text:
    A00A1553.
    BETTS et al. v. MEDCROSS IMAGING CENTER, INC. et al.
    (542 SE2d 611)
   Phipps, Judge.

Michelle Antionette Betts, Kathy T. Cochran, Jason Han, Kara Nicole Mills and Denyne Rasheal Williams are former employees of MedCross Imaging Center, Inc. They brought an action against Med-Cross, MedCross’s owner and his wife for intentional infliction of emotional distress. They claim that the trial court erred by granting summary judgment against them and ruling that their claims are barred by the exclusivity provisions of the Georgia Workers’ Compensation Act. We find that the trial court ruled correctly and affirm.

MedCross is a Georgia corporation owned and operated by Dr. Kuo Lam Lee, a radiologist. Josefina M. Lee, his wife, assists in paying bills, making deposits and bookkeeping at MedCross. Appellants were employed by MedCross at its Norcross radiology facility.

Appellants claim that they resigned from MedCross because they learned that they had been exposed to excessive levels of radiation “due to [defendants’ intentional refusal to install federally mandated lead shielding.” They also claim that they should have been provided with dosimeter badges to measure the levels of radiation to which they were exposed daily. They claim to have suffered extreme anxiety and severe depression as a result of the allegedly hazardous exposure, but admit that they have not yet suffered any physical injury. Based on their alleged radiation overexposure, appellants filed notices of claim with the Georgia State Board of Workers’ Compensation.

The trial court granted the motion for summary judgment filed by MedCross and the Lees on two grounds: (1) the exclusive remedy doctrine of the Georgia Workers’ Compensation Act bars appellants’ claims against MedCross and the Lees, and (2) the appellants’ damages are too remote, speculative and tenuous to sustain a recovery. Although appellants assert seven separate claims of error, their claims can be distilled into three distinct issues.

1. Appellants argue that the Workers’ Compensation Act does not provide the exclusive remedy for their claims against MedCross because their claims for intentional infliction of emotional distress are not covered by the provisions of the Workers’ Compensation Act.

OCGA § 34-9-11 (a) provides that the rights and remedies of an employee under the Workers’ Compensation Act against his or her employer for a work-related injury exclude all other remedies at common law or otherwise for such injury, loss of service or death. The Workers’ Compensation Act defines injury or personal injury as “injury by accident arising out of and in the course of the employment,” but excludes “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee.”

Psychological injury, not preceded by or accompanied by physical injury, is not compensable under the Workers’ Compensation Act. But whether injuries are compensable under the Act is not determinative of whether the exclusivity provision is applicable. “ That an injury [arising out of and in the course of employment] is not compensable under the act does not necessarily mean that it is not within the purview of the act.’ [Cit.]”

Where the act of the employer is not an accident arising out of and in the course of employment and where a reasonable remedy is not provided by the Workers’ Compensation Act, the exclusivity provision does not apply. Georgia courts have held that intentional torts cannot be considered accidents arising out of and in the course of employment. Georgia courts also have established a rule that “even if an employer’s wilful failure to furnish a safe workplace for his employees results in an injury to those employees, their only recourse is under the Workers’ Compensation Act.”

But the rule most applicable to appellants’ claims is found in Johnson v. Hames Contracting: the exclusivity provisions of the Workers’ Compensation Act bar “claims grounded on an intentional tort, which indirectly but essentially seek redress based on current or future physical injury arising from the alleged . . . exposure to [radiation] at the [clinic].” In Johnson, a painter sought redress for nonphysical injuries associated with his exposure to asbestos. The court held that the employee’s claims, which were based on the employer’s intentional misconduct, were barred by the exclusivity provisions of the Workers’ Compensation Act because they essentially sought redress based on the potential for current or future physical injury.

Appellants’ nonphysical injuries — extreme anxiety and severe depression — stem solely from their concern about future physical injury caused by excessive exposure to radiation. Because their claims for intentional infliction of emotional distress essentially seek redress based on the potential for future physical injury, we find that they are subject to the exclusivity provisions of the Workers’ Compensation Act.

Oliver v. Wal-Mart Stores is distinguishable. There, a Wal-Mart employee was accused of taking a ten-cent cup of ice without paying for it and received counseling from her manager. Following the incident, she filed suit and asserted claims of slander and intentional infliction of emotional distress. The Oliver court held that her only injuries were purely nonphysical, not compensable under the Act and therefore not subject to the exclusivity provisions. The court distinguished Bryant v. Wal-Mart Stores because it involved a situation where nonphysical injuries were connected to physical injuries. Here, unlike Oliver, appellants’ claims are inextricably linked to their claims of future physical injury.

Appellants argue that the emotional injuries they have suffered from excess radiation exposure are not “injuries,” as defined by the Workers’ Compensation Act, because the Lees wilfully refused to correct the problems at the clinic for reasons personal to the appellants — a desire for greater profits and a reckless indifference to the appellants’ welfare. To determine if their injuries occurred for reasons personal to appellant^, we must consider whether those injuries arose out of and in the course of their employment.

An injury arises within the course of employment “when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto.” Appellants admit that their injuries arose in the course of their employment with MedCross while performing their duties at the Norcross clinic.

An injury arises out of the employment when, considering all the circumstances, there is “a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Under this test,

if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.

Appellants’ employment with MedCross placed them in a working environment where they were susceptible to at least some exposure to radiation. To fulfill their duties, appellants were required to be physically present at the Norcross clinic, which they claim resulted in excessive radiation exposure. Appellants would not have been exposed to the same level of radiation apart from their employment at MedCross. Under the circumstances, we find that appellants’ injuries, if any, arose out of their employment.

Because we conclude that the injuries appellants allege arose out of and in the course of their employment and not for reasons personal to appellants, the exclusive remedies for their claims are under the Workers’ Compensation Act.

Decided November 21, 2000

Leslie E. Stewart, for appellants.

Drew, Eckl & Farnham, Lawrence L. Bennett, Jr., for appellees.

2. Appellants argue that even if their claims against MedCross are barred, they should be able to proceed against the Lees.

Dr. Lee’s knowledge of the allegedly hazardous condition was based on his active involvement in the operation of MedCross. Whatever breach of duty he may have committed with respect to the operation of the Norcross clinic was committed while acting as an “alter ego” of the corporation. Accordingly, he cannot be labeled a third-party tortfeasor, and a separate action against him is precluded by OCGA § 34-9-11.

The bar of the exclusivity provision of the Workers’ Compensation Act “also applies to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business.” If Josefina Lee wilfully exposed appellants to excessive levels of radiation for reasons personal to appellants, the bar would not apply. As discussed in Division 1, the acts were not unrelated to the conduct of the employer’s business. Thus, the bar also applies to appellants’ claims against Josefina Lee.

3. Based on our conclusions in Divisions 1 and 2, we do not address appellants’ argument that the trial court erred by ruling that their claims were too remote, speculative and tenuous to sustain a recovery.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       Betts claims that she has experienced hair loss as a result of her radiation exposure, but acknowledges that it is not a physical injury within the meaning of the Workers’ Compensation Act.

       OCGA § 34-9-1 (4).

        Abernathy v. City of Albany, 269 Ga. 88 (495 SE2d 13) (1998).

        Boulware v. Quiktrip Corp., 226 Ga. App. 399, 400 (486 SE2d 662) (1997); see also Venable v. John P. King Mfg. Co., 174 Ga. App. 800, 803 (331 SE2d 638) (1985) (where the Act is applicable, it provides exclusive remedy against employer; whether employee actually wins compensation is irrelevant).

       (Emphasis omitted.) Boulware, supra.

        Griggs v. All-Steel Bldgs., 209 Ga. App. 253, 257 (433 SE2d 89) (1993).

       Id. at 255 (fraud is not an accident and the damages resulting therefrom do not arise out of or in the course of employment); Potts v. UAP-GA. AG. CHEM., 270 Ga. 14, 16 (506 SE2d 101) (1998) (Workers’ Compensation Act provides no reasonable remedy for employer’s fraud or intentional infliction of emotional distress which does not arise in the course of employment; because alleged fraud did not arise in the course of employment, workers’ compensation was not the exclusive remedy).

       (Citations and punctuation omitted.) Boulware, supra.

       208 Ga. App. 664, 667-668 (4) (a), (c) (431 SE2d 455) (1993).

       (Emphasis in original omitted and supplied.) Id. at 667; see also Zaytzeff v. SafetyKleen Corp., 222 Ga. App. 48, 52 (473 SE2d 565) (1996) (claim for psychological injuries held inextricably linked to workers’ compensation claim for physical injury).

        Johnson, supra.

       209 Ga. App. 703, 704 (434 SE2d 500) (1993).

       Id.

       203 Ga. App. 770, 772 (1) (417 SE2d 688) (1992).

        Murphy v. ARA Svcs., 164 Ga. App. 859, 861 (298 SE2d 528) (1994).

       (Citation omitted.) Id.

       (Citation omitted.) Id. at 862.

       Id.

       See Hennly v. Richardson, 264 Ga. 355, 356 (1) (444 SE2d 317) (1994).

        Vaughn v. Jernigan, 144 Ga. App. 745, 746 (242 SE2d 482) (1978).

       Id.

        Webster v. Dodson, 240 Ga. App. 4, 6 (522 SE2d 487) (1999).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A2192.
    DAVIS v. THE STATE.
    (542 SE2d 626)
   Mikell, Judge.

Brad Jermain Davis was convicted of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. The court denied his motion for new trial, and Davis appeals. Finding no error, we affirm.

