author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A92A2102.
    In the Interest of A. M. S., a child.
    (430 SE2d 626)
   Blackburn, Judge.

The appellees, Reedy Buford Owen and Frances Marie Owen, the maternal grandparents of A. M. S., a minor child, petitioned the Juvenile Court of DeKalb County for an order terminating the parental rights of the child’s biological father, Robert Strickland, Jr. After a hearing, the trial court terminated Strickland’s parental rights based upon Strickland’s murder of the child’s mother as well as other evidence which indicated that the child was deprived, and such deprivation was likely to continue, resulting in harm to the child. This appeal followed.

At the termination hearing, the Owens presented undisputed evidence that Strickland was tried before a jury in the Superior Court of DeKalb County and convicted of murdering the child’s mother. Strickland is currently serving a life sentence for the murder and the minor child has been in the custody of her maternal grandparents since her mother’s death. The child was two years of age at the time of her mother’s murder. The juvenile court took judicial notice of appeals to the Georgia Supreme Court relating to Strickland’s murder conviction and adopted facts published in Strickland v. State, 257 Ga. 230 (357 SE2d 85) (1987) and Strickland v. State, 260 Ga. 28 (389 SE2d 230) (1990) in determining whether Strickland’s parental rights should be terminated. As delineated in Strickland, in addition to the murder of his estranged wife, the child’s mother, Strickland broke into his wife’s home and shot her companion approximately four days before he murdered her, which fact was also considered by the court below.

The evidence produced at trial further revealed that Strickland’s contact with A. M. S. has been limited. He has never attempted to call the child during the seven years that he has been incarcerated, and visitation with the child has consisted of ten to fifteen minute visits before the extension of custody hearings. The child was last seen by Strickland in 1990. Strickland has never asked the Owens if they needed anything for the child and on only one occasion has Strickland sent the child any monetary support. Strickland does not have any definite employment prospects upon his parole from prison and moreover, the guardian ad litem recommended the termination of Strickland’s parental rights because there has been a demonstrative negative effect on the parent-child relationship.

1. Strickland contends the juvenile court erred in denying his motion to dismiss, arguing the termination petition fails to comply with OCGA § 15-11-82 (c) in not clearly stating the effects of an order terminating parental rights as stated in OCGA § 15-11-80. Specifically, Strickland argues the petition fails to state that an order terminating parental rights is without limit as to duration and that a parent whose rights are terminated is not entitled to notice of proceedings for the adoption of the child. See OCGA § 15-11-80. This contention is not supported by the record.

The termination petition alleges that “[t]he child would be unable to have a meaningful future relationship with [the father] if they were ever re-united [and prays that the] father’s rights and obligations with respect to the child and all of the rights and obligations of the child to the father, arising out of the parental relationship, including right of inheritance, be TERMINATED so that thereafter the father shall not be entitled to notice of adoption of the child by another person nor shall the father have any right to object to the adoption nor otherwise participate in the proceedings!.]” These terms sufficiently apprise Strickland of the consequences of an order terminating parental rights as required by OCGA § 15-11-82 (c). Compare In the Interest of D. R. C., 191 Ga. App. 278 (1) (381 SE2d 426) (1989), where the termination petition failed to provide notice that a parent whose rights are terminated as to a child is not entitled to notice of proceedings for the child’s adoption.

2. Strickland contends the juvenile court erred in taking judicial notice of Strickland v. State, 257 Ga. 230, supra, and Strickland v. State, 260 Ga. 28, supra, and in relying on facts stated in these opinions to determine whether his parental rights should be terminated.

Strickland did not object when the juvenile court announced judicial cognizance of adjudicative facts set out in Strickland v. State, 257 Ga. 230, supra, and Strickland v. State, 260 Ga. 28, supra. Consequently, he may not complain of the juvenile court’s reliance on facts set out in those opinions. Redwine v. Frizzell, 186 Ga. 296 (2) (197 SE 805) (1938).

Strickland also asserts that the trial court erred in failing to allow him to rebut the adjudicative facts delineated in Strickland v. State, 257 Ga. 230, supra, and Strickland v. State, 260 Ga. 28, supra, by making a proffer of testimony as to his “state of mind” at the time of the murder. However, Strickland’s state of mind has been previously determined by his conviction of murder, an offense requiring malice aforethought, and any evidence as to his state of mind or other circumstances surrounding the murder not delineated in the decision would be cumulative. Further, the appellant has not shown that the oral testimony that he proposes to submit is material, relevant and beneficial to a proceeding to terminate parental rights. “[I]t is a well settled rule that in order to preserve a ground of objection relating to the exclusion of oral testimony it is necessary for the complaining party to show what he expects to prove and that the evidence is material, relevant and beneficial [cit.]. . . .” Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (2) (307 SE2d 759) (1983). In addition, the appellant has not shown that any error committed by the juvenile court in failing to consider evidence on his state of mind was harmful, warranting a reversal. Consequently, we find that this enumeration is without merit.

3. Strickland contends that the trial court erred in holding that an automatic forfeiture of parental rights occurs when one spouse is convicted of murdering the other spouse. He further contends that the decision of the trial court is not supported by clear and convincing evidence, not supported by the record and is based upon facts contradicted by the record. We disagree.

This court has recognized in In the Interest of H. L. T., 164 Ga. App. 517, 519 (298 SE2d 33) (1982), that the mere fact that a parent kills another parent does not in and of itself result in the automatic forfeiture of the parent’s parental rights to the child as a matter of law. However, this court has held in Heath v. McGuire, 167 Ga. App. 489, 492 (3) (306 SE2d 741) (1983), in support of the trial court’s termination of parental rights of a father who was convicted of the murder of the child’s mother, that “[t]he requisite malice necessarily shown by guilt of the murder of one’s spouse is sufficient to imply a moral unfitness to terminate the parental relationship, an unfitness which is likely to continue with resultant harm to the innocent child.” The Heath court distinguished H. L. T., supra at 492, in that the father in H. L. T. was guilty of voluntary manslaughter, a crime in which the law recognizes mitigating circumstances surrounding the homicide. We are cognizant that the killing of another spouse in and of itself does not result in an automatic forfeiture of parental rights. Nevertheless, a conviction of murder, as in the case sub judice, can infer the requisite moral unfitness to support termination of parental rights.

In the instant case, the juvenile court considered Strickland’s murder of the mother of the child while on bond for aggravated assault based on his having shot a friend of the mother, along with other evidence of parental unfitness, in deciding that this child was deprived and the deprivation would likely continue, resulting in harm to the child, as provided in OCGA § 15-11-81. In addition to Strickland’s murder of his spouse and aggravated assault of the companion, the trial court considered Strickland’s limited communication with and support of the child. The court also considered the recommendation of the guardian ad litem and Strickland’s lack of definite employment prospects upon parole.

“ ‘(T)he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test... , is not met. . . .’ [Cits.]” In the Interest of J. L. G., 191 Ga. App. 904, 905 (1) (383 SE2d 376) (1989).

Considering the evidence in the light most favorable to the appellees, we conclude that the trial court’s termination of Strickland’s parental rights based upon the deprivation of the child was based upon the clear and convincing standard and is supported by the evidence.

4. Lastly, Strickland contends that the juvenile court erred in terminating his parental rights when the evidence showed that a continuation of custody order would have adequately protected the interest of A. M. S. Strickland cites as controlling authority this court’s decision in Jones v. Dept. of Human Resources, 168 Ga. App. 915 (310 SE2d 753) (1983). However, Jones is distinguishable from the case sub judice. The Jones court remanded the case based upon evidence presented at trial which showed that the termination of the parental rights of the biological parents was inconsistent with the declared intentions of the department “to place the child with an uncle and aunt for adoption, thereby allowing [the child] to remain in contact with his parents while enjoying a stable home life.” Id. at 915. Further the department could not articulate a reason as to why a mere transfer of custody would not be appropriate considering the expressed objectives of the department. Id. at 916.

In the case sub judice, the evidence shows that the termination of Strickland’s parental rights is in the best interest of the child, as found by the juvenile court, considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home. “ Tn determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse. [Cit.]’ ” Banks v. Dept. of Human Resources, 141 Ga. App. 347, 350 (2) (233 SE2d 449) (1977). Accordingly, we find that the juvenile court did not abuse its discretion in concluding that the termination of Strickland’s parental rights is in the best interest of A. M. S.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the trial court erred in failing to allow Strickland to proffer evidence which may be relevant in defense to the petition for termination of his parental rights.

