author: Ruffin, Judge.

text:
    A95A1074.
    PAINTER v. THE STATE.
    (465 SE2d 290)
   Ruffin, Judge.

Ernest Painter was convicted of attempted rape, two counts of attempted sodomy, and possession of a firearm during the commission of a felony. The victim was his daughter-in-law, who lived one house away from Painter at the time of the crimes. Painter alleges seven errors on appeal, primarily challenging the sufficiency of the evidence and the admission of similar transaction evidence. For reasons which follow, we affirm.

1. Painter contends the verdict was strongly against the weight of the evidence. Viewing the evidence in a light most favorable to the verdict, it shows that the victim testified that on two separate occasions, Painter raped her and compelled her against her will to engage in sodomy and threatened to kill her family members if she told anyone. She experienced rectal bleeding and pain and knew she had been penetrated with some object. The victim testified that during the commission of the sexual offenses, Painter threatened her with a gun and tore her clothing on one occasion. Painter’s son confirmed that Painter regularly carried a gun on his person and that both he and his wife were afraid of his father. The son also testified that he discovered torn women’s clothing in their bathroom trash receptacle and that at one point his wife suffered from rectal bleeding. He also stated he noticed unexplained bruises on his wife.

Painter presented a urologist who testified that in May 1994, was impotent and the testimony of a chiropractor that Painter had a bad back. The chiropractor speculated that Painter could not have performed sexual activity at the time the chiropractor examined him for back problems in October 1992 and September 1993.

On appeal, this court’s review is limited to the sufficiency, not the weight of the evidence. Jenkins v. State, 216 Ga. App. 433 (1) (454 SE2d 543) (1995). Having considered the evidence in a light most favorable to the verdict, we find it sufficient to sustain the conviction on all charges within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Painter claims the court committed reversible error in allowing Painter’s daughter’s testimony concerning older, similar unindicted offenses and certain older offenses to show her state of mind in not reporting the offense. We disagree.

In order to protect an accused and to insure him of a fair and impartial trial before an unbiased jury, we have long embraced the fundamental principle that the general character of an accused is inadmissible unless the accused chooses to put his character in issue. Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952).

The test for admissibility of similar transaction evidence is satisfied if the evidence is admitted for some substantially relevant purpose other than to show a probability that the defendant committed the crime for which he is on trial because he is a person of criminal character. Spead v. State, 218 Ga. App. 547 (462 SE2d 635) (1995). However, before evidence of other crimes is admitted, the State must make the following affirmative showings: (1) that the State seeks to introduce evidence of the independent offense or act, not to raise an improper inference regarding the defendant’s character, but for some appropriate purpose which is deemed to be an exception to the general rule of admissibility; (2) there is sufficient evidence to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).

Prior to trial, the court conducted a hearing to determine the admissibility of the State’s proposed similar transaction testimony of five alleged victims: Painter’s three adult daughters, his granddaughter, and a former foster child who had resided with Painter for several years. All of the alleged victims were family members over whom Painter had close control or in the case of his granddaughter and the foster child, were persons with whom he had ready and easy access. The court determined most of the State’s proposed similar transaction testimony was inadmissible, either because it was more than 31 years old or not sufficiently similar to the indicted charges. The court decided to admit only the testimony of one of Painter’s daughters, his middle daughter, and restricted her testimony to events occurring when she was about 17, that showed why she failed to report that her father, Painter, had raped her.

With respect to the evidence it deemed admissible, the court ruled on narrow grounds, permitting only one of the allegedly similar acts, a rape of his middle daughter which occurred during her senior year in high school, 1963-1964. The court allowed this one incident because the passage of time did not exceed the maximum 31 years allowed by Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991).

After examining the record and transcript, we are satisfied that the State adequately made the three affirmative showings required by Williams v. State, supra. Thus, the court did not err in admitting evidence of the earlier rape.

Painter also claims the court improperly allowed the expansion of the daughter’s testimony as to earlier rapes of her by Painter and argues that such evidence should have been time-barred by the holding of Gilstrap, supra. However, we determined in Starnes v. State, 205 Ga. App. 882 (424 SE2d 4) (1992) that although Gilstrap may have set the outer time limit for isolated events, this limitation does not apply to situations involving a continuous course of similar or identical conduct. Id. at 883. Here, the daughter testified to a continuing pattern of abuse, whereby Painter raped her an average of once per week, from seventh grade through twelfth grade. Similarly, Painter’s daughter-in-law, the victim of the crimes in this case, testified to a pattern of abusive sexual conduct continuing over many years that ultimately culminated in the indicted crimes.

Moreover, the lapse of time between the prior alleged similar transactions and the indicted offenses, goes to the weight and credibility of such testimony, not its admissibility. Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985). Prior to the witness’ testimony, the court gave a limiting instruction to the jury regarding her testimony, explaining it would be admitted for the limited purpose of showing Painter’s common design, scheme, plan, course of conduct or motive. Accordingly, the testimony was properly admitted for a limited purpose of showing Painter’s bent of mind or course of conduct, whereby he would subject female relatives to sexual abuse and then threaten them not to tell anyone. Id. at 255.

3. Painter contends the trial court erred in allowing the victim to testify that Painter had sexually molested her daughter, Painter’s granddaughter.

At the evidentiary hearing, the court excluded the proffered testimony of the victim’s older daughter on grounds that Painter’s alleged molestation of her was not sufficiently similar to the indicted crimes involving her mother. During the trial, the victim testified that her decision to reluctantly report Painter to the police and her family was prompted by her daughter’s revelation to her that Painter had attempted to molest her when she was ten or eleven years old. On cross-examination, the victim explained that she finally filed criminal charges against Painter for raping and sodomizing her on two occasions because she was fearful of what Painter might do to her other, younger daughter. The court allowed the victim to explain that because she believed Painter had molested her older daughter, she decided to file charges against Painter in order to protect her eight-year-old daughter. The victim’s testimony about her older daughter’s comments to her was not offered to prove whether or not the older daughter had been molested, but rather, to show what prompted the victim to report the crimes. Conversations may be properly admitted under OCGA § 24-3-2 when they are facts “to explain conduct and ascertain motives. . . .” Sanborn v. State, 159 Ga. App. 608 (1) (284 SE2d 110) (1981). Here, the conversation between the victim and her older daughter was offered to explain the victim’s conduct and her motivation for going to the police. We find no merit in this enumeration.

4. Painter contends the court erred in failing to grant a directed verdict on the rape charge because there was no testimony of any penetration of the victim by Painter.

The jury convicted Painter of criminal attempt to commit rape, not rape. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Our review of the record and transcript reveals there was sufficient evidence by which the jury could have found Painter guilty of this offense. See Division 1 above.

5. Painter claims the trial court erred in failing to grant his motion for directed verdict on the charge of aggravated sodomy (oral) because there was no testimony that the victim’s mouth touched his sexual organ.

The victim testified Painter dragged her from the kitchen to the bedroom and that he threatened her with a gun he had in his possession. She testified that after penetrating her rectum and vagina, Painter grabbed her by the back of her head and using both his hands forced her head down to his penis. As he did this, Painter stated he “wanted to finish it” and to “show me what a man was like.” Because she had become hysterical, had closed her eyes, and was crying, begging and vomiting, she testified she was not absolutely certain she put her mouth to Painter’s penis. She testified on the occasions of both rapes, she thought there had been physical contact between her mouth and Painter’s penis.

Having reviewed the record and transcript, we find there was sufficient evidence to submit the charge for aggravated sodomy to the jury, and it was not error to deny Painter’s motion for a directed verdict.

6. Painter claims the court erred in denying his motion for a mistrial after his daughter, who testified about Painter’s prior rape of her, was allowed to testify that both she and her sister approached their mother, Painter’s wife, to tell her Painter had molested them. He argues that because the court had excluded the other sister’s testimony regarding similar transactions as too remote in time, admitting the witness’ testimony as to acts involving her sister constituted grounds for a mistrial.

The transcript does not show that Painter’s daughter testified that her sister had been similarly sexually abused. The State attempted to let her explain why she had not come forward sooner with her testimony against her father and she testified she was afraid, ashamed, and did not know whom to tell. When pressed as to why she had not told anyone, she responded: “I had already [told] my sister and I had already told my mother one time. Who was I supposed to tell? My mother hadn’t done anything.” She further testified: “My oldest sister approached her first and — told her she might need to talk to me.” At this point, Painter moved for a mistrial. Immediately after the above testimony, both the judge and the prosecutor warned the witness not to go into anything her sister told her.

Painter has offered no evidence that his daughter testified about any alleged molestation or rape of either of her sisters by him. Nor does the transcript indicate that the daughter testified that her sister had been similarly victimized. Accordingly, we find no factual basis for this enumeration.

7. Painter contends the court erred by allowing his granddaughter, the victim’s daughter, to testify. Painter argues that by allowing her to testify, her mother’s testimony was improperly bolstered.

At the evidentiary hearing, the court ruled against the State’s proffer of the granddaughter’s testimony, finding the alleged sexual molestation was not sufficiently similar to the indicted offenses. In mid-trial, the State asked the court’s permission to allow her testimony for the limited purpose of showing how her revelation that she had been molested by Painter, motivated her mother to come forward and file criminal charges for the sexual abuse she had suffered. The State requested that Painter’s granddaughter be allowed to testify to rebut the insinuation that the victim was seeking revenge, against Painter because he had testified adversely to her at a custody hearing involving her younger daughter in February 1994, shortly before the victim filed the criminal charges.

