ga. App. at 870.

Although OCGA § 34-9-11.1 (c) went into effect on July 1, 1995, after the trial court granted Christian’s summary judgment motion, “a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right (in this State) under the prior law.” (Citations and punctuation omitted; emphasis in original.) Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994). Thus, in reviewing the trial court’s decision, we must apply the revised OCGA § 34-9-11.1 (c) unless its application will impair a vested right. Moore, 217 Ga. App. at 870-871 (1); Draughn v. Delta Airlines, 218 Ga. App. 540, 541 (462 SE2d 445) (1995).

Citing the non-precedential case of Bennett v. Williams Elec. Constr. Co., 215 Ga. App. 423 (450 SE2d 873) (1994), Christian contends that Wilson’s failure to file the present suit within one year of the date of his injury, in accordance with former OCGA § 34-9-11.1 (c), resulted in an assignment to Southern or its insurer of any cause of action Wilson might have had. In essence, Christian argues that application of the revised statute will therefore impair Southern or its insurer’s vested rights. We disagree. “While ... a prior contractual assignment may create vested rights in an assignee, the assignment in the present matter was not a contractual agreement. It was a statutory remedy. The fact that one obtains a status under the provisions of one law does not amount to a contract or create a vested right that prevents a subsequent legislature from repealing the old law and passing a new one.” (Citations and punctuation omitted.) Moore, 217 Ga. App. at 871 (1). Additionally, we note that Bennett was decided prior to the legislature’s decision to revise OCGA § 34-9-11.1, and therefore without benefit of the legislative intent that the revised statute be applied retroactively and that any previous law in conflict with it be repealed. Thus, we conclude that no vested right existed in the assignment. Consequently, because Wilson filed his lawsuit within the applicable statute of limitation and in accordance with his rights under the revised statute, we reverse the trial court’s grant of summary judgment to Christian.

Decided February 16, 1996.

Linda G. Carpenter, Don C. Keenan, Kirk J. Post, for appellant.

Jones, Cork & Miller, H. J. Strickland, Jr., James E. Messer, Jr., for appellee.

2. In light of our decision in Division 1, we need not address Wilson’s remaining enumerations of error.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


author: Smith, Judge.

text:
    A95A2532.
    GEORGE v. THE STATE.
    (469 SE2d 360)
   Smith, Judge.

Roy Lee George was convicted of involuntary manslaughter and aggravated child molestation. His motion for new trial was denied, and he appeals. George raises the general grounds that the verdict was contrary to the law and evidence and strongly against the weight of evidence. He argues, however, only regarding the aggravated child molestation conviction, making no specific argument regarding the involuntary manslaughter conviction.

1. Viewed to support the verdict, the evidence showed that on the night of July 17, 1994, Shataria Middleton, a 16-month-old baby, was being cared for by her grandmother, Carol Middleton, in Middleton’s home in Lumber City, Georgia. Shataria and her mother, Cellie Middleton, lived with Carol Middleton. Shataria fell asleep in Carol Middleton’s lap around 12:00 midnight, and Middleton laid her in the baby bed in the room usually shared by Shataria and Cellie. Middleton testified that before falling asleep, Shataria was both healthy and active and was not ill or hurt. George and two of his friends also were in the Middleton home on that night and into the early hours of the next day. George slept in the bedroom in which Shataria slept, while his friends slept in another room. Carol Middleton slept in a separate bedroom.

Around 2:15 a.m., Officer William Thompson of the Lumber City Police Department responded to a call regarding the Middleton residence. Upon arriving, he found Shataria lying in the bed “very cold and not responding to anything, not breathing.” She showed no signs of life. He unsuccessfully attempted to revive her through CPR. The emergency medical technicians who were summoned were likewise unsuccessful in their attempts to revive her through administration of infant CPR.

An associate state medical examiner, Dr. Mark Koponen, conducted an autopsy on the body, finding several injuries, including several head, neck, and facial bruises and cuts. He described two of the injuries as having been caused “at or about the time of death.” Dr. Koponen found a large amount of blood in the abdominal cavity caused by “two very large lacerations” of the liver and opined that the liver was lacerated due to a blunt force trauma. He stated the child had received a blow to her abdomen such that her liver was compressed between the front and back of her rib cage and was split. He estimated she would have died within 15 to 30 minutes after receiving the blow.

