text:
    A91A0414.
    CONCEPCION v. THE STATE.
    (408 SE2d 130)
   Pope, Judge.

Defendant Robert Kennedy Concepcion appeals his conviction of aggravated assault with intent to rape and false imprisonment. We affirm.

1. Defendant first contends that the unsolicited “Allen” charge the trial court gave in this case was unduly coercive. The transcript shows that at 5:04 p.m., after the jury had deliberated for two hours, the trial court asked the jury whether they had been able to reach a verdict in the case. The foreperson responded that they had not, and the trial court asked the foreperson to inform the court, “without telling me which way you stand, how do you stand numerically?” The foreperson responded eleven to one, and informed the court that the jury wished to deliberate for a while longer before recessing until morning. The trial court, sua sponte, then gave the following charge: “[T]his case has got to be tried by some jury, if it’s not tried by you, it’s got to be tried by another jury at another time and at a considerable expense to the county. And I know of no reason to expect that we would get a better jury than you are. You have been very attentive and paid close attention to all the testimony in the case. And I, of course without saying which way I think you ought to decide, because that’s entirely up to you, and I can’t express any opinion as to how you ought to decide the case, I feel like that there has been evidence that you can make a verdict of either guilty or innocent, one or the other, and I think that you can consider the case and consider it fairly and exchange your views without seeking to become an advocate, that is without anyone seeking to take sides and say I support this side of the case or I support the other side of the case. That’s what I mean by being an advocate or being a lawyer for one or the other. And I just think that this jury can make a verdict, and I believe you will make a verdict, and I have absolute confidence in you in being able to do that.”

Relying on McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984), defendant challenges that portion of the charge in which the trial court instructed the jury that “this case has got to be tried by some jury, if it’s not tried by you, it’s got to be tried by another jury at another time and at a considerable expense to the county” as well as the court’s instruction that “I feel like that there has been evidence that you can make a verdict of either guilty or innocent, one or the other. ...”

As the Supreme Court noted in McMillan, “instructing a jury that failure to agree would cause a mistrial resulting in another trial by another jury is not unduly coercive.” See also Hardy v. State, 242 Ga. 702 (4f) (251 SE2d 289) (1978); Brantley v. State, 190 Ga. App. 642, 644 (3) (379 SE2d 627) (1989). Moreover, although the court in McMillan found the trial court’s statement that “ T feel like there is enough evidence in this case for your to reach a verdict one way or another’ ” to constitute reversible error, in so holding, the Supreme Court noted that the evidence in that case was largely circumstantial and that “the only evidence before the jury was the state’s evidence.” (Emphasis supplied.) Id. at 523. In the case at bar, however, in addition to the testimony of the victim and other witnesses called by the State, the defendant testified and denied the charges against him. Moreover, the defendant’s testimony did not stand in isolation, inasmuch as other witnesses tended to corroborate at least portions of his testimony. Furthermore, immediately preceding the trial court’s remarks concerning the jury’s ability to reach a verdict from the evidence presented, the court clearly instructed the jury that the decision was entirely theirs to make and that the court could not express an opinion as to how they ought to decide the case.

“The decision as to the giving of [an Allen] charge does not depend upon a finding that the jury is deadlocked. Kilpatrick v. State, 255 Ga. 344 (1) (338 SE2d 274) (1986) and cits. ‘The issue in reviewing such charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.’ McMillan v. State, [supra]. [Cit.]” Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987). Under the facts of this case, and considering the charge in its entirety, we find that the language of the charge was not coercive and that it did not place undue pressure on the members of the jury to abandon their convictions. Consequently, this enumeration is without merit. See, e.g., Black v. State, 255 Ga. 668, 671 (2) (341 SE2d 436) (1986).

2. Defendant next contends that the trial court erred by failing to give his requested jury instructions on simple assault and simple battery as lesser included offenses of the offense of aggravated assault with intent to rape.

The victim testified that she was sleeping in her girl friend’s bedroom when her girl friend’s older brother came into the room, got into bed with her, undressed her from the waist down and began to fondle and kiss her “all over.” The victim testified these acts were done without her consent and that she struggled with the defendant to prevent him from touching or undressing her; she also testified he attempted to rape her but that he was unable to achieve penetration because she was struggling. Defendant admitted he undressed, fondled and kissed the victim, but testified that these activities were done with the victim’s full consent, and that it was only when he tried to have intercourse with the victim that she refused. According to the defendant, he respected the victim’s wish not to engage in intercourse; defendant also testified that at no time did he use force against the victim or did he in any way physically restrain her. “[Defendant’s] defense, being based on the victim’s consent, was essentially that no offense occurred.” Tremble v. State, 162 Ga. App. 761, 762 (3) (292 SE2d 442) (1982). “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense. Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547) (1981).” Burley v. State, 172 Ga. App. 34, 35 (3b) (321 SE2d 783) (1984). See also Brooks v. State, 197 Ga. App. 194, 195 (1) (397 SE2d 622) (1990); Tremble, supra.

3. In his third, fourth, fifth, seventh, ninth and twelfth enumerations of error defendant challenges other aspects of the trial court’s charge to the jury. The transcript shows that although defense counsel, upon inquiry by the trial court, objected to the trial court’s failure to charge on “lesser included offenses,” he neither objected to those portions of the charge now complained of on appeal nor reserved his right to later object to the charge. “ Tn order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), ... of reserving the right to object on motion for new trial or on appeal.’ Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).” Hills v. State, 190 Ga. App. 636 (2) (379 SE2d 626) (1989). Because defendant waived the right to challenge the portions of the charge urged as error on appeal, we are without authority to address the enumerations listed above. Jones v. State, 181 Ga. App. 651, 654 (2) (353 SE2d 593) (1987); Vowell v. State, 174 Ga. App. 426 (1) (330 SE2d 167) (1985).

4. Contrary to defendant’s sixth enumeration of error, the trial court did not improperly comment on the evidence in violation of OCGA § 17-8-57 in overruling defendant’s objection to the State’s use of leading questions in its direct examination of the defendant’s brother. “ ‘The statutory inhibition [17-8-57] against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding admissibility of evidence. (Cits.) Furthermore, “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” Johnson v. State, 246 Ga. 126, 128 (269 SE2d 18) (1980).’ Mathis v. State, 171 Ga. App. 620 (1) (320 SE2d 861) (1984).” Lobdell v. State, 256 Ga. 769, 774 (9) (353 SE2d 799) (1987). Moreover, the transcript shows the defendant did not object to the trial court’s statements at trial. For this reason also we find no merit to this enumeration. See, e.g., Jones v. State, 190 Ga. App. 416, 418 (3) (379 SE2d 189) (1989).

5. In his eighth enumeration of error defendant contends the trial court erred in failing to allow testimony, after conducting a hearing outside the presence of the jury, concerning the victim’s past sexual conduct, arguing that such testimony was admissible under OCGA § 24-2-3 (c) (2). “Because there was no evidence concerning sexual behavior by the victim which directly involved participation of defendant, the only basis for permitting evidence of past sexual conduct was that it supported the inference that the accused could have reasonably believed that the conduct of the complaining witness was consensual. [Cits. However, the record contains no evidence that the defendant had] knowledge of the alleged conduct between the victim and [the witness whose testimony defendant sought to introduce at trial. Cit.]” Jones v. State, 190 Ga. App. 416, 416-417 (1) (379 SE2d 189) (1989). Therefore the trial court properly found the testimony concerning alleged past sexual conduct inadmissible. See, e.g., Moore v. State, 195 Ga. App. 814, 816 (395 SE2d 13) (1990); Burley v. State, 190 Ga. App. 75 (2) (378 SE2d 328) (1989).

6. Defendant also challenges the sufficiency of the evidence. “ ‘Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury.’ Lucas v. State, 192 Ga. App. 231 (1) (384 SE2d 438) (1989). Further, on appeal we are required to view the evidence in the light most favorable to the verdict. Id. After a review of the record and the evidence adduced at trial, we conclude that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Seidel v. State, 197 Ga. App. 14, 15 (1) (397 SE2d 480) (1990).