Although the court again refused to permit the granddaughter’s testimony to be used as similar offense evidence, it allowed her to testify, subject to limiting instructions. According to the transcript, she testified that near the close of the custody hearing, she revealed some “pretty shocking” things involving her grandfather to her mother. Her trial testimony did not indicate the nature of the “startling things” nor did she allege molestation or any particular misconduct. She merely stated that she told her mother about some startling or shocking things involving her grandfather.

We find the testimony was properly admitted by the trial court for the limited purpose of explaining the victim’s conduct. See Davis v. State, 168 Ga. App. 272 (308 SE2d 602) (1983). The victim’s conduct was relevant and material to this case and the testimony was properly admitted by the trial court. The State offered the granddaughter’s testimony for the limited purpose of showing its effect on the victim. See Sanborn, supra. The testimony was not offered to bolster the victim’s credibility as to whether she was victimized by Painter. Rather, the court permitted the testimony for the permissible purpose of showing its effect on the victim, not to demonstrate the truth of the granddaughter’s statement. See Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). Accordingly, we do not find this was improper bolstering. “Moreover, even if we were to construe the [granddaughter’s] testimony as improper bolstering, we hold that ‘in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict.’ ” Knight v. State, 207 Ga. App. 846, 847 (1) (429 SE2d 326) (1993). Accordingly, we find no merit in this enumeration of error.

Judgment affirmed.

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

Decided December 4, 1995

Wade C. Hoyt III, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

       The indictment charged Painter with rape and aggravated sodomy in June 1992 and also in October 1993.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A1105.
    SAVANNAH COLLEGE OF ART & DESIGN, INC. v. SCHOOL OF VISUAL ARTS OF SAVANNAH, INC. et al.
    (464 S.E.2d 895)
   Beasley, Chief Judge.

Savannah College of Art & Design (“SCAD”) alleged that 11 defendants, together with 26 persons not named as defendants, entered a conspiracy to take over or destroy SCAD by illegal, wrongful, and tortious means. It seeks to hold defendants jointly and severally liable. See Cook v. Robinson, 216 Ga. 328, 329 (2), (4) (116 SE2d 742) (1960). See also OCGA § 51-12-30. Specific torts were alleged against various defendants. Among the defendants were the three involved in this appeal; School of Visual Arts, Inc. (“SVA”); Rhodes, SVA’s President; and School of Visual Arts of Savannah, Inc., SVA’s Georgia affiliate. They were alleged to have tortiously interfered with SCAD’s existing and potential business relationships with students, faculty, staff, accrediting organizations, and banks. Georgia allows such a cause of action. See, e.g., St. Mary’s Hosp. &c. v. Radiology Professional Corp., 205 Ga. App. 121, 124 (2) (421 SE2d 731) (1992). SCAD appeals from the grant of partial summary judgment to these three defendants.

The court determined there was evidence from which it could be argued a conspiracy was formed, but no evidence these defendants were involved prior to July 29,1992, when SVA made its first contacts in Savannah. The court concluded that they could not be held jointly and severally liable for any torts committed by others before that date. SCAD does not dispute the court’s factual statement but contends it erred as a matter of law because they were co-conspirators.

SCAD recognizes it cannot recover separately for any tort of conspiracy and advances conspiracy as a means to impute liability to all defendants for the acts performed by only one or some. See Groover v. Brandon, 200 Ga. 153, 164 (3) (36 SE2d 84) (1945). “The gravamen of any civil conspiracy claim is not the alleged collusion, but tortious conduct committed against the plaintiff which proximately causes an injury. [Cit.]” Ray v. Atkins, 205 Ga. App. 85, 90 (3) (421 SE2d 317) (1992). SCAD contends that under the conspiracy theory, any defendant who joins it is liable for all acts committed in furtherance of an ongoing conspiracy, even if committed before that defendant joined it.

The defendants urge that the trial court was correct on this point.

The law is that “‘[a] conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. [Cit.] . . . [W]here the act of conspiring is itself legal, the means or method of its accomplishment must be illegal.’ [Cits.]” Cook, supra at 328-329 (1). As quoted recently by the Georgia Supreme Court from earlier cases: “ ‘A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.’ ” U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833) (1994).

“ ‘ “The essential element ... is the common design. . . . And anyone, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto . . . as if he had been an original member.” [Cit.]’ [Cits.]” Cook, supra at 330 (5). It is this second statement from Cook that SCAD relies upon to impute liability for acts committed before July 29, 1992. The statement comports with the general theory of conspiracy law in the United States. See 15A CJS, § 19 and Chemetron Corp. v. Business Funds, 682 F2d 1149, 1180 (5th Cir. 1982), which refers to this as an “immemorial common-law principle” and cites several cases including Blackstone Indus. v. Andre, 232 Ga. 715 (208 SE2d 815) (1974).

The principle has been accepted in Georgia for some time. See Woodruff v. Hughes, 2 Ga. App. 361, 365 (58 SE 551) (1907). The defendants point out that SCAD cites no Georgia case in which the principle has been specifically applied, only cases in which it is recited, but the courts of this state have often repeated it as part of the law of civil conspiracy in Georgia. See Blackstone Indus. v. Andre, supra at 716; Peoples Loan Co. v. Allen, 199 Ga. 537, 558 (1) (34 SE2d 811) (1945); Grainger v. Jackson, 122 Ga. App. 123, 128 (2) (176 SE2d 279) (1970); Archer v. Gwinnett County, 110 Ga. App. 442, 447-448 (2) (138 SE2d 895) (1964); American Thread Co. v. Rochester, 82 Ga. App. 873, 884 (62 SE2d 602) (1950). Indeed, the Supreme Court stated in Peoples Loan Co., supra at 558-559: “While it is alleged that the original conspiracy was formed in August, 1943, and Peoples Loan Company is not shown to have been incorporated until May 18, 1944, its entrance into the conspiracy after its inception would equally bind it as to any wrongful act done by any one of the conspirators in pursuance of the general design. . . .” This Court applied the principle in Archer, supra. The rationale is that the latecomer shares in the intended fruit of the conspiracy, the purpose of it, which in this instance is allegedly the takeover of SCAD or its destruction and replacement by SVA. Defendants have not cited any Georgia case which has disapproved the principle or applied one that is contrary, nor have we found one.

Decided December 4, 1995

Erwin A. Friedman, for appellant.

Savage & Turner, Brent J. Savage, Robert B. Turner, for appellees.

Willson v. Appalachian &c. Hardware Co., 220 Ga. 599 (1) (140 SE2d 830) (1965), also dealt with a defendant who had joined an ongoing conspiracy. A corporation was formed with the directors’ full knowledge that the stated minimum capital of $100,000 had not been paid to the corporation. After incorporation, Willson became a director. Other misrepresentations were made, all of which induced plaintiff supplier to extend credit. Plaintiff sought to hold Willson liable for damages flowing from the act of incorporation in addition to various fraudulent acts later committed. Willson demurred generally to the supplier’s suit, arguing on appeal that he could not be held liable for the corporation’s debts because he was not one of the persons who organized it and transacted business before the minimum capital stock had been subscribed. Id. at 608 (1).

After detailing the facts and Willson’s argument, the Supreme Court affirmed the demurrer’s demise, reciting that one who joins an ongoing conspiracy “knowing of its existence and purpose, . . . becomes as much a party thereto as if he had been an original member. [Cit.]” Willson, supra at 609 (1). As this was the issue Willson presented on appeal, we take the opinion as an acceptance by the Supreme Court of the principle and apply it here as the rule, fortified by the other cases cited above.

If SCAD can show there was a conspiracy to destroy it by tortious means existing before July 29, 1992, and that these defendants joined the conspiracy with knowledge of its existence and purposes, they could be held liable for all torts committed in furtherance of the conspiracy, or the “common design,” even though those torts were committed before July 29, 1992.

Judgment reversed.

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


text:
    A95A1437.
    MOBILE PAINT MANUFACTURING COMPANY, INC. v. JOHNSTON et al.
    (464 S.E.2d 903)
   Ruffin, Judge.

Mobile Paint Manufacturing Company, Inc. (“Mobile”) obtained a judgment against Larry A. Johnston. In order to satisfy the judgment, Mobile filed a garnishment against Johnston in the amount of $15,026.23, naming NationsBank of Georgia, N.A. (“NationsBank”) as garnishee. NationsBank answered, stating that $93.10 was subject to the garnishment. Mobile traversed, contending funds in the Nations-Bank account of a separate entity, Southeastern Coating, Inc. (“Southeastern”) were also subject to the garnishment. We granted Mobile’s application for discretionary appeal from the trial court’s order denying its traverse. For reasons which follow, we reverse.

The record shows that Johnston, who was Southeastern’s vice president, was a signatory on Southeastern’s bank account with NationsBank. It is NationsBank’s general practice to obtain a corporate resolution when it opens a corporate account, and although it is not required, the bank also requests that corporations provide copies of their corporate seals. Although a NationsBank representative stated that she did not think the bank would have opened a corporate account without obtaining a corporate resolution, NationsBank could not locate Southeastern’s resolution, and it is undisputed that although the account was opened as a corporate account, Southeastern was not incorporated.

When Mobile filed the garnishment, it provided NationsBank with only the name of the defendant, “Larry A. Johnston.” Nations-Bank contended that even though Johnston was a signatory on the Southeastern account, without additional information it could not locate accounts other than accounts in Johnston’s name to determine whether additional funds were subject to the garnishment. The trial court found that although it appeared that NationsBank “did not follow its own internal procedure with respect to the opening of a corporate account . . . [the bank] treated this as a corporate account and the Court cannot say that it was error to do so. To hold otherwise would place an onerous burden on the garnishee/bank.” The trial court then concluded that “assuming that this had been a valid corporate account, [NationsBank] would have no authority to freeze [the] account based on [Johnston’s] signatory authority.”