Dr. Koponen also discovered two broken ribs and blood in the tissues around the pancreas. These injuries too were caused by a blunt force. He testified that infant CPR, if properly performed, would not have caused such injuries. No evidence was presented at trial that CPR was improperly performed. In fact, although Dr. Koponen admitted that a rib could be broken, he stated that such an injury did not occur as a result of CPR “in this particular case.” When asked his opinion of the cause of death, he stated that Shataria had no other injuries or natural diseases “that would have caused or contributed to the death except for these blunt force injuries of the chest and abdomen which lacerated [her] liver causing massive internal hemorrhage.” He testified that Shataria would have died within 15 to 30 minutes after receiving the blow. Further, no evidence shows that anyone other than George had any reason to enter or did enter the bedroom with Shataria and George between the time her grandmother placed her in her bed until Shataria was found limp.

Following the autopsy, George was questioned by an agent with the Georgia Bureau of Investigation, Wesley Holbrook. Holbrook prepared a statement based on the information given to him by George. Holbrook testified he read the statement aloud to George, gave it to George, and assumed he read it. He also testified that George signed the statement and initialed each page. The statement recited in relevant part that George awoke from sleeping in Shataria’s room to find the baby in need of being changed. He changed her diaper, threw it out the back door, and reentered the bedroom. He stated that upon his return, the baby was hollering and he “popped her twice.” After going back to sleep, he was awakened by the baby making noise “like she was trying to catch her wind back.” Carol Middleton was then summoned. Middleton testified she found the child was not breathing and had a wet diaper. George’s statement further recited that “this whole thing was an accident.” We find these facts sufficient to enable a rational trier of fact to find George guilty of the crime of involuntary manslaughter beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 16, 1996.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

Regarding the aggravated child molestation charge, the medical examiner also described two different types of injuries to Shataria’s vaginal area: (1) two lacerations to her external genitalia; and (2) an area of hemorrhage at the entrance to the vaginal cavity and down the length of the vagina. He testified that the internal hemorrhage on the vagina was “fairly intense” and was caused by a blunt force type of trauma. Although he estimated that one of the external lacerations could have occurred just before death or up to 18 to 24 hours prior to death and the other laceration was even older, we nevertheless find sufficient evidence to enable a rational trier of fact to find George guilty of the crime charged under Jackson v. Virginia, supra. As noted above, evidence was presented that the child appeared healthy and well when her grandmother put her to bed, that George changed her diaper, and most importantly, that George was the only person in the room with her from the time she was put to bed until she was discovered cold, limp, and unconscious. Although the medical examiner was not specifically asked when the vaginal hemorrhage occurred, from the evidence that was adduced at trial, including the evidence regarding the internal wound’s intensity, a rational jury could have found beyond a reasonable doubt that the injury occurred after the time she appeared to be healthy and well, when only George was in the room with her. There was sufficient circumstantial evidence on which to convict George of the crime charged.

2. George’s contention that venue was not proved by the State was not raised below. We will not consider matters raised for the first time on appeal. See Ricks v. State, 217 Ga. App. 666, 668 (2) (458 SE2d 862) (1995).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A2861.
    APPLE INVESTMENT PROPERTIES, INC. v. WATTS.
    (469 SE2d 356)
   Beasley, Chief Judge.

Watts sued Apple Investment Properties, Inc., which operates a personal care home called Bayberry Trace Personal Care Home. Watts is administrator of the estate of her father, William Harrison, who suffered from Alzheimer’s disease and lived at Bayberry Trace before his death. The suit alleges that in November 1991 Mr. Harrison wandered unsupervised into the cold, that a passer-by found him, lying on the ground wearing only his underwear, and that he had to be hospitalized for hypothermia. Watts claims compensatory and punitive damages due to negligent supervision.

During discovery, Watts sought to obtain records of incidents and accidents involving other residents which Apple was required by law to make and keep in the residents’ files. Pursuant to OCGA § 9-11-34, she served on Apple requests for: a copy of each and every record maintained by defendant of any case of an accident or sudden adverse change in the health of any resident of Bayberry Trace for the period from January 1, 1991 through December 1, 1991, said records being required by 290-5-35-.10 (1) of the Rules of the Department of Human Resources, a copy of the investigation report initiated by defendant’s manager relating to any incident concerning any resident of Bayberry Trace for the period from January 1, 1991 through December 1, 1991, said records being required by DHR Rule 290-5-35-.10 (3).