7. Although not raised in the trial court, defendant also contends that his trial counsel was ineffective. The record shows that appellate counsel was appointed by the same order granting defendant an extension to file an out-of-time appeal. In this situation, to wit, where permission to file an out-of-time appeal is granted and appellate counsel is appointed prior to the filing of the notice of appeal, our Supreme Court has recently held that in order to avoid waiver on appeal, the issue of trial counsel’s ineffectiveness should be raised by filing a motion for new trial in the trial court prior to the filing of the notice of the out-of-time appeal. Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991). However, because the procedure of filing a motion for new trial raising trial counsel’s ineffectiveness was not announced until after the out-of-time notice of appeal was filed in the case at bar, “it would be manifestly unfair to deny [defendant] an opportunity to follow the procedure [established by the Supreme Court in Ponder].” Id. at 842. Thus “within 30 days of the date that this court’s remittitur is filed in the trial court, [defendant] shall be entitled to file a motion for new trial limited to the issue of the alleged ineffectiveness of his trial counsel. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was denied effective assistance of trial counsel, he will be entitled to a new trial. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was not denied effective assistance of trial counsel, he will be entitled to file a notice of appeal within 30 days of the entry of such an adverse order.” Ponder v. State, 199 Ga. App. 630 (406 SE2d 143) (1991).

Judgment affirmed. Case remanded with direction.

Birdsong, P. J., and Cooper, J., concur.

Decided June 24, 1991

Reconsideration denied July 9, 1991.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A0537.
    HADSON GAS SYSTEMS, INC. v. ATLANTA AIRLINES TERMINAL CORPORATION.
    (408 SE2d 454)
   Sognier, Chief Judge.

Hadson Gas Systems, Inc. (Hadson) brought suit on account against its customer, Atlanta Airlines Terminal Corporation (AATC), seeking $48,660.50 for natural gas shipped to AATC during the month of November 1988. AATC answered and moved for summary judgment, which was granted by the trial court. Hadson appeals.

The record reveals that appellee, which operates the passenger terminal at the Atlanta airport, contracted with Cheney Energy Corporation, appellant’s predecessor in interest, for the routine periodic purchase of gas required to operate the terminal. The contract provided that gas would be delivered through Atlanta Gas Light Company in the quantities requested by appellee at prices adjusted monthly, and specified that changes in the requested amount required two days’ written notice. Both parties admit that in practice, however, adjustments were typically made by telephone, both by Cheney and by appellant after its subsidiary acquired the contract. In October 1988 appellee requested a curtailment of gas shipments and this request was honored. However, in November appellant resumed delivery of gas in the same amount requested and delivered in October. Appellee could not immediately use the gas shipped, and this resulted in Atlanta Gas Light imposing upon appellee a charge for storage. The parties disagree whether the resumption was requested by appellee, but it is undisputed that if there was a resumption request, it was not in writing.

Upon receipt of the December 7, 1988 invoice from appellant for $65,520 for the November gas shipment, appellee’s counsel sent appellant a letter, dated December 15, 1988, informing appellant that it considered the November shipment unauthorized and felt entitled to deduct the storage charges from the invoice price for the gas. The letter informed appellant that appellee would make no payment on the account until it learned from Atlanta Gas Light the amount of the storage charges. Appellant did not respond to that letter or a subsequent January 17, 1989 letter from Sam Cobbs, appellee’s Director of Finance and Administration, which reported to appellant the mounting storage charges that appellee again stated it would apply against the November invoice. On February 14, 1989, appellee tendered by mail its check for $16,859.50 for the November gas shipment. The check was accompanied by a letter from Cobbs stating that the check was “in payment of [appellant’s] invoice number 4037 less banked gas charges for unauthorized shipment referenced in our December 15, 1988 letter,” and detailing the amounts of the storage penalties it was setting off against the invoice.

Appellant had a lockbox arrangement with Citibank of Delaware, under which checks in payment of accounts were sent directly to a post office box and received by Citibank, which processed the checks on appellant’s behalf immediately unless they bore the notation “paid in full.” Any correspondence attached to the checks was copied and mailed to appellant. Appellee’s check, which was not marked “paid in full,” was sent to the post office box indicated on the invoice and processed in routine fashion by Citibank under the lockbox arrangement. A photocopy of the accompanying letter was forwarded to appellant’s president, Robert Laughman. Upon receipt of the letter, appellant’s vice president and in-house counsel notified Cobbs that appellant disgreed with appellee’s contentions and actions, and would institute legal action if the balance it claimed was owed was not paid. It is uncontroverted that appellant did not return to appellee the proceeds of the $16,859.50 check.

1. Appellant contends the trial court erred by granting summary judgment to appellee because genuine questions of material fact remain whether an accord and satisfaction occurred. We do not agree. “Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101. “In Georgia, the general rule on accord and satisfaction is that ‘if a debtor remits to the creditor a sum of money, less than the amount actually due, upon the condition, either express or implied, that it is in satisfaction of the creditor’s claim, and the latter accepts and retains the money, an accord and satisfaction results, and this is true whether the demand be liquidated or unliquidated, disputed or undisputed.’ [Cit.]” Souchak v. Close, 132 Ga. App. 248, 250 (207 SE2d 708) (1974).

(a) Appellant argues no accord and satisfaction occurred because it never accepted the check. Although appellant argues that Citibank had no authority to compromise or settle claims in its behalf and thus, Citibank’s action in accepting and negotiating the tendered check may not be attributed to appellant, it is clear that even after appellant clearly became aware of Citibank’s actions it retained the proceeds of the check, which was for an amount less than the amount alleged to be due, thus ratifying Citibank’s action. See Georgia Power Co. v. W. H. I. Atlanta, 148 Ga. App. 396, 398 (251 SE2d 319) (1978). Accordingly, we do not agree with appellant that it did not accept the check.

(b) Nor do we agree with appellant that the requirements for an accord and satisfaction were not satisfied because the check was not marked “paid in full” on its face. “It is not necessary that a check or the accompanying correspondence contain magic words such as ‘payment in full,’ ‘in full consideration’ or ‘in final payment’ if there is some other documentary evidence to show what the check is intended to cover, i.e., itemization of deductions from the balance alleged to be due. [Cit.]” Commercial &c. Co. v. Southeastern &c., Inc., 159 Ga. App. 443, 445-446 (11) (283 SE2d 660) (1981). Accord Mobley v. Fulton Roofing Co., 173 Ga. App. 563, 564 (327 SE2d 540) (1985). In the case sub judice, the letter accompanying the check did just that — itemized the deductions taken against the invoice for the storage charges. Accordingly, we find present all conditions necessary for the occurrence of an accord and satisfaction. Id. at 564, 565.

Moreover, appellant’s retention of the proceeds “clearly worked an accord and satisfaction.” Superior Rigging &c. Co. v. Maddox, 260 Ga. 855, 856-857 (401 SE2d 258) (1991). Appellee had twice informed appellant of its intention to deduct the storage charges from the invoice amount before doing so. If appellant still disagreed with the position asserted by appellee or disavowed Citibank’s action, its recourse was to return the amount tendered. “By negotiating the [check] and retaining the proceeds . . . , [appellant] accepted the [check] pursuant to the terms [on which] it was offered. [Cits.]” Id. The defense of accord and satisfaction having been proved, the trial court did not err by granting summary judgment to appellee. See generally id.

2. The trial court’s order does not indicate whether Georgia law or Texas law was applied in reaching the conclusion that an accord and satisfaction existed, thereby entitling appellee to summary judgment. Appellant maintains the trial court erroneously applied Georgia law when the contract provides that Texas law governs. We need not address this contention because our review of applicable Texas law persuades us that its application to these facts does not mandate a different result. See, e.g., Pileco, Inc. v. HCI, Inc., 735 SW2d 561, 562 (Tex. Ct. App. 1987). Accord Hixson v. Cox, 633 SW2d 330, 331-332 (Tex. Ct. App. 1982); Roylex, Inc. v. S & B Engineers, 592 SW2d 59, 60 (Tex. Civ. App. 1979).

Judgment affirmed.

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

Decided June 27, 1991

Reconsideration denied July 9, 1991

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, L. Katharine Adams, for appellant.

Bondurant, Mixson & Elmore, Jeffrey 0. Bramlett, Suzanne F. North, for appellee.


author: Andrews, Judge.

text:
    A91A0550.
    DICKERSON v. THE STATE.
    (408 SE2d 137)
   Andrews, Judge.

Dickerson was charged with four violations of the Georgia Controlled Substances Act and convicted of one count, possession of cocaine, as a result of surveillance and search of his residence.