Strickland complained when the juvenile court cut off testimony relating to circumstances of the murder apparently not reported in Strickland v. State, 257 Ga. 230 (357 SE2d 85), and Strickland v. State, 260 Ga. 28 (389 SE2d 230). Specifically, the juvenile court interrupted Strickland’s testimony and the following transpired: “JUDGE WHEELER: Excuse me, Ms. Pace, are we getting close to the murder date now? MS. PACE: Yes, your Honor, we are. JUDGE WHEELER: And we are not going to try the murder case again in this Court. That’s been tried twice in superior court; it’s been appealed twice in Supreme Court. Court will take judicial notice of those decisions and what it said in there including the entire file before this Court. I’m not going to try that murder case in this Court. It’s on termination of parental rights. MS. PACE: Your Honor, the allegations in the petition for [termination of] parental rights speak to the moral unfitness and I think it does, this is a civil case. Those were criminal cases and while it may be res adjudicata as to the criminal case, I don’t believe that the facts and circumstances of that case are excluded from this court. JUDGE WHEELER: Not only would I not allow it to be tried again, but degree of proof in a murder case, criminal case, is beyond a reasonable doubt, it’s clear and convincing in this Court. Now, I’m not going to try that murder case again in this case, it’s that simple. MS. PACE: . . . Your Honor, the evidence . . . we are trying to elicit here, would relate to the state of mind at the time of the murder. JUDGE WHEELER: That was determined by the jury in the superior court. MS. PACE: And I would make a continuing offer of this evidence. JUDGE WHEELER: All right, it is well noted.”

“While it is a well settled rule that in order to preserve a ground of objection relating to the exclusion of oral testimony it is necessary for the complaining party to show what he expects to prove and that the evidence is material, relevant and beneficial (Griffin v. Henderson, 117 Ga. 382 (2) (43 SE 712)), it is equally true that where an offer of proof is necessary it is error for the trial judge to deny counsel an opportunity to state what he proposes to prove by the evidence offered. Stephen W. Brown &c. Assoc. v. Gowers, 157 Ga. App. 770, 781 (6) (278 SE2d 653).” Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (2) (307 SE2d 759).

In the case sub judice, Strickland’s attorney stated that she was “trying to elicit [testimony relevant] to [Strickland’s] state of mind at the time of the murder.” However, the juvenile court did not allow her to make proffer of the specific testimony she intended to illicit. In view of this court’s holding in In the Interest of J. L. M., 204 Ga. App. 46 (1), 47 (418 SE2d 415), this constituted error as such testimony may be relevant to the issue of termination of Strickland’s parental rights. “[T]he murder of one parent by another does not automatically result in a forfeiture of the latter parent’s parental rights, [In the Interest of H. L. T., 164 Ga. App. 517, 518 (298 SE2d 33)], but instead must be considered together with other evidence of parental unfitness. See id. at 518-520.” In the Interest of J. L. M., 204 Ga. App. 46 (1), 47, supra.

“In considering a petition for termination of parental rights, the court first must determine whether there exists clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). Such misconduct or inability may be found if, inter alia, the child is found to be a deprived child as defined in OCGA § 15-11-2; this deprivation results from a lack of proper parental care or control; the lack of care or control is likely to continue or will not likely be remedied; and this continued deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). A finding of unfitness must center on the parent alone, and must be based on clear and convincing evidence of present unfitness, not merely upon evidence of past unfitness. In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982). Termination of parental rights is a severe measure authorized only under compelling circumstances when demonstrated by clear and convincing evidence. Heath v. McGuire, 167 Ga. App. 489, 491 (306 SE2d 741) (1983).” In the Interest of J. L. M., 204 Ga. App. 46 (1), 47, supra.

Decided March 16, 1993 —

Reconsideration denied April 1, 1993

Linda A. Pace, for appellant.

Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, Nardone & Read, Robert G. Nardone, Dorothy V. Murphy, for appellees.

Consequently, the case sub judice should be remanded for further consideration of any evidence relating to parental fitness, including circumstances of the crime which form the central basis of the petition for termination of Strickland’s parental rights. See In the Interest of J. L. M., 204 Ga. App. 46 (1), supra, where the father’s conduct in murdering the child’s mother was relevant in determining whether the father’s parental rights should be terminated.

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


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A92A2130.
    ADAMS et al. v. COWETA COUNTY et al.
    (430 SE2d 599)
   Pope, Chief Judge.

Edward F. Adams II and Joseph Thierry were injured and Barbara Jean Bell was killed when the truck in which they were riding struck a guardrail on the Andrew Bailey Road Bridge in Coweta County. Adams, by his next friend, Edward F. Adams, Thierry and Ms. Bell’s mother (“plaintiffs”) brought a multi-count complaint against defendant/appellees Coweta County, Coweta County Department of Public Works, John Doe Employees of Coweta County (“Coweta County”) and others, contending, inter alia, that the guardrails on the bridge were negligently designed, installed, maintained and repaired. Coweta County filed a motion to dismiss on the basis of sovereign immunity and plaintiffs’ failure to file an expert affidavit with their complaint as required by OCGA § 9-11-9.1. The trial court granted the motion, and plaintiffs timely filed their appeal to this court.

1. Plaintiffs first contend that the trial court erred in granting Coweta County’s motion to dismiss on the issue of sovereign immunity. We agree. “[T]he ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983 ‘must have prospective effect only and does not act to withdraw any waiver of sovereign immunity for actions pending on January 1, 1991, the amendment’s effective date.’ Donaldson v. Dept. of Transp., 262 Ga. 49, 54 (414 SE2d 638) [(1992)]. ‘Under Georgia law, a waiver of sovereign immunity occurs at the time that the cause of action arises. Donaldson, supra. Therefore, sovereign immunity (is) waived to the extent of available insurance coverage as to any cause of action that accrued before the effective date of the constitutional amendment. The waiver was not withdrawn by the passage of the constitutional amendment and remains effective regardless of whether the action was filed before or after the effective date of the amendment.’ Curtis v. Bd. of Regents &c., 262 Ga. 226, 228 (416 SE2d 510) [(1992)]. In the case at bar, although the complaint was filed after the effective date of the statute, it has not been controverted that the cause of action accrued before January 1, 1991. Accordingly, the waiver of any existing defense of sovereign immunity has not been withdrawn in this case.” Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 63 (424 SE2d 632) (1992). See also Collier v. Whitworth, 205 Ga. App. 758 (423 SE2d 440) (1992); Rogers v. Sharpe, 206 Ga. App. 353 (425 SE2d 391) (1992).

2. Plaintiffs also contend that the trial court erred in granting defendants’ motion to dismiss based on plaintiffs’ failure to file an expert’s affidavit pursuant to OCGA § 9-11-9.1 (a). Plaintiffs argue that a county is not “profession” or “professional” as those terms are used in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24 and thus, applying the Georgia Supreme Court’s holding in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), they were not required to file an expert’s affidavit with their complaint. We agree a county is not a “professional” and that, therefore, the affidavit requirement of OCGA § 9-11-9.1 does not automatically apply to any claim asserted against it. Dozier v. Clayton County Hosp. Auth., 206 Ga. App. at 63 (3). Rather, in cases such as this, the relevant inquiry is whether “a particular claim is grounded upon ‘professional malpractice,’ that is, an act or omission caused by a ‘professional’ which constitutes malpractice.” Id. at 64. “[T]he affidavit requirement applies [in cases involving claims against a county or other governmental entity] when liability is based . . . upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals’ under OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24.” Id. at 64-65.

Turning to the facts of this case, the record shows that plaintiffs’ complaint against Coweta County is for the negligent design, installation, repair and maintenance of the guardrails on the Andrew Bailey Road Bridge. “Designing roads [and the bridges and guardrails which are part of those roads] requires ‘engineering services’ which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1 by the Supreme Court. Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (395 SE2d 809) (1990).” Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847) (1991). Indeed plaintiffs’ own discovery demonstrates that engineering services are involved in projects of this sort, inasmuch as plaintiffs requested from Coweta County “any and all engineers’ or contractors’ drawings, plans, and specifications for the Andrew Bailey Road and bridge . . . including [those pertaining to the guardrails].” “As [plaintiffs’] claims would require an expert witness to prove that [Coweta County] was negligent, [cit.], these are not allegations of simple negligence. [Cits.]” Edwards v. Vanstrom, 206 Ga. App. 21, 22-23 (2) (424 SE2d 326) (1992).

Plaintiffs also argue that the negligent design and placement of the guardrails was obvious in this case. However, “ ‘[e]ven in cases of “clear and palpable” professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.’ [Cit.] If the [bridge and guardrails] were defectively designed it was the result of professional negligence. In such instance, the failure to contemporaneously file an expert affidavit with the complaint was fatal. [Cit.]” Jackson v. Dept. of Transp., 201 Ga. App. at 865-866. Accordingly, the trial court did not err by dismissing plaintiffs’ claims for negligent design.

However, a different result is mandated as to plaintiffs’ claims for negligent installation, repair and maintenance of the bridge and guardrails. While the design of a bridge or guardrail must necessarily involve professional (engineering) services, the installation, repair and maintenance of those structures would not necessarily require the exercise of professional skill and judgment. Based on the pleadings, we cannot say that these claims involve professional malpractice, and that an expert’s affidavit was therefore required to establish these claims. Jones v. Bates, 261 Ga. 240, 242 (2) & n. 4 (403 SE2d 804) (1991). Consequently, the trial court erred in dismissing plaintiffs’ claims for the negligent installation, repair and maintenance of the bridge and guardrails. Lamb v. Candler Gen. Hosp., 262 Ga. 70 (1) (413 SE2d 720) (1992).