1. In his first enumeration of error, Davis argues that the court erred in allowing a juror to request that a videotape in evidence be replayed. Davis contends that the court permitted a juror to “ask questions and carry on a conversation” with the court and the prosecuting attorney. Davis has not provided citations to the record to support this claim of error; however, the record shows that the juror made two requests during the trial.

First, during the testimony of Special Agent Barry Thompson of the Tri-Circuit Drug Task Force, the juror asked that a portion of a videotape be rewound and paused. The record reflects that the videotape showed Agent Thompson purchasing crack cocaine from Davis on two occasions. The record also shows that after viewing the tape, the juror asked, “[w]ould you back that up and make it pause right there? . . . Where he’s not moving so much ... to make him stop where he can look straight into his face.”

While Davis is correct that a juror may not question a witness, in the case sub judice, we conclude that the juror’s request that the videotape be rewound and paused was not a question to Agent Thompson. Compare State v. Williamson, 247 Ga. 685, 686 (279 SE2d 203) (1981). Furthermore, defense counsel failed to object to Green’s request and, therefore, waived this issue.

The record shows that the juror addressed the court for a second time after the jury charge, when he asked if the jury could view the videotape again. Because the tape had been admitted into evidence, the court allowed a portion of it to be replayed.

We conclude that the court did not abuse its discretion in allowing the jury to review the videotape. “The replay of a portion of the videotape is not a recall of a witness, but rather the verbatim repetition of testimony already in evidence.” Hodges v. State, 194 Ga. App. 837, 838 (3) (392 SE2d 262) (1990). “It is well settled that a trial court has discretion to permit a jury to rehear parts of the evidence presented even after deliberations have begun.” Sledge v. State, 223 Ga. App. 488, 490 (4) (477 SE2d 898) (1996). See also Farrow v. State, 222 Ga. App. 689, 691 (2) (475 SE2d 706) (1996).

2. Next, Davis argues that the court erred in permitting prosecutorial misconduct by allowing the state to “continuously ‘curry favor’ with the jury.” As evidence of misconduct by the state, Davis cites the assistant district attorney’s statement that she had no objection to the replay of the video and her question as to whether the jurors could move closer to the monitor.

We disagree with Davis’ characterization of this behavior as “prosecutorial misconduct.” The record shows that at least one juror had difficulty viewing the tape, and that the prosecutor properly addressed her statement and question to the court. Therefore, we conclude that Davis’ argument is without merit.

Decided November 21, 2000

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

J. Thomas Durden, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

3. Finally, Davis argues that his case should be remanded for resentencing because he did not receive adequate notice that the state intended to use a prior conviction to seek recidivist punishment at his presentencing hearing.

OCGA § 17-10-2 (a) provides that in determining punishment, the trial court shall hear in aggravation only the evidence that “the state has made known to the defendant prior to the defendant’s trial.”

The record shows that the state served defense counsel with a “Notice of Evidence in Aggravation” prior to the time that the jury was sworn. Later, pursuant to that notice, the court admitted evidence of a Florida conviction. We conclude that the court did not err. “This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) (510 SE2d 87) (1998). Furthermore, we have held that counsel’s failure to move for a continuance precludes a defendant from arguing that his counsel did not have an ample opportunity to investigate the admissibility of the prior conviction. Id., citing Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: Eldridge, Judge.

text:
    A00A2213.
    BODIFORD v. THE STATE.
    (542 SE2d 628)
   Eldridge, Judge.

A Mitchell County jury found Roderick T. Bodiford guilty of: Count 1, possession of cocaine; Count 2, possession of marijuana with intent to distribute; Count 3, misdemeanor obstruction; Count 4, underage possession of alcohol; Count 5, violation of minimum speed regulations; and Count 6, open container violation. On appeal, he challenges the sufficiency of the evidence as to Counts 1, 2, and 4. Upon review, we affirm.

Bodiford was detained for blocking a public road next to a playground on Palmer Street in Camilla. When the officer approached Bodiford’s car, he saw an open bottle of cognac on the front floorboard in violation of the open container law. Bodiford admitted he had been drinking earlier. His driver’s license showed him to be 19 years of age. Bodiford was arrested for violation of the open container law and placed in handcuffs. He was searched incident to arrest, and two packages of marijuana were found in his pants pocket. Five hundred twenty-four dollars was also found in his pocket, consisting of one $50 bill, thirteen $20 bills, sixteen $10 bills, ten $5 bills, and four $1 bills. When the drugs and money were placed on the hood of Bodiford’s car, Bodiford took off running down Palmer Street. He was ordered to stop, but did not. Bodiford was apprehended and placed in the back of a patrol car. Bodiford’s car was inventoried, and two pieces of crack cocaine were found on the floorboard. Held-.

1. Bodiford contends the evidence was insufficient to show that he possessed the cocaine found on the floor of his car. He claims that any of the people who were standing around his car at the time the officer approached the scene could have thrown the drugs in his car, without his knowledge. However, the jury rejected this contention, although Bodiford’s defense counsel argued such. Further, the evidence showed that one rock of cocaine was found “in the floorboard in front of the driver’s seat, which would have been right up under his [Bodiford’s] feet and legs.” Bodiford would have had to be aware if someone threw a rock of cocaine between his legs. There was no such evidence presented, and there was no evidence that any other person had equal access to the floorboard between Bodiford’s feet and legs where the cocaine was found.

The equal access defense . . . requires affirmative evidence that someone other than the defendant had an equal opportunity to commit the crime, and mere speculation that another may have had equal access to the automobile is not sufficient. Further, this presumption applies particularly when, as in this case, the driver is also the owner of the automobile. In any event, whether the equal access evidence is sufficient to rebut the inference of possession is a question for the jury.

2. Bodiford next contends that the evidence is insufficient to demonstrate “intent to distribute” so as to sustain his conviction under Count 2 for possession of marijuana with intent to distribute. We disagree. The testimony from the agent from the Southwest Drug Task Force was that the marijuana found in Bodiford’s pocket was packaged for distribution and that the cash found in Bodiford’s pocket was consistent with the amount of money and denominations of bills frequently found during multiple small drug transactions. This, coupled with the agent’s unobjected-to testimony that Bodiford is unemployed, provided a basis for the jury to find that Bodiford possessed the marijuana with the intent to distribute.

Decided November 21, 2000.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, for appellee.

3. Finally, the evidence that Bodiford was underage was sufficient to sustain his conviction for underage possession of alcohol. The arresting officer testified that Bodiford’s driver’s license showed that he was 19 years old.

On review of the verdict as a whole, we find the evidence sufficient for a rational trier of fact to have found Bodiford guilty beyond a reasonable doubt of the offenses as charged.

Judgment affirmed.

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

       (Citation omitted.) Visser v. State, 237 Ga. App. 798, 799-800 (516 SE2d 840) (1999).

        Burse v. State, 232 Ga. App. 729, 730 (1) (503 SE2d 638) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A00A2422.
    SNOW v. THE STATE.
    (543 SE2d 36)
   Eldridge, Judge.

Damon Snow was indicted for statutory rape and two counts of child molestation. A Walker County jury found him guilty of statutory rape. In his sole claim of error, Snow alleges he received ineffective assistance of counsel because his trial attorney advised him not to take the stand and testify on his own behalf. However, we have reviewed the testimony of Snow’s defense counsel on this issue. We do not find error in counsel’s advice. He testified that

my client is not a professional as far as answering questions is concerned. If he voluntarily takes the stand and opens the door to the prosecutor, the prosecutor is an experienced professional and he knows how to ask questions that could be answered in different fashions and different ways. I was afraid that my client would not come across looking particularly well in that set of circumstances. And since the law also states that no negative presumption can be drawn when the accused does not take the stand in his own defense, I felt that it was better that he did not do so.

Decided November 21, 2000

Christopher A. Townley, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

This advice rings of sound trial strategy. “[A] legitimate trial tactic and strategy . . . afford [ ] no basis for the reversal of appellant’s conviction.”

Further, contrary to Snow’s contentions, we do not read counsel’s testimony as a misapprehension of the law regarding impeachment and cross-examination. On the contrary. From counsel’s testimony as a whole, it appears to this Court that he was concerned about information the prosecutor’s questions might elicit from Snow during cross-examination which, in turn, could lead to the introduction of damaging impeachment evidence against Snow, including otherwise inadmissible character evidence. Counsel testified he was concerned that Snow might “subject himself to the questioning of a professional whose job it is to elicit shall we say responses that can be interpreted in different ways.” Unlike Snow, we do not take this testimony to mean that counsel believed the prosecutor had carte blanche to impeach with any and all character evidence simply because Snow took the stand.

In this case, the record is clear that the ultimate decision whether or not to testify remained with Snow, and he chose not to do so based on advice from his attorney grounded in sound trial strategy. Thus, Snow has failed to show that the trial court abused its discretion in refusing to grant a new trial on his claim of ineffective assistance of counsel.

Judgment affirmed.

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

        Anderson v. State, 206 Ga. App. 354, 356 (3) (426 SE2d 6) (1992).

        Rogers v. State, 210 Ga. App. 164, 165 (435 SE2d 457) (1993).


author: Blackburn, Presiding Judge.

text:
    A00A1780.
    MALONE v. THE STATE.
    (541 SE2d 431)
   Blackburn, Presiding Judge.