We agree with Mobile that this ruling was in error. If Nations-Bank did treat Southeastern’s account as a corporate account, it did so at its own peril. Under OCGA §§ 18-4-20 and 18-4-82, Nations-Bank was required to answer the summons of garnishment describing what money was subject to the garnishment and paying that money into court. OCGA § 18-4-20 (b) subjected to the garnishment u[a]ll debts owed by the garnishee to the defendant at the time of service of the summons of garnishment upon the garnishee and all debts accruing from the garnishee to the defendant from the date of the service to the date of the garnishee’s answer. . . (Emphasis supplied.) In this case, the signature cards on the Southeastern account contained only two names, Larry Johnston and Jan Johnston. To the extent that the money in the Southeastern account belonged to Larry Johnston, that money was a debt owed by NationsBank to him. See West v. Fed. Deposit Ins. Corp., 149 Ga. App. 342 (2) (a) (254 SE2d 392) (1979), aff’d 244 Ga. 396 (260 SE2d 89) (1979). The fact that NationsBank thought Southeastern was a corporation because it opened the account as a corporate account does not relieve it of the responsibility to comply with the foregoing statutory requirements. Banks should, as NationsBank asserts it generally does, take whatever steps are necessary to ensure that they can comply with the garnishment laws of this state. Garnishment proceedings are “measured by the strict terms of the statute.” Summer v. Allison, 127 Ga. App. 217, 227 (1) (193 SE2d 177) (1972). In the case of corporate accounts, banks should take whatever steps are necessary to ensure that an account being opened as a corporate account, does indeed belong to a duly formed corporation. The garnishment statutes do not excuse a bank’s failure to take such precautions, and in the absence of authority in this regard, we will not do so. It follows that the trial court erred in concluding that NationsBank was entitled to assume the Southeastern account was a legitimate corporate account.

Nor does the fact that NationsBank was unable to locate the account relieve the bank from its responsibilities under the garnishment statutes. In C & S Nat. Bank v. Plott, 135 Ga. App. 778 (218 SE2d 901) (1975) rev’d on other grounds, 236 Ga. 814 (225 SE2d 436) (1976), this Court held that “[t]he fact that the garnishee bank’s retrieval system for its account files failed to disclose to its officer in charge of answering garnishments the contents of the [other account] does not relieve the bank of its responsibility. Whether or not its retrieval system functions, it is on notice of the contents of its account files.” Id. at 778.

NationsBank argues that because it is a large financial institution, it cannot locate corporate accounts without a social security number, tax identification number, account number or the business name. That NationsBank’s records did not allow them to find Johnston’s account in this case should not work to the detriment of Mobile. Mobile provided the information on the affidavit and summons of garnishment required under OCGA §§ 18-4-61 and 18-4-62, and while we agree with NationsBank that OCGA § 18-4-20 (h) encourages garnishing plaintiffs to provide garnishees with social security numbers when possible to enable garnishees to better locate funds due to the defendant, that statute does not require such information.

Decided December 4, 1995.

Neil A. Moskowitz, for appellant.

Alston & Bird, Candace N. Smith, Robb E. Hellwig, for appellees.

Nor does NationsBank’s status as a large financial institution with numerous customers make its failure to discover the account legally excusable. Whether a financial institution has five or five million depositors, that financial institution is on notice of the contents of its account files, and it is required to comply with the summons of garnishment. See Plott, supra. A large financial institution will not be permitted to shield itself from those requirements by asserting that its size makes compliance an onerous burden. The size of an institution should neither insulate it from liability nor facilitate its liability.

Finally, NationsBank argues that even if it were required to locate the account, given that Johnston’s wife was also a signatory on the account and Mobile did not show the funds belonged solely to Johnston, Mobile did not meet its evidentiary burden on its traverse. However, the trial court’s order does not indicate that in denying the traverse, it considered anything more than NationsBank’s failure to locate the account. If NationsBank had located the account and was unsure what funds in it belonged to Johnston, it should have filed an answer stating such. See C & S Nat. Bank v. AVCO Financial Svcs., 129 Ga. App. 605 (4) (200 SE2d 309) (1973). Accordingly, because we find that NationsBank was not excused from locating the account, the judgment of the trial court was erroneous.

Judgment reversed.

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


author: Pope, Presiding Judge.

text:
    A95A1500.
    CRS SIRRINE, INC. v. DRAVO CORPORATION et al.
    (464 SE2d 897)
   Pope, Presiding Judge.

Defendant (CRS Sirrine, Inc.) and plaintiffs (Dravo Corporation and Weyher/Livsey Constructors, Inc.) were joint venture partners who contracted with the Navy to build a power plant for a fixed price. Defendant provided design expertise and produced a technical proposal which was used to draw up the bid for the project; plaintiffs prepared the bid based on defendant’s documents and then were responsible for the actual construction of the project. Numerous problems, many of which were caused by deficiencies in defendant’s design documents and other breaches of defendant’s contractual and fiduciary duties, resulted in a loss to plaintiffs of approximately $30,000,000.

In this action, plaintiffs attempt to recoup some of that loss from defendant. (Defendant was paid a fee for its work on the project and would have shared in any profits, but did not share the risk of loss.) After an extremely lengthy bench trial at which thousands of exhibits were admitted, the trial court found that defendant had breached its contractual and fiduciary duties by failing to provide plaintiffs with sufficient and accurate information, by failing to make any effort to design the project within budgeted quantities, and by failing to notify plaintiffs when significant increases over estimated quantities occurred. The court further found that these breaches proximately caused some but not all of plaintiffs’ damages; it listed out the various categories and amounts of damages proved by plaintiffs, and then found that defendant caused and was liable for $5,518,812 of those damages.

Defendant appealed that decision on several grounds, including the sufficiency of the evidence to support the trial court’s determination of the amount of damages caused by defendant. See CRS Sirrine, Inc. v. Dravo Corp., 213 Ga. App. 710 (445 SE2d 782) (1994). We upheld the trial court’s imposition of time limits at trial and its construction of the joint venture agreement, see id. at 713-719 (1 & 2), but remanded the case for clarification because we could not determine from the trial court’s findings how it arrived at the $5,518,812 figure. (From the findings on damages, and the findings on defendant’s breaches and their effects on the project, it actually seemed like the award should have been more — about $8,000,000.) See id. at 719-721 (4). On remand, the trial court issued an almost identical judgment, reaffirming its determination that defendant caused $5,518,812 in damages but clarifying its methodology by specifying what percentage of losses defendant was responsible for in each category of damage.

1. In this appeal from that second judgment, defendant again contends that the trial court’s finding that defendant’s breaches caused $5,518,812 in damages was based on improper speculation rather than sufficient evidence. The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544 (382 SE2d 388) (1989).

The voluminous evidence in this case showed that numerous changes in the project had to be made as the result of problems with defendant’s designs, and that these changes increased costs by necessitating the purchase of more and different supplies, by delaying completion of the project, and by increasing labor costs. This is more than sufficient to support the trial court’s award.

Defendant nonetheless argues that reversal is warranted because the trial court, after finding that defendant did not cause all of plaintiffs’ damages, should have limited the award to specific increases in costs which could be shown to result solely from specific breaches on the part of defendant. But defendant’s position — that in cases where both parties have contributed to a loss, the party who has initially sustained the loss cannot recover anything if it cannot specifically identify which aspects of the overall loss were specifically and solely the result of the other party’s conduct — would establish a standard which would be almost impossible to meet, resulting in nonliability for the defendant even when it is clear that the defendant caused a substantial portion of the loss. As such, defendant’s suggested standard is inconsistent with our general approach to damages: While mere speculation cannot support a damage award, all that is required is evidence from which damages can be estimated with reasonable certainty, and difficulty in fixing the exact amount should not preclude recovery. See, e.g., Shepherd v. Aaron Rents, 208 Ga. App. 139, 143 (3) (430 SE2d 67) (1993).

Thus, if a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award. And that is exactly what happened in this case. The court determined from the evidence that a certain percentage of the increase in various categories of project costs was caused by defendant and then applied those percentages to the amount of increased costs in each category to establish the amount of damages caused by defendant. We therefore approve the trial court’s method of ascertaining the damages caused by defendant. Cf. Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233 (5) (355 SE2d 747) (1987) (where evidence supports joint assessment of blame, the trial court is authorized to apportion damages).

Defendant cites several cases for the proposition that a defendant whose conduct has caused a delay is not liable if the plaintiff’s own conduct also partially caused or contributed to the delay. See, e.g., State Hwy. Dept. v. MacDougald Constr. Co., 102 Ga. App. 254, 264-265 (2) (115 SE2d 863) (1960); Bancroft v. Conyers Realty Co., 63 Ga. App. 106 (2) (10 SE2d 286) (1940). Defendant reads these cases too broadly, however. Rather than barring recovery whenever a plaintiff’s conduct has contributed to the delay, these cases are simply a specific application of the general principle expressed in OCGA § 13-4-23: If a party to a contract makes it impossible for the other party to perform, the other party’s nonperformance is excused. Thus, if a defendant’s contribution to the delay was the result of the plaintiff’s own conduct, the defendant is not liable for the delay. In this case both parties contributed to the delay, but defendant’s breaches were in no way caused by plaintiffs’ conduct. Thus, OCGA § 13-4-23 does not apply to excuse defendant’s breaches.