3. Plaintiffs’ contention in their brief concerning a violation of their constitutional rights was neither raised below nor enumerated as error to this court. “It is basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal . . . and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.” Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986).

Decided March 1, 1993 —

Reconsiderations denied April 1, 1993

Novy, Jaymes & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellants.

Michael J. Bowers, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Freeman & Hawkins, H. Lane Young II, Kimberly A. Houston, Glover & Davis, A. Mitchell Powell, Drew, Eckl & Farnham, W. Wray Eckl, Dennis, Corry, Porter & Gray, James S. Strawinski, for appellees.

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge. Cooper, Judge,

text:
    A92A2262.
    BELL v. THE STATE.
    (430 SE2d 777)
   McMurray, Presiding Judge.

Defendant Bell was charged in two indictments with selling and distributing cocaine in violation of the Georgia Controlled Substances Act. Following his conviction by a jury, defendant appeals from the denial of his motion for new trial. Held:

1. The charges against defendant resulted from an ongoing undercover drug investigation conducted by the Georgia Bureau of Investigation and the Albany-Dougherty County Drug Unit. Agent Carlotta Harris of the GBI testified that on January 8, 1991, she, Agent Calhoun and a confidential informant parked at a location where they believed drugs were being sold. Defendant and Waylon Phillips drove to the location, and Phillips, who was in the passenger seat, asked Agent Harris if she wanted to purchase drugs. Agent Harris had purchased drugs from Phillips on three previous occasions and told him that she wanted to purchase $200 worth of cocaine. The informant then went over and sat in the car with Phillips and defendant. Phillips gave the informant 14 pieces of crack cocaine. The informant gave the cocaine to Agent Harris in exchange for $200 which the informant gave to Phillips.

Agent Harris also testified that on January 26, 1991, the same confidential informant took her and Agent Calhoun to another location where drugs were allegedly being sold. Defendant drove by the location, this time with Efram Barber in the passenger seat. Agent Harris had also previously purchased drugs from Barber and told Barber that she wanted a $200 piece. Barber went inside an apartment, and when he came out, he told Agent Harris that they would have to go to another location. Agent Harris rode in the car with defendant and Barber, while the confidential informant and Agent Calhoun followed them in another car. When they arrived at their destination, Barber went into an apartment and returned to defendant’s car with 16 pieces of crack cocaine which he gave to Agent Harris in exchange for $300. Agent Harris testified that both the January 8 and January 26 drug sales took place in defendant’s immediate sight and presence.

Defendant testified that he met Agent Harris while he was with Efram Barber; that Agent Harris told him that her name was “Peaches”; that he was romantically interested in “Peaches,” who led him to believe that she wanted to go to Atlanta with him to have a good time; that “Peaches” never asked him for any drugs; that he never sold her any drugs; and that he never saw anyone give her any drugs.

The evidence shows that defendant’s participation and knowledge amounted to something more than “a mere presence” at the scene of the crimes and demonstrated that defendant was an accomplice in the sale and distribution of cocaine. Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence is sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ward v. State, 206 Ga. App. 670, 671 (426 SE2d 164).

2. Defendant first contends that the trial court erred in not granting a continuance when one of his witnesses failed to appear. Defendant’s trial counsel testified at the hearing on defendant’s motion for new trial that prior to trial she subpoenaed Ted Holsey because it was her understanding that the witness was present during both drug transactions defendant was charged with and would testify that defendant was only present during the drug transactions because of his romantic interest in Agent Harris. Defendant’s trial counsel further stated that she moved for a continuance when the witness was not present at trial but did not inform the court of the nature of the witness’ testimony or when the witness would be available. Since appellant’s counsel failed to make a proper showing under OCGA § 17-8-25, we cannot conclude that the trial court erred in denying the motion.

3. Defendant argues that the trial court erred in not requiring the State to disclose the identity of the confidential informant. Since the informant was a participant in the drug sale, his testimony was material to the issue of defendant’s guilt or innocence. See Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988). It was subsequently disclosed that the informant was Ted Holsey; however, since appellant’s counsel failed to file a motion to disclose the identity of the informant, we find no error in the trial court’s ruling. See Roberson v. State, 195 Ga. App. 379 (1) (393 SE2d 516) (1990).

4. Defendant also argues that the trial court erred in not charging on entrapment. The record reflects that prior to trial, in a handwritten note to the court, defendant wrote: “This is a case of entrapment.” Defendant’s trial counsel stated that she was aware of this note but believed that a charge on entrapment was not warranted and that she did not pursue the entrapment defense because defendant insisted at all times that he had not committed the offenses with which he was charged. Under the general rule such a denial of the offense would preclude an entrapment defense, but the defendant also cites the decision in Gregoroff v. State, 248 Ga. 667, 671 (285 SE2d 537), which states that where the State, rather than defendant, injects evidence of entrapment into the case and defendant offers no evidence of entrapment which contradicts his primary defense that he did not commit the crime charged he may request a charge on entrapment without admitting commission of the crime. Nonetheless, in the case sub judice there is no evidence authorizing a jury charge on entrapment. The State’s evidence which defendant must view as suggesting entrapment is no more than a request to purchase contraband. However, it is well established that entrapment means something more than a mere request to purchase. Raftis v. State, 175 Ga. App. 893, 896 (4) (334 SE2d 857).

5. In his final enumeration of error, appellant contends that the trial court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. As noted in Divisions 1 and 2, defendant’s trial counsel, who is different from his appellate counsel, failed to make the proper showing for a continuance under OCGA § 17-8-25 and failed to file a motion for disclosure of the confidential informant. Defendant’s trial counsel conceded at the motion for new trial hearing that these failures were due to “clumsiness” and the fact that she was very busy preparing several other cases for trial.

“ ‘ “The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, (466 U. S. 668) (104 SC 2052, 80 LE2d 674) (1984). In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) “that counsel’s performance was deficient,” i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this “deficient performance prejudiced the defense,” i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Cit.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988).

In order to sustain a conclusion that defendant received ineffective assistance of counsel it must be established that the failure to obtain Holsey’s identity and presence at trial may have affected the result of that proceeding. However, Holsey’s presence was obtained at the motion for new trial hearing and his testimony adds nothing to the record which is of benefit to defendant. Indeed, Holsey’s testimony is remarkably similar to the description of the events as given in the testimony of Agent Harris. While defendant contends that the absence of Holsey was prejudicial because his testimony would have corroborated defendant’s testimony concerning his romantic interest in Agent Harris, we fail to discern the value of corroborative testimony on a totally uncontroverted issue. The State did not contradict defendant’s assertions that he was attracted to the undercover agent and desired a romantic relationship with her. No harm to defendant could have resulted from the absence of Holsey’s testimony at trial.

The determination of an ineffectiveness claim is a two-prong test. Whether or not trial counsel’s performance was deficient, the record fails to support defendant’s contention that any deficient performance by his trial counsel prejudiced the defense. Consequently, we find no error in the denial of defendant’s motion for new trial and affirm defendant’s conviction.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Cooper and Blackburn, JJ., dissent.

Cooper, Judge,

dissenting.

I dissent because I cannot conclude as the majority does that the deficiencies in appellant’s trial counsel’s performance had no effect upon the verdict. Of particular significance is the failure of appellant’s counsel to secure the identity and presence of Ted Holsey at trial. Based on Holsey’s testimony at the hearing on appellant’s motion for new trial, he would have corroborated appellant’s testimony that he was only present during the drug transactions because of a romantic interest in Agent Harris. Thus, Holsey’s testimony is not merely cumulative, but rather it is corroborative, and I believe that there is at least a reasonable probability that had the jury had the benefit of that testimony the outcome of the trial would have been different. See Richardson v. State, 189 Ga. App. 113 (375 SE2d 59) (1988). Consequently, I would reverse the trial court’s denial of appellant’s motion for new trial.

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

Decided March 19, 1993 —

Reconsideration denied April 1, 1993

James N. Finkelstein, for appellant.

Britt R. Priddy, District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A2282.
    BUTLER v. McCLESKEY.
    (430 SE2d 631)
   Birdsong, Presiding Judge.

Allen Butler appeals from a defendant’s verdict in his suit for injuries received when Butler’s motorcycle hit a tree which he alleges burned and fell across the highway because of Samuel McCleskey’s negligent burning of a field. The trial court granted a directed verdict on the issue of negligence per se in McCleskey’s failure to notify forestry agents of his intent to burn land as required by OCGA § 12-6-90. After two forest rangers testified, the trial court concluded there was no evidence that McCleskey’s failure to notify the forestry agents had a causal relation to Butler’s injuries, as the rangers would have told McCleskey to go ahead and burn the field and would have done nothing which would have prevented Butler’s injuries. The trial court refused to give a negligence per se charge as to McCleskey’s failure to abide by § 12-6-90 and refused to allow Butler to argue the matter to the jury.