Copies of these requests are not in the record, but counsel agree on their language. Our ability to properly review these matters is hindered and slowed when the parties fail to ensure the record is complete and fail to cite to the record in their briefs, as required by Court of Appeals Rule 27 (c) (3).

The requests prompted Apple to file a motion for protective order contending 1) the records were not relevant and 2) it could not produce the records pursuant to DHR Rule 290-5-35-.08 (h), which required Apple to guarantee to its residents the right to “confidential treatment of personal information in [their] files as provided in Rule 290-5-35-.05 (1). . . ,” The latter provided that “personal information [in a resident’s files] shall be treated as confidential and shall not be disclosed except to the resident and his sponsor, the management, the licensing agency and others for whom written authorization is given by the resident or his sponsor.” DHR Rule 290-5-35-.05 (l). These regulations were issued pursuant to state law. OCGA §§ 31-7-12 (b), 31-8-133.

In a well-reasoned opinion, the trial court denied the protective order and required production of the reports. We agreed to hear Apple’s interlocutory appeal on this issue, OCGA § 5-6-34 (b), and affirm the trial court’s decision.

1. The trial court properly found these records to be relevant, ruling that “[e]vidence concerning the extent of similar conduct would be highly relevant concerning the true scope of the problem and the extent to which punitive damages might be required to punish or deter.” The Civil Practice Act contemplates full investigation, allowing discovery of “any matter, not privileged, which is relevant [and] . . . reasonably calculated to lead to the discovery of admissible evidence.” OCGA § 9-11-26 (b) (1); Bullard v. Ewing, 158 Ga. App. 287, 291 (279 SE2d 737) (1981). The trial courts have broad discretion to determine what is and what is not discoverable, and this court will not interfere with those decisions absent a clear abuse. Mixon v. City of Warner Robins, 214 Ga. App. 519 (2) (448 SE2d 377) (1994); Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745 (1) (360 SE2d 70) (1987).

The mission of a personal care home such as Bayberry Trace is to provide “protective care and watchful oversight of a resident who needs a watchful environment. . . . Protective care and watchful oversight includes but is not necessarily limited to a daily awareness by the management of the resident’s functioning, his or her whereabouts, . . . with a 24-hour responsibility for the well-being of the resident.” DHR Rule 290-5-35-.01 (b). And again, “[t]he personal care shall include 24-hour responsibility for the well-being of the residents.” DHR Rule 290-5-35-.03 (2).

Watts alleged Apple did not properly supervise Mr. Harrison, who suffered from a disease which required that he be given special care and structural supervision. Watts sought these reports to determine if Apple’s employees had failed to monitor other residents, as other similar instances of conduct would tend to support a claim that Apple was, as alleged, “consciously indifferent” to the needs of its residents so as to justify punitive damages. The principle that similar acts may be admitted during the punitive damages portion of a trial to show a pattern of misconduct is well established. Holt v. Grinnell, 212 Ga. App. 520, 521-522 (441 SE2d 874) (1994). “[T]he extent of the defendant’s wilful misconduct, wantonness, and entire want of care in [supervising its residents] cannot be gauged solely by focusing on the incident in issue.” Id. In Gunthorpe v. Daniels, 150 Ga. App. 113, 114-115 (3) (257 SE2d 199) (1979), we allowed a plaintiff accusing her orthodontist of malpractice to introduce evidence of similar treatment he gave other patients. Similar acts evidence likewise might also show Apple “knew that such carelessness on [its] part in the past had resulted in similar injuries to others but continued in this course of conduct in utter indifference to the consequences. . . .” Id.

Evidence of similar incidents might also be admissible in the liability portion of this trial, as Watts contends. Evidence of prior similar accidents could show Apple had notice its employees were not properly supervising residents or that residents were finding a way out of the facility; it could also rebut a claim by Apple that it was unaware of such problems. Gunthorpe, supra at 114-115 (2), (3).

2. If these documents are relevant, as the trial court determined, do the DHR regulations Apple cites prohibit their discovery as privileged? No. The confidentiality rule is an agency rule which, although enacted under authority granted by the legislature, must yield to a law of general application. Ga. Hosp. Assn. v. Ledbetter, 260 Ga. 477, 479 (4) (396 SE2d 488) (1990) (Open Records Act trumps agency confidentiality rule). The Civil Practice Act allows discovery of any relevant matter which is not privileged. OCGA § 9-11-26 (b). Although Apple cites the physician shield statute, OCGA § 24-9-40, to argue that these records constitute confidential “medical” information, that statute even if applicable allows release of such information pursuant to a court order. Its companion statutes, OCGA §§ 24-9-41 and 24-9-42, contemplate the release of “medical information” from long-term care facilities. See also OCGA § 37-3-166 (a) (8), allowing disclosure of mental health records pursuant to a subpoena, and OCGA § 37-4-125 (a) (8), allowing similar disclosure of mental retardation records. These statutes, allowing disclosure under aegis of judicial oversight, overcome the DHR’s confidentiality regulations.