Richard Marvin Malone, Jr. appeals, on interlocutory grant, the trial court’s denial of his motion to suppress an audiotape of his phone conversation with J. C., a minor. Malone was charged below with aggravated child molestation and statutory rape of J. C. Because J. C. gave prior consent to recording the conversation between her and Malone, the recording does not violate OCGA § 16-11-62, and we affirm the trial court.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Where the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of law to the undisputed facts. State v. Stearns; Vansant v. State.

The pertinent facts here are not in dispute. It was rumored that J. C. and Malone were sexually involved. Cherrie Collins, J. C.’s mother, however, refused to believe the rumors until J. C. invited her to listen in on a phone conversation between Malone and her. Shortly thereafter, J. C. and Collins decided to tape subsequent conversations with Malone to obtain proof of the sexual relationship. After obtaining a tape recorder, one of Collins’ friends installed the tape recorder on a phone at another friend’s house. J. C., who had consented to the taping, then placed a call to Malone, and their conversation was recorded.

Malone was charged with statutory rape, aggravated child molestation, criminal attempt to commit child molestation, and child molestation. Malone filed a motion to suppress the audiotape, which the trial court denied. Malone contends that the tape is not admissible pursuant to OCGA § 16-11-62. See OCGA § 16-11-67.

Although OCGA § 16-11-62 prohibits the recording or taping of private telephone conversations, it does not prohibit a party to the conversation from recording it. OCGA § 16-11-66 (a); Mitchell v. State; State v. Birge; Fetty v. State. OCGA § 16-11-66 (b), however, specifically addresses taping a conversation in which a child under 18 years of age is a party. Such Code section provides, in pertinent part:

After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor’s office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section.

In the present case, J. C. was fully aware that the conversation was being taped. J. C. testified that she voluntarily participated in the recording of her conversation; in fact, she encouraged it. Since J. C., a party to the conversation, gave prior consent to the recording, OCGA § 16-11-62 does not apply. Fetty, supra; Birge, supra.

Malone, relying on OCGA § 16-11-66 (b), argues that J. C. cannot give consent, but rather that an order of court is required. Malone’s reliance on OCGA § 16-11-66 (b) is misplaced, our Supreme Court having rejected a similar argument in Fetty, supra. In that case, Fetty had a telephone conversation with the friend of his former girlfriend in which he admitted having gone to the girlfriend’s home with a gun, intending to kill her. Unbeknownst to Fetty, the conversation was recorded by the friend. Later, the recording was given to the police after the girlfriend was murdered. Fetty argued that the recording was prohibited by OCGA § 16-11-66 (b) because he was a minor when the recording was made, and the recording was made without his consent or the approval of a judge. Our Supreme Court rejected that argument, holding that OCGA § 16-11-66 “applies only to a third party’s interception of telephone conversations and does not prohibit the actual parties to such conversations from recording and divulging them.” Fetty, supra at 367.

Malone relies on Bishop v. State in support of his argument that OCGA § 16-11-66 (b) prohibited the recording. In Bishop, however, the minor child had not consented to the recording of a telephone conversation at the time of the conversation. This Court held that the parents of a minor child could not vicariously consent to the recording of private telephone conversations on behalf of the child. Id. at 522. That holding has no application in the present case since J. C. consented to the recording. Malone relies on dicta in the opinion in which the Court stated that “the only person who can consent to an interception is a superior court judge, although the judge also must have the consent of the minor child.” Id. Bishop, however, did not address the Supreme Court’s holding in Fetty or the issue in the present case.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

We note that subsequent to Bishop and after the recording at issue here, the General Assembly amended OCGA § 16-11-66, effective April 20, 2000, to permit parents, as third parties, to intercept and tape under certain circumstances telephone conversations to which their minor children are parties. OCGA § 16-11-66 (d). It is unnecessary to address the issue of whether the amendment applies retroactively since here the minor party to the conversation consented to having the conversation recorded. See Fetty, supra; OCGA § 16-11-66 (a).

Decided November 1, 2000

Reconsideration denied November 22, 2000.

Hogue & Hogue, Franklin J. Hogue, for appellant.

Charles H. Weston, District Attorney, Dorothy A. Vinson, Nancy S. Moskaly, Assistant District Attorneys, for appellee.

        State v. Stearns, 240 Ga. App. 806 (524 SE2d 554) (1999).

        Vansant v. State, 264 Ga. 319 (1) (443 SE2d 474) (1994).

        Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977).

        State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978).

        Fetty v. State, 268 Ga. 365 (489 SE2d 813) (1997).

        Bishop v. State, 241 Ga. App. 517 (526 SE2d 917) (1999).

       OCGA § 16-11-66 (d) provides:
      The provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home ... for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation ... is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation ... to the district attorney or a law enforcement officer. A recording or other record of any such conversation or communication made by a parent or guardian in accordance with this subsection that contains evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity shall be admissible in a judicial proceeding except as otherwise provided in subsection (b) of this Code section.


text:
    A99A1169.
    DAVIS v. THE STATE.
    (543 SE2d 736)
   Mikell, Judge.

In Davis v. State, 239 Ga. App. 318 (521 SE2d 368) (1999), we affirmed Tommie Coleman Davis’ conviction and sentence for armed robbery and possession of a firearm during the commission of a crime. On certiorari, the Supreme Court reversed our ruling that Davis, who committed the crimes during the period of his first offender probation, could be sentenced as a recidivist under OCGA § 17-10-7 (b) (2). Davis v. State, 273 Ga. 14 (537 SE2d 663) (2000). Instead, the Supreme Court held that guilty pleas Davis entered as a first offender did not constitute convictions that could serve as a basis for sentencing him as a recidivist. Accordingly, Division 2 of our prior opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court. The case is remanded to the trial court for a new sentencing hearing.

Decided November 22, 2000.

Lloyd W. Walker, for appellant.

William T. McBroom III, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

Sentence vacated and case remanded for resentencing.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A2502.
    PAUL v. THE STATE.
    (544 SE2d 164)
    Decided November 22, 2000.

      Mark J. Radish, for appellant.

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

In Paul v. State, 240 Ga. App. 699 (524 SE2d 549) (1999), we affirmed Larry Marion Paul’s conviction of aggravated assault with a deadly weapon and possession of a knife during the commission of certain crimes. On certiorari, the Supreme Court reversed Paul’s conviction and granted him a new trial, holding that the trial judge expressed an opinion of Paul’s guilt in violation of OCGA § 17-8-57. Paul v. State, 272 Ga. 845 (537 SE2d 58) (2000). The Supreme Court held that even though Paul waived the error because he failed to object or move for a mistrial, the plain error rule applied, and the trial judge’s OCGA § 17-8-57 violation seriously affected the fairness of the trial. Accordingly, our prior opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.


text:
    A00A2276.
    MORGAN v. THE STATE.
    (542 SE2d 644)
   Blackburn, Presiding Judge.

Following a jury trial, Christopher Morgan appeals his convictions of aggravated assault and possession of a firearm during the commission of a crime. Morgan contends that he was afforded ineffective assistance due to his trial counsel’s failure to subpoena certain witnesses who would have contradicted testimony of the State’s witnesses. Morgan’s convictions are affirmed because he has failed to make a proper proffer of the testimony of the uncalled witnesses and show how such testimony would have affected the outcome of his case.

During the hearing on Morgan’s motion for new trial, Morgan testified that he told his trial counsel the name of a witness who would testify that the victim said that Morgan did not shoot him. Morgan testified that he made the statement to his trial counsel that, “You know, talk on the street — I know there is a lot of talk sometimes, but this, you know what I’m saying, you know, that — ain’t no way in the world that it was me.” Morgan testified about several other witnesses whose testimony would contradict the testimony of some of the State’s witnesses. Morgan did not know these witnesses’ names, but he described them in terms of their occupation and actions on the night of the crime. Morgan’s trial counsel testified that Morgan did not discuss these witnesses with him while they were preparing for trial.

In assessing the prejudicial effect of counsel’s failure to call a witness whether that failure resulted from a tactical decision, negligent oversight, or otherwise, a defendant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [Morgan] failed to call the absent witnesses] at the hearing on his motion for new trial so as to substantiate [his counsel’s assertions that the testimony would be material to Morgan’s defense], it is impossible for [Morgan] to show there is a reasonable probability the results of the proceedings would have been different.

(Punctuation omitted.) Letson v. State, quoting Goodwin v. Cruz Padillo.

Decided November 22, 2000.

Ellis R. Garnett, for appellant.

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

In the present case, Morgan’s only evidence consisted of his own testimony as to the unnamed witnesses’ testimony. Additionally, Morgan testified as to the “word on the street” about the named witnesses’ testimony. Without the proper proffer, “it is impossible for this [C]ourt to conclude that any witnesses who were not called would have given testimony favorable to [Morgan] and that the result of the proceedings would have been affected.” Champion v. State. Accordingly, ineffective assistance of counsel is not shown under these circumstances. See Strickland v. Washington,

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Letson v. State, 236 Ga. App. 340, 341-342 (2) (512 SE2d 55) (1999).

        Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

        Champion v. State, 238 Ga. App. 48, 49 (1) (a) (517 SE2d 595) (1999).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).


text:
    A00A2130.
    PARKS v. THE STATE.
    (543 SE2d 39)
   Blackburn, Presiding Judge.

Robert Lee Parks appeals his convictions of two counts of robbery, contending that a fatal variance existed between the allegations of the indictment and the evidence produced at trial. For the reasons set forth below, Parks’ convictions are affirmed.