McCleskey burned a small field adjoining County Line Road in Houston County, Georgia, on Saturday, June 11, 1988. He did not notify forestry agents of his intent to burn the field. Before McCleskey torched the field, a farm hand harrowed a firebreak around the field and between the field and some trees adjoining the highway. After he set the fire, McCleskey left to set a fire in another field and check some cotton for insects. He testified: “I went back down to the highway and went in and looked at the first field that I burned; it was out, and so all the way around, everything was all right, and I decided . . . there was nothing else to do. Everything was out, there was no danger, and I left [and never returned].” As to how he checked this field to be sure the fire was out before he left it, he said, “I’m not sure [whether I got out of my pickup truck or inspected the field while seated in my truck]. I pulled in this road ... far enough to see. ... I might have gotten out [of the truck] or I might not, but there was no fire.” On further cross-examination, he testified that he stopped at one certain place on a field road from which “you can see all of this wooded area on the north and you can see all of this field . . . probably right in there somewhere you can see it all.” He never testified that he went all around the field to be sure that the fire had gone out and to ensure that it had not crawled across the firebreak. He reckoned that he spent only about an hour burning two fields and checking cotton for insects in another field before he returned home.

Appellant lived less than a mile from this field on County Line Road. He reported to the county sheriff’s office on Saturday or Sunday that there was smoke over the highway in this area and was told that unless there was a raging fire nothing would be done. He testified there was smoke along the highway every day following the Saturday the field was burned, but each day the smoke lessened. Butler worked as an airplane mechanic at the Macon Airport on the late shift; at about 2:30 a.m. on the following Wednesday morning, June 15, he was returning home from work. He was driving his motorcycle at about 55 mph until he came “to the end of the last field before . . . the patch of woods [where] I knew there was smoke. I dimmed my headlight because you couldn’t see anything the days before with a high beam, so I dimmed my headlight and let off the gas, and just coasted into the smoke. . . . There’s shadows there, there’s been shadows there every night . . . reflecting off of the smoke or through it and I eased on through the smoke, saw a shadow, what I thought was a shadow and it turned out to be a tree. By the time I realized it was a tree . . . it was too late to stop.” Butler testified that on Saturday night after the fire had been set, “you could not see [through the smoke at all] and the next night [Sunday], there was not as much smoke. You know, the headlight glares off the smoke, and you can’t see very good. I had to go through there real slow. The next night [Monday], there was less smoke, and then the last night [Tuesday], there was a little bit of smoke, but you could see the light from the church down the street through it. If there had been a car there, you could have seen it. . . . Coming up towards that area, you know, I knew there was smoke there. I knew there was going to be smoke. I also knew the moon comes up behind that group of trees. There’s always shadows out there all the time at night when the moon is up, and I just saw what I thought was a shadow until I got too close to it . . . [and] there was no way that I could stop.” When he saw the tree, he veered to the right to get off the road and tried to jump off the motorcycle, but he and his vehicle collided with a branch of the tree which was in the ditch. The ditch was still smoking all around it and he tried to get out of the ditch but he could not move. He felt something by his left shoulder and discovered it was his tennis shoe on his left foot; he threw that leg down into the ditch but could not move it; he felt back behind him and found his other leg in a similar position and picked it up and threw it down. Both his legs were broken between the hip and knee. Finally he crawled under the tree and scooted up onto the road. There was more smoke on the east side of the tree than on the west side of the tree; he wanted to get to the west side of the tree so someone coming from the west would see him before they got into the smoke.

A sheriff’s corporal on patrol arrived. He had just gotten a cup of coffee and was driving about 35 mph because he did not want to spill the coffee; otherwise, he would have been driving about 55 mph. His window was rolled down and he heard someone yell for help, so he stopped. He did not testify that smoke obscured his vision or caused him to slow down. Butler’s wife, who was concerned because he was late from work and had driven out to look for him, arrived at the same time as the officer. She sat propping Butler up until two ambulances arrived. Paramedics worked on Butler about 45 minutes until they placed him in an ambulance. There was no mention of the presence of any smoke on the road affecting any of these persons during all this time. Held:

1. The trial court erred in directing a verdict for McCleskey on the issue of his failure to notify forestry agents of his intent to burn land as required by OCGA § 12-6-90; erred in refusing to charge appellant’s requested charge of negligence per se based on this statute; and erred in refusing to let appellant argue the matter to the jury.

A directed verdict is proper only 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.” (Emphasis supplied.) OCGA § 9-11-50 (a). McCleskey’s failure to notify forestry agents of his intent to burn a field was negligence per se. The evidence, with all reasonable deductions, does not demand a finding that this failure had no relation to Butler’s injuries. In determining whether to grant a directed verdict, the trial court must construe the evidence most favorably to the party opposing the motion (McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 184 (129 SE2d 408)) and so do we on review of a grant of directed verdict.

The record contains considerable evidence which, construed most favorably to Butler, may prove that McCleskey’s negligence in failing to notify the foresters of his intent to burn this field next to a highway was a proximate cause of Butler’s injuries. According to the rangers’ testimony, the purpose of § 12-6-90 is to enable the forestry service to supervise such fires for the safety of the public, particularly of people who pass on a nearby highway or who have trees or houses nearby. When they are properly notified of a fire, the rangers pay “pretty much attention” to the procedure. They first approve whether weather conditions will allow the fire. They also instruct or advise the owner that an adequate firebreak must be built. An adequate firebreak is from six to thirty feet in width; a firebreak between the fire and trees, buildings or highways should be thirty feet in width. If the owner is not able to build a proper firebreak the rangers will do it for him, and often they return to the site to be sure the fire has gone out.

The sheriff’s officer went back to the site the next day and walked around the copse from which the burned tree had fallen. The firebreak he found between the trees and the field was only about 18 inches wide. He found a burned trail where the fire had crept into the trees from the field across the narrow 18-inch firebreak. One of the rangers examined photos of the area and testified that he did not recognize anything which looked like a firebreak.

Both rangers and another farmer testified that one burning a field must go all around the field when the fire had died to be certain that no fire has crawled across a firebreak. Merely stopping in one place and looking at the field, as McCleskey testified he did, or stopping in two or three places, is not sufficient action to see if the fire is out because a flame in grain stubble may be only two or three inches high and may not produce enough smoke to see from a distance.

A fire set next to a highway or buildings is of particular concern to forest rangers. One ranger testified that when they are notified of a fire which is to burn next to a highway, they automatically call the state patrol or Department of Transportation; the reasonable inference is that DOT and the state patrol do something with such information, and the reasonable inference is that they would have checked the site after the burn. Often the rangers will go back to a site to be certain a burn has been extinguished. A farmer witness testified it would be safe procedure to return to the field later to be sure the fire was extinguished. The evidence indicated that usually a small field will burn out in one day or possibly into the night. If McCleskey had notified forestry agents of his intent to burn a field next to a highway and trees, the foresters would have been aware of this burning; construing all the evidence in Butler’s favor on McCleskey’s motion for directed verdict, a reasonable inference may be made that the foresters and DOT or state patrol reasonably would have checked the site. They would thus have been alerted to the continued emanation of smoke from the copse some five days after the fire.

This evidence and all reasonable deductions and inferences therefrom construed in Butler’s favor show that McCleskey was negligent per.se in not notifying the forest rangers of his intent to set this fire, and that if he had done so, the rangers would have paid particular attention to this fire adjoining the highway; they would have “automatically” called the state patrol or DOT, and one of these agencies would have discovered that McCleskey did not build a proper firebreak and that the fire had crawled across the 18-inch firebreak into the trees, and they would have discovered a continued emanation of smoke from the trees. Accordingly, the evidence does not demand a finding in McCleskey’s favor as to his failure to abide by the law and notify the forestry department of his intent to burn this field, and the trial court erred in refusing to charge the jury on his negligence per se, and erred in refusing to allow appellant to argue these points to the jury.

2. The trial court did not err in refusing to charge appellant’s requested charge that a person has a right to assume the road ahead of him is clear; this contravenes a person’s duty of ordinary care for his own safety. The trial court adequately charged the jury as to the duty of one who places an obstruction (“hazard”) on the road, but the trial court’s refusal to charge on “sudden emergency,” while charging as to Butler’s negligence per se in driving too fast for conditions, was error. The errors which kept the jury from examining fully McCleskey’s negligence per se as a proximate cause of Butler’s injuries, and the refusal to charge on sudden emergency tended to mislead and confuse the jury in its evaluation of all the evidence.