Lastly, defendant suggests that the evidence does not support the award because if the court had truly accepted plaintiffs’ theory and testimony regarding damages, it would have had to award more damages than it actually awarded. In the face of a factfinder’s verdict, however, a defendant cannot complain that the plaintiff was entitled to more or nothing at all. Johns v. League, Duvall & Powell, Inc., 202 Ga. 868, 871-874 (1) (45 SE2d 211) (1947).

2. Defendant’s second enumeration of error addresses the trial court’s ruling that postjudgment interest should run from the date of the original judgment rather than from the date of the revised judgment entered after remand. All money judgments in Georgia bear postjudgment interest from the date of entry. OCGA § 7-4-12. But if a case is remanded for clarification by the appellate court and a second judgment — identical to the first except for a clarification of how the damages were figured — is entered, when does the postjudgment interest start?

Applying an analogous federal statute which also provides for postjudgment interest on all money judgments, federal circuit courts of appeal have held that where more than one judgment has been entered in a case, the decision of whether postjudgment interest should run from entry of the original or second judgment “turns on the degree to which the original judgment was upheld or invalidated on appeal.” Loughman v. Consol-Pennsylvania Coal Co., 6 F3d 88, 96-100 (3d Cir. 1993); 28 USCA § 1961. Accord Dunn v. Hovic, 13 F3d 58, 61 (3d Cir. 1993); Tinsley v. Sea-Land Corp., 979 F2d 1382, 1383 (9th Cir. 1992); Wheeler v. John Deere Co., 935 F2d 1090, 1097 (10th Cir. 1991); Cordero v. De Jesus-Mendez, 922 F2d 11, 15-18 (1st Cir. 1990). “In general, where a first judgment lacks an evidentiary or legal basis, post-judgment interest accrues from the date of the second judgment; where the original judgment is basically sound but is modified on remand, post-judgment interest accrues from the date of the first judgment.” Cordero, 922 F2d at 16. We find the analysis and approach of these cases persuasive, and adopt them here.

In Loughman, the Third Circuit notes that application of the standard articulated in Cordero is often very fact specific, with cases falling somewhere on a continuum between one extreme, in which the original judgment is reinstated in its entirety and postjudgment interest clearly accrues from the date of the original judgment, and the other extreme, in which the original judgment is reversed completely and postjudgment interest clearly does not begin accruing until entry of the later judgment. See 6 F3d at 98. Utilizing the Cordero standard, courts have held that postjudgment interest accrued from the date of the original judgment (1) where the appellate court reduced the plaintiff’s damages from more than 26 million dollars to 1.5 million dollars by remittitur, but part of the original damage award was affirmed without the necessity of retrial, see Dunn, 13 F3d at 61; (2) where the appellate court reversed a determination that plaintiff was not comparatively negligent and remanded for evaluation of plaintiff’s comparative negligence and appropriate reduction of the damage award, see Tinsley, 979 F2d at 1383; and (3) where the appellate court remanded for retrial on damages due to a harmful error in the court’s jury charge, but the original finding of liability was not disturbed, see Cordero, 922 F2d at 15-19.

In this case, our prior opinion affirmed the trial court’s finding of liability and simply remanded for clarification of the damage award. Despite our arguably loose use of the term “reverse,” defendant’s contention that we totally invalidated the prior judgment ignores reality. There was no determination that the first judgment lacked an evidentiary or legal basis. There was no determination that errors affecting basic issues of the case (or even errors not affecting basic issues of the case) occurred at trial. Compare Wheeler, 935 F2d at 1097. Moreover, the second judgment awarded exactly the same amount of damages as the first, and did so without the necessity of a retrial. In each of the cases discussed in the previous paragraph, there was some substantive change between the original and subsequent judgments; yet postjudgment damages started with the original judgment. Thus, the case for starting postjudgment damages with the original judgment is even stronger here, where the two judgments are identical except for clarification of the trial court’s calculation of damages. Accordingly, we conclude that the trial court did not err in determining that postjudgment interest would run from the date of the original judgment.

Decided December 4, 1995

Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Baker, Donelson, Bearman & Caldwell, Thomas 0. Helton, Randall L. Gibson, for appellant.

Jones, Day, Reavis & Pogue, Gregory R. Hanthorn, John H. Williamson, for appellees.

Judgment affirmed.

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

       Some of these problems related to defendant’s original technical proposal based on Navy specifications, which resulted in an underestimation of materials needed, while others related to the construction designs subsequently provided by defendant, in which materials were called for beyond what was actually required by Navy specifications.

        Crolley v. Haygood Contracting, 207 Ga. App. 434 (2) (429 SE2d 93) (1993) is distinguishable, as our pre-remand decision in that case (201 Ga. App. 700, 703 (3) (411 SE2d 907) (1991)) went directly to the question of liability, reversing as legally insupportable the trial court’s ruling that both a principal and his agent could be liable.

       See also Clifford v. M/V Islander, 882 F2d 12 (1st Cir. 1989), an earlier case in which the First Circuit reached the same conclusion, without the benefit of the Cordero analysis, in a situation almost identical to that presented here. In Clifford, as in this case, the appellate court had affirmed the trial court’s liability determination but ruled that the court had not sufficiently explained the basis for its damage computation. On remand, the trial court fleshed out its findings and again entered judgment for the same amount, without taking additional evidence. Based on precedent as well as considerations of equity, the First Circuit held that the date of entry of the original judgment marked the starting point for computation of postjudgment interest. See id. at 13-15.


text:
    A95A1523.
    STURGILL v. GARRISON.
    (464 SE2d 902)
   Pope, Presiding Judge.

Sturgill was involved in a car accident with Garrison. She filed a lawsuit against him, and Garrison filed a separate suit against her. The cases were consolidated, and Sturgill was designated as the plaintiff in the suit. In anticipation of litigation, Sturgill’s insurer hired an independent adjuster to investigate the accident. The adjuster took a recorded statement from Sturgill, which was later transcribed. In an attempt to obtain a copy of the statement, Garrison served the adjuster with a request for documents. Sturgill objected to the request, contending that her statement was protected under the work product doctrine. Without contesting Sturgill’s objection to his request, Garrison subpoenaed the adjuster for deposition. Sturgill sought a protective order to prevent the deposition, but the trial court ruled that Garrison could take the deposition to discover any impeaching testimony. Sturgill appeals and we reverse.

In her sole enumeration, Sturgill contends that the trial court should have granted her motion for a protective order to prevent Garrison from deposing the adjuster. We agree. Under OCGA § 9-11-26 (b) (3), before a party is entitled to the discovery of “trial-preparation material developed in anticipation of litigation, the [party] must show affirmatively that he has a substantial need for such evidence in the preparation of his case and that it would cause an undue hardship upon him to develop that evidence by [other] means. . . .” (Citation omitted.) Lowe’s of Ga. v. Webb, 180 Ga. App. 755, 757 (350 SE2d 292) (1986).

In the instant case, Garrison made no such showing, but instead argued that OCGA § 9-11-26 (b) (3) was not applicable because it only dealt with the discovery of documentary or tangible items. Although it is true that OCGA § 9-11-26 (b) (3) deals specifically with the discovery of documents and tangible things, we conclude that the showing required under this Code section applies equally to situations like this where a party seeks to obtain the equivalent of trial preparation materials through the use of a deposition. If a defendant is not entitled to obtain a copy of a plaintiff’s statement to her insurance adjuster because the defendant cannot demonstrate substantial need or undue hardship as required by OCGA § 9-11-26 (b) (3), then certainly a defendant cannot require the production of the statement at a deposition, nor can the defendant require the adjuster to testify during deposition as to the content of the statement. To hold otherwise would be contrary to the very existence of the work product doctrine.

Decided December 4, 1995.

Beck, Owens & Murray, Richard L. Collier, Evans & Evans, Larry K. Evans, for appellant.

Temple, Strickland & Counts, William D. Strickland, Reynolds & McArthur, Katherine L. McArthur, Parkerson & Shelfer, I. J. Parkerson, for appellee.

Because the record demonstrates that Sturgill’s statement was taken in anticipation of litigation, but fails to demonstrate that Garrison had substantial need for the statement and would face undue hardship in obtaining substantially equivalent information from other sources, we conclude that the trial court should have granted Sturgill’s motion for a protective order in its entirety. The mere fact that a statement may contain impeachment materials is not sufficient to show either undue hardship or substantial need as required by OCGA § 9-11-26 (b) (3). See Lowe’s of Ga., 180 Ga. App. at 757-758; Warmack v. Mini-Skools Ltd., 164 Ga. App. 737, 740 (297 SE2d 365) (1982).

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur in judgment only.


text:
    A95A1648.
    KIRKPATRICK v. THE STATE.
    (464 SE2d 882)
   Ruffin, Judge.

This appeal raises the sole issue of whether administratively suspending a driver’s license after a DUI arrest is punishment which triggers the Double Jeopardy Clause’s prohibition against multiple punishments, thereby precluding subsequent prosecution of the underlying DUI charges. We conclude that it does not.

Decided December 4, 1995.

Barksdale, Irwin, Talley & Sharp, David B. Irwin, Daniel S. Digby, for appellant.