Viewed in favor of the verdict as to possession of cocaine, the evidence was that Dickerson lived in his childhood home which was owned by his mother who lived elsewhere. About a month prior to his arrest, Scott, a friend and former high school classmate of his, moved into the house and shared the utility expenses with Dickerson. Neither paid rent. Each man had a bedroom and shared the common areas of the home.

Dickerson worked the night shift from 4:00 p.m. until 12:30 a.m. at a local factory. Scott was usually asleep when Dickerson arrived home.

On the evening when the search warrant was executed, Dickerson was at work. Scott and three other individuals were present on the front porch when the officers arrived. Found in the house in common areas were pipes used for smoking illegal substances, razor blades, scales for measuring ounces and grams, and cigarette rolling papers. In Scott’s bedroom, a straw of the type used to ingest cocaine was found. In Dickerson’s room, numerous pictures of marijuana and poppies in various stages of cultivation and processing were on the walls and door of the room. Some of these were apparently pages from High Times magazine, a magazine dealing with drug growing, harvesting, processing, and using drugs and the paraphernalia involved therein. A 1985 issue of the magazine was found in his room. Also found were a baggie containing cocaine located on the window sill covered with a towel, a dried leaf identified as marijuana in Dickerson’s underwear drawer, and more cigarette rolling papers.

Dickerson was arrested after work that evening and taken to the police station where he was interviewed. That interview was recorded by audio tape and played for the jury, with a transcript prepared by the State provided for the jury’s use during the playback and then taken from them.

1. Dickerson contends that the court’s failure to give his requested instruction on equal access was error. He contended at trial and argues here that he was totally unaware of the presence of illegal substances and Scott was the possessor of all found in the house and outside. While Scott did not testify, Dickerson elicited on cross-examination of one of the officers that Scott had pled guilty and, while he said the cocaine and marijuana found in the bucket outside the house were his, that the items inside the house were not.

The court, while not giving the specific equal access charge requested by Dickerson, Suggested Pattern Jury Instructions, Vol. 2, p. 174, did give the pattern charge regarding possession of premises, including the following language: “However, this is a rebuttable inference and may be overcome by evidence in the case that others had access to the premises. Whether or not this inference is drawn from proof that a person is the owner, rents from others, is the lessee of or has control of a house or premises, and whether or not the inference, once it is drawn, has been overcome by proof that others had access to the premises, are questions for the jury alone.” Id. at 175. This charge adequately covered the principle and failure to give the specific charge requested by Dickerson was not error. See Williams v. State, 180 Ga. App. 854 (1) (350 SE2d 837) (1986).

Further, since both defendant and Scott were charged with joint possession of and trafficking in the drugs, it is not clear that the principle is applicable to this case at all, since there was no evidence that the three other persons with Scott on the porch or others had any access to the house. Lockwood v. State, 184 Ga. App. 262, 265 (4) (361 SE2d 195) (1987), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574) (1988); Gee v. State, 130 Ga. App. 634, 635 (1) (204 SE2d 329) (1974).

2. Dickerson was interviewed by the police after his arrest. He does not contest that the statement was voluntarily made, but enumerates that the court erred “in admitting in its entirety the audio tape introduced by the State.”

While hearsay and other objections were made at trial, primarily directed at contents of the questions asked by the officers, the objection made below and argued here is that the content of the questions, such as asking Dickerson if he did not sell drugs out of his home and telling him their surveillance had revealed known drug users going in and out of the house, improperly placed his character in issue.

Decided June 27, 1991

Reconsideration denied July 9, 1991

Franklin & Franklin, Herbert E. Franklin, Jr., James D. Franklin, for appellant.

Ralph Van Pelt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

The objected to statements were not allegations that Dickerson had, in the past, committed other bad acts or been convicted of other unrelated crimes, but dealt with the investigation at hand, including his participation in the events observed by the officers at his residence. Dickerson admitted at the beginning of his statement, before the questions now at issue, that he had previously used marijuana and repeated later in the statement that his use was as recent as “5 or 6 months ago.” He also acknowledged that the partial leaf identified as marijuana found in his drawer was his but said it had been there for some time. “The drug usage was part and parcel of the crime on trial, and was not inadmissible simply because it might have incidentally reflected on [defendant’s] character. [Cits.]” Parks v. State, 254 Ga. 403, 408 (4) (330 SE2d 686) (1985).

Thus, the objected to portions of the statement were not introduced as a reflection on Dickerson’s character, but instead as evidence of his participation in drug usage which was relevant to the additional allegations that he trafficked in illegal drugs. Jones v. State, 257 Ga. 753, 759 (1c) (363 SE2d 529) (1988); Rainwater v. State, 256 Ga. 271 (1) (347 SE2d 586) (1986); Frazier v. State, 195 Ga. App. 599 (2) & (3) (394 SE2d 396) (1990).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       The three counts of which he was acquitted were trafficking in cocaine; possession of more than an ounce of marijuana; and possession of less than an ounce of marijuana.

       Scott was charged by separate indictment and pled guilty prior to Dickerson’s trial. The other individuals were not charged.


author: Banke, Presiding Judge. Cakley, Judge,

text:
    A91A0135.
    HERNANDEZ v. STATE OF GEORGIA.
    (408 SE2d 160)
   Banke, Presiding Judge.

The district attorney’s office filed a “Libel in Rem for Condemnation” against a 1988 Mitsubishi owned by the appellant, along with $229,373 in United States currency which had been seized from inside the vehicle. See generally OCGA § 16-13-49. This appeal is from an order striking the appellant’s defensive pleadings and entering a default judgment in favor of the state based on a finding that the appellant had wilfully failed to respond to discovery.

On March 9, 1990, the state served the appellant with interrogatories and a request for production of documents. On April 11, 1990, the court entered an order granting the appellant an additional 21 days in which to respond to this discovery; however, no such responses were forthcoming during that period, and the state consequently filed a motion to compel. Following a hearing on this motion, the court entered an order directing the appellant to respond to the requested discovery on or before June 29, 1990. Although the appellant did finally file responses on that date, she objected to eight of the 18 interrogatories on the ground that they were “overbroad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence”; and she answered eight of the 11 requests for production (including requests for her most recent federal income tax return and the certificate of title to the automobile) by asserting that the “[djocuments cannot be found or do not exist.” The state subsequently moved to strike the appellant’s defensive pleadings and for the entry of default judgment in its favor on the ground that these responses were “evasive and unresponsive and . . . tantamount to no response at all.” In its order granting this motion, the trial court observed that the appellant had waived its right to object to the requested discovery by failing to do so within the time originally allowed for responding. However, it nevertheless examined her objections, determined that they were lacking in merit, and based on that determination concluded that her responses were “wilfully inadequate” and “evasive.” Held:

“As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal. [Cit.] ‘(T)he drastic sanctions of dismissal and default cannot be invoked under (OCGA § 9-11-37) except in the most flagrant cases — where the failure is wilful, in bad faith, or in conscious disregard of an order.’ [Cit.] However, ‘ “(a) very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts. By (OCGA § 9-11-37 (b) (2) (C)), the courts are specifically granted the discretion to dismiss complaints or render default judgments against disobedient parties. This applies to the disobeying of an order to produce. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act. (Cit.)” [Cit.]’ [Cit.]” Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). See also Smith v. Nat. Bank of Ga., 182 Ga. App. 55, 57 (2) (354 SE2d 678) (1987).

Where the trial court determines that a party has wilfully failed to respond to interrogatories within the time provided by law, it is authorized by OCGA § 9-11-37 (d) (1) to strike his or her pleadings and enter a dismissal or default judgment forthwith, without the necessity of entering an order, compelling such responses. See Mayer v. Interstate Fire Ins. Co., 243 Ga. 436 (254 SE2d 825) (1979). However, where, as in the present case, the court chooses to forego that option in favor of entering such an order, that order cannot be self-executing, i.e., it cannot provide for the automatic imposition of the ultimate sanction of dismissal or default judgment upon the party’s failure to file the responses. Rather, the court must first make a determination, following notice and an opportunity for hearing, that the failure to comply with the order was wilful. See Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747, 749 (331 SE2d 95) (1985). A finding to that effect was, of course, made by the trial court in the present case, and we believe it was amply supported by the record. The appellant has never sought to justify or explain her initial failure to respond to the requested discovery; and as a result of that failure to respond, she had waived her right to interpose objections to the discovery. See Tompkins v. McMickle, 172 Ga. App. 62, 63 (1) (321 SE2d 797) (1984); Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506 (1) (305 SE2d 14) (1983). The trial court nevertheless examined her objections and upon doing so determined that she had interposed them in bad faith for the purpose of wilfully evading her discovery obligations. The court did not abuse its discretion under these circumstances in striking her defensive pleadings and entering default judgment against her.