Parks’ enumeration of error is set forth as follows:

Whether defense counsel’s failure to object to the inconsistencies in naming the victim as well as the date of the alleged crime accurately in the state’s indictment of the defendant on Count [2] was sufficient to prejudice the defendant’s ability to defend himself on said charges, thereby aiding in his conviction on that charge.

1. Parks contends that a misnomer in the indictment regarding the name of the victim and a variance between the indictment and the evidence regarding the date of the robbery render the indictment void. Parks argues that, although his trial counsel failed to object to the alleged errors in the indictment, the errors were so significant as to render it void even without proper objection. As an initial matter, Parks has waived his right to make this argument on appeal.

If the [indictment was] void for any reason, the question should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction. No demurrers or motions in arrest of judgment were filed by [Parks]. The issue of the purported voidness of certain counts of the indictments was first raised in [Parks’] motions for new trial. Under controlling Supreme Court authority, [Parks’ motion] for new trial cannot be considered to be a viable procedural substitute for [a motion] in arrest of judgment.

(Citations and punctuation omitted; emphasis in original.) Abreu v. State. Parks’ appellate counsel argued his motion for new trial. Therefore, Parks has failed to preserve any error alleging that the indictment was void. “A motion for new trial is not a proper vehicle for raising questions as to the legal sufficiency of an accusation.” Carr v. State.

Moreover, even if Parks’ argument were preserved for our review, the alleged errors would not require reversal. The indictment alleged that Parks, with the intent to commit theft, took Hometown Foods’ money from the immediate presence of Tina Parham. At trial, Tina Strickland Fuller testified that while she was working as cashier at Hometown Foods, Parks took money from the cash register. We have previously held that the misnomer of the victim in the indictment is not a fatal error. “A variance between the victim’s name as alleged in the indictment and as proven at trial is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved.” (Punctuation omitted.) Harris v. State. The Supreme Court of Georgia has held that “the identity of the person alleged to have been robbed is not an essential element of the crime.” McKisic v. State

Additionally, Parks contends that a variance exists between the date alleged in the indictment and the evidence at trial on that issue. However, Parks failed to raise any issue regarding the date alleged in the indictment and the evidence at trial in his motion for new trial. Moreover, our review of the evidence at trial regarding the date of the robbery did not reveal any conflict with the allegation in the indictment. Even if a conflict existed, “[e]vidence of guilt of an accused is not restricted to the day mentioned in the indictment, but may extend to any appropriate date previous to the finding in the indictment, and within the statute of limitation for the prosecution of the offense charged.” (Punctuation omitted.) Knight v. State. The exact date of the crime alleged in the indictment was not a material element in this case, and Parks did not offer any defense which would have made the date of the crime a material element, such as alibi. See Caldwell v. State.

Decided November 27, 2000.

Jon P. Carr, for appellant.

2. To the extent that Parks’ enumeration of error could be read to assert an ineffective assistance of trial counsel claim, he does not argue such a claim in his brief, and none was raised in the trial court. In his brief, Parks states that his trial counsel failed to object to the form and substance of the indictment and that he relied on his trial counsel to protect his rights. Parks does not argue, however, that his trial counsel’s representation was ineffective; he argues only that the indictment was void. Additionally, although Parks’ appellate counsel represented Parks during the hearing on his motion for new trial, appellate counsel did not argue that trial counsel had been ineffective.

An ineffectiveness claim must be asserted at the earliest practicable moment and before appeal when the opportunity to raise such claim is available. The failure to do so results in a waiver of that issue. Here, new counsel was appointed in time to file a timely notice of appeal but did so without first . . . seeking an evidentiary hearing on any claim of ineffective assistance of trial counsel. As a consequence, this claim is procedurally foreclosed.

(Footnotes omitted.) Grimes v. State. And finally, because we found in Division 1 that there were no fatal errors in the indictment, any enumeration raising ineffective assistance of trial counsel due to such counsel’s failure to object to the indictment would be meritless.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

        Abreu v. State, 206 Ga. App. 361, 363 (2) (425 SE2d 331) (1992).

        Carr v. State, 184 Ga. App. 889, 890 (363 SE2d 319) (1987).

        Harris v. State, 197 Ga. App. 695-696 (399 SE2d 284) (1990).

        McKisic v. State, 238 Ga. 644, 646 (2) (234 SE2d 908) (1977).

        Knight v. State, 210 Ga. App. 63, 65 (2) (435 SE2d 276) (1993).

        Caldwell v. State, 139 Ga. App. 279, 281 (2) (228 SE2d 219) (1976).

        Grimes v. State, 245 Ga. App. 277, 279 (3) (537 SE2d 720) (2000).


text:
    A00A2440.
    CARTER v. THE STATE.
    (543 SE2d 42)
   Blackburn, Presiding Judge.

Following a bench trial, Frankie Lee Carter, Jr. appeals his conviction for aggravated assault. Carter contends that the evidence was insufficient to support his conviction and that the trial court erred in allowing a police officer to provide opinion testimony without being qualified as an expert. Because the evidence was sufficient to support the conviction and the police officer’s testimony was merely cumulative, we affirm Carter’s conviction.

1. In two enumerations of error, Carter contests the sufficiency of the evidence.

We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

(Punctuation omitted.) Arnold v. State. See also Jackson v. Virginia. Additionally, in a bench trial, the trial court sits as the trier of fact, and its findings are analogous to a jury verdict. Green v. State.

So viewing the evidence, it reveals that the victim, Carter’s girlfriend, testified that, after she rebuffed Carter’s physical advances, she and Carter got into a struggle. Carter asked her if she “was ready to die.” During the struggle, Carter put his foot on the victim’s neck and pressed down. The victim also testified that Carter had an extension cord and that she must have passed out because she was found in her sister’s room with a sheet over her head. According to the victim, Carter was attempting to choke her in different ways: with his foot, his hands, and an extension cord. Although the victim did not specifically remember being strangled with the extension cord because she had passed out, she believed Carter used an extension cord because of the linear burns and raw marks encircling her neck. An extension cord was found in the room where the altercation began. The victim’s neck remains scarred, and she has problems with her throat and a swollen tongue.

Over objection, Officer Richard Redd with the City of Thomson Police Department testified that the marks on the victim’s neck on the night of the attack appeared to indicate that she had been choked by an object. Officer Redd further testified that he had previously seen the results of someone having been choked by another person with their hands and that the marks around this victim’s neck were not similar to that type of choking. He described the injury to the victim’s neck as a thin red line plus abrasions, scratches, and raw marks. The line was around the front to the back of her neck but did not extend completely around her neck.

Carter testified, denying that he choked the victim with either his foot or an extension cord. He did admit, however, that he might have choked her with his hands while he was trying to keep her from hitting him. Carter testified that he held the victim until she stopped talking and trying to fight him, then he left. Carter speculated that his fingernails could have caused the marks on the victim’s neck, but he admitted that they were probably not long enough to go almost all the way around her neck.

(a) Carter asserts that the verdict was not supported by the evidence. Carter was charged with aggravated assault in that he assaulted the victim with an electric extension cord which, “when used offensively against a person, is likely to result in serious bodily injury, by placing said cord on and about the victim’s throat and thereby choking” the victim. Carter contends that the verdict is not supported by the evidence because neither he nor the victim testified that an extension cord was used in any manner and there was no evidence admitted at trial of an extension cord or the physical injuries to the victim. Carter’s position is without merit.

The victim testified that Carter was holding an extension cord in his hand immediately before she lost consciousness. The victim lost consciousness because Carter was choking her. And the marks around the victim’s neck were consistent with being choked with a cord of some type. This evidence, along with the evidence outlined above, is a sufficient basis upon which a rational trier of fact, here the trial court, could have found Carter guilty of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, supra.

(b) In a separate enumeration of error challenging sufficiency, Carter contends that the trial court erred in convicting him on circumstantial evidence without requiring the State to exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

Decided November 27, 2000.

Wallace, Hammond & Hammond, Harold W. Wallace III, for appellant.

Again, Carter argues that because there was no direct evidence that he choked the victim with an extension cord which he placed around her neck, the State failed to meet the burden required in OCGA § 24-4-6. Carter contends that maybe he scratched the victim’s neck during their altercation.

The State is not required to remove every possibility of innocence. Ross v. State. OCGA § 24-4-6 requires only

that the [S]tate must exclude . . . any reasonable hypothesis showing innocence. Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law.

(Emphasis supplied.) Dodson v. State. Because we found in Division 1 (a) that the verdict was supportable as a matter of law, we will not disturb the trial court’s determination as to the reasonableness of Carter’s explanations.

2. Carter contends that the trial court erred in allowing Officer Redd to opine, without qualifying him as an expert, that the victim had been choked by a foreign object such as a rope or cord.

Pretermitting whether the allowance of such testimony was erroneous, Officer Redd’s testimony was cumulative of the victim’s testimony regarding what object Carter used to choke her. Therefore, any error in the allowance of Officer Redd’s testimony is harmless. See Mullinax v. State.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Dennis C. Sanders, District Attorney, Anna P. Johnson, Assistant District Attorney, for appellee.

         Arnold v. State, 243 Ga. App. 118 (1) (532 SE2d 458) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Green v. State, 239 Ga. App. 617, 618 (2) (521 SE2d 441) (1999).

        Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994).

        Dodson v. State, 244 Ga. App. 94, 95 (534 SE2d 815) (2000).