Apple did not meet its burden of showing a basis for compelling a protective order as a matter of law. Young v. Jones, 149 Ga. App. 819, 824 (4) (256 SE2d 58) (1979). Furthermore, the regulations prohibit only disclosure of “personal information” regarding residents. The reports contain accounts of events, incidents, and accidents at Bayberry Trace, not strictly “personal information” about each patient as is called for in DHR Rule 290-5-35-.05 (2). The DHR required Apple to keep the reports at issue so the Department could inspect and, if necessary, investigate conditions at the home. OCGA § 31-7-12. As the trial court noted, “[i]t would be strange, indeed, for the Department of Human Resources to create a regulation which would have the effect of concealing the very types of misconduct which the Department exists to eradicate.”

Decided February 16, 1996.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellant.

Renehan & Moody, Edward G. Renehan, Hyatt & Hyatt, John M. Hyatt, for appellee.

3. In affirming the trial court’s decision, we confirm the importance of protecting residents’ privacy rights. “[T]he potential for abuse created by ... a discovery right is obvious,” and the court must “balanc[e] the plaintiff’s right of discovery against the defendant’s right to privacy.” Holman v. Burgess, 199 Ga. App. 61, 63 (404 SE2d 144) (1991); A Southern Outdoor Promotions v. Nat. Banner, 215 Ga. App. 133, 134 (3) (449 SE2d 684) (1994). See also In re Callaway, 212 Ga. App. 500, 501 (442 SE2d 309) (1994). Here, of course, it is not even defendant’s right that is at issue. It is the rights of unidentified third persons who, like plaintiff’s decedent, are or were residents of Bayberry Trace. They are not involved in this litigation and thus are not being heard on the matter. The one who is championing their privacy right would gain by its protection, even more so if it hid acts of negligence against any of those same persons.

We also recognize, in striking the balance, that there is no direct quid pro quo here; disclosure, if it yields similar incidents of negligence, would redound to the benefit of plaintiff alone, in that any punitive damages would not be shared by the injured third parties. The broader aspect is that it is in the public interest to deter future “conscious disregard for the consequences” of failing to provide the degree of personal care called for under the law, as alleged by plaintiff.

To protect the residents’ privacy, the court has power to conduct in camera reviews and to fashion orders limiting the use of and the dissemination of records. OCGA § 9-11-26 (c); see Goldstein v. Goldstein, 262 Ga. 136, 137-138 (414 SE2d 474) (1992) (Hunt, J., dissenting). The record does not reflect Apple requested any such limitation.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       This regulation was repealed effective November 1993; it was replaced by a nearly identical provision, DHR Rule 290-5-35-.18 (r), which is currently in effect.

       Repealed effective November 11, 1993; replaced with nearly identical language currently found at DHR Rule 290-5-35-.17.

       Repealed effective November 11, 1993. It is now found at DHR Rule 290-5-35.12 (1).

       Repealed effective November 11, 1993; similar language found at DHR Rule 290-5-35.12 (1).

       Repealed effective November 11, 1993; similar language now found at DHR Rule 290-5-35.17 (2).


author: Ruffin, Judge.

text:
    A95A2166.
    DEPARTMENT OF HUMAN RESOURCES v. COWAN.
    (469 SE2d 384)
   Ruffin, Judge.

The Georgia Department of Human Resources (“DHR”) filed a petition for contempt seeking child support payments in arrears from Stephen Cowan. The trial court denied the petition and found that because Cowan surrendered his parental rights and consented to his children’s adoption, he no longer had any duty to support them. We granted DHR’s application for discretionary appeal to determine whether the surrender of rights and consent to adoption terminate the surrendering parent’s obligation to pay child support even though the adoption is not finalized. For reasons which follow, we reverse.