The jury evidently concluded that Butler was traveling too fast for conditions and cruised into a smoke-filled area of which he had full knowledge; it reached this conclusion upon the removal from its consideration of McCleskey’s negligence per se. The jury was permitted to conclude that McCleskey’s failure to notify foresters of the fire (which was undisputedly negligence per se) had no connection to the fallen tree. Had the proper charges been given, the jury might reasonably have concluded that this tree was set afire because of the inadequate 18-inch firebreak, for the officer found the fire trail where the fire had crept across that plowed area into the woods. If appellant had been allowed to argue McCleskey’s undisputed negligence per se without the overweighing burden of charges on Butler’s possible negligence, the jury’s view of the evidence might have been quite different. Obviously this tree burned inwardly for several days and this was the source of the smoke; but the smoke had diminished each passing day and still the tree had not fallen. Appellant knew of the smoke, but he also knew that it diminished each day; he had traveled this road every day and he did not have knowledge that a tree had fallen across the road. When the sheriff’s officer drove into the area his sight was not so obscured by smoke that he had to slow down, and although there was smoke in the ditch, appellant crawled onto the road with two broken femurs to a place next to the tree where there obviously was little or no smoke. Most telling, there is no suggestion in the evidence that while the officer and Mrs. Butler awaited the ambulance and while paramedics worked ,on appellant, there was any smoke that caused any person any discomfort while they were all in that very spot where the tree fell across the road. Under proper rulings and charges, a reasonable inference might be made that there was in fact not much smoke on the road that night and Butler’s negligence per se (if any) of driving too fast for conditions did not outweigh McCleskey’s proven negligence per se. It might be inferred that Butler acted diligently by notifying the sheriff of the smoke, but, being forced to drive through it and based on his previous experience driving through it, on this night he properly anticipated that there would be some smoke, but less smoke; with his headlights full on as he approached the far edge of the field, he did not see so much smoke ahead as to warrant slowing down any more than he did, but when he saw “a little bit of smoke” in the shadows which always lay under these trees at night, he dimmed his headlights. It might even be concluded that the reason he did not see the fallen tree in the shadows was because he reasonably dimmed his headlights when he perceived “a little bit” of smoke, and not because he was driving too fast for conditions; that is, the jury might conclude that since the smoke was evidently slight, Butler would have seen the tree in time to stop if he had not been forced to dim his headlights by his previous difficulties in seeing through their glare on smoke. These are matters for the jury, but under proper rulings and charges the jury may well have concluded that Butler was less negligent than McCleskey, or not negligent at all.

Decided March 16, 1993 —

Reconsideration denied April 1, 1993

Williams, Sammons & Sammons, George L. Williams, Jr., Walter G. Sammons, Jr., for appellant.

Hulbert, Daniel & Lawson, Tom W. Daniel, Robert T. Tuggle III, for appellee.

3. The trial court did not err in charging the jury that if it found Butler was driving too fast for conditions (OCGA § 40-6-180) it might find him negligent, but as noted above, the giving of this charge while refusing to charge the jury as to sudden emergency and particularly as to McCleskey’s undisputed negligence per se in violating § 12-6-90, coupled with appellant’s inability to argue this element of causation to the jury, unduly slanted the case against appellant.

Accordingly, appellant is entitled to a new trial not inconsistent herewith.

Judgment reversed.

Beasley, J., concurs. Andrews, J., concurs in judgment only.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A2374.
    ADCOCK v. THE STATE.
    (430 SE2d 606)
   Andrews, Judge.

Janice Adcock was convicted of two counts of incest in violation of OCGA § 16-6-22 and appeals. In her sole enumeration of error, she claims that the trial court erred by admitting into evidence statements she made during a prior civil proceeding. She claims that the statements were made involuntarily and the trial court’s admission of them violated her constitutional rights against self-incrimination.

The case arises out of the following facts. On or about October 5, 1987, Ms. Adcock filed a complaint for paternity against her natural father, Wilson Adcock, alleging that he was the biological father of her child and requesting that the court order him to pay child support. On November 6, 1987, a temporary support hearing was conducted. During the course of the hearing, the court on its own motion called Ms. Adcock as a witness. Although Ms. Adcock had admitted in her complaint that her son was the product of an incestuous relationship, she claims that she had made no admission which would have subjected her to criminal prosecution within the applicable four-year limitation period.

Ms. Adcock’s paternity complaint specifically stated: “[t]hat Wilson Adcock is the natural father of petitioner, thus the child is a product of an incestuous union between the petitioner and her father. . . . Plaintiff, Janice Adcock, further shows that she and defendant WILSON ADCOCK, lived together continuously during the past ten years and that defendant had sexual intercourse with her frequently during said period of time and that she has had no sexual contact with any person other than defendant during said period. ...”

When the trial judge called Ms. Adcock to the witness stand, he asked her a number of questions regarding the child, the relationship between Ms. Adcock and her father, and the circumstances under which the child was born. Then the following transpired:

“THE COURT: And after the baby was born [in 1980], did you all continue to engage in sexual intercourse?
ADCOCK: Yes, sir.
THE COURT: When was the last time you had sexual intercourse?
MR. FULLER [Ms. Adcock’s attorney]: Your Honor, if I might interrupt at this time, and I apologize for doing so, — as but we have — the nature of the petition is as to Your Honor has stated it, and we are aware, and Janice is aware, that incest is a crime.
THE COURT: Yes, sir.
MR. FULLER: She has alleged both a crime on her part and a crime on the part of her father. I would like to advise her as to her constitutional rights with regard to that, within the Statute of Limitations. It is not necessary that she admit the crime within the Statute of Limitations to complete —
THE COURT: Yes, sir, but you’re not going to have your cake and eat it too, Mr. Fuller. She also has alleged that she did this because she was under the fear —
MR. FULLER: Yes, sir.
THE COURT: — which may — I don’t know what the District Attorney’s office — what their attitude will be about it, but this Court cannot sit up here and let . . . when I read it I was shocked, and I’m not saying the facts are true.
MR.. FULLER: Yes, sir, I understand, and Your Honor, I have discussed with her fully the potential criminal liability for bringing these charges.
THE COURT: And I think if she takes the Fifth Amendment, she might as well just dismiss her lawsuit.
MR. FULLER: Well, Your Honor, we’re not going to dismiss the lawsuit, and we are willing to face whatever the law has for us to bear in this matter.
THE COURT: I think you’re entitled to a — all of this goes to the fact.
MR. FULLER: I agree with you. Answer his question.
THE COURT: When is the last time you had sexual relations with your father, I’m not trying to frighten you?
MS. ADCOCK: I understand that, I’m trying to think.
THE COURT: Has it been in the last year?
MS. ADCOCK: Yes, sir, it was back ... it was either in May or June.
THE COURT: Of 1987?
MS. ADCOCK: Yes, sir.”

Ms. Adcock prevailed in both her paternity action and in the other civil suit. Subsequent to the November 1987 hearing, in August 1988, the grand jury indicted the appellant and her father on two counts of criminal incest. The indictment charged that between January 1, 1977 and September 15, 1984, Adcock had engaged in sexual intercourse with her father, Wilson Adcock, and that the crime of incest had been unknown until September 27, 1987. The second count charged that the two had engaged in sexual intercourse between September 16, 1984 and September 16, 1987. Appellant’s father was tried and convicted of these counts on January 27, 1989. That case was appealed in Adcock v. State, 194 Ga. App. 627 (391 SE2d 438), aff’d 260 Ga. 302 (392 SE2d 886) (1990).

Before appellant’s criminal trial, she filed a motion to suppress her prior incriminating statement. She claimed that she had been inadequately advised of her right against self-incrimination and that there had been some indication that she would receive immunity from prosecution. The court held a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). There was evidence that during the civil suits against her father, Adcock had been informed by the attorney who represented her during the paternity suit of her constitutional rights against self-incrimination and that her attorney had informed her that he did not believe it would be necessary for her to testify regarding incest within the period of limitations; Despite their discussions regarding the fact that the paternity suit was based on a crime, Adcock’s attorney testified that he did not inform Adcock of her right to refuse to testify about recent acts of incest during the November 6 hearing. He admitted that he neither stopped her from testifying during the hearing, not did he assert her Fifth Amendment right. The trial court determined that her statements were admissible.

Ms. Adcock was tried on the criminal charges on November 13, 1991. She did not testify at trial. The State introduced portions of her testimony from the November 6, 1987 temporary support hearing. Adcock claims that her statement was erroneously admitted and that in the absence of it there was insufficient evidence to find her guilty beyond a reasonable doubt.

At the outset we note that the trial court’s findings regarding the voluntariness of the statement will be upheld unless clearly erroneous. Tyler v. State, 247 Ga. 119, 123 (2) (274 SE2d 549) (1981).

Adcock first argues that her statements were self-incriminatory, were compelled by the court and were inadmissible in the instant criminal action, in violation of her Fifth Amendment privilege. Citing United States v. White, 589 F2d 1283 (5th Cir. 1979), she argues that the court’s inquiry was not relevant to the civil matter and that the court’s questions were improper.

In White, the court held that uncounseled inculpatory testimony which White gave in a civil case in ignorance of his Fifth Amendment privilege was admissible at White’s criminal trial. In White the facts which the court emphasized were critical to its holding were that White wanted to testify in the civil case, that White was aware at the time of testifying that an indictment was pending, and that White was not compelled to take the witness stand.