        Mullinax v. State, 242 Ga. App. 561, 563 (1) (530 SE2d 255) (2000).


text:
    A00A2513.
    WARREN v. THE STATE.
    (543 SE2d 38)
    Decided November 27, 2000.
    Ronald Warren, pro se.

   Blackburn, Presiding Judge.

Ronald Warren appeals the trial court’s denial of his motion to correct and clarify the sentence he received as a result of his guilty plea to four counts of forgery and one count of theft by deception. Warren moved the trial court to correct his sentence to reflect credit for time he served incarcerated prior to the imposition of the present sentence. For the reasons set forth below, the trial court’s denial of Warren’s motion is affirmed.

Although Warren is correct that pursuant to OCGA § 17-10-11 (a) he should be given credit for time spent in confinement awaiting trial, “the amount of credit is to be computed by the convict’s presentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of [Corrections]. OCGA § 17-10-12.” Casario v. State.

The trial court directed that Warren’s sentence be “computed as provided by law.” According to OCGA § 17-10-12 and Casario, supra, the trial court’s order is not erroneous or ambiguous. “It follows that the trial court did not err in refusing to modify its sentence as requested, the responsibility for computing credit for time served awaiting trial not being upon the trial court.” Id. See also Spann v. Whitworth (demonstrating the appropriate procedure to correct errors such as that alleged in the present case). Warren should have sought relief from the Department of Corrections. Upon denial of such relief, Warren could have sought relief in the superior court as provided by law. Id.

In the present case, Warren’s complaint is properly addressed to his presentence custodian and/or the Department of Corrections.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

         Casario v. State, 169 Ga. App. 515 (313 SE2d 772) (1984).

        Spann v. Whitworth, 262 Ga. 21 (413 SE2d 713) (1992).


author: Phipps, Judge.

text:
    A01A0094.
    EVANS v. THE STATE.
    (543 SE2d 37)
   Phipps, Judge.

Paula Evans appeals her conviction of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and (5). She contends that the evidence was insufficient to support the verdict and that the court erred in its charge to the jury concerning the date the offense was committed. We find no merit in either contention and affirm.

1. OCGA § 40-6-391 (a) makes it unlawful for any person to “drive or be in actual physical control of any moving vehicle” while under the influence of alcohol or drugs. Evans argues that the State did not prove that she drove or was in actual physical control of a moving vehicle.

The arresting officer testified that he stopped Evans’s car as it was being driven away from a bar and that Evans exited the car from the driver’s side. This evidence was sufficient to support a finding that Evans was driving the car.

2. The accusation charged Evans with committing the offense of DUI on April 24, 1999, but the evidence at trial showed that the crime was committed in the early morning of April 25. The trial court charged the jury that it would be authorized to find Evans guilty if it found that she committed the offense “on or about” April 24.

The general rule is that when the exact date of a crime is not a material allegation of the indictment, the crime may be proved to have taken place on any date prior to the return of the indictment, so long as the date is within the applicable statute of limitation. . . . [Cit.]

Because Evans’s defense in no way related to the date of the offense, the date was immaterial, and the court’s charge was not error.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided November 27, 2000.

Daniel K. Franck, for appellant.

A. Robert Tawse, Jr., Solicitor, for appellee.

         See Deering v. State, 244 Ga. App. 30, 31 (1) (535 SE2d 4) (2000).

        Holder v. State, 242 Ga. App. 479-480 (1) (529 SE2d 907) (2000).

       See id. at 480.


author: Smith, Presiding Judge.

text:
    A00A0953.
    STIMSON et al. v. GEORGE LAYCOCK, INC.
    (542 SE2d 121)
   Smith, Presiding Judge.

This case arises out of a contract for the construction of a new home entered into by George Laycock, Inc. and Richard and Linda Stimson. The trial court granted summary judgment to Laycock, concluding that the Stimsons’ action was barred by the four-year statute of limitation expressed in OCGA § 9-3-30, that the Stimsons did not comply with the terms of a warranty provided by Laycock, and that the Stimsons were not entitled to bad faith attorney fees. We agree with the trial court that the record does not support an award of attorney fees, but we do not agree that the four-year statute of limitation for damage to realty expressed in OCGA § 9-3-30 is applicable here. This issue is controlled by our recent decision in Mitchell v. Jones, 247 Ga. App. 113 (541 SE2d 103) (2000). In Mitchell, under facts similar to those here, we concluded that certain claims made by homeowners against their builder were subject to the six-year statute of limitation for actions on simple written contracts expressed in OCGA § 9-3-24. We also conclude that genuine issues of fact exist as to whether the parties complied with the terms of the contract. We therefore affirm in part and reverse in part.

In May 1991, the Stimsons entered into a contract under which Laycock was to construct and sell a residence to the Stimsons. The residence was constructed with a synthetic stucco, or an Exterior Insulation and Finish System (EIFS). Linda Stimson testified that before completion, she knew the exterior of the house was synthetic stucco. Before closing on the purchase on November 22, 1991, the Stimsons provided to Laycock the report prepared by one of two companies that inspected the house. A portion of this report recited as follows: “Flooring in dining room wet — water leak under floor” and “water stain in dining room @ front wall outlet.” George Laycock, the president of George Laycock, Inc., later assured the Stimsons “that everything in this report that had been checked as needing attention had been corrected.” Richard Stimson testified that “there was a stain in the dining room before we moved and they had repainted over it and told us it was fixed, that that problem was fixed.”

Within two months of moving into the house, the Stimsons noticed water leaking into the basement and notified George Lay-cock, who attempted to repair the leak over a period of approximately two to two and one-half years. Richard Stimson testified that the leakage into the basement stopped after approximately two and one-half years. From the spring of 1994 until October 1997, he did not observe additional water coming into the basement, and he saw nothing leading him to believe “there was leaking” in the house. In late 1997, however, water reappeared in the basement, and the Stimsons contacted the EIFS Resource Center, an organization that “specializes in providing information and expertise related to EIFS and stucco applications.” Representatives from the Center conducted an inspection on the residence. John Brennan, who participated in the inspection, testified by affidavit that the Stimsons suffered damage due to improper EIFS installation and noted several problems concerning the installation. Brennan also testified that he inspected the area where Laycock had attempted to repair water leakage into the front wall of the dining room and found the repair to be improper. He stated:

While attempting to make repairs to stop the water leaking into the front wall of the residence, the builder should have known that the EIFS was installed improperly and taken corrective action to bring the installation to industry and manufacture [r’]s standards. The remedial measures taken by the defendant were cosmetic, temporary and improper. The builder did not correct the moisture intrusion problem.

Following the EIFS inspection, the Stimsons filed this action against Laycock alleging breach of contract and breach of express and implied warranties contained within the contract. They also sought attorney fees. The trial court granted summary judgment to Laycock on the ground that the action was barred by the four-year statute of limitation for damage to property expressed in OCGA § 9-3-30. The court further concluded that the Stimsons failed to comply with the terms of a builder’s warranty provided by Laycock. Finally, the trial court found that the Stimsons were not entitled to recover attorney fees.

1. The Stimsons correctly argue that the six-year limitation period for contract actions expressed in OCGA § 9-3-24 should have been applied to their claims rather than the four-year statute of limitation for damage to property actions set out in OCGA § 9-3-30. See Mitchell, supra. See also Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 429-430 (241 SE2d 184) (1977); Hutcherson v. Vanguard Exterminators, 207 Ga. App. 331, 332 (427 SE2d 828) (1993). The Stimsons filed their complaint within the appropriate limitation period, and we reverse the trial court’s ruling with regard to this issue.

Laycock argues that under Daniel v. American Optical Corp., 251 Ga. 166 (304 SE2d 383) (1983), because the nature of the injury suffered by the Stimsons was damage to property, we must apply the four-year statute of limitation expressed in OCGA § 9-3-30. In Daniel, the plaintiff sued the defendant manufacturer of safety glasses, seeking damages for strict liability in tort under former Code Ann. § 105-106 (OCGA § 51-1-11 (b)). The issue in that case was whether the two-year statute of limitation for injury to the person applied or whether the ten-year limitation period after accrual of the right to bring an action applied. The Supreme Court concluded that because the nature of the plaintiff’s injury was injury to the person, the two-year general statute of limitation expressed in OCGA § 9-3-33 applied. But here, personal injury was not alleged in the complaint. Instead, the Stimsons’ claims sound in breach of contract. A six-year statute of limitation for actions on simple contracts is expressly provided for in OCGA § 9-3-24. Daniel is not controlling.

We note Laycock’s contention that the recent amendment to OCGA § 9-3-30 mandates application of a four-year statute of limitation. As we stated in Mitchell, supra, this amendment established a “four-year discovery rule for actions brought for the recovery of damage to a dwelling caused by synthetic exterior siding.” Id. at 115, n. 10. Laycock argues that this amendment “makes very clear” the legislature’s belief that OCGA § 9-3-30 governs all claims presented in a synthetic stucco case.” We do not agree. As a statute in derogation of the common law, OCGA § 9-3-30 must be strictly construed. See Redwine v. Arvaniti, 83 Ga. App. 203, 206 (63 SE2d 222) (1951). The terms of the amendment itself are related to causes of action arising in tort, not to breach of contract, and as discussed above, an express six-year statute of limitation applies to breach of contract actions. Also, OCGA § 9-3-30 (b) (1) is limited to actions specified in two Code provisions: OCGA §§ 51-1-11 and 9-3-51 (a). Had the legislature intended to provide that the amendment apply to all claims regarding improper installation of EIFS, regardless of whether the claims sounded in tort or contract, it could have done so. Instead, the legislature limited application of the amendment to two specific tort actions.