The child support obligations at issue stem from Cowan’s May 4, 1990 divorce decree, which awarded custody of his minor children to his ex-wife. Under the divorce decree and a subsequent order, Cowan was obligated to pay a total of $128 per week for the support of the children. On July 13, 1993, a consent order was entered holding Cowan in contempt for failing to pay child support. That order stated in part as follows: “It is . . . determined that an adoption of said children by the custodial parent’s current husband is in process, and [Cowan] has signed a Surrender of Parental Rights and Final Release for Adoption, and that the custodial parent has chosen not to request collection of her non-afdc arrears due. . . . However, [Cowan] has a total accumulated afdc arrearage due to the state of Georgia in the amount of $4,492.00 as of June 16, 1993.” The order allowed Cowan to purge himself of contempt by paying $35 per week toward the arrearage and further stated that “[s]hould the adoption not take place, [Cowan] understands that he remains liable for current support and the non-afdc arrears.”

The adoption was never finalized, and on November 15, 1994, DHR filed the instant petition for contempt, alleging Cowan was in arrears on child support due under the divorce decree in the amount of $11,036.48. In his answer to the petition, Cowan asserted that he was no longer the legal parent and that prior to the petition, he was under the belief that the adoption had been completed. The trial court found that although the adoption was “never formally completed,” Cowan lost his parental rights and obligation to support the children by voluntarily contracting to surrender his parental rights and consenting to the children’s adoption. Upon finding that Cowan’s failure to pay child support was not wilful and was justified by his reasonable belief that the children had been adopted, the court denied DHR’s petition for contempt.

1. DHR asserts that the trial court erred by holding that Cowan was no longer responsible for the support of his children when no adoption had occurred. We agree.

OCGA § 19-7-2 addresses a parent’s obligation to support his or her children. That section provides that “[i]t is the joint and several duty of each parent to provide for the maintenance ... of his or her child until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, except as otherwise authorized and ordered pursuant to subsection (e) of Code Section 19-6-15 and except to the extent that the duty of the parents is otherwise or further defined by court order.” (Emphasis supplied.) In this case, the trial court did not rely on a previous court order in ruling that Cowan was no longer obligated to support his children, but rather, relied on Cowan’s surrender of parental rights and his consent to the children’s adoption.

In Dept. of Human Resources v. Ammons, 206 Ga. App. 805 (426 SE2d 901) (1992), relied on by the trial court, the parental rights were terminated by a juvenile court order. On appeal, this court held that the parent’s obligation to provide support and the child’s corresponding right to that support was “extinguished by the termination order, as surely as if the child had been adopted.” (Emphasis supplied.) Id. at 806. To the extent that the decision in Ammons was predicated on the existence of the juvenile court order terminating parental rights, it was not in conflict with OCGA § 19-7-2 which requires such an order. In this case, however, there was no order terminating Cowan’s parental rights, only his surrender of those rights. We have previously held that a parent cannot contract away the responsibility to support his or her children. See Dept. of Human Resources v. Prince, 198 Ga. App. 329, 331 (2) (401 SE2d 342) (1991); Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984). Thus, Cowan’s surrender of parental rights and his consent for adoption did not release him from his support obligation.

Likewise, because there was no order finalizing the adoption, Cowan cannot rely on the adoption to release him from his maintenance responsibilities. “ ‘The general intent of the Georgia adoption statute appears to be that the rights and obligations of a natural parent, and those of an adopting parent, to a child are not conclusively altered until the date of the final order of adoption.’ [Cit.]” Johnson v. Parrish, 159 Ga. App. 613, 614 (1) (284 SE2d 111) (1981).

By requiring a court order to define a parent’s maintenance obligations, we believe the legislature intended to establish a bright line test under which a minor child’s right to support would be conclusively established at all times. To hold otherwise would allow a suspension of maintenance any time a parent voluntarily contracts to surrender his or her parental rights or consents to an adoption. In such a case, the children could be left without any person legally obligated to support them. While parental powers over a child may be forfeited in such a manner, we are aware of no law which permits a waiver of maintenance obligations by contract alone. See OCGA § 19-7-1 (b). Accordingly, we hold that Cowan’s surrender of parental rights and his consent to adoption did not relieve him of his maintenance obligations under OCGA § 19-7-2. The trial court erred in holding otherwise.

Decided February 19, 1996.

Daniel J. Porter, District Attorney, Sherry S. Ellison, Assistant District Attorney, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Assis tant Attorney General, for appellant.