Such cases as Thornton v. Burson, 151 Ga. App. 456, 460 (260 SE2d 388) (1979), and Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838 (338 SE2d 288) (1985), do not require a contrary result. In Thornton, there was some indication that the court had based its decision to strike the appellant’s defensive pleadings on “the inclusion of self-effectuating language in [its] previous order” compelling responses to the requested discovery. Id., 151 Ga. App. 460. In Brunswick Mfg., the appellants had already served one set of interrogatory responses prior to the issuance of the order compelling such responses, and there was some indication that the court had failed to take this into account in imposing sanctions. Moreover, it was shown in that case that the court may have inadvertently led the appellants to believe that they were authorized to “include for purposes of their ‘amended responses’ any such objections to the interrogatories as had not previously been raised in their original response.” Id. at 841. Furthermore, the record in that case disclosed that in imposing sanctions the trial court had acted “solely pursuant to its understanding that, under the law, it had no discretion to accept the untimely objections as a proper response to interrogatories” and that it had failed to address “the issue of appellants’ wilfulness, as opposed to the technical inadequacy of their amended response.” (Emphasis in original.) Id. at 842. In contrast, the record in the present case leaves no doubt that the trial court based its decision not on a mere technical deficiency in the appellant’s responses to the discovery order but on a determination that she was in wilful violation both of that order and of her discovery obligations generally.

Decided July 9, 1991.

Wright & Hyman, G. Russell Wright, for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed.

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

Cakley, Judge,

dissenting.

I must respectfully dissent. The trial court ordered that appellant respond to appellee’s requests for discovery by June 29, 1990. Appellant did file a response by that date. “All decisions of the Supreme Court and this court approving imposition of the drastic sanction of dismissal or default involve a total failure to respond to an order compelling discovery. . . .” (Emphasis in original.) Thornton v. Burson, 151 Ga. App. 456, 461 (260 SE2d 388) (1979). It is true that appellant’s response contained objections and that the time had already passed within which objections could be raised as viable responses. However, “[ajbsent any showing that the trial court [had] previously specified] . . . that the raising of objections would not be [an] acceptable response to its order [compelling discovery], [I am] constrained to [opine] that the record before us indicates only that the timely [response of June 29, 1990] was served pursuant to [appellant’s] ignorance of the technical inadequacy evidenced by [the] inclusion [therein] of the several untimely objections. OCGA § 9-11-37 (b) (2) is not designed to punish parties when their otherwise timely but partially inadequate response to discovery orders is the result of their counsel’s erroneous misunderstanding of the full mandate thereof. [Cit.]” Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838, 841-842 (1) (338 SE2d 288) (1985). Accordingly, in my opinion, the trial court did abuse its discretion in the instant case and I must, therefore, respectfully dissent to the majority’s affirmance of the order striking appellant’s defensive pleadings and entering a default judgment in favor of appellee.

I am authorized to state that Chief Judge Sognier and Judge Cooper join in this dissent.


author: Andrews, Judge. Sognier, Chief Judge,

text:
    A91A0266.
    RAJAPPA v. THE STATE.
    (408 SE2d 163)
   Andrews, Judge.

Padmini Rajappa was convicted in a bench trial of the misdemeanor offense of giving a false name to a police officer in violation of OCGA § 16-10-25, which she appeals.

1. We first address appellant’s enumeration concerning the general grounds. At trial, police officer Dodson testified that on June 18, 1990, she responded to a 911 call from a man who had mailed a $1,300 check to a DeKalb County address in payment for an airline ticket he ordered from the “Padmini International” travel agency, but had not received the ticket. Officer Dodson went to the address given by the caller, which proved to be an apartment on Buford Highway. When a teenage girl answered the door, Officer Dodson asked to see Padmini Rajappa. Officer Dodson testified that the girl, Shnan Balakri, responded that Rajappa, her mother, was in Florida and would return the next day.

Officer Scott Biumi arrived to assist Officer Dodson, and they asked for, and obtained, Balakri’s consent to enter the apartment to make certain that the mother was not present. The officers observed six or eight adults sitting in the living room and found Rajappa in the apartment bathroom. Officer Dodson testified that in response to her query, Rajappa stated her name was “Mini Vankat.” Dodson testified that she wrote the name in the palm of her hand after Rajappa spelled it for her. Balakri asserted that Rajappa was her aunt.

When first asked for identification, Rajappa told the police that she had just arrived from out of town and had none. Upon continued questioning she acknowledged that her name was Padmini Rajappa, produced a Georgia driver’s license under that name, and admitted that Balakri was her daughter. Officer Biumi testified that he understood Rajappa to say that her name was “Nini Vankat,” although he acknowledged that she could have said “Mini,” and that she appeared nervous and was a little difficult to understand.

At the trial, Rajappa testified that her given name is “Padmini,” and explained that in India women are given only first names and use the first names of either their fathers or their husbands as their last names. She testified that since she is divorced, she uses her father’s first name, “Venkateswara Rajappa,” as a last name, and that she uses “Mini” as a nickname. Rajappa stated that she and her daughter understood the officers to be asking for “the Padmini Travel owner” rather than for “Padmini Rajappa,” and that was why Balakri answered that the owner was in Florida because appellant’s mother, who lives in Florida, owns the business. Rajappa testified that she told the officers that her name was “Padmini Venkateswara,” but that when they had difficulty understanding her she explained that people often called her “Mini,” which is the name she observed Officer Dodson write in her hand. Rajappa stated that she also spelled for the officers the second name of “Venkat,” a shortened version of the name she uses as her last name, and which she testified had the same meaning as the full name of “Venkateswara.” Rajappa stated that she had returned from India the prior day, and that she delayed giving her identification to the officers only because she had to search for her handbag. She also testified that after she learned of the travel customer’s complaint, he was issued a ticket the next day.

2. There was sufficient evidence here for the Court to find Rajappa guilty of giving a false name to a police officer under OCGA § 16-10-25 beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). First, Rajappa’s trial testimony revealed that she was working on a doctorate thesis at Vanderbilt in English, had received an E.D.S. degree from Middle Tennessee State University, and held two undergraduate degrees from Indian colleges. Her educational background indicated that she was familiar with the customs of the United States.

Additionally, Rajappa’s behavior when the police arrived at her home supported the finding of guilt. The investigating officers testified that when they arrived at her house, Rajappa was hiding in the bathroom. When the police found her, she represented herself as her daughter’s aunt and identified herself as “Mini Venkateswara.” When asked to produce identification, Rajappa denied that she had identification, which later proved to be untrue. She later showed the police a driver’s license bearing the name “Padmini Rajappa” and admitted that was her name.

Although Rajappa had an explanation for giving a different name to the police, the explanation was problematic. When the Court asked her to write out the name “Venkateswara,” she misspelled the name and did not notice that she had misspelled it until this fact was brought to her attention. Furthermore, she stated that the police did not ask specifically for her; she claimed that “[t]hey did not say Padmini Rajappa, my name.” The question of whether Rajappa can be guilty of giving a false name when by Indian custom she has both last names has not been specifically addressed in Georgia, although a similar situation arose in Johnson v. State, 149 Ga. App. 273 (253 SE2d 889) (1979). In that case, this court held that there was sufficient evidence to sustain the jury’s verdict of guilty of giving a false name, since the name which the defendant gave the police officers was not the name on his birth certificate, social security card, or driver’s license. The same result is dictated here.

OCGA § 16-10-25 states that a “person who gives a false name or address to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identify . . is guilty of the offense. The statute’s requirement of an “intent to deceive” is the element critical to Rajappa’s guilt here. (See Douglas v. State, 194 Ga. App. 182 (390 SE2d 98) (1990), in which the fact that the defendant admitted that he lied to the officer about his name was sufficient evidence to sustain his conviction.) Regardless of whether Indian custom recognized the name “Venkateswara” as Padmini’s last name, there was ample evidence from which the Court could have concluded that she meant to deceive the police by giving that name.