2. In addition to applying a four-year statute of limitation, the trial court found that the Stimsons failed to give notice of defects as provided by the one-year warranty provided by Laycock. Because we conclude that issues of material fact exist with respect to the Stimsons’ warranty claim, we reverse this ruling.

Assuming, without deciding, that the Stimsons received a written warranty identical to the copy of the warranty in the record before us, genuine issues of material fact exist as to whether the parties complied with the terms of the warranty. The trial court concluded that the Stimsons did not comply with the notice provision of the warranty, which required them to send Laycock a written notice of a covered defect, “with a thorough and complete explanation of the defect” during the warranty period. The trial court concluded that

[t]here is no evidence, nor any claim, that Plaintiffs gave express notice, written or otherwise, of an alleged problem with the installation of the EIFS on their house within a year of closing. In fact, no express notice of any alleged EIFS problem was given to Defendant until one day prior to filing this lawsuit, almost six years after closing.

The Stimsons did not give specific notice of an EIFS defect. But the record contains evidence that George Laycock himself knew little about problems associated with EIFS at the time the home was constructed, and we cannot agree that the Stimsons, as ordinary purchasers, were required to know that their leakage problems may have been attributable to improper EIFS installation, a rationale that appears to underlie the trial court’s conclusion. Laycock did receive written notice of the water stain in the dining room in the inspection report provided by the Stimsons. And some evidence was presented by the Stimsons that this leak may have been caused by improper EIFS installation and that Laycock should have known this. Under these circumstances, whether the Stimsons gave adequate notice of a defect to Laycock is a question of fact for the jury.

Furthermore, parties may waive contractual obligations through their conduct. APAC-Ga. v. Dept. of Transp., 221 Ga. App. 604, 605-607 (2) (472 SE2d 97) (1996). Laycock attempted to repair the leakage problem into the Stimsons’ basement for over two years, even though the record does not show that they provided written notice of this defect. Despite a possible lack of written notice, Laycock obviously had actual notice of a defect related to leakage. Some question consequently exists as to whether Laycock waived the notice requirement contained in the warranty. “Courts will readily seize upon any fact or circumstances growing out of the conduct of the parties, tending to show a waiver of strict compliance, and will seek to avoid the forfeiture and to leave the actual merits of the case open to investigation.” (Citation and punctuation omitted.) Id. at 607 (2).

3. The Stimsons also contend that the trial court erred in concluding that Laycock “was able to identify the source of the leak and fixed” it. George Laycock testified in his affidavit that he repaired the leak. And indeed, the Stimsons noticed no leakage into their basement from the spring of 1994 — after Laycock had attempted to repair the leak for over two years — until October 1997; But George Laycock also testified on deposition that he was never able to identify the source of the water intrusion. Under these circumstances, we conclude that questions of fact exist concerning this issue as well.

4. The Stimsons’ final contention is that a jury question exists as to whether Laycock acted in bad faith authorizing an award of attorney fees. We do not agree. While the record shows that Laycock may have breached the contract, the Stimsons have not shown that Lay-cock “acted through ill will or furtive design with regard to the performance of the contract.” (Citation and punctuation omitted.) Williams Tile &c. Co. v. Ra-Lin & Assoc., 206 Ga. App. 750, 752 (5) (426 SE2d 598) (1992). The record contains no evidence showing that Lay-cock made the contract “in bad faith or that [Laycock] breached it as a result of some sinister motive.” (Punctuation omitted.) Id. An award of attorney fees based on bad faith therefore cannot be sustained, id., and we affirm the trial court’s ruling in this regard.

Judgment affirmed in part and reversed in part.

Johnson, C. J, and, Phipps, J, concur.

Decided November 2, 2000

Reconsideration dismissed November 28, 2000

Charles F. Peebles, Lane R. Frostbaum, for appellants.

Pursley, Howell, Lowery & Meeks, John C. Amabile, for appellee.

Bordeaux & Abbot, Thomas C. Bordeaux, Jr., Eugene C. Brooks TV, Christopher M. Kessinger, amici curiae.

       Laycock filed a third-party complaint against Mark II Exteriors, Inc., the company that installed the synthetic stucco. Although Mark II filed defensive, pleadings, it later filed an “amendment to defensive pleadings and election not to defend” reciting that it elected not to defend the action based on its financial condition and numerous other lawsuits filed against it. The document further recited that Mark II would “enter a consent judgment against it at an appropriate time in the litigation.”

       We note that Kemp v. Bell-View, Inc., 179 Ga. App. 577, 578 (346 SE2d 923) (1986), which is not relied on by any party on appeal, contains overly broad language that might be construed to impose a four-year statute of limitation on construction contracts. That language is dicta, however, and is not controlling here.

       If a jury should decide that the Stimsons did not receive a written warranty but that their warranty claim is based instead on an oral promise by George Laycock, “an oral one-year warranty on a house which was never reduced to writing [is] unenforceable.” Grant v. Aulicky, 161 Ga. App. 817, 818 (1) (290 SE2d 107) (1982).


author: Ruffin, Judge.

text:
    A00A1572.
    HARRISON v. WINN DIXIE STORES, INC. et al.
    (542 SE2d 142)
   Ruffin, Judge.

At the request of his former manager, Thomas Shane Harrison agreed to work an unscheduled early morning shift at a Winn Dixie in Buford. He was injured in an automobile collision while en route from his previous shift at a Winn Dixie in Chamblee. Harrison sought payment of workers’ compensation benefits from his employer, Winn Dixie Stores, Inc. Following a hearing, the administrative law judge (ALJ) of the Workers’ Compensation Board ruled that Harrison was not entitled to benefits because the accident did not arise out of and in the course of his employment. The appellate division of the Board affirmed and adopted the award of the ALJ. Harrison appealed to the DeKalb County Superior Court, which affirmed the award of the appellate division. Following our grant of his application for discretionary appeal, Harrison appeals the order of the superior court. For reasons which follow, we affirm.

Viewed in a light most favorable to the ALJ’s ruling, the record shows that, at the time of the collision, Winn Dixie employed Harrison as a junior assistant manager at its Chamblee store. On June 22, 1997, while he was working at the Chamblee store, Harrison received a telephone call from his former manager, Brent Wheeler, who was the manager of the Winn Dixie store in Buford. Wheeler needed both a junior assistant and grocery manager, and he asked Harrison to come work at the Buford store after Harrison completed his shift at the Chamblee location. Harrison clocked out of the Chamblee store at approximately 1:30 a.m. He testified that he intended to drive straight to the Buford store, although he also admitted that he could have stopped to eat before reporting. Harrison was only a few blocks away from the Chamblee store when he was struck by another car and severely injured. Had Harrison arrived safely at the Buford location, he would have needed to clock in before commencing work, and would have been given a new badge number, clock number and employee file to reflect his work at the Buford store. Nevertheless, the record is clear that the employer — Winn Dixie — was the same at both the Chamblee and Buford locations.

A compensable injury for purposes of the Workers’ Compensation Act must arise out of and in the course of employment. The award of the appellate division adopting the ALJ’s findings that Harrison’s injuries did not arise out of or in the course of employment must be upheld if there is any evidence to support it. The question of whether an employee was acting within the scope of his or her employment at the time of the injury is usually a mixed question of law and fact.

Harrison argues that the ALJ, the appellate division and the superior court all erred in determining that his injuries did not arise out of and in the course of his employment. We disagree. As the ALJ concluded, this case falls within the parameters of the “going to and from” rule, and none of the exceptions to that rule apply.

It is well established that an employee is not acting in the course of his employment when traveling to and from work:

The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.
There are several exceptions to this rule, including
where the employer furnishes transportation [; or] where [the employee is] doing some act permitted or required by the employer and beneficial to the employer while en route to and from work[; or] where [the employee is] going to and from parking facilities provided by the employer!; or] in instances where an employee is on call and furnishes or is reimbursed for his transportation costs.

The rule is also inapplicable when the employee is engaged in a “special task” for the employer. The ALJ ruled that none of these exceptions applied.

The “parking lot” exception, long recognized by the Georgia courts, provides that an employee remains within the course of employment when traveling from the place of work to an employer-owned or -controlled parking lot, even if the course of travel necessitates that the employee traverse a public road. Harrison was clearly not en route to such a parking lot. And the basis for this “parking lot” exception — that the period of employment includes a “reasonable time for ingress to and egress from the place of work” — is not applicable here. Harrison had left the immediate vicinity of the Chamblee store when the injury occurred.

In addition to the parking lot cases, Harrison cites Cooper v. Lumbermen’s Mut. Cas. Co. in which the employee fell off the back of a truck traveling the 20 miles from the employer’s mill to a timber cutting area. That case is also inapplicable. The court’s basis for affirming the award of benefits was that testimony supported a finding that employment was considered to begin at the mill. The evidence authorized a finding that the means of transportation was part of the employment contract. Here, by contrast, the evidence supports the ALJ’s finding that Harrison had finished his work at the Chamblee store and would be “on the clock” at the Buford store only after he arrived. Furthermore, Harrison was free to interrupt his trip to stop and eat, if he so chose, in comparison to the employee in Cooper, whose freedom of action was necessarily more limited during the trip between the mill and the timber.