2. DHR also asserts that the trial court erred by refusing to hold Cowan in contempt for failing to pay child support. A parent cannot be held in contempt for the mere failure to pay child support, even though that parent is legally obligated to provide such support. See Pittman v. Pittman, 179 Ga. App. 454 (346 SE2d 594) (1986); Crumb v. Gordon, 157 Ga. App. 839, 842 (2) (278 SE2d 725) (1981). “ ‘The essence of civil contempt involved in a proceeding to enforce payment of an alimony or child support award is wilful disobedience of the court’s order.’ [Cit.]” Costa v. Costa, 249 Ga. 494, 495 (292 SE2d 73) (1982). A parent is not in wilful disobedience if he or she has a reasonable excuse for failing to provide the support. See Pittman, supra; Crumb, supra. “[T]he trial court’s discretion in these matters is broad and [its] decision will be upheld if there is any evidence to support it.” Costa, supra at 495. Accordingly, although we concluded in Division 1 that Cowan was legally obligated to provide support, he could be held in contempt only if his failure to pay was wilful and without a reasonable excuse.

The trial court found that Cowan’s failure to pay child support was justified by his reasonable “belief that the children had been adopted, as well as for other reasons presented ... in this case.” A determination regarding the reasonableness of Cowan’s excuse for not paying support would require a review of the evidence presented at the contempt hearing. However, “[t]hat hearing was not transcribed and no acceptable substitute for a transcript was submitted. See OCGA § 5-6-41 (g) and (i). In the absence of a transcript, we must assume that the trial court’s findings were supported by the evidence. ...” Arrington v. Hand, 193 Ga. App. 457, 458 (5) (388 SE2d 52) (1989). See also Fint v. Johnson, 229 Ga. 188 (190 SE2d 32) (1972). Accordingly, we find no error here.

3. In light of our holdings above, it is unnecessary to consider DHR’s remaining enumeration of error.

Judgment affirmed in part and reversed in part.

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

J. Curtis Hanks, for appellee.


text:
    A95A2352.
    WRIGHT v. THE STATE.
    (469 SE2d 381)
   Ruffin, Judge.

Bennett Wright was convicted of theft by receiving stolen property. He appeals the court’s judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence at trial showed that a refrigerator and stove were stolen from a mobile home owned by Ranch Park Mobile Homes. The police eventually found the refrigerator and stove at the home of Wayne Nutt. Nutt told a police officer that he met Wright at the home of a friend, Charles Black, who was Wright’s neighbor, and that Wright asked him if he wanted to buy a refrigerator. Nutt testified that he agreed to buy the refrigerator, valued at $1,200, for $350, and that he knew it was stolen. Black testified that although he did not hear the conversation between Wright and Nutt, Nutt told him he was going to buy a refrigerator from Wright. Late one evening approximately two weeks later, Wright and two other men appeared at Black’s house in a truck containing a refrigerator and stove. Wright asked Black to contact Nutt, which he did. Because Wright was having difficulty finding Nutt’s house, and Black knew where he lived, Black accompanied the men to deliver the refrigerator.

1. In four enumerations of error, Wright challenges the sufficiency of the evidence. “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control ... of the property.” OCGA § 16-8-7 (a).

Although Wright argues there was no evidence that he bought or received the goods, “the actus reus element of the offense may be committed by either receiving, disposing of, or retaining stolen property. [Cit.]” Camsler v. State, 211 Ga. App. 826, 827 (440 SE2d 681) (1994). Furthermore, contrary to Wright’s contention that there is no evidence as to who stole the goods, stealing is not an element of the offense and “ ‘proof of from whom a stolen article was received is [also] not an essential element of the crime. . . .’ [Cit.]” Thomas v. State, 218 Ga. App. 371, 372-373 (1) (461 SE2d 305) (1995).

Finally, although Wright argues that some of the testimony against him came from admitted “liars,” “[o]n appeal the evidence must be viewed in the light most favorable to support the verdict, and [Wright] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Thomas, supra. We find there was ample evidence from which any rational trier of fact could have found Wright guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thomas, supra at 374. Accordingly, the trial court did not err in denying Wright’s motion for a directed verdict or his motion for new trial on this ground.

2. Wright asserts the trial court erred by admitting, over objection, a witness’s testimony that he observed blood at the scene of the break-in. The transcript shows that as the witness was describing the damage to the mobile home, he stated that “there was blood on the front door.” After Wright objected that the witness was not an expert competent to testify that the substance on the door was blood, the judge allowed the witness to state what he thought he saw. The witness then explained that based on occasions when he had seen himself bleed, he concluded that the substance on the door appeared to be blood. Inasmuch as the witness explained the basis for his opinion that the substance was blood, the trial court did not err in admitting the testimony. See OCGA § 24-9-65; Wortham v. State, 158 Ga. App. 19 (279 SE2d 287) (1981).