3. In a separate enumeration of error, Padmini contends that the trial court erred in convicting her since the police officers were acting unlawfully in the discharge of their duties in that they had no warrant for the search and the consent of her minor daughter to search the apartment was invalid.

The law concerning the authority of a third person, who is a minor, to consent to a warrantless search establishes that this determination is made on a case by case basis. Atkins v. State, 173 Ga. App. 9 (325 SE2d 388) (1984), aff’d and remanded, 254 Ga. 641 (331 SE2d 597) (1985). “In cases where the person consenting to the search has not attained the age of eighteen, the courts have measured the minor’s control over the area searched by examining whether the minor lived on the premises, whether the minor had a right of access to the premises and the right to invite others thereto; whether the minor was of an age at which he or she could be expected to exercise at least minimal discretion; and whether officers acted reasonably in believing that the minor had sufficient control over the premises to give a valid consent to search.” Atkins, supra, 173 Ga. App. 9, 11. Indeed, “an analysis of these factors will indicate the minor’s relationship to the premises or effect sought to be inspected, which is the fundamental consideration in any third party consent search.” Atkins, supra, 254 Ga. 642.

In this case, we find that Rajappa’s daughter’s consent was sufficient to authorize the entry into the apartment. Balakri lived on the premises and at age 15, was at an age at which she could be expected to exercise at least minimal discretion. Although her mother denied at trial that Balakri exercised equal control over the premises, the fact that Balakri indicated to the police that her mother was out of town and that she was in charge of the apartment indicated that she exerted the necessary control over the apartment. Balakri’s control over the apartment could also be inferred from the fact that the adults in the apartment, who the police could see from the door, allowed Balakri to conduct the police interview and made no effort to assist her.

The police officers acted reasonably in assuming that Balakri had sufficient control over the premises to give them authority to search. Therefore, the police officer’s presence in Rajappa’s apartment was not unlawful and the trial court did not err in so ruling.

Judgment affirmed.

Carley, Pope, Beasley and Cooper, JJ., concur. Sognier, C. J., McMurray, P. J., Banke, P. J., and Birdsong, P. J., dissent.

Sognier, Chief Judge,

dissenting.

I respectfully dissent.

I agree with appellant that the evidence adduced at trial was not sufficient to establish a violation of OCGA § 16-10-25 beyond a reasonable doubt so as to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The accusation issued in this case charged appellant with violating OCGA § 16-10-25 by giving the officers the name of “Nini Vankat.” I find the State did not establish the essential element of falsely stating the name of “Nini Vankat” because Officer Dodson testified that appellant said her name was “Mini Vankat,” and Officer Biumi testified that appellant could have said either “Nini” or “Mini” Vankat. Accord Preston v. State, 257 Ga. 42, 44 (1) (354 SE2d 135) (1987). Further, given the officers’ admitted difficulty in understanding appellant’s statements; their acknowledged inability to speak or read appellant’s native language; appellant’s unchallenged testimony concerning the difference in customs between “first” and “last” names in the United States and India; and considering the obvious similarity between appellant’s nickname and what she gave as the shortened version of her last name (which she testified had the same meaning in her language as the full name) and the name Officer Dodson testified appellant gave them, I cannot conclude that any rational trier of fact could have found the essential element of intent to deceive beyond a reasonable doubt. Jackson, supra at 319; see generally Teston v. State, 194 Ga. App. 324 (390 SE2d 437) (1990). I disagree with the majority’s reliance on Douglas v. State, 194 Ga. App. 182 (390 SE2d 98) (1990) on the issue of intent to deceive because in that case the defendant subsequently admitted giving a false name to the arresting officers, whereas here appellant insisted the name she gave was correct and gave a logical explanation to support her claim. Johnson v. State, 149 Ga. App. 273 (253 SE2d 889) (1979) is similarly distinguishable because unlike appellant in the case sub judice, the defendant in Johnson gave police a name that was not remotely similar to the name on his identification, and he made no explanation for the discrepancy.

For these reasons, I would reverse the judgment of the trial court.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Banke, and Presiding Judge Birdsong join in this dissent.

Decided July 9, 1991.

Robert H. McDonnell, for appellant.

Ralph T. Bowden, Jr., Solicitor, Gary D. Bergman, Cliff Howard, Assistant Solicitors, for appellee.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0340.
    FORD v. THE STATE.
    (408 SE2d 166)
   Carley, Judge.

Appellant was indicted for two counts of selling cocaine and one count of selling marijuana. The case was called for jury trial and, during voir dire, his counsel attempted to ask the following question: “[D]o any of you have a relative or close friend who’s ever had a drug or alcohol problem?” The trial court, sua sponte, ruled that this question could not be asked. Appellant’s counsel did not except to this ruling but thanked the trial court and moved on. The jury returned verdicts of guilt and appellant appeals from the judgments of conviction and sentences entered thereon by the trial court.

The sole enumeration of error relates to the trial court’s refusal to allow the above-quoted question to be asked on voir dire. In so refusing, the trial court erred. “Although on voir dire, the trial judge has discretion to determine which questions are impermissible, [cit.], the failure of the trial court in the instant case to permit appellant’s counsel to ask the above stated [question] was an abuse of its discretion.” Craig v. State, 165 Ga. App. 156 (1) (299 SE2d 745) (1983). Accordingly, the disposition of the instant appeal is ultimately dependent upon whether the right to assert the trial court’s sua sponte ruling as error was preserved for appellate review.

If the State had objected to the question and the trial court had sustained that objection, appellant would not have been required to make any subsequent exception to the trial court’s ruling so as to preserve the right to enumerate that ruling as error on appeal. “There is, of course, no longer any requirement in Georgia that counsel except to an adverse ruling by the trial court in order to preserve the issue for appeal. [Cits.]” Stone v. State, 177 Ga. App. 750, 752 (4) (341 SE2d 280) (1986). See also Richards v. State, 131 Ga. App. 362, 364 (4) (206 SE2d 93) (1974). In the instant case, the adverse ruling was not prompted by the State’s objection. The trial court, in effect, interposed and sustained its own objection to the question. However, there is no reason in law or logic for holding that a subsequent exception would not be necessary when the adverse ruling was prompted by the State’s objection, but would be necessary when the adverse ruling was made by the trial court sua sponte. In either event, the issue has clearly been raised below and a ruling thereon has clearly been rendered.

It is true that a ruling by the trial court must be invoked and that an appellant may not, therefore, enumerate as error the trial court’s failure to make a sua sponte ruling. See generally Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986) (holding that it is not error to fail to grant a mistrial where there is acquiescence in the trial court’s giving of curative instructions and the motion for mistrial is not thereafter renewed). However, the asserted error in the instant case is not in the failure of the trial court to have rendered a sua sponte ruling in favor of appellant, but in the trial court’s actual rendering of a sua sponte ruling against appellant. Compare Sanders v. State, supra. Where, as here, the trial court does make such a sua sponte ruling, an appellant is not required to attempt to have the trial court reconsider its adverse ruling as a condition precedent to enumerating that sua sponte ruling as error on appeal. Likewise, the fact that appellant’s counsel thanked the trial court for its erroneous sua sponte ruling was “nothing more nor less than a polite statement by counsel that he acknowledge [d] the court’s ruling and [its] authority as judge to make the ruling, but [did not mean that he agreefdJ to the correctness of the ruling. . . . [This did not amount] to acquiescence.” (Emphasis in original.) Richards v. State, supra at 365 (4).

When it undertakes to rule sua sponte, a trial court is held to no less a standard than when it undertakes to rule on counsel’s objections. The trial court’s sua sponte ruling in the instant case was erroneous and mandates the grant of a new trial.

Judgments reversed.

Sognier, C. J., Birdsong, P. J., Pope and Andrews, JJ., concur. McMurray, P. J., Banke, P. J., Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

It is inappropriate on appeal to reach the merits of appellant’s claim of a violation of OCGA § 15-12-133. The record shows that following the question, the court sua sponte stated that the question was improper and would not be allowed. Defense counsel lodged no objection whatsoever. In fact, counsel thanked the court and moved on to another question. Defense counsel did not make any protest about the disallowance at any time during the remainder of voir dire, to put the court on notice that defendant disputed the ruling of impropriety. He passively indicated acceptance and made no issue of the court’s direction.

“To raise an issue as to error in the conducting of the voir dire, objection must be made in the trial court to preserve the issue for appeal. [Cit.]” State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980). Moreover, “ ‘(a) litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an (alleged) erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. (Cit.)’ [Cit.]” Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).