Thamon Lee Kirkpatrick was arrested for DUI and open container violations after a state trooper stopped him at a driver’s license check, discovered him drinking a beer, and administered several field sobriety tests which he failed. The trooper provided Kirkpatrick with an “Official Notice of Intent to Suspend License” which stated that because a chemical test indicated that his blood alcohol concentration was .10 grams or more, Georgia law required the suspension of his driver’s license following the twentieth day after his arrest. The Georgia Department of Public Safety then administratively suspended Kirkpatrick’s license pursuant to OCGA §§ 40-5-67; 40-5-67.1 and 40-5-67.2, and Kirkpatrick did not request a hearing to contest that suspension.

Kirkpatrick then moved to dismiss the DUI charges, arguing that the license suspension and the criminal prosecution constituted two separate proceedings and punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Art. I, Sec. I, Par. XVIII of the Georgia Constitution of 1983. The trial court denied the motion, finding that because the suspension was a civil administrative action taken for the remedial purpose of protecting the public from drunk drivers, the subsequent DUI prosecution did not violate the Double Jeopardy Clause.

Kirkpatrick appeals the denial of his motion to dismiss, renewing his double jeopardy arguments. Kirkpatrick argues that the license suspension was punitive and therefore mandates reversal of his criminal conviction. He maintains that the suspension of a driver’s license cannot be considered remedial when the law provides for its reinstatement upon an acquittal in the criminal case and the suspension is counted toward the fulfillment of any period of suspension subsequently imposed in the criminal proceedings in the event of a conviction.

We recently rejected this same argument in Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995). After a thorough analysis of Kirkpatrick’s arguments, we conclude that “the suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy.” Id. at 823. Thus, we find no error here.

Judgment affirmed.

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

S. Dabney Yarbrough, Solicitor, for appellee.

Robert W. Chestney, Kenneth W. Mauldin, amici curiae.


text:
    A95A1693.
    HULSE v. JOINT CITY-COUNTY BOARD OF TAX ASSESSORS.
    (464 SE2d 890)
   Ruffin, Judge.

Frank W. Hulse IV appealed the assessment and valuation of his property by the Joint City-County Board of Tax Assessors (“the Board”) to the County Board of Equalization (“BOE”). As part of his appeal, Hulse submitted to the BOE a “Request By Taxpayer For Board [of Equalization] To Order Joint Board [of Tax Assessors] To Take Action Necessary To Obtain Uniformity” (the “request”). In the request, Hulse cited the language from OCGA § 48-5-311 (d) (2) and asked the BOE to find reason to believe his property had not been uniformly assessed and to therefore ask the respective parties to submit information relevant to uniformity. In its decision on the appeal, the BOE stated that it “heard all the evidence” and “reviewed all the information submitted”; placed a handwritten check by the categories “uniformity of assessment” and “value” listed under the heading “Your appeal raised the following issue(s)”; and reduced the appraised value of the property.

Hulse then filed a three count appeal of the BOE decision in the superior court. Count I of the appeal contended that the BOE had not ruled on his request and asked the trial court to remand the case to the BOE with direction that it do so. Count III sought attorney fees and expenses in having to appear at the BOE hearing and for having to appeal the BOE decision to superior court. The trial court determined that the BOE had in fact ruled on Hulse’s request and in doing so found no reason to believe an issue of uniformity existed. Accordingly, the court dismissed Counts I and III. Hulse then confessed judgment as to Count II, the value of his property and now appeals the trial court’s dismissal of Counts I and III of his appeal. For reasons which follow, we reverse.

1. OCGA § 48-5-311 (d) (2) provides in part that “[i]f in the course of determining an appeal the county board of equalization finds reason to believe that the property involved in an appeal is not uniformly assessed with other property . . . the board shall request the respective parties to the appeal to present relevant information with respect to that question.” Hulse contends the trial court erred in determining that the BOE ruled on his request because the BOE did not request the parties to provide information relevant to equalization and therefore did not “specifically decide each question presented by the appeal” as required under former OCGA § 48-5-311 (e) (6) (C) (1).

Pretermitting whether former § 48-5-311 (e) (6) (C) (1) provides for such requests, the relevant statute, OCGA § 48-5-311 (d) (2), does not require the BOE to request such information from the parties unless it has reason to believe an issue exists regarding uniformity. Thus, if the BOE found no reason to believe Hulse’s property was not assessed uniformly, it was not required to take the action Hulse requested. However, the question remains as to whether the BOE “specifically” decided the issue of uniformity, an issue which it stated was raised in Hulse’s appeal. While we agree with the trial court that it is implicit in the BOE’s decision that it considered the question of uniformity and did not find it to be an issue, we cannot say the decision “specifically decided” the issue. We note that in addition to specifically deciding each issue raised by the taxpayer, the statute now requires the BOE to “specify the reason or reasons for each such decision as to the specific issues of taxability, uniformity of assessment, [or] value . . . raised ... by the taxpayer ... in his appeal. . . .” OCGA § 48-5-311 (e) (6) (D) (i). Nor can we say that Hulse’s confession of judgment as to the value of his property renders the court’s action harmless, because the legal issue of uniformity of assessment remains. If this case were remanded to the BOE and it decided there was not uniformity in assessment, the fair market value of the property and corresponding ad valorem tax would not necessarily remain the same. Accordingly, we reverse the court’s dismissal of Count I of the appeal with direction that the trial court remand to the BOE for an answer which complies with the requirements of OCGA § 48-5-311 (e) (6) (D) (i) on the question of uniformity of assessment.

We do not hold, as Hulse contends in a separate enumeration of error, that the trial court must remand with direction that the BOE find there is sufficient evidence for it to have reason to believe disparity exists such that it must request additional information on uniformity from the parties. Not only has Hulse cited no authority which would require a direction of this nature, but such a determination, i.e., whether the BOE believes an issue as to uniformity exists, is obviously a question for the BOE, not the superior court.

2. Hulse contends that the court erred in dismissing Count III of his appeal which sought costs and expenses for having to appear at the BOE’s hearing on his initial appeal and for having to appeal to the superior court in order to have the BOE rule on his request. At the outset, we note that Hulse cites no authority showing that he is entitled to costs for appearing at the BOE hearing on an appeal he initiated. Thus, that portion of this enumeration is without merit. With respect to costs and expenses for his appeal to superior court, we note as we did above that the BOE was not required to comply with the self-styled request. And although the trial court’s dismissal of Count III was based in part on its erroneous assumption that the BOE decided the issue of uniformity, Hulse presents neither argument nor authority demonstrating his entitlement to attorney fees and expenses.

Decided December 4, 1995.

W. Wheeler Bryan, Scott M. Dixon, for appellant.

Boyce, Ekonomou & Atkinson, Lee W. Fitzpatrick, Richard A. Carothers, for appellee.

3. Given our holding above, we need not address Hulse’s remaining enumerations of error.

Judgment reversed and remanded with direction.

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


text:
    A95A1720.
    DEPARTMENT OF TRANSPORTATION v. INTO et al.
    (464 SE2d 886)
   Ruffin, Judge.

The Georgia Department of Transportation (“DOT”) filed this condemnation action against Dovie J. Into to condemn a .59 acre narrow strip of land he owned in Treutlen County. The DOT condemned the property, along with a five-foot slope easement along Into’s property, for a road widening project. The jury valued Into’s damages at $5,500 and returned a verdict in that amount. DOT appeals, asserting the trial court erred in allowing Into to testify as to the value of the condemned property, the amount of consequential damages, and the value of a fence acquired in the condemnation. Because we find the court did not abuse its discretion in admitting the foregoing testimony concerning the value of the condemned property and consequential damages, we affirm.

1. Generally, the competency of a witness to testify concerning an opinion of value is a matter for the trial court’s discretion. Dept. of Transp. v. Pilgrim, 175 Ga. App. 576 (3) (333 SE2d 866) (1985). An owner of condemned property is permitted to give such testimony, provided that he can first establish his “knowledge, experience or familiarity with the value of improvements or real estate generally or of those values in the vicinity in particular.” (Citation and punctuation omitted.) Dept. of Transp. v. Metts, 208 Ga. App. 401, 404 (7) (430 SE2d 622) (1993). See also Pilgrim, supra.

We disagree with DOT’s contention that the trial court abused its discretion in allowing Into’s testimony in this case. Into testified that he had visited the property since approximately 1946 and that he was “slightly” familiar with the property’s history. He also stated that his wife inherited a one-sixth share of the property in approximately 1980 or 1982 and that he purchased the other inherited shares in 1991 and 1992 for $12,000 each. Although Into admitted that he had never purchased any other property in Treutlen County, he testified the value he placed on the condemned property was based on his 1992 purchases and his experiences as a farmer, game warden and businessman. Based on the foregoing, Into testified that in his opinion the value of the condemned property was $5,000.

“ ‘The courts of this state have traditionally granted condemnees of land considerable leeway in presenting evidence bearing upon the market value of their condemned land.’ ” Id. at 579. Granting Into such leeway, and in light of his testimony concerning his purchases of the condemned property and his occupational experiences, we do not find that the trial court abused its discretion in allowing him to testify as to the value of the condemned property. Into’s competency having been determined by the court, “[t] he credibility and weight of such evidence [was] then for the jury. [Cits.] In this case it was not error to permit the testimony and subject it to the jury’s assessment.” Id. at 580.

2. DOT’s second enumeration of error, that the trial court erred in allowing Into to testify concerning consequential damages to his remaining property, is also based on Into’s alleged failure to establish his knowledge or familiarity with property values. “ ‘The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking.’ [Cit.]” Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 230 (3) (312 SE2d 344) (1983). Having found in Division 1 that Into laid a proper foundation to testify as to the value of property, it follows that he was competent to testify concerning the diminution in market value of the remaining property. Accordingly, the trial court did not err in allowing Into to testify concerning consequential damages.