Adcock claims that the facts here differ from those in White and mandate á different result. She argues that in the instant case her testimony at the November 6 hearing was at the court’s behest and that she was indicted after the civil testimony and that the White rationale does not apply.

For a number of reasons, we find Adcock’s arguments without merit. Aside from the fact that appellant was not in custody during the questioning and was represented by counsel during that time, and pretermitting questions regarding the sufficiency of the objection her attorney raised during the civil suit, Adcock’s arguments here ignore the chief operative fact — that she voluntarily filed a civil paternity suit, which suit was based on the conduct which she now claims she was compelled to admit. From this starting point, we conclude that her testimony was voluntary. It is nonsensical to assume that one can file a civil suit based on criminal conduct and not be questioned regarding the relevant facts to the suit. Although the facts in this case are different from White, here Adcock was more in control of her decision to testify than in White in that she had instigated the lawsuit in which the questioning to which she now objects became relevant. (Regarding voluntariness see generally Smith v. State, 190 Ga. App. 702 (379 SE2d 643) (1989); Whittington v. State, 252 Ga. 168 (6) (313 SE2d 73) (1984); see generally State v. Dictado, 687 P2d 172 (Wash. 1984).)

Adcock’s argument that the court’s inquiry into the incestuous relationship within the statute of limitation was irrelevant to the suit is meritless. Adcock’s own complaint stated that she had lived with her father continuously during the past ten years and that her father had sexual intercourse with her frequently during that period.

Adcock also argues that her testimony was inadmissible at the criminal trial since it was compelled by the court under the implied threat of substantial economic sanction. She claims that her decision to file the action was based on the fact that she was financially destitute and that her need for money eliminated her choice regarding testifying. In addition to the fact that there is no direct evidence in the record regarding the alleged economic threat, we find this enumeration without merit. Although OCGA § 24-3-50 provides that to make a confession admissible, “it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury,” the “fear of injury” referred to in that section does not extend to the facts of this case. See generally Ramos v. State, 198 Ga. App. 65 (1) (400 SE2d 353) citing Hall v. State, 180 Ga. App. 366 (1) (349 SE2d 255) (1986); see also Johnson v. State, 170 Ga. App. 71 (2) (316 SE2d 160) (1984); OCGA § 24-3-51.

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Johnson and Blackburn, JJ., concur. Pope, C. J., McMurray, P. J., Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent.

The question is whether Fourteenth Amendment due process required that a certain portion of the defendant’s testimony at the civil proceeding be excluded from the criminal trial because it was involuntary and in violation of her right against self-incrimination.

Although appellant mentions the state constitutional provision as well as the Fifth Amendment self-incrimination clause, her argument is based on the federal standard, as it was in the trial court. Thus the case is not analyzed on the state constitutional ground, Ga. Const. 1983, Art. I, Sec. I, Par. XVI, which provides: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Nor does appellant invoke as a ground the statutory standard, OCGA § 24-3-50, which properly should have been the first line of defense and the first inquiry, even before the State Constitution need be called to arms or addressed. For if a specific state statute provides the relief sought, it is not necessary to invoke the more general measurements of the constitutions. See Clarke, “Independent State Grounds: How to Win Through the First Door Out,” 23 Georgia State Bar Journal 183 (May 1987); Linde, “First Things First: Rediscovering the States’ Bills of Rights,” 9 U. Balt. L. Rev. 379 (1980).

As to the evidence complained of, although the majority refers first to what appellant alleged in her civil complaint, which allegations did embrace activity within the four-year statute of limitation, OCGA § 17-3-1 (c), that is not at issue. The complaint, which apparently was not sworn to by her, was not offered in evidence in the criminal trial. The hearing testimony which is at issue related to her complaint for paternity and child support for her son, who was seven years old (dob 5/13/80) when she filed the complaint on October 5, 1987. Any sexual relations she had with the father after the birth of the child were irrelevant to the issues in that case, as such would not affect paternity or entitlement to, or amount of, child support. Appellant’s other suit against the child’s father claimed incest as a tort, but the record contains nothing which would show that sexual relations within the statute of limitation were relevant in that suit either. It was filed on September 16, 1987, as recounted in Adcock v. State, 194 Ga. App. 627 (391 SE2d 438) (1990).

Nevertheless, the court in a hearing on paternity and support, after first calling for the district attorney to listen in, required testimony from the petitioner and now criminal defendant concerning sexual intercourse from the time of the child’s birth to the most recent instance. This constituted confession of a crime (see Johnson v. State, 204 Ga. 528 (50 SE2d 334) (1948)), and was objected to on two bases, that counsel wished first to advise her of her rights against self-incrimination as to any still-indictable activity and that such evidence was unnecessary to prove her case. However, the court made its position very clear: if the Fifth Amendment right against self-incrimination were invoked, she “might just as well dismiss her lawsuit.”

During the course of the criminal trial, the court conducted a hearing to determine whether the confession was voluntary, because under the invoked Fourteenth Amendment, the use of involuntary or coerced confessions violates due process of law. Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). This occurred prior to introduction of that portion of the transcript of the civil proceeding which contained her confession. Her civil attorney testified that in preparing the civil paternity and child support action, he had advised Ms. Adcock that she would not have to admit the crime of incest as having occurred any time within the statute of limitation in order to make out the case, and he “would not allow her and she would not have to testify and incriminate herself.” He explained that then, as shown by the civil transcript, the court in that proceeding interrupted and asked her questions requiring self-incrimination, to which counsel objected as stated above. He testified that he attempted to invoke the Fifth Amendment privilege but that the judge “very vociferously and very emotionally told me that we weren’t going to have this [paternity and child support] case, that we weren’t going to be allowed to proceed with this case if we did claim the 5th Amendment. That was my understanding, and I felt the case was so vital, she had a child that was not being supported, she was almost financially destitute at that time, she could not support herself. ...” He said she had come to him “in a state of total psychological devastation.” On hindsight, he said he should have insisted on her privilege even if it meant his going to jail, but he felt intimidated by the court and did not want to give up the paternity and child support case.

Thus Ms. Adcock as civil petitioner was compelled to answer the court’s questions, not knowing that she could still invoke the privilege and that doing so would not legally affect the child’s right to support and a determination of paternity. The criminal court’s implied finding of voluntariness is clearly erroneous, which is the test to be applied to that finding when reviewed on appeal. Eady v. State, 182 Ga. App. 293, 298 (6) (355 SE2d 778) (1987). Unlike the circumstances in United States v. White, 589 F2d 1283 (5th Cir. 1979), which the court below relied on in ruling that the evidence was admissible, the civil trial judge, not defendant, instigated her testimony by calling her on his own motion and compelled it over valid objection, there was no indictment pending against her, and she was in effect told by the judge that the suit for paternity and child support would be lost unless she answered his questions.

Although it is true that defendant was represented by counsel at the time the civil court questioned her, counsel was not permitted to advise her of her self-incrimination rights with respect to the indictable period of time or of the consequences of refusing to answer. Moreover, the court “advised” her erroneously, that the consequences would be the preclusion of court-ordered support for the child. Counsel was deprived of the opportunity to argue that such testimony was irrelevant.

Decided March 11, 1993 —

Reconsideration denied April 1, 1993

Lanser, Levinson & Paul, Christopher G. Paul, for appellant.

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.

“The constitutional guarantee [against self-incrimination] is only that the witness be not compelled to give self-incrimination testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. [Cit.]” United States v. Washington, 431 U. S. 181, 188 (97 SC 1814, 52 LE2d 238) (1977). Here, the record reveals officially compelled self-accusation which was prosecutable and was prosecuted to conviction. It was compelled in that it was demanded by the court on pain of loss by the witness who was ignorant of the fact that she could claim the right without adverse legal consequences. Yet, as said in White, supra at 1287, “defendant must weigh the relative advantages of silence and explanation.” Although she may have understood that criminal action could follow, she was also told by the court questioning her that if she refused to answer, her attempt to get child support would be foreclosed. Such coercion tainted the confession so that its admission in the subsequent criminal trial, which is now before this court, deprived defendant of the due process of law guaranteed by the Fourteenth Amendment.

It should be pointed out that had defendant claimed the protection of our own statute, OCGA § 24-3-50, an analysis under the Fourteenth Amendment would have been moot. The long-standing statutory standard is that “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The pronouncement by the interrogating judge in the civil proceeding, of certain loss of economic relief should she choose not to respond, is more than a remote “fear of injury.”

I am authorized to state that Chief Judge Pope, Presiding Judge McMurray, and Judge Cooper join in this dissent.

       Although somewhat unclear from the record, it appears that during this same time period Ms. Adcock also filed a civil suit for damages against her father.