Decided July 9, 1991.

Jon Gary Branan, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

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


author: Pope, Judge.

text:
    A91A0399.
    BANKS v. THE STATE.
    (408 SE2d 484)
   Pope, Judge.

Defendant was convicted of trafficking in cocaine and appeals.

1. Defendant was a passenger in the automobile in which the cocaine was discovered. Defendant argues the trial court erred in denying his motion for directed verdict because the presumption that contraband found in an automobile is in the possession of the owner of the vehicle was not rebutted. Defendant’s co-defendant, the owner of the automobile, was found guilty. The presumption that contraband is in the possession of the owner or driver of an automobile in no way bars defendant from also being found guilty of possession because “[i]f two or more persons [share] actual or constructive possession of a thing, possession is joint.” Thomas v. State, 153 Ga. App. 686, 689 (266 SE2d 335) (1980).

2. Defendant also argues the evidence, viewed in the light most favorable to the verdict, was insufficient to support his conviction. The evidence showed that defendant was the front-seat passenger in a vehicle that was stopped at a Georgia Welcome Center northbound on Interstate Highway 75 just inside Georgia. Officers arrived to investigate a complaint that three men who matched the description of defendant and his two co-defendants were rowdy and causing a disturbance. When the investigating officers questioned the three about who was the driver of their car, all three, including defendant, responded by telling the officer that someone named “Uncle Bill” was the driver. No one answering to that name was located at the Welcome Center and, at trial, all three admitted they had fabricated the story about the driver. Officers were suspicious, called a sniff dog and, on the basis of the dog’s behavior, obtained a search warrant. Although one of the officers at the scene of the search testified he believed the cocaine was found under the driver’s seat, the officer who actually discovered the brown paper bag which contained the cocaine testified it was found in the floor of the car on the front passenger’s side.

Decided July 9, 1991.

L. Howard Freeman, Jr., for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Defendant joined the driver in Columbus to make a quick round-trip to Starke and Putnam Hall, Florida, presumably to visit the owner’s Florida relatives. The driver, defendant and another passenger shared expenses on the way back to Georgia in that defendant bought all three a take-out dinner while the other two were across the street buying brandy for the three to drink. Given the quick trip to a known drug supply area and defendant’s participation in the false report about who was driving the car the evidence was sufficient to convince a rational trier of fact that defendant was a party to the enterprise of trafficking in cocaine. See OCGA § 16-2-20. See Arena v. State, 194 Ga. App. 883 (392 SE2d 264) (1990) (in which this court affirmed the conviction of the passenger in an automobile, travelling north on 1-95 in South Georgia in which contraband was found, who gave a story inconsistent with that of the driver concerning the pair’s destination).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0480.
    ELBERT COUNTY BOARD OF COMMISSIONERS v. BURNETT.
    (408 SE2d 168)
   Sognier, Chief Judge.

James Burnett, in the course of his employment as an investigator with the Elbert County Sheriff’s Department, responded to a call involving a violent confrontation between two people and, while trying to break up the fight, was kicked repeatedly in and around his head by a man under the influence of PCP. Burnett was treated for this work-related injury and missed one day of work. He resigned from his job approximately three months later and began to work for his father. He subsequently sought workers’ compensation benefits from Elbert County claiming that he had suffered organic brain damage causing cognitive and psychological problems as a result of the work-related injury. The administrative law judge denied his claim on the basis that Burnett’s problems predated his work-related injury and Burnett failed to carry his burden of proving with his doctors’ depositions that his problems were caused by the work-related injury. The State Board of Workers’ Compensation remanded the claim for receipt of additional evidence, then upon consideration of the entire record made the findings and conclusions of the ALJ its own. The Superior Court of Elbert County reversed, and we granted the employer’s application for discretionary review.

Appellant contends the superior court erred by reversing the Board’s award because there was some evidence to support it. The record reveals that in addition to his own testimony detailing the degeneration in his mental functions in the months following the work-related injury, appellee presented the depositions of a licensed psychologist, a psychiatrist, and a neurologist. Dr. Paul J. Cardozo, Ed.D., the psychologist, testified that he interviewed appellee several times and administered numerous psychological tests in order to arrive at his diagnosis that appellee was suffering from organic mood disorder which in his professional opinion was likely caused by the work-related injury. He testified that while physical tests such as MRIs and CAT scans could indicate “hard medical evidence” of brain damage, psychological testing also was used to reveal the effects of organic brain impairment, and that all of the tests administered to appellee indicated that appellee had incurred such damage.

Dr. William W. Orr, Jr., M.D., the psychiatrist, testified that he regularly treats appellee and that based upon his extensive contact with and testing of appellee, his diagnosis of appellee was organic mood disorder caused by the work-related injury. He testified that in his opinion while there had been some underlying residual problems stemming from appellee’s pre-injury depression over his divorce, appellee had resolved those matters and that his pre-injury depression was unrelated to his current problems.

Dr. Scott D. Cooper, M.D., the neurologist, testified that he conducted a neurological evaluation of appellee, seeing him four times over a four month period. He opined that he could conclude with reasonable medical certainty that appellee’s current brain dysfunction and medical problems were related to his work-related injury and diagnosed the problem as post concussive syndrome. He related appellee’s problems to organic brain damage which he stated he detected through neuropsychological testing conducted by Dr. Jo Ann Power, a neuropsychologist, and through physical testing by means of an EEG (which showed abnormal slowing of brain waves indicative of diffuse brain dysfunction) and an MRI scan of appellee’s cervical spine (which showed an abnormality consistent with trauma). He noted that the neuropsychological testing brought out certain specific problems, but that even “factoring] out” that testing, appellee “has some definite organic problems.” Regarding appellee’s pre-injury depression, Dr. Cooper testified that “the results of the neuro-psychological testing and the EEG are compatible still with the post concussive syndrome rather than depressive syndrome,” specifically rejecting the suggestion that depression could cause the type of results his evaluation had uncovered.

Appellant adduced the deposition testimony of Dr. Vivian S. Auerbach, Ph.D., a clinical neuropsychologist. She testified that she reviewed the records of appellee, including those compiled by the above-mentioned doctors, and that based on that review as well as on tests an assistant administered to appellee and her interview with him lasting at most two hours, in her opinion appellee’s problems were not caused by the work-related injury and were not consistent with organic brain damage, but instead were the result of a recurring major depression unrelated to appellee’s injury. She stated she disagreed with all of appellee’s doctors, including Dr. Cooper. Although she acknowledged she had no medical training, Dr. Auerbach stated that “the crux of the diagnostic issue boils down to the interpretation of the neuropsychological test data,” correctly noted that Dr. Cooper in his deposition stressed the importance of the neuropsychological test results conducted by Dr. Power in his diagnosis, and opined that those results were incorrectly interpreted by Dr. Cooper and Dr. Power.

“[I]t [is] within the province of the [Board] to pass upon th[o]se issues of fact which arose by reason of the conflicts in the testimony of the doctor who testified for the defendant and the doctor who testified for the claimant.” Chevrolet-Atlanta &c. Corp. v. Nash, 81 Ga. App. 671, 682 (b) (59 SE2d 681) (1950). Although the superior court reversed the Board’s award on the basis that Dr. Auerbach was not competent to controvert the testimony of Dr. Cooper, this is a workers’ compensation case decided on the “any evidence” rule, not a medical malpractice case in which the expertise of practitioners from different schools of medicine is examined to determine whether one possesses the knowledge, i.e., is competent, to controvert the other’s opinion. See in that regard Sandford v. Howard, 161 Ga. App. 495 (288 SE2d 739) (1982); Bethea v. Smith, 176 Ga. App. 467 (336 SE2d 295) (1985). Compare Fulton-DeKalb Hosp. Auth. v. Hadley, 174 Ga. App. 503, 504-505 (1) (330 SE2d 432) (1985).