3. DOT also asserts the trial court erred in allowing Into to testify concerning the value of a fence taken in the condemnation. We disagree. Into testified that approximately one-half mile of fence was condemned and that although the fence was dilapidated and overgrown with shrubbery, bushes, and briars, it was serviceable. Into further testified that he maintains a fence on other farm land he owns, that he purchases the materials to maintain the farm land fence, that he is familiar with what it costs to build a fence, and that the value of the fence taken in 1992 was $1.50 per foot.

Decided December 4, 1995.

Michael J. Bowers, Attorney General, Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

John J. Ellington, for appellees.

DOT contends that because Into’s testimony concerning the value of the fence did not include any testimony of depreciation, the trial court erred in admitting it. However, replacement-cost-less-depreciation is not the only method available to prove the value of property taken. See Almond v. MARTA, 161 Ga. App. 363 (1) (288 SE2d 129) (1982). The value of improvements may also be shown by evidence of market value, and as we stated in Division 1, a condemnee can testify concerning the market value of improvements if he can show he has knowledge, experience or familiarity with the value of such improvements. Id.; Metts, supra at 404. Because we find the foregoing testimony showed that Into had the requisite knowledge, experience and familiarity with the value of fences, the trial court did not abuse its discretion in admitting his testimony.

4. DOT asserts the trial court erred in denying its motion for a directed verdict made at the close of all the evidence. Having ruled above that the jury had before it competent evidence of damages, we hold that the trial court did not err in denying DOT’s motion for directed verdict. See OCGA § 9-11-50 (a).

Judgment affirmed.

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


text:
    A95A1787.
    GROGAN et al. v. LANIER BANK & TRUST COMPANY et al.
    (464 SE2d 892)
   Ruffin, Judge.

Anna L. Grogan, Amanda L. Grogan, and Rickey Chad Grogan (“the children”) sued Lanier Bank & Trust Company and Lee Wilhelm and Rickey Stowe as agents of the Bank (hereinafter collectively referred to as “the Bank”) to recover the value of three custodial certificates of deposits (“CDs”) that their father, Rickey E. Grogan, pledged as collateral for a Bank loan which went into default. Each of the CDs was issued to Rickey E. Grogan or Debra W. Grogan (the childrens’ mother) as custodian of the respective child. The trial court granted the Bank’s motion for summary judgment. For reasons which follow, we affirm.

1. In five enumerations of error the children challenge the court’s ruling, essentially arguing that the Bank cannot be shielded from liability because it knew Rickey Grogan’s use of the CDs to secure a personal loan was a misappropriation of the money. In its order, the court cited Trust Co. Bank &c. v. Henderson, 185 Ga. App. 367 (364 SE2d 289) (1987), aff'd 258 Ga. 703 (373 SE2d 738) (1988), for the proposition that third parties such as the Bank may rely on the presumption that a fiduciary will faithfully discharge his duties as required by law and ruled that the Bank was not liable for any alleged mishandling or conversion of the custodial accounts by Rickey E. Grogan. Although the children contend the court’s ruling was erroneous, they present no evidence of illegal conduct by Grogan and have not sued him for misappropriation or conversion. For the Bank to face liability, it must be shown that Grogan mishandled the funds and that the Bank assisted him with knowledge of his misconduct. See Nat. Nugrape Co. v. C & S Nat. Bank, 94 Ga. App. 5 (2) (93 SE2d 381) (1956). However, there is no evidence of any custodial agreement governing Rickey Grogan’s management or use of the CDs at issue. Thus, the Bank simply applied the CDs as directed by a fiduciary whom it could presume was acting in a lawful manner consistent with his duties. Id. See also Bank South v. Grand Lodge &c., 174 Ga. App. 777 (1) (331 SE2d 629) (1985). While we may not condone Grogan’s conduct, the children’s argument in effect seeks to have us impose a duty upon the Bank to decide unilaterally that a custodian’s use of such funds is inappropriate. In the absence of any authority to that effect, we decline to do so. See Chelena v. Ga. Fed. Savings &c., 256 Ga. 336 (349 SE2d 180) (1986); Trust Co. of Ga. v. Nationwide Moving &c. Co., 235 Ga. 229 (219 SE2d 162) (1975).

2. Likewise, the children argue the court erred in ruling that the Bank was immune from liability under Chelena, supra, because OCGA § 7-1-790, upon which the Chelena case is predicated, applies to savings and loan associations, not banks. In Chelena, a trustee repaid two bank loans with her children’s trust funds which were awarded in a divorce decree. The trustee used the funds as collateral for the loans without permission from the court in violation of the court’s decree. The children sued the bank for alleged mishandling of their trust account. We affirmed summary judgment for the bank, holding that under OCGA § 7-1-790, a savings and loan association may “pay out funds to the . . . fiduciary and rely on the recognized presumption that the fiduciary will faithfully discharge his duties with regard to the disposition of the funds. [Cits.] In the absence of knowledge of a breach of trust by the fiduciary, it is not incumbent upon the [bank] to investigate the use of funds by the fiduciary. [Cit.] Such a requirement would unduly hinder the multitudinous transactions of the association.” Id. at 337. We do not agree that the provisions of OCGA § 7-1-790 are inapplicable to this case given that the Bank is not a savings and loan association. See Bank South, supra at 780-781. See also Nat. Bank v. Weiner, 180 Ga. App. 61, 65 (348 SE2d 492) (1986) in which we found OCGA § 7-1-790 to be “fairly correlative” to OCGA § 7-1-352 which specifically applies to banks. Accordingly, this enumeration is without merit.

3. The children contend that the court ignored the guardianship laws set forth in OCGA § 29-4-2. Pretermitting whether there is any evidence that OCGA § 29-4-2 is applicable to this case, this argument was never raised in the children’s complaint and it was not reached by the trial court. Thus, it is not ripe for appellate review. See Devins v. Leafmore Forest Condo. Assn. &c., 200 Ga. App. 158 (3) (407 SE2d 76) (1991).

4. The children contend the court erred in ruling that because the Bank’s secured loans to Grogan were a “single isolated transaction,” they did not constitute a “pattern of racketeering activity” which would support a RICO claim. Citing Cobb v. Kennon Realty Svcs., 191 Ga. App. 740 (382 SE2d 697) (1989), the court held that the two loans to Grogan constituted only one extended transaction rather than “at least two incidents” of racketeering activity as required by OCGA § 16-14-3 (8).

At the outset we note that on appeal, the children state they are incorporating by reference arguments made with respect to this enumeration in certain motions and pleadings filed in the trial court. However, this court has no rule which authorizes any such incorporation by reference. Pretermitting whether the Bank’s agreement to secure the loans with the CDs constituted “criminal activity” as required under OCGA § 16-14-3 (8), the children cite neither argument nor legal authority showing the trial court’s ruling was in error. This enumeration of error is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

5. The children contend the court erred in ruling that Georgia’s Fair Business Practices Act did not apply to this case and in holding that they did not respond to certain aspects of the Bank’s motion for summary judgment. These arguments are likewise abandoned because they are unsupported by argument or legal authority.

6. The children contend the court erred in granting the Bank’s motion to continue the case from the original trial calendar. However, the children have alleged no harm from the grant of the motion which they must do in order to prevail on appeal. Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454 (1) (b) (415 SE2d 4) (1992). Moreover, “[i]t is well established that all continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion.” (Citations and punctuation omitted.) Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526, 527-528 (2) (428 SE2d 431) (1993). Our review of the record does not reveal such an abuse of discretion.

Decided December 4, 1995

McDonald & Cody, Douglas W. McDonald, Sr., Thomas L. Carter, Jr., for appellants.

Hamil & Dickinson, R. Timothy Hamil, David L. Dickinson, Carey, Jarrard & Walker, Christopher J. Walker III, for appellees.

Judgment affirmed.

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


text:
    A95A1808.
    STATON v. THE STATE.
    (464 SE2d 888)
   Ruffin, Judge.

David Charles Staton was convicted of violating the Georgia Controlled Substances Act and sentenced on December 7, 1994. On December 20, 1994, Staton filed a motion for new trial, and a hearing was held on March 16, 1995, at which time the trial court orally denied Staton’s motion. Staton filed a notice of appeal on March 30, 1995; however, the trial court did not enter a written order denying the motion for new trial until April 3, 1995. Thereafter on April 21, 1995, Staton filed a pleading entitled “Notice of Filing” in which he asked this court to take notice of the March 30, 1995 filing of the notice of appeal. For reasons which follow, this appeal is dismissed.

“It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. OCGA § 5-6-38 (a) requires that a notice of appeal be filed within 30 days after entry of the judgment complained of, or within 30 days after the entry of the order finally disposing of a motion for new trial.” (Citations and punctuation omitted.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). In the instant case, the notice of appeal was premature because appellate counsel filed it four days before the trial court entered its written order denying Staton’s motion for new trial. See Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986). Staton’s April 21, 1995 pleading failed to cure the defect because he did not withdraw the premature notice of appeal nor did the pleading minimally suffice as a timely notice of appeal inasmuch as it contained no reference to the April 3, 1995 judgment from which the appeal was filed. See OCGA § 5-6-37.