       This is the date the State alleged it learned of the early intercourse in Count 1, so as to survive the statute of limitation, and likewise the date the State alleged as the last intercourse, in Count 2.


text:
    A92A2386.
    McGINNIS et al. v. THE STATE.
    (430 SE2d 618)
   Pope, Chief Judge.

Defendants John D. McGinnis and Vicky D. McGinnis were arrested on May 25, 1990 and charged with possessing and having in their control in excess of 60 growing marijuana plants (Count 1), possessing and having in their control marijuana seeds (Count 2), and possessing in excess of one gallon of distilled spirits not bearing the proper tax stamps (Count 3). Count 2 of the indictment was dismissed and defendants were found guilty on Counts 1 and 3. They appeal from their conviction and the denial of their motion for new trial.

1. Defendants argue the trial court committed reversible error by refusing to allow a witness to testify that the marijuana plants, which are the subject of Count 1, belonged to the witness’ now deceased husband rather than the defendants. The defendants were allowed to make an offer of proof concerning this witness’ testimony at which they showed the witness lived approximately one-quarter mile from the defendants at the time of their arrest, the witness’ husband posted bond for the defendants, the reason he told his wife he posted bond for the defendants was because the marijuana plants “they had found near their house were his plants and he didn’t want them to be in jail for something that was his,” and the witness’ husband died on March 3, 1991 (the defendants’ trial began on February 24, 1992).

Defendants argue the witness’ testimony should be allowed pursuant to the necessity exception to the hearsay rule. “ ‘[T]here are two prerequisites for admission of hearsay because of necessity: “1) necessity; [and] 2) particularized guarantees of trustworthiness.” Idaho v. Wright, _ U. S. _ (110 SC 3139, 111 LE2d 638) (1990); Higgs v. State, 256 Ga. 606 [(351 SE2d 448) (1987)];’ Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839) [(1991)].” Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905) (1992). As in Mallory and Jackson, the first prerequisite was met since the declarant is now deceased. Mallory, 261 Ga. at 627 (2); Jackson, 202 Ga. App. at 586 (2). We agree with the trial court’s conclusion that the second prerequisite was not met in this case. As the trial court correctly noted, the defendants were arrested approximately one year before the declarant’s death and indicted in December 1990. Thus, the declarant knew or should have known the defendants faced the possibility of being convicted for possession of the marijuana plants that were allegedly his for several months before his death. The record reflects that the witness and the declarant were friends of the defendants. While the defendants argue that the declarant’s willingness to make bond for them is consistent with his alleged ownership of the plants, that act is also consistent with friendship. The declarant’s statement was neither made to a completely neutral party since the witness was a friend of the defendants nor was it made during the course of an official investigation. The statement that the marijuana plants belonged to the declarant was not corroborated by other witnesses, other than Ms. Mc-Ginnis’ denial that the plants belonged to her husband and her. Therefore, we hold the trial court did not commit reversible error by refusing to allow the witness to testify that her deceased husband owned the marijuana plants. See generally Mallory, 261 Ga. at 628.

2. Defendants contend the trial court erred by failing to grant defendants’ motion for new trial because the State did not comply with the dictate of OCGA § 17-7-210, which requires that the State provide the defendant with a copy of any statement given by the defendant while in police custody if requested by the defendant at least ten days prior to trial. Defendants contend because they made a proper request and because the State failed to comply with the dictate of OCGA § 17-7-210, the State should not have been allowed to present the testimony of one of the arresting officers concerning inculpatory statements made by the defendants in his presence. The record reflects that the defendants did not object to this evidence when it was offered at trial; therefore, the defendants have waived the State’s noncompliance with OCGA § 17-7-210. Parrish v. State, 194 Ga. App. 760 (1) (391 SE2d 797) (1990); Henderson v. State, 162 Ga. App. 320, 322 (3) (292 SE2d 77) (1982).

3. Defendants argue the trial court erred in charging the jury that they would be permitted to infer that the defendants were in possession of the entire premises and all of the property located on or in the premises because there was no evidence that the defendants owned or leased the premises. The actual language of the charge challenged by the defendants follows: “If you find that a person owns or leases a house or premises, you will be permitted but not. . . required to infer that such person is in the possession of the entire premises and all of the property located on or in the premises. However, this is a rebuttable inference and may be overcome by evidence in the case, or that the contraband was not on or near the premises, that others had áccess to the premises or the contraband.

“Whether or not this inference is drawn from proof that a person is the owner or lessee of the house or premises, and whether or not the inference has been overcome by proof that others had access to the premises or contraband are questions for you, the jury, alone.”

Defendants objected to this charge on the grounds that because the State presented no proof the defendants leased or owned the mobile home in which the contraband was found in or around, the State was not entitled to a charge concerning the inference that may be drawn from proof that a person is an owner or a lessee. While the specific nature of the defendants’ interest in the property was not established during the trial, there was sufficient evidence from which the jury could conclude the defendants had a possessory interest of some sort in the property. Ms. McGinnis testified that her family moved into the subject mobile home during October 1989. She testified they made improvements to the mobile home and her brother and father lived with them in the subject mobile home. Ms. McGinnis’ father testified he lived with the McGinnises in their home on Adams Road, the location of the subject mobile home. Their neighbor testified she lived approximately a quarter mile from the “McGinnis’ house.” Because there was overwhelming evidence that the McGinnises had a possessory interest of some sort in the subject mobile home, the State’s failure to prove their specific interest and the giving of the challenged jury charge would constitute, at most, harmless error.

4. Finally, defendants contend their Sixth Amendment rights were violated when their former attorney waived their presence at the hearing held on their motion to suppress, without first obtaining their express permission. At the beginning of the hearing held on defendants’ motion to suppress their counsel made the following statement to the court: “Your Honor, on behalf of Mr. and Ms. McGinnis, I would waive their presence. Mr. McGinnis fell off the roof of his house on Sunday.” Shortly thereafter the prosecutor turned to defense counsel and asked: “And I believe you just stated that your clients authorized you to waive their presence.” Defense counsel responded: “That’s correct, Your Honor. Mr. McGinnis fell off the roof [of] his house. ...”

After the motion to suppress hearing was held, but before the defendants’ trial, the attorney who represented defendants during the motion to suppress hearing surrendered his license to practice law. After new counsel was appointed, the defendants filed a renewed motion to suppress. In that motion the defendants stated that they were not present for the hearing held on their original motion to suppress, but dp not allege that their former attorney waived their right to be present without first obtaining their permission. The record does not reflect the trial court’s disposition of the defendants’ renewed motion to suppress.

In defendants’ amended motion for new trial, defendants raised as one ground why that motion should be granted that their counsel had improperly waived their right to be present during the motion to suppress hearing. During the hearing on that motion, both defendants testified they were not informed by their counsel that a hearing would be held on their motion to suppress and that they did not waive their right to be present at the motion to suppress hearing. The trial court denied their motion for new trial.

The parties do not cite and our research does not reveal a decision of a Georgia appellate court in which the issue was presented of whether a defendant’s attorney can waive a defendant’s right to be present during a suppression hearing, without first obtaining the defendant’s express consent or permission. It is well-settled in this state that a defendant has a right to be present during all stages of his or her trial and that right can only be waived by the defendant’s counsel if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. Williams v. State, 251 Ga. 749, 798 (312 SE2d 40) (1983); Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981), cert. denied, 456 U. S. 984 (102 SC 2258, 72 LE2d 862) (1982); Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955). It is also well-settled that the “right of one accused of a felony to be present during the course of his trial does not extend to post-verdict procedures such as a motion for new trial, at which only questions of law, not questions of fact, are determined. Sims v. Smith, 228 Ga. 136 (184 SE2d 347) (1971); Reid v. State, 119 Ga. App. 368 (1) (166 SE2d 900) (1969).” Dobbs v. State, 245 Ga. 208, 209 (2) (264 SE2d 18), cert. denied, 446 U. S. 913 (100 SC 1845, 64 LE2d 267) (1980).

There are a limited number of Georgia appellate decisions concerning a defendant’s right to be present at pretrial proceedings. In Davis v. State, 135 Ga. App. 203, 205 (2) (217 SE2d 343) (1975), we held “the presence of the [defendant] at the arraignment [could be] waived by failure of his counsel to object to proceeding in his client’s absence at the arraignment.” In Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274) (1986) (physical precedent only), the trial court excluded the defendant from a hearing on the defendant’s motion to dismiss the indictment. We held that because defendant’s counsel failed to object to the trial court’s exclusion of the defendant and because only questions of law were addressed at the pretrial hearing from which the defendant was excluded, defendant’s exclusion did not constitute reversible error.

At pretrial suppression hearings sworn testimony of prosecution witnesses against the defendant is taken. The rationale of our previous decisions in this area suggests that a defendant’s presence is required at pretrial evidentiary proceedings. Therefore, we hold that it constitutes prejudicial error to conduct an evidentiary suppression hearing in the defendant’s absence. We note that our ruling is consistent with the majority of jurisdictions that have had occasion to address the issue of an accused’s right to be present at a suppression hearing or other proceedings involving evidentiary questions. See generally Right of Accused to be Present at Suppression Hearing or at other Hearing or Conference between Court and Attorneys Concerning Evidentiary Questions, 23 ALR4th 955 (1983). The defendant, of course, can waive his right to be present at a suppression hearing and that right can be waived by the defendant’s counsel if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. See Williams, 251 Ga. at 798.