In order for Dr. Auerbach’s testimony to constitute the competent evidence supporting the Board’s award, Dr. Auerbach did not have to “controvert” Dr. Cooper’s testimony to establish the validity of her own contrary opinion. She merely had to be competent to make that opinion. As a licensed psychologist, Dr. Auerbach was clearly competent to testify that in her professional opinion her testing and interviews with appellee showed that his cognitive and psychological problems were not the result of his work-related injury. Notwithstanding the fact that other doctors in different schools of practice presented contrary evidence, the Board was entitled to resolve the conflict in the experts’ testimony by believing Dr. Auerbach rather than appellee’s experts. “ ‘While direct and positive testimony cannot arbitrarily be rejected by a jury or other trier of facts, this rule does not apply to the opinion evidence of physicians or other experts. [Cit.] . . . “Our court has held that the question as to the weight and credit to be given to the opinion testimony of a physician witness in a workers’] compensation case is a matter to be determined by the . . . Board. [Cit.]” United States Fidelity &c. Co. v. Doyle, 96 Ga. App. 745, 747-748 (1) (101 SE2d 600) (1957). “ ‘While competent expert testimony is entitled to great weight, it is not so authoritative that [the Board] is bound to be governed by it, since it is advisory merely and intended to assist [it] in coming to a correct conclusion. . . .’ [Cit.]” B. F. Goodrich Co. v. Arnold, 88 Ga. App. 64-65 (2), (3) (76 SE2d 20) (1953). Given that this court has held that a workers’ compensation award may be based on the claimant’s testimony alone even though “a whole college of physicians” testifies to the contrary, id. at 70, the Board here was certainly authorized to base its award on appellant’s expert’s testimony rather than on the testimony of appellee’s experts.

Decided July 9, 1991.

Savell & Williams, Tash J. Van Dora, Michael A. Ryder, for appellant.

Daniel J. Parker, for appellee.

In the absence of fraud, the findings of the Board are conclusive and shall not be set aside unless it is found that there is not sufficient competent evidence in the record to warrant the Board’s decision. OCGA § 34-9-105 (c) (4); McElreath v. McElreath, 155 Ga. App. 826, 827 (1) (273 SE2d 205) (1980). The Board’s findings of fact “are not to be set aside because the reviewing court disagrees with the conclusions drawn therefrom. When using the ‘any evidence’ criteria, the facts are to be construed in a light most favorable to the party prevailing before the board.” St. Paul Ins. Co. v. Henley, 141 Ga. App. 581, 582 (234 SE2d 159) (1977). Applying that standard, we find that because there was competent evidence to support the Board’s award, the superior court erred by reversing the award. See generally Little v. Cox Enterprises, 195 Ga. App. 211, 212-213 (393 SE2d 57) (1990).

Judgment reversed.

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


author: Cooper, Judge.

text:
    A91A0602.
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. LUCAS et al.
    (408 SE2d 171)
   Cooper, Judge.

Plaintiffs, David and Denise Lucas, filed a lawsuit against R’Keitha Kelsey (“Kelsey”), alleging that their two-year-old daughter suffered injuries as a result of ingesting a toxic substance while in the care of Kelsey. Kelsey, who at the time of the alleged occurrence was at her home taking care of the child, filed a third-party complaint against appellant, United Services Automobile Association (“USAA”), her homeowner’s insurer. USAA denied coverage and filed a motion for summary judgment on the grounds that under the policy, liability was excluded for bodily injury arising out of a business pursuit of the insured. Plaintiffs and Kelsey, appellees herein, opposed USAA’s motion. The trial court, relying on our decision in Nationwide &c. Ins. Co. v. Collins, 136 Ga. App. 671 (222 SE2d 828) (1975), denied USAA’s motion and found that Kelsey’s babysitting did not fall within the “business pursuits” exception of her homeowner’s policy and that USAA had a duty to defend Kelsey in the lawsuit brought by the Lucases. We granted USAA’s interlocutory appeal to determine whether the trial court correctly applied the facts of this case to the exclusion in the policy.

1. USAA contends in its first and fourth enumerations of error that the trial court erred in denying its motion for summary judgment based on the “business pursuits” exclusion in the policy. The record reflects that Kelsey regularly took care of children in her home; that Kelsey had been a licensed day care operator since 1984; that at the time of the alleged occurrence, Kelsey was taking care of her daughter’s four children and the Lucases’ three children in her home; that Kelsey was paid $25 per week by her daughter for her children and $75 per week by the Lucases for their children; that Kelsey reported to the IRS all income received from babysitting and deducted all expenses associated therewith; and that during 1986 she had a net income of $400 from babysitting. Kelsey’s homeowner’s policy contained the following exclusion: “Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to bodily injury . . . (b.) (1) arising out of or in connection with a business engaged in by an insured. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.” The only definition of business in the policy provides that “ ‘business’ includes trade, profession or occupation.”

In Nationwide, the facts involved a child who burned her hand on a floor heater while she was being cared for at the home of her babysitter. The babysitter was paid $5 per day for taking care of the injured child and her brother, had not offered her services as a babysitter or nursery to any other children, and was not licensed as a day care provider. We considered the effect of a homeowner’s policy with an exclusion for business pursuits, but which provided for an exception to the exclusion for “such acts as are ordinarily incident to non-business pursuits.” We stated in that case: “We are unwilling to hold that babysitting for pinmoney is a commercial business. Assuming arguendo, however, that by keeping and feeding her neighbor’s two children for $5 per day Mrs. Collins was in fact engaged in a business within the exclusionary clause of the homeowner’s policy, such exclusion applies to ‘activities in connection with a business except such acts as are ordinarily incident to non-business pursuits.’ Certainly the maintenance of heat for her home for herself and her own children, as was done here by a floor furnace, was an activity ordinarily incident to a non-business pursuit.” (Emphasis in original; indention omitted.) Nationwide, supra at 674. Kelsey’s homeowner policy does not contain an exception for “acts as are ordinarily incident to non-business pursuits”; therefore, the holding in Nationwide is not applicable to the extent that it was based on different policy provisions. We must determine whether under the facts of this case, the “business pursuits” exclusion precludes coverage.

Appellant cites in its brief several recent decisions from other jurisdictions which have found as a matter of law that child care provided for profit on a regular basis was a business. See, e.g., Stanley v. American Fire &c. Co., 361 S2d 1030 (1978); Haley v. Allstate Ins. Co., 529 A2d 394 (1987); Moncivais v. Farm Bureau Mut. Ins. Co., 430 NW2d 438 (1988); United States Fidelity &c. Co. v. Heltsley, 733 FSupp. 1418 (1990). However, other jurisdictions have recognized as Georgia does that babysitting for pinmoney is not a business particularly when one is not always compensated and does not actively solicit business. See State Farm &c. Co. v. Moore, 430 NE2d 641 (1981); Crane v. State Farm &c. Co., 485 P2d 1129 (1971). We acknowledge the growing incidence of child care which is provided in the homes of the caretaker, and that in some situations caretaking activities can be considered “business pursuits” within the meaning of the exclusion. However, “ ‘ “ [exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” (Cit.) In brief, although the cardinal rule of construction is to ascertain the intention of the parties, if the language is susceptible to two different constructions the one most favorable to the insured will be adopted. (Cit.)’ [Cit.]” Zurich American Ins. Co. v. Bruce, 193 Ga. App. 804, 807 (2) (388 SE2d 923) (1989). The policy at issue has no definition of business other than to state that it includes “trade, profession, or occupation.” We are unable to conclude that the facts of this case come within the exclusion in Kelsey’s policy. While there is some evidence that Kelsey treated her services as a business by reporting income and deducting expenses and had been licensed as a day care provider, there is also evidence that she cared for no more than seven children during calendar year 1988, four of whom were her own grandchildren, and that she offered her services as both a favor and a convenience to parents who lived in the neighborhood. “On motions for summary judgment, all questions as to issues of fact are to be resolved in favor of the respondent, and the benefit of every doubt is indulged in his favor. [Cit.]” Horton v. United States &c. Co., 194 Ga. App. 881 (392 SE2d 25) (1990). USAA failed to show that the facts of the case came within the exclusion contained in its policy, and the trial court did not err in denying its motion.

Decided July 9, 1991.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Robert A. Burnett, for appellant.

Fleming, Blanchard & Bonner, G. Larry Bonner, Richard A. Ingram, Jr., William M. Wheeler, for appellees.

2. In its second and third enumerations of error, USAA contends that the trial court erred in finding that USAA had a duty to defend Kelsey in the lawsuit brought by the Lucases. The policy provided: “If a . . . suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will. . . provide a defense at our expense . . . even if the suit is groundless, false, or fraudulent.” Because of our holding in Division 1, we find no error in the trial court’s determination that USAA had a duty to defend Kelsey.