Harrison also relies on Dickey v. Hardin and Brown v. Weller, both of which are distinguishable. These cases involve injuries which occurred while the employees were traveling from home to business seminars. The trips were found to be in the course of employment because the employers mandated attendance, and the employees were to receive their regular wages for attending the courses. Here, evidence supports the finding of the ALJ that Harrison was not required to go to the Buford store as a condition of his employment with Winn Dixie. Harrison’s immediate supervisor knew nothing about Harrison working at the Buford store.

Finally, Harrison argues that his injury is compensable because it occurred while he was performing a “special task” or “special errand” for Winn Dixie. In Georgia, the emphasis of the special errand exception is placed on the benefit to the employer rather than any inconvenience of the off-premises journey to the employee:

Where the employee, before or after customary working hours, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place v/here the work is performed, or from the place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.

Batten v. Commercial Union Ins. Co., which is cited by the ALJ, is not particularly helpful to Harrison. Batten provides:

The fact that an employee was told to report to work two hours early on a specific day and was injured while en route to work would not be sufficient to bring him within the special task exception. This would be true even though the claimant was to perform work which was different from his usual duties. In this case the special task which the claimant was to perform did not start until he reached his place of employment, and he was not on call.

We have found no Georgia authority that would make Harrison’s trip from Chamblee to Buford, even though undertaken at 1:30 a.m., so substantial as to constitute a benefit to his employer in and of itself. And under Batten, an employee’s special commute to perform overtime work, which is analogous to the special trip undertaken by Harrison to perform overtime work at the Buford location, is not within the course of employment.

Decided November 8, 2000

Reconsideration denied November 28, 2000

Peterson & Harris, Kenneth W. Brosnahan, for appellant.

Swift, Currie, McGhee & Hiers, Richard A. Watts, Megan W. Grout, for appellees.

Accordingly, we hold that the record supports the appellate division’s adoption of the ALJ’s findings of fact and conclusions of law; therefore, the superior court did not err in affirming the Board’s award.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA §§ 34-9-1 through 34-9-421.

       OCGA § 34-9-1 (4); Hadsock v. J. H. Harvey Co., 212 Ga. App. 782, 783 (442 SE2d 892) (1994).

       See Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997).

        Wade v. Ga. Diversified Indus., 240 Ga. App. 225, 226 (1) (522 SE2d 746) (1999).

       (Citation and punctuation omitted.) Wilcox v. Shepherd Lumber Corp., 80 Ga. App. 71, 74 (2) (55 SE2d 382) (1949).

       (Citations omitted.) Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226) (1968).

        Batten v. Commercial Union Ins. Co., 147 Ga. App. 339 (248 SE2d 682) (1978).

       The ALJ ruled that “the preponderance of the evidence here reflects that Winn Dixie did not furnish Mr. Harrison’s transportation, nor was he injured while doing some act permitted or required by the employer beneficial to them in route or from work, nor was he going to or from parking facilities provided by the employer, nor was he on call, furnished or reimbursed for transportation costs. . . . The preponderance of the evidence fails to reflect that Mr. Harrison was undertaking a special task for the employer while on route in his personal car.”

       See, e.g., Knight-Ridder Newspaper Sales v. Desselle, 176 Ga. App. 174 (335 SE2d 458) (1985); West Point Pepperell v. McEntire, 150 Ga. App. 728 (258 SE2d 530) (1979).

        Knight-Ridder, 176 Ga. App. at 175.

       179 Ga. 256 (175 SE 577) (1934).

       Id. at 262.

       202 Ga. App. 645 (414 SE2d 924) (1992).

       217 Ga. App. 67 (456 SE2d 602) (1995), rev’d on other grounds, Weller v. Brown, 266 Ga. 130 (464 SE2d 805) (1996).

       (Punctuation omitted.) Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d 649) (1988). Compare Larson’s Workers’ Compensation Law (2000), § 14.05.

       147 Ga. App. 339 (248 SE2d 682) (1978).

       Id.


text:
    A00A0920.
    ALLEN v. THE STATE.
    (543 SE2d 45)
   Phipps, Judge.

A jury found Robert Howard Allen guilty of four counts of cruelty to children and one count of aggravated battery. He was sentenced to serve 20 years concurrently on all counts. He appeals, claiming that the trial court erred by admitting certain hearsay statements and excluding others and by refusing to charge the jury on the lesser included offenses of reckless conduct and battery. Finding no harmful error, we affirm.

On March 19, 1998, Allen and his wife brought K. J., a six-year-old girl, to the Cobb General Hospital emergency room. She was treated by Dr. Michael Gilhully, who noted that she had a large bite mark and bruise on her cheek, several other bruises on her face, large bruises on her buttocks, and a very tender abdomen. Dr. Gilhully testified that he asked Allen, K. J.’s uncle, what had happened to her. Allen told him that K. J. had had a seizure and that he had put his fingers inside her mouth and was bitten. He said that to free his fingers, he bit K. J. on the cheek. Allen also told the doctor that he thought he had spanked her too hard and caused the bruises on her buttocks. A CT scan of K. J.’s abdomen revealed that she had severe internal injuries. Her liver and spleen were lacerated, causing disruption of the blood supply and ultimately necrosis of part of her liver. K. J.’s condition was determined to be life-threatening, and she was transferred to Scottish Rite Children’s Hospital for further treatment.

Dr. Gilhully was skeptical of Allen’s version of the events because there was no indication that K. J. had suffered a seizure. Based on the bite marks on her face, the massive internal injuries, the multiple bruises on her buttocks that went far beyond what the doctor would normally associate with routine discipline, the other bruises on her body, and the doctor’s skepticism about the seizure explanation, emergency room personnel decided to contact the police.

The State introduced the opinion testimony of several witnesses as to the cause of K. J.’s internal injuries. Dr. Gilhully expressed his medical opinion that the injuries were caused by a significant blunt trauma blow to the abdomen. Dr. Charles Frankum, who provided treatment to K. J. at Scottish Rite, testified that a liver injury that severe would be consistent with a high-speed motor vehicle accident and could have been caused only by a very severe blow to the abdominal cavity. Dr. Mark Stovroff, a pediatric surgeon who treated K. J. at Scottish Rite, testified that it would take a tremendous amount of force to cause such an injury. Neither Dr. Frankum nor Dr. Stovroff believed that the injuries could have been caused by an adult stepping on K. J. by accident.

At trial, Allen testified as follows: K. J. had come to live with him, his wife, and three children in late June 1997. In March 1998, he decided to spank K. J. because she had told him for three days in a row that she had not behaved properly at school. He spanked K. J. with a belt and caused the bruises on her buttocks. He originally intended to hit her only three times on the buttocks, but she moved when he tried to hit her, which frustrated him, and he ended up hitting her more times than he intended and on her thigh as well as her buttocks. He admitted that he hit her too hard.

With respect to K. J.’s internal injuries, Allen explained that he and K. J. were outside at night while he was feeding the family dog. He heard K. J. fall and went toward her, tripped over a briar, and stepped on her. Then he picked her up and carried her toward the house. As he got close to the house, her eyes rolled back in her head, and it looked like she was choking on her tongue. He put his finger in her mouth to make sure she could breathe, and she bit it. To free his hand to open the door, he bit her on the cheek. K. J. began vomiting when they got inside so Allen took her to the bathroom, where she fell and hit her chin on the toilet. Then Allen and his wife took K. J. to the hospital. Allen never told the doctors treating K. J. or the investigators that he had accidentally stepped on her.

Allen was charged with cruelty to children in the first degree for maliciously causing K. J. excessive physical pain by repeatedly spanking her (Count 1), biting her in the face (Count 2), and hitting her in the stomach (Count 3). He was charged with aggravated assault for maliciously causing bodily harm to K. J. and disfiguring her body by causing her liver and spleen to be tom (Count 4). Finally, Allen was charged with cruelty to children in the first degree for maliciously causing K. J. excessive mental pain by repeatedly spanking her (Count 5).

1. Allen contends that the trial court committed harmful error by admitting out-of-court statements K. J. made to her licensed professional counselor under the medical diagnosis or treatment exception to the hearsay rule. He claims that the statements were not reasonably pertinent to the diagnosis or treatment of K. J.

In November 1997, K. J. was referred to Margaret Brown (a licensed professional counselor) to be treated for past sexual abuse, anxiety related to a change in her residence, self-injurious behavior, and sleep disturbances. Allen called Brown as a witness, and she testified about K. J.’s problems and her treatment of K. J. During direct examination, Allen’s counsel elicited numerous hearsay statements to which there were no objections. On cross-examination, the State sought to introduce a statement that K. J. had made to Brown on May 26, 1998. K. J. had told her that she did not want to go back to her aunt’s house because she did not want to go back to the hospital. She had said that Allen had stomped on her and pushed her into the mud, taken her inside, and later had taken her to the hospital.

Prior to introducing the statement, the State sought a ruling from the court as to its admissibility. The court allowed both parties extensive argument on this issue and allowed them to question Brown, outside the presence of the jury, about the significance of the statement to K. J.’s treatment. Brown testified that part of K. J.’s therapy was her acknowledgment of the bad things that had happened to her and how they made her feel so that she could appropriately deal with them. She testified that the statement was pertinent to K. J.’s ongoing counseling and that it was important information needed to treat K. J. Based on Brown’s testimony, the trial court found that the statement was pertinent to K. J.’s treatment and was admissible, but did not allow Brown to mention Allen’s name.

We review the trial court’s admission of K. J.’s statement under the abuse of discretion standard.

Pursuant to OCGA § 24-3-4,

[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.