3. In two enumerations of error, Wright asserts that the trial court erred in allowing a police officer to testify that there was nothing in a fingerprint report that led him to make an immediate arrest. Wright apparently believed the information in the fingerprint report was exculpatory and objected because a copy of the report was not furnished to him in response to his pretrial motion under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). On appeal, Wright argues that the report “was exculpatory evidence which could have assisted in the preparation of the defense.”

“Generally the complaint under Brady arises where the defendant discovers after trial that exculpatory information, known to the prosecution but unknown to the defendant, existed prior to or arose during the trial. [Cit.] Here, [Wright] made a Brady motion prior to trial, then complained he was surprised by the [reference to] this allegedly exculpatory [report] during the trial. The ‘(d)efendant . . . has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady Rule.’ [Cit.] Here, the exculpatory information was not withheld from the jury. The complaint is that it was not furnished in response to a discovery request [and apparently that the trial court did not exclude the exculpatory information]. How has the failure to furnish [Wright] the evidence in advance of trial [or the failure to exclude reference to the allegedly exculpatory evidence] impaired his defense? It has not been shown. If it is [Wright’s] contention that additional time for investigation would have enhanced his defense, the proper motion would have been for an adequate recess. . . .” (Emphasis in original.) Wallin v. State, 248 Ga. 29, 33 (6) (279 SE2d 687) (1981). Furthermore, “ ‘[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial . . .” is insufficient to meet the burden. Boyce v. State, 184 Ga. App. 578, 582 (14) (362 SE2d 229) (1987). See also Gresham v. State, 265 Ga. 730 (1) (462 SE2d 370) (1995). Accordingly, we find no error.

Decided February 19, 1996.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, for appellee.

4. Wright asserts that the trial court erred by allowing the prosecutor, over objection, to ask a leading question on direct examination. Under OCGA § 24-9-63, the court may exercise discretion in allowing a party to ask its own witnesses leading questions. “ ‘It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.’ [Cit.]” Billings v. State, 212 Ga. App. 125, 129 (5) (441 SE2d 262) (1994). After reviewing that portion of the transcript in which the question was asked, we find no such abuse of discretion.

5. Finally, Wright asserts that the trial court erred in sustaining the State’s objection to his question of a State’s witness concerning whether the witness had committed perjury on a previous occasion. The State objected on the ground that the question called for a legal conclusion. After the trial judge sustained the objection and permitted Wright to ask the question in a different way, Wright’s attorney responded that he would withdraw that question. “ ‘[A] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.’ [Cits.] Accordingly, we find nothing for us to review based on the posture of the trial record regarding this particular enumeration of error.” Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530) (1989).

Judgment affirmed.

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


text:
    A95A2439.
    JONES v. THE STATE.
    (469 SE2d 379)
   McMurray, Presiding Judge.

Defendant was indicted for robbery by sudden snatching, theft by taking and possession of a drug-related object. The evidence adduced at a jury trial reveals that the victim was attacked by a man at an automatic teller machine at about 4:30 in the morning on April 16, 1993. The assailant grabbed the victim as she stood outside the open door of her car, threw the victim to the side and grabbed her wallet. The victim faced her attacker during this struggle for about three seconds and got a good look at him before he broke away, snatched the victim’s purse and ran. The victim fired two shots (from a hand-, gun) toward the assailant as the man fled.

A few minutes after the assault, police arrived at the scene and the victim gave them a detailed description of the assailant. At about 6:00 that morning, the victim identified defendant at the police station from a spread of about 17 police photographs. Approximately 45 minutes later, a photographic lineup, that did not include defendant, was displayed to the victim. She indicated that the features of one of the photograph subjects resembled defendant, but explained that the subject was not defendant. About 16 hours later (11:00 that night), the victim returned to the police station, observed defendant and immediately made a positive identification. The victim positively identified defendant as the man who attacked her at the automatic teller machine.

The jury found defendant guilty of the crimes charged in the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court erred in allowing the victim to identify him at trial in light of the unconstitutional and impermissibly suggestive pretrial identification procedures.