Decided March 12, 1993 —

Reconsideration denied April 1, 1993.

Gammon & Anderson, W. Wright Gammon, Jr., for appellants.

William A. Foster III, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

In this case, the only evidence that the defendants waived their right to be present at the motion to suppress hearing is their counsel’s statement at the hearing that on behalf of his clients he waived their presence with the explanation that Mr. McGinnis had been recently injured. Defendants objected to the motion to suppress hearing being held in their absence at their first opportunity by filing a renewed motion to suppress. The State presented no evidence to refute the defendants’ showing that they had no knowledge a hearing was held on their motion to suppress and that they did not authorize their counsel to waive their presence. Accordingly, this case is remanded to the trial court for another hearing to be held on defendants’ motion to suppress.

Judgment reversed and case remanded.

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


text:
    A92A2414.
    HARRELL et al. v. LUSK.
    (430 SE2d 653)
   Pope, Chief Judge.

On February 6, 1990, plaintiff Johnnie Lusk filed a complaint against defendants Robert Harrell, GBGD Drugs d/b/a The Medicine Shoppe, and Medicine Shoppe, International, Inc. alleging, inter alia, that on February 27, 1989 Harrell, a licensed pharmacist, committed malpractice by negligently filling Lusk’s prescription with the improper dosage of the medication Stelazine. Seeking to comply with the dictates of OCGA § 9-11-9.1, plaintiff filed with her complaint the affidavit of a medical doctor to support her malpractice claim against Harrell. On December 7, 1990, the trial court dismissed that portion of plaintiff’s complaint alleging professional malpractice against Harrell on the basis that plaintiff’s expert, a medical doctor, was not competent to testify as to the standard of care that ordinarily should have been exercised by the defendant pharmacist. <

In August 1991 plaintiff dismissed her suit against defendants. Plaintiff refiled her suit a few days later on August 23, 1991, attaching an affidavit of a pharmacist to the complaint. The two-year statute of limitation on plaintiff’s claim against the defendants had expired before she refiled her complaint. Thereafter, the defendants filed another motion to dismiss, asserting, inter alia, that OCGA § 9-11-9.1 bars plaintiff from renewing her malpractice claim against the defendants. The trial court denied defendants’ motion to dismiss on the basis that our Supreme Court’s recent decision in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992) limited the affidavit requirement of OCGA § 9-11-9.1 only to those professions recognized in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24, and because pharmacy is not listed as a profession in those Code sections it was not necessary for plaintiff to comply with the dictates of OCGA § 9-11-9.1. We granted defendants’ application for interlocutory appeal from that order.

As the trial court correctly noted, in Gillis our Supreme Court held the affidavit requirement of OCGA § 9-11-9.1 is applicable only to those professions recognized in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24. 262 Ga. at 118. OCGA § 14-7-2 (2) provides: “ ‘Profession’ means the profession of certified public accountancy, architecture, chiropractic, dentistry, professional engineering, land surveying, law, psychology, medicine and surgery, optometry, osteopathy, podiatry, veterinary medicine, registered professional nursing, or harbor piloting.”

OCGA § 14-10-2 (2) defines “Professional Service” as “the personal services rendered by attorneys at law and any type of professional service which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43, for example, the personal services rendered by certified public accountants, chiropractors, dentists, osteopaths, physicians and surgeons, and podiatrists (chiropodists).” (Emphasis supplied.)

OCGA § 43-1-24 provides: “Any person licensed by a state examining board and who practices a ‘profession,’ as defined in Chapter 7 of Title 14, the ‘Georgia Professional Corporation Act,’ or who renders ‘professional services,’ as defined in Chapter 10 of Title 14, ‘The Professional Association Act,’ . . . shall remain subject to regulation by that state examining board, and such practice or rendering of services in that business entity shall not change the law or existing standards applicable to the relationship between that person rendering a professional service and the person receiving such service, including but not limited to the rules of privileged communication and the contract, tort, and other legal liabilities and professional relationships between such persons.”

Pharmacy is not listed as a profession in OCGA § 14-7-2 (2). Pharmacy is also not a profession within the meaning of OCGA §§ 14-10-2 (2) and 43-1-24 because the board which regulates and licenses pharmacists is not governed by Title 43 of the Georgia Code. Although pharmacy is defined as a profession in OCGA § 26-4-2 (16) (A), the State Board of Pharmacy, which is charged with regulating and licensing pharmacists, was created pursuant to Article 2 of Title 26 of the Georgia Code. Thus, a literal reading of Gillis excludes pharmacy from the definition of profession or professional services. This court is not authorized to expand the holding of the Supreme Court in Gillis. Such an expansion can come only from the Supreme Court itself. Therefore, we are constrained to hold that pharmacy is not a profession to which the affidavit requirements of OCGA § 9-11-9.1 apply. The trial court did not err in denying the defendants’ motion to dismiss.

Decided March 19, 1993 —

Reconsideration denied April 1, 1993

Irwin, Bladen, Baker & Russell, Jennie E. Rogers, for appellants.

Lanser, Levinson & Paul, Adrian F. Lanser III, Michael A. Corbin, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A92A2421.
    KINCER v. THE STATE.
    (430 SE2d 597)
   Pope, Chief Judge.

Defendant John C. Kincer was convicted by a jury of the offense of cruelty to children. He appeals following the denial of his motion for new trial.

1. In his first three enumerations of error, defendant contends the trial court erred in admitting evidence of similar transactions. Defendant’s sole objection in the trial court was that the prejudicial impact of the complained-of evidence outweighed its “scant probative value.” On appeal defendant urges two additional reasons in support of his argument that the evidence was improperly admitted at trial, to wit, that it was not offered for a proper purpose and that it was not sufficiently similar to the present offense. However, by failing to raise these grounds below, under the authority of Hunter v. State, 202 Ga. App. 195, 196-198 (3) (413 SE2d 526) (1991), “[defendant] is deemed to have waived these arguments and we are precluded from considering these enumerations on appeal.” Jackson v. State, 205 Ga. App. 513, 514 (422 SE2d 673) (1992). We reject defendant’s further contention on appeal, that the decision in Hunter is a misinterpretation of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). “ ‘(N)othing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. . . .’ Hunter v. State, 202 Ga. App. [at 198 (3)].” McGaha v. State, 204 Ga. App. 248, 249 (418 SE2d 802) (1992).

Moreover, we have examined defendant’s contention asserted in the court below and in his brief to this court, that the probative value of the evidence did not outweigh its prejudicial impact, and find it to be without merit. Defendant was convicted of cruelty to children in this case based on a charge that he made the victim (his girl friend’s son) rub animal feces on his face. The similar transaction evidence offered against defendant at trial concerned other incidents of mistreatment of the victim and of mistreatment of the son of defendant’s former wife. These similar acts were admissible to show bent of mind and course of conduct. “ ‘ “Evidence of similar [transactions] is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” Oller v. State, 187 Ga. App. 818, 819 (371 SE2d 455) [(1988)].’ Barnes v. State, 196 Ga. App. 797, 798 (2) (397 SE2d 70) [(1990)].” Pinson v. State, 201 Ga. App. 555, 556 (411 SE2d 564) (1991). “[Assuming arguendo that some degree of prejudice to [defendant] would flow from the . . . admission of this evidence, such prejudice was outweighed by [its] probative value or its relevancy to the issues on trial. . . .’ [Cit.] . . . Accordingly, we find no error.” Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991); Ross v. State, 199 Ga. App. 767, 768 (2) (406 SE2d 101) (1991).

2. Defendant also contends the trial court erred in refusing to allow him to review the contents of a pre-sentencing report. As to this issue, the record shows that following the pronouncement of the jury verdict, the trial court asked defendant and his counsel whether they wished to have a pre-sentence investigation conducted, and both defendant and his counsel responded in the affirmative. At the subsequent proceedings to impose sentence, the trial court informed defendant that there were statements in the report made by people who did not want their names disclosed, and informed defendant that he was making the report a part of the record on appeal but was not going to allow the defendant to review the report. Neither defendant nor his counsel objected to this procedure, although the trial court, immediately following his statement concerning the report, asked the defendant if there was anything he wanted to say prior to sentencing. Consequently, defendant cannot now be heard to complain about this aspect of the proceedings. “ ‘If no objection is made at the pre-sentence hearing, a subsequent review by this court of that phase is eliminated.’ [Cits.]” Moss v. State, 159 Ga. App. 317, 319 (283 SE2d 275) (1981).

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Division 2 and in judgment.

Decided February 25, 1993 —

Reconsideration denied April 1, 1993

John R. Emmett, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane Palumbo, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.