Since our decision in Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987), we have ceased dismissing appeals for prematurely filed notices of appeal in criminal cases and have deemed effective prematurely filed notices of appeal upon entry of a final judgment. See Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988). In Rowland, supra, however, the Georgia Supreme Court recognized that our attempts to provide sua sponte appellate review of represented criminal defendants’ procedurally deficient appeals “while laudable, do a disservice to the courts, the criminal defendant, and appellate counsel.” Rowland, supra at 874. The court explained that “[t]he practice requires the appellate court to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Id. The court held that “dismissal of the appeal is the appropriate and constitutionally permissible course of action when a represented criminal defendant’s appeal has procedural deficiencies that deprive the defendant of the right of appellate review of the judgment of conviction.” Id. at 875.

Decided December 4, 1995.

Christy R. Jindra, for appellant.

Robert E. Keller, District Attorney, Brandon Hornsby, Assistant District Attorney, for appellee.

Although Rowland involved the untimely filing of a notice of appeal on behalf of a criminal defendant represented by appellate counsel, we find it controlling here because a properly filed notice of appeal is essential to invoke this court’s jurisdiction and by specifically referencing Boothe, supra, the court recognized the prematurely filed notice of appeal as a procedural deficiency which frustrates a criminal defendant’s right to appeal for which the remedy of dismissal is appropriate. See Rowland at 873. Furthermore, we appreciate the court’s desire to treat these procedurally deficient appeals in a uniform fashion. Accordingly, this appeal should be dismissed.

A copy of this opinion shall be sent to Staton and to appellate counsel with direction that he send a copy to Staton. Please be advised that your appeal has been DISMISSED because your attorney filed your notice of appeal before the entry of final judgment. If you no longer wish to appeal the final judgment, you need not do anything more. However, if you do still wish to appeal, you may have the right to an OUT-OF-TIME APPEAL — but YOU MUST TAKE ACTION to exercise that right by moving for an out-of-time appeal in the trial court. If your motion for an out-of-time appeal is granted, the trial court should appoint another attorney if you want one and cannot pay for one. If your motion for an out-of-time appeal is denied, you may appeal that denial to this court within 30 days of the trial court’s decision. Reese v. State, 216 Ga. App. 773, 775 (456 SE2d 271) (1995).

Appeal dismissed.

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


author: Birdsong, Presiding Judge.

text:
    A95A2113.
    PAYNE v. THE STATE.
    (464 SE2d 884)
   Birdsong, Presiding Judge.

Tellis Savalis Payne appeals his conviction for sale of crack cocaine. He contends the trial court erred by charging and recharging the jury on parties to a crime, by allowing the jury, during their deliberations, to view a videotape that had been introduced in evidence, and by sentencing him to a life sentence under OCGA § 16-13-30 (d) even though proper notice under OCGA § 17-10-2 (a) was not given. Payne further contends the verdict is contrary to the evidence, is not supported by the evidence, and is illegal and unwarranted under the law and evidence. Viewed in support of the verdict, the evidence shows that Payne, accompanied by a man named Watkins, sold the crack cocaine to a paid informant who was cooperating with the drug task force. After his conviction, Payne was sentenced to life imprisonment. Held\

1. In his first and third enumerations of error, Payne contends the trial court erred by charging and recharging the jury on the issue of parties to a crime because the evidence did not support such a charge.

(a) “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.” (Citation and punctuation omitted.) Adams v. State, 193 Ga. App. 628 (388 SE2d 747). With the informant’s testimony concerning Payne’s actions and a videotape of the transaction, the evidence presented was sufficient to warrant charging the jury on parties to a crime.

(b) After retiring to the jury room, the jury requested a recharge on the issue of parties to a crime. “It seems to be a general proposition that the necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. . . . Our review is limited to determining whether that discretion was abused, taking into account the sensitive nature of the judge’s responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations.” (Punctuation omitted.) Litmon v. State, 186 Ga. App. 762, 763 (368 SE2d 530). Reviewing the recharge in this light, we do not find that the court exceeded its discretion. As the judge’s recharge not only was warranted by the evidence but also was legally accurate and not confusing or misleading, we find no error.

2. In his second enumeration of error, Payne contends the trial court erred in allowing the jury, after it began its deliberations, to view the videotape that had been introduced into evidence. The record reveals that after the jury had retired to the jury room but before it began deliberating, the trial judge sent a note informing jurors that, if they wished to see the tape again, they would have to view it in open court. Although Payne was aware of the note, there was no objection to the note being sent to the jury. After deliberating for approximately 30 minutes, the jury requested to view the videotape. Counsel for appellant objected to this request.

“ ‘It has been recognized for more than a hundred years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. Byrd v. State, 237 Ga. 781, 782 (229 SE2d 631).’” Williams v. State, 208 Ga. App. 460, 461 (431 SE2d 130). In the present case the trial court rather than the jury instigated the request to view the videotape by sending the note to the jury. Assuming without deciding that the trial court erred, any error was harmless because the jury had already heard the testimony of Blount and seen the videotape. Therefore, evidence of Payne’s guilt was overwhelming; consequently, the error, if any, was harmless beyond a reasonable doubt. Randall v. State, 194 Ga. App. 153, 154 (390 SE2d 74).

3. Pasme enumerates the general grounds. After reviewing the evidence in the light most favorable to the verdict, we conclude there was sufficient evidence at trial for a rational trier of fact to find proof of Payne’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. In his final enumeration, Payne contends that notice of the State’s intention to introduce evidence in aggravation of punishment was not timely given pursuant to OCGA § 17-10-2 (a).

The record establishes that Payne was served with a copy of the notice while the jury was being selected but before they were sworn. OCGA § 17-10-2 (a) provides that notice must be given before trial. Sinkfield v. State, 262 Ga. 239 (416 SE2d 288). In the present case, jeopardy had not attached because the jury had not been sworn. Therefore, Payne was notified before trial as the statute requires. This enumeration of error is without merit.

Payne also asserts in his brief that the trial court was not presented with a certified copy of his prior conviction during the sentencing hearing as required by OCGA § 17-10-2. A review of the record establishes that this argument was not raised within the enumeration of error. “ ‘An enumeration of error cannot be enlarged to include other issues not made therein.’ ” Hurston v. Ga. Farm Bureau &c. Co., 148 Ga. App. 324, 326 (250 SE2d 886). Further, appellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold. Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507); Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686). Accordingly, this issue cannot be considered. Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396).

Decided December 4, 1995.

Morris S. Robertson, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Jeff J. Conner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2724.
    DENSON v. CHASE MANHATTAN MORTGAGE CORPORATION.
    (464 SE2d 906)
    Decided December 4, 1995
    Bobby L. Denson, pro se.

      Shapiro & Swertfeger, L. J. Swertfeger, Jr., J. Mark Daniel, Fowler, Hein & Kreimer, Stanley E. Kreimer, Jr., for appellee.
   Pope, Presiding Judge.

Defendant/appellant Bobby Denson, proceeding pro se, filed a notice of appeal from an order of the trial court granting a writ of possession to plaintiff/appellee Chase Manhattan Mortgage Corporation. In his brief on appeal, Denson appears to challenge certain actions taken by the United States Bankruptcy Court for the Northern District of Georgia, and requests this court to reverse an order issued by that court. Inasmuch as we are without jurisdiction over the federal bankruptcy court, and have no authority to grant the sole relief requested by defendant, this appeal is dismissed.

Appeal dismissed.

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


text:
    A95A0917.
    GILBERT CORPORATION OF DELAWARE, INC. et al. v. YETMAN et al.
    (464 SE2d 822)
   Pope, Presiding Judge.

The Department of Transportation hired defendant contractors to do roadwork on a major highway running through downtown Atlanta. A man died as the result of injuries sustained in a single-car accident at defendants’ work site, and plaintiffs are the decedent’s wife and the administrator of his estate. Defendants appeal from a judgment based on a jury verdict of $1,930,433 for plaintiffs. Although they assert twenty different enumerations of error, only three warrant discussion. Concluding that none of defendants’ arguments has merit, we affirm.

Viewing the evidence in a light to support the verdict, it appears that in the days prior to the accident, defendant contractors had been bringing truck loads of dirt into the area. When it rained the day of the accident, fallen dirt, along with dirt which had eroded along the side of the roadway, turned into mud, slid down into the road, and clogged the drains. As a result, water and mud accumulated on the highway, causing the decedent to hydroplane and lose control of his car. An expert testified that the accident could and should have been prevented by simple erosion control measures such as silt screens and the use of hay bales along the side of the road.

1. Defendants first argue that their directed verdict and j.n.o.v. motions should have been granted because there is no evidence that they had notice of the dangerous condition of the roadway. But defendants’ lack-of-notice argument relies on premises liability cases, in which a defendant’s liability is based on its duty to discover and correct (or warn about) a dangerous condition on property it is responsible for, even though the defendant’s negligence did not actually cause the dangerous condition in the first place. See, e.g., Andrews v. Macon, 191 Ga. App. 745, 746 (2) (382 SE2d 739) (1989). This is not a premises liability case; defendants’ liability here is based not on its negligence in failing to discover and correct a hazardous condition but on its negligence in actually creating the hazardous condition.

Defendants cite Fine v. APAC-Georgia, 192 Ga. App. 895, 897 (2) (386 SE2d 692) (1989) for the proposition that notice of the dangerous condition is required before a roadway contractor can be held responsible for injuries caused by accumulated water in the road. Despite the similarity in factual context between that case and this one, however, Fine is distinguishable because in that case, unlike this one, there was simply no evidence that accumulated water in the roadway was actually caused by any negligence on the part of the contractor.