The history a patient gives to a psychologist, nurse, pediatrician, or emergency room physician during examination or treatment has been held admissible under this exception to the hearsay rule. We find that the same rule is applicable when such information is given to a licensed professional counselor. Based on Brown’s testimony, we find that the trial court did not abuse its discretion by admitting K. J.’s statement as reasonably pertinent to her treatment.

2. Without invoking the child hearsay statute, Allen sought to impeach K. J.’s hearsay statement to Brown with two prior inconsistent statements K. J. made to Douglas County Sheriff’s Investigator Wilson. The State did not object to the admission of the statements, but argued that it should be allowed to introduce consistent statements made by K. J. to Investigator Wilson. The court ruled that neither the prior inconsistent nor the prior consistent statements would be admissible absent compliance with the child hearsay statute. Allen claims that the trial court committed harmful error.

Although there appears to be no Georgia precedent for allowing impeachment of a hearsay declarant whose statements have been admitted into evidence under the medical diagnosis or treatment exception, Georgia appellate courts have allowed impeachment of dying declarations and statements admitted as part of the res gestae. In Smith v. State, the Supreme Court of Georgia stated that impeachment of hearsay admitted through the excited utterance and necessity exceptions ordinarily should be permitted. The medical diagnosis or treatment exception to the hearsay rule is “based upon the inherent trustworthiness of medical information given by a patient to a medical provider, in view of the patient’s strong motivation to be truthful during diagnosis and treatment.” Because the statement is hearsay, the credibility of the declarant cannot be attacked on cross-examination. “Impeachment, therefore, is the only method by which a party can attack the credibility of the hearsay declarant and, thus, the accuracy of the statement.” We hold that a party must be given the opportunity to impeach the credibility of a declarant whose statement is admitted under the medical diagnosis or treatment exception to the hearsay rule.

As noted in Brantley and Smith, our ruling is consistent with Federal Rule of Evidence 806, which allows the impeachment of a hearsay declarant with any evidence that would be admissible for impeachment purposes if the declarant had testified as a witness.

We find that the trial court erred by refusing to allow Allen to introduce, without invoking the child hearsay statute, the prior inconsistent statements solely to impeach the out-of-court statements admitted under the medical diagnosis or treatment exception to the hearsay rule, which also were admitted without invoking the child hearsay statute. We now must decide if the exclusion of those statements constituted harmful error.

Allen sought to introduce the following two statements made by K. J. to Investigator Wilson, who did not testify: on March 30, 1998, K. J. denied that she was stomped upon; and on May 8, 1998, K. J. said she thought that Allen had stepped on her a little. Allen wanted to impeach K. J.’s May 26, 1998 statement to Brown that she was stomped on and pushed into the mud.

Several other prior inconsistent statements were admitted without objection. On March 19,1998, K. J. told Dr. Frankum that she did not remember what had happened and told Douglas County Investigator Michael Howell that she had fallen down. On March 20, 1998, K. J. told a school counselor that she had fallen over a tree. And on May 4, 1998, K. J. told Dr. Sean Allen, a psychiatrist who was treating her, a version completely different from the one described to Brown. Dr. Allen’s statement was admitted during Allen’s examination of Brown, shortly following the statement Allen sought to impeach. Under these circumstances, the evidence Allen sought to present was cumulative and its exclusion was harmless error.

3. Allen claims that the trial court committed harmful error by refusing to charge the jury on the lesser included offense of reckless conduct for Counts 1, 2, 3, and 5, all of which allege cruelty to children in the first degree.

“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” A person engages in reckless conduct when such person

causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

“Thus, the crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” We have previously found reckless conduct to be a lesser included offense of cruelty to children.

We must determine if the evidence authorized a charge on reckless conduct.

(a) Counts 1 and 5. Allen admitted that he had spanked K. J. with a belt and that he had intended to cause her pain. He hit her more times and in more locations than he had originally intended because he became agitated that she moved to try to avoid the blows. Allen admitted that he had intended to hit her each time, that he had determined how hard to hit her, and that he had hit her as many times as he did because he was agitated, bothered, and frustrated that she would not stand still and take the punishment.

Allen’s reliance on Bowers and Reinhardt v. State is misplaced. Unlike the defendant in Bowers, who fired a shot during target practice and unintentionally hit the victim, or the defendant in Reinhardt, who accidentally started a motel fire while smoking in bed and killed another guest, Allen intended his actions and intended to cause pain. The actions he testified to were not acts of criminal negligence. The trial court did not err by refusing to instruct the jury on the law of reckless conduct on Count 1 or Count 5.

(b) Count 2. Allen admitted that he had bitten K. J. intentionally on the side of the face so that she would stop biting his fingers. The trial court did not err by refusing to instruct the jury on the law of reckless conduct on Count 2.

(c) Count 3. Allen testified that he stepped on K. J. accidentally. The State presented evidence that his actions were intentional. The jury was fully charged on both theories. Allen’s argument that the jury could have found that he disregarded a substantial and unjustifiable risk of injury by taking K. J. outside in the dark to feed the dog is without merit. The trial court did not err by refusing to instruct the jury on the law of reckless conduct on Count 3.

4. Allen argues that the trial court committed harmful error by refusing to instruct the jury on the lesser included offense of battery on all counts.

A person commits the offense of battery when such person “intentionally causes substantial physical harm or visible bodily harm to another.” Depending on the facts alleged in the indictment and the evidence presented at trial, battery may be a lesser included offense of cruelty to children as a matter of fact.

Allen claims that the jury could have found that he performed all acts alleged in the indictment, but did so without malice, thus justifying a charge on battery. For purposes of the child cruelty statute,

“malice in the legal sense [ ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. . . ,”

(a) Counts 1, 2, and 5. Allen presented evidence that his spanking of K. J. was justified as reasonable parental discipline. The State presented evidence that the spanking went far beyond any reasonable parental discipline. With respect to the bite marks on K. J.’s face, Allen testified that he merely “pinched” K. J.’s face with his teeth so that she would release her grip on his fingers because he was worried that he would drop her on the concrete. He testified that he did not intend to leave bite marks on her cheek. The State presented evidence that Allen bit K. J. hard enough to leave teeth marks on her cheek and a large bruise. The State also presented evidence that Allen’s claim that K. J. had had a seizure, which required him to put his fingers in her mouth, was doubtful.

Based on the evidence, Allen was guilty either of cruelty to children or of no crime. If the evidence shows the completed offense, as charged, or no offense, the trial court is not required to charge the jury on the lesser included offense. The trial court did not err by refusing to give an instruction on battery on Counts 1, 2, and 5.

(b) Counts 3 and 4. Counts 3 and 4 relate to K. J.’s internal injuries. Count 4 alleged aggravated battery, which is committed when a person “maliciously causes bodily harm to another by . . . seriously disfiguring his or her body or a member thereof.” Allen presented evidence that he had stepped on K. J. by accident, a principle on which the jury was fully charged. The State presented evidence that he maliciously struck her in the abdomen and caused severe and permanent damage to her liver and spleen. If it was an accident, no battery was committed. If the evidence shows the completed offense, as or no offense, the trial court is not required to charge the jury on the lesser included offense. Allen has not pointed to any evidence that would suggest the offense of battery as to these counts; thus, there was no error in failing to give a charge on the lesser offense.

Decided November 28, 2000

Steven H. Sadow, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

        Gilmer v. State, 234 Ga. App. 309, 310 (2) (506 SE2d 452) (1998).

        In the Interest of C. W. D., 232 Ga. App. 200, 208-209 (4) (501 SE2d 232) (1998).

        Roberson v. State, 187 Ga. App. 485, 486 (370 SE2d 661) (1988); Sparks v. State, 172 Ga. App. 891, 892 (2) (324 SE2d 824) (1984).

        State v. Butler, 256 Ga. 448, 449, n. 1 (349 SE2d 684) (1986); Allen v. State, 174 Ga. App. 206, 208 (2) (329 SE2d 586) (1985).

        Miller v. State, 194 Ga. App. 533, 534 (2) (a) (390 SE2d 901) (1990).

       OCGA § 24-3-16.

        Johnson v. State, 169 Ga. 814, 825 (4) (152 SE 76) (1930).

        Brantley v. State, 177 Ga. App. 13, 16-17 (3) (338 SE2d 694) (1985).

       270 Ga. 240, 244 (5) (510 SE2d 1) (1998).

       (Citation omitted.) Barone v. Law, 242 Ga. App. 102, 104 (1) (527 SE2d 898) (2000).

        Brantley, supra at 16.

       Id. at 17; Smith, supra.

       See Brooks v. State, 236 Ga. App. 604, 605-606 (2) (512 SE2d 693) (1999).

       OCGA § 16-5-70 (b).

       OCGA § 16-5-60 (b).

       (Emphasis omitted.) Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985).

       See Hill v. State, 243 Ga. App. 614, 616 (533 SE2d 779) (2000); Brady v. State, 246 Ga. App. 412 (541 SE2d 396) (2000).

       Supra.

       263 Ga. 113 (2) (428 SE2d 333) (1993).

       OCGA § 16-5-23.1 (a).

        Bennett v. State, 244 Ga. App. 149, 151-152 (2) (534 SE2d 881) (2000).

       (Citation omitted.) Stokes v. State, 204 Ga. App. 586, 587-588 (2) (420 SE2d 84) (1992).

        Martin v. State, 268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

       OCGA § 16-5-24 (a).

        Martin, supra.

       See id.