“ ‘Pretermitting whether the pretrial photographic and (showup procedures) to which [the victim] was subjected w[erej unduly permissive (see generally State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915))(, the controlling issue) is whether any procedure resulted “in a very substantial likelihood of irreparable misidentification.” The factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: “(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).” (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).’ Montgomery v. State, 210 Ga. App. 147, 148 (3a) (435 SE2d 510).” Lampkin v. State, 213 Ga. App. 589, 592 (1) (445 SE2d 324).

Decided February 19, 1996.

Timothy L. Barton, for appellant.

Glenn Thomas, Jr., District Attorney, Carol L. Stokes, Assistant District Attorney, for appellee.

In the case sub judice, the victim’s testimony reveals that she had ample opportunity to view the man who attacked her at the automatic teller machine on the morning of April 16, 1993. She testified that the area where she was attacked was well lighted; that she was “face to face” or about six to eight inches from the assailant, for a period of about three seconds during the struggle, and that she got a good look at the man during the attack. The victim gave the police a detailed physical description of her assailant minutes after the attack and this description closely matches defendant’s physical characteristics. The victim was also certain of her identification of defendant at the first photographic lineup as well as at trial. Further, the degree of detail the victim gave regarding the sequence of events during the crimes bolsters the reliability of her identification of defendant as the perpetrator of the crimes charged. Under these circumstances, we find that there existed no substantial likelihood of irreparable misidentification due to the pretrial identification procedures used in the case sub judice. Consequently, the trial court did not abuse its discretion in denying defendant’s motion to exclude the victim’s identification testimony at trial. See Hood v. State, 216 Ga. App. 106, 107 (2) (453 SE2d 128).

2. Defendant contends the evidence was insufficient to support his convictions for robbery by sudden snatching and theft by taking, arguing that the victim’s identification testimony was not enough to support his convictions. We do not agree. The victim’s identification testimony was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of robbery by sudden snatching and theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s argument “about discrepancies in the victim’s description of [him] or the ‘suspect’ photographic lineup ‘relate entirely to matters within the exclusive province of a jury. Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration.’ (Citations and punctuation omitted.) Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992).” Smith v. State, 216 Ga. App. 415 (1), 416 (454 SE2d 615).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2567.
    PATTERSON v. THE STATE.
    (469 SE2d 706)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of possession of marijuana with intent to distribute, manufacturing marijuana and trafficking in marijuana, all in violation of Georgia’s Controlled Substances Act. The evidence adduced at trial, construed in a light most favorable to the jury’s verdicts, reveals the following:

During a consensual search of land surrounding defendant’s home, law enforcement officers discovered a shed containing a tractor that defendant admitted belonged to him. The shed also contained a quart jar that was full of marijuana seeds, burlap bags containing marijuana leaves, and a marijuana leaf on the tractor. Officers also found a tractor path and footpaths leading from defendant’s yard. Along these paths, officers found plastic tarpaulins containing marijuana leaves, several barrels containing marijuana leaves, two harvested marijuana fields (where the marijuana stalks remained standing) and a green mesh cover along with a structure apparently designed to camouflage the marijuana. The marijuana field farthest from defendant’s house was about 500 yards. The officers found no other paths leading to the marijuana fields. In all, over 87 pounds of marijuana was seized from defendant’s property.

This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant contends the trial court erred in denying his motion for directed verdict, arguing that evidence of marijuana on his property is insufficient to authorize his convictions in light of other evidence showing that others had access to his land.

“The verdict is not insupportable as a matter of law. ‘(T)he “beaten path” doctrine . . . allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband. (Cits.)’ Franklin v. State, 166 Ga. App. 375, 376-377 (1) (304 SE2d 501) (1983); compare Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979).” Holland v. State, 205 Ga. App. 695 (1), 696 (423 SE2d 694). The evidence in the case sub judice not only reveals that defendant was the primary resident of the nearby house, but it also shows that a marijuana leaf was found on a tractor that defendant admitted belonged to him. Further, one of the searching law enforcement officers testified that defendant started trotting toward his son’s nearby house when an officer approached the shed. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jones v. State, 201 Ga. App. 102, 103 (2) (410 SE2d 199).

Decided February 19, 1996.

Thompson, Fox, Chandler, Homans & Hicks, Joseph A. Homans, for appellant.

Lydia J. Sartain, District Attorney, John G. Wilbanks, Jr., J. Vaughan Branch, Assistant District Attorneys, for appellee.

The trial court did not err in denying defendant’s motion for directed verdict of acquittal.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.