Defendants also contend that it was up to the DOT to determine where to implement erosion control measures and that since they fully complied with DOT plans and directions regarding erosion control, they cannot be liable. See C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150 (361 SE2d 34) (1987) (where contractor follows employer’s specifications and directions and injury results, contractor is not liable, but where contractor performs work in negligent manner, contractor is liable). But the contract between defendants and the DOT specified that erosion control was defendants’ responsibility, and a DOT witness testified that defendants were expected to exercise their judgment regarding implementation of erosion control measures.

2. In two enumerations of error, defendants challenge the admission of a police officer’s testimony about what the decedent said at the scene of the accident, as well as the officer’s report based on the decedent’s statement. Specifically, defendants contend that this evidence was (or was based upon) inadmissible hearsay. The trial court ruled that the decedent’s statement to the officer came within the res gestae exception to the hearsay rule (see OCGA § 24-3-3), and this ruling will not be disturbed on appeal unless it is clearly erroneous. Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982). Since the officer arrived only ten minutes after the accident, and the decedent was traumatized and paralyzed from his vehicle rollover, the trial court’s determination that the decedent’s statement was sufficiently contemporaneous with the accident and had sufficient indicia of reliability to be considered part of the res gestae was not clearly erroneous. See Jarrett v. State, 265 Ga. 28 (2) (453 SE2d 461) (1995); T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (2) (334 SE2d 910) (1985).

3. Defendants’ remaining enumerations of error are without merit.

Judgment affirmed.

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

On Motion for Reconsideration.

At defendants’ request in their motion for reconsideration, we address their argument that a pre-trial statement made by a police officer who testified at trial was inadmissible hearsay. The police officer stated at trial that no water was pooled at the accident scene when he arrived. Soon after the accident, however, the officer had stated that water was pooled at the site. The officer acknowledged making this earlier statement, but explained that it was inaccurate because he had been confused.

Under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.” The challenged evidence here was the prior inconsistent statement of a witness who testified and was subject to cross-examination. Accordingly, the trial court did not err in admitting it.

Motion for reconsideration denied.

Decided September 21, 1995

Reconsideration denied December 5, 1995

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Ronald R. Coleman, Jr., John C. Bonnie, for appellants.

Michael J. Bowers, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Greer, Klosik & Daugherty, John F. Daugherty, Morris & Sharp, Donald J. Sharp, for appellees.


author: Pope, Presiding Judge. Ruffin, Judge,

text:
    A95A1609.
    EDMONSON v. THE STATE.
    (464 SE2d 839)
   Pope, Presiding Judge.

Billy Wayne Edmonson was convicted of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children. The evidence at trial showed that Edmonson repeatedly sexually assaulted and sodomized the victim, his thirteen-year-old adopted daughter, over a nine-month period. Edmonson enumerates five errors.

1. Relying in part on McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981), Edmonson argues that the judgment was void because all counts should be merged into the single count of cruelty to children.

We look to the actual evidence introduced at trial to determine “ ‘whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6.’ ” Dawson v. State, 203 Ga. App. 146, 147 (2) (416 SE2d 125) (1992). “ ‘If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.’ ” Id. Here, the victim testified that Edmonson forced her to have intercourse or oral sex with him approximately ten or eleven times over a nine-month period. This evidence distinguishes McCranie, which held, solely on its facts, that because an incest count was based on the same act of sexual intercourse as a statutory rape count, the former was included in the latter. The evidence here did not require merger. Kirby v. State, 187 Ga. App. 88, 89 (369 SE2d 274) (1988). Because nothing in the indictment indicates that its counts arise from the same incident, we reject Edmonson’s argument that the indictment was defective for failing to allege separate and distinct acts.

2. Edmonson challenges the sufficiency of the evidence on the rape count, arguing that the state failed to prove the element of force beyond a reasonable doubt.

The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the state, a rational trier of fact could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). On appeal, a criminal defendant no longer enjoys the presumption of innocence. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Rape consists of three elements: (1) carnal knowledge of a female; (2) forcibly; and (3) against her will. OCGA § 16-6-1 (a). A female under 14 years old is legally incapable of consenting to sex. Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977). Where this is the case, “the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.” Id. at 234-235. The victim’s testimony that when she was 13, Edmonson forced his penis inside her vagina against her will is sufficient to support the conviction.

3. Edmonson argues that, because the state failed to prove the victim was related to him by blood or marriage or was his adoptive daughter, the evidence on incest was insufficient.

Although the state did not introduce documentary evidence of the adoption, the unrebutted testimony of the adoption by Edmonson, his wife, and the victim was sufficient to establish the relationship. Johnson v. State, 195 Ga. App. 385, 387 (4) (393 SE2d 712) (1990). The effect of this adoption was to create “the relationship of parent and child ... as if the adopted individual were a child of biological issue. . . .” OCGA § 19-8-19 (a) (2). Because adopted individuals “enjoy every right and privilege of a biological child,” they are statutorily protected from incest. Id.

4. Edmonson’s fourth enumeration of error states that the evidence of aggravated child molestation was insufficient because the state failed to prove an intent to arouse his own sexual desires or those of the victim.

The requisite intent may be inferred from Edmonson’s conduct. Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). Evidence of his participation in repeated sexual acts with the victim and his requirement that his sons enter the house only with his permission provides sufficient evidence of intent.

5. Edmonson argues that the verdict was against the clear weight of the evidence.

This court’s review is limited to the sufficiency, not the weight, of the evidence. Jenkins v. State, 216 Ga. App. 433 (1) (454 SE2d 543) (1995). Having considered the evidence in the light most favorable to the verdict, we find it sufficient to sustain the convictions within the meaning of Jackson v. Virginia, 443 U. S. at 319-320.

Judgment affirmed.

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

Ruffin, Judge,

concurring specially.

I fully concur with the majority opinion. I write separately regarding Division 3 to address potential concerns relative to the distinction between an adopted daughter and a daughter related to her father by blood.

The majority cites language from our adoption statutes requiring that an adopted child be treated “as if the adopted individual were a child of biological issue of that petitioner.” OCGA § 19-8-19 (a) (2). That statute further provides that “[t]he adopted individual shall enjoy every right and privilege of a biological child of that petitioner; [and] shall be deemed a biological child of that petitioner. . . .” (Emphasis supplied.) Id. OCGA § 16-6-22 (1) requires for the offense of incest that a father and daughter be related by “blood or by marriage. . . .” Appellant, Billy Wayne Edmonson, argues that because the incest statute requires a “blood” relationship, adopted children cannot be the victims of incest. In order to embrace this argument, one must distinguish between a biological relationship and a blood relationship. I do not believe such a distinction is possible, and even if it were, the circumstances of this case demand that the victim be treated as Edmonson’s blood daughter under the adoption statute.

The first rule of statutory construction requires courts to “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Our Supreme Court has made it clear that insofar as the adoptive parent is concerned, the legislature’s intent in promulgating OCGA § 19-8-19 (a) (2), was to place an adoptive parent on the same footing, and with the “same rights and obligations as a biological parent.” Ivey v. Ivey, 264 Ga. 435, 436 (1) (445 SE2d 258) (1994). If, under the incest statute, a blood father is required to refrain from sexual intercourse with his daughter, then the same must be true of an adoptive father who stands on the same footing and with the same obligations to his daughter as the blood parent. An adoptive father cannot be permitted to enjoy the benefits of fatherhood, engage in sexual relations with his adoptive daughter, and then claim that he cannot be prosecuted for incest. To entertain such whim is to summon a specie of credulity that is beyond the province of humankind.

As for the adopted child, historically our adoption statutes have been construed so as to benefit the child. “ ‘As the main purpose of adoption statutes is the promotion of the welfare of children, . . . wherever possible without doing violence to the terms of the statute, such a construction should be given adoption laws as will sustain, rather than defeat, this purpose.’ [Cit.]” Macon, Dublin &c. v. Porter, 195 Ga. 40, 41 (22 SE2d 818) (1942). The vicissitudes of life produce many aberrations, and incest is among the most abhorrent. Certainly a construction of the adoption statute that prohibits an adoptive father from having incestuous relations with his adopted daughter is more beneficial to the daughter’s welfare than a construction that allows such loathsome and disgusting relations.

Decided November 17, 1995

Reconsideration denied December 5, 1995

Virgil L. Brown & Associates, Bentley C. Adams III, Larkin M. Lee, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

Moreover, we must be conscious of the “evil” the legislature sought to prevent in enacting the incest statute. In passing the incest statute, the legislature must have intended to do more than prohibit intercourse with a child, for this could have been easily accomplished within the confines of OCGA § 16-6-3, creating the offense of statutory rape. It is the violation of familial relationships and the trust and emotional attachments that stem from those relationships that are, in addition to sexual relations, proscribed by the incest statute. See generally, Raiford v. State, 68 Ga. 672 (2) (1882) (discussing the vulnerability of a child under such a relationship). I do not believe under any circumstances, that our General Assembly intended to exclude adopted children from such protection.

The second rule of statutory construction is to apply to all words their ordinary significance. OCGA § 1-3-1 (b). After much searching, I cannot comprehend a definitive distinction between “biological” relationships and “blood” relationships as those terms are used in the two statutes. Indeed, The American Heritage College Dictionary (3rd ed. 1993) defines “biological” as: “Related by blood: [e.g.,] his biological sister.” I believe under the circumstances of this case, that upon giving the words “biological” and “blood” their ordinary significance, it is clear that the words are synonymous. Courts should not use the outrageous to decide the obvious.

I am authorized to state that Chief Judge Beasley joins in this special concurrence.

       At sentencing, the trial court merged a child molestation count with the statutory rape count.