Judgment affirmed.

Pope, J., concurs. Birdsong, P. J., concurs in judgment only.


text:
    A91A0617.
    STEIN ENTERPRISES et al. v. CHATHAM COUNTY.
    (408 SE2d 173)
   Cooper, Judge.

Appellant, Sommers Company, appeals the denial of its motion for new trial in a condemnation action in which the jury awarded the condemnees, appellant as lessee and Stein Enterprises as owner, $30,350 for the partial taking of a convenience store and gasoline station.

1. Appellant first claims that the trial court erred in allowing appellee’s counsel on cross-examination to ask appellant’s chief operating officer whether it was true that the officer founded a group of businesses that earned $85,000,000 in annual revenues. Appellant contends that this statement was so prejudicial that the trial court was obligated, even without objection by appellant, to have given curative instructions. We disagree. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had. (Cit.)” (Punctuation omitted.) Georgia Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572 (2) (396 SE2d 562) (1990). See also Wright v. Wright, 222 Ga. 777 (4) (152 SE2d 363) (1966). Inasmuch as appellant failed to make a timely objection to the question or request curative instructions, this enumeration of error is without merit.

2. Appellant in its second enumeration of error argues that the trial court erred in failing to excuse for cause a juror who stated that he had formerly worked with one of the real estate appraisers testifying on behalf of appellee and that he and appellee’s witness presently owned some property jointly. During voir dire, the prospective juror first stated that he did not know if he could be “totally independent.” The trial court then questioned the juror as to his ability to set aside his association and make a decision based on the evidence heard in the courtroom without being affected by his knowledge and business association with appellee’s witness. The juror responded that based upon his appraisal experience, he could probably be fairly analytical about it. The trial judge decided not to excuse the juror because the juror had indicated that he could be objective based upon his experience as an appraiser. “The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. [Cit.]” Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633 (1) (b) (224 SE2d 739) (1976). Inasmuch as the juror indicated that he could be fairly analytical about the evidence, we find no manifest abuse of discretion in this instance. See Decubas v. Norfolk Southern Corp., 197 Ga. App. 768 (399 SE2d 512) (1990).

3. In its third enumeration of error, appellant contends that the trial court erred in sustaining the objection of appellee’s attorney that appellant’s attorney was leading its witness on direct examination when questioning him as to the uniqueness of the location of the condemned property. “The trial court is permitted to exercise its discretion in granting the right to the party calling the witness to ask leading questions, and reversible error occurs only if that discretion has been abused to the extent that the appealing party has been prejudiced and injured. [Cits.]” Blue Cross of Ga./Columbus v. Whatley, 180 Ga. App. 93 (7) (348 SE2d 459) (1986). Our review of the record indicates that the trial court did not abuse its discretion as appellant’s attorney did, in fact, ask its own witness a leading question. Moreover, after the objection was sustained and appellant’s attorney rephrased his question, the witness was able to testify in great detail as to his opinion about the uniqueness of the location of the property. Accordingly, this enumeration of error is without merit.

Decided July 9, 1991.

Clark & Clark, Fred S. Clark, for appellants.

Emily E. Garrard, Edward T. Brennan, for appellee.

4. In its fourth enumeration of error, appellant argues that the trial court improperly charged the jury that in determining the measure of damages the actual value of a loss in a condemnation proceeding is ordinarily the same thing as market value. Appellant claims that because the evidence adduced at trial showed the unique nature of the site, its profitability, and the projected business loss to be suffered as a result of the condemnation, the correct measure of damages should have been the business losses which result in a decrease in the value of the business. However, appellee also presented evidence at trial that appellant would suffer no business loss as a result of the partial taking. “ ‘ “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Cit.)’ ” Kelley v. Foster, 192 Ga. App. 95 (3) (383 SE2d 646) (1989). Hence, this enumeration of error is without merit.

5. In enumerations five and six, appellant argues that the trial court erred in failing to give two jury charges on the valuation of unique property in condemnation proceedings. Inasmuch as the trial court’s charges adequately covered substantially the same ground as those requested by appellant, it was not error for the trial court to refuse to charge the jury in the specific language requested by appellant. Fong v. Department of Transp., 194 Ga. App. 702 (2) (391 SE2d 704) (1990). Therefore, appellant’s enumerations of error are without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0719.
    STROUD v. THE STATE.
    (408 SE2d 175)
   Cooper, Judge.

Appellant was convicted by a jury of kidnapping and appeals the denial of her motion for new trial.

Construed in a light most favorable to the verdict, the evidence adduced at trial shows that appellant, Teresa Ann Stroud, and Evelyn Valdez-Hardin, appellant’s aunt and co-defendant, occasionally worked as housekeepers for Steven and Gary Reynolds (the “Reynoldses”). When appellant and co-defendant discovered that the Reynoldses were eager to adopt a child, they told the Reynoldses about a drug addict named “Priscilla,” who they claimed would be willing to give up her six-week-old boy, Christopher, for adoption. Throughout the month of December, appellant and co-defendant stayed in touch with the Reynoldses and gave progress reports about their alleged efforts to locate Priscilla and her baby. On the advice of an attorney, the Reynoldses obtained guardianship papers which were given to appellant so that Priscilla could sign them at the time she gave her baby to appellant. The Reynoldses also requested that Priscilla provide a copy of the baby’s birth certificate so that the Reynoldses could take the baby to a doctor.

Elizabeth Faith Walker (“Faith”) was the 15-year-old fianceé of appellant’s brother and the mother of Christopher, a baby boy who was approximately eight weeks old at the time the appellant and co-defendant began discussing adoption with the Reynoldses. During the month of December, appellant attempted to have Faith locate copies of Christopher’s birth certificate allegedly so that she could help Faith apply for A. F. D. C. Appellant and co-defendant also tried to convince Faith to have another baby because they knew a couple who would be willing to pay $10,000 for a child. Toward the end of December, appellant invited Faith to a party at co-defendant’s mobile home to be held on the evening of December 29, 1989. She also contacted the Reynoldses and told them that Priscilla had finally been located, had agreed to give up her baby for adoption and would do so on the evening of the 29th.

On the Friday evening of the party, Faith surprised appellant by arriving at the mobile home without the baby, having left him at home with a babysitter. Appellant asked Faith whether “they” could get the child from the babysitter later in the evening. Faith, believing that “they” included Faith, her fiance, appellant and co-defendant, responded affirmatively. Shortly thereafter, appellant and co-defendant left the party, telling everyone they were going to the liquor store, and drove to Faith’s home, where they convinced the babysitter that Faith had sent them to pick up the baby. Appellant and the co-defendant took the baby from the babysitter, drove to the nearby Waffle House and telephoned the Reynoldses with the news that they had just picked up the baby from the mother. When the Reynoldses arrived at the restaurant, they asked appellant for the signed guardianship papers and birth certificate, and appellant told them that she had accidentally left the documents at home. After the Reynoldses left the restaurant with the baby, appellant telephoned the party and asked her brother to come help her take co-defendant to the hospital, who was complaining of either chest pains or an ulcer. No mention was made during the telephone conversation that appellant and co-defendant had picked up the baby from the babysitter, nor was any mention made later on in the evening when appellant and co-defendant returned to the mobile home from the hospital.

The next morning, Faith repeatedly asked appellant and co-defendant to drive her home to pick up her baby, but appellant found excuses not to leave the mobile home. Finally, when Faith could be put off no longer, appellant told Faith that she had picked up the baby the previous evening and brought the baby to her friends, “Dan and Brenda,” for safekeeping when she had taken co-defendant to the hospital. Faith asked to be taken to “Dan and Brenda” but was told that the couple had gone to Alabama for the weekend. During the period Faith was trying to find out the whereabouts of her child, appellant and co-defendant were repeatedly calling the Reynoldses and asking them for money to pay for the baby’s medical bills. Eventually, appellant convinced Faith to go on a drive with appellant, co-defendant and others to South Carolina and then back to the mobile home. When they returned early Sunday morning, Faith enlisted the assistance of appellant’s mother and brother in locating her child, and when it became apparent that “Dan and Brenda” did not have the child, appellant’s mother and brother intervened and threatened to call the police if appellant did not bring Faith to her baby. Appellant telephoned the Reynoldses, told them that she was in big trouble and that she was coming to pick up the baby so that she could return him to his mother. The Reynoldses, who had already renamed the baby and acquired baby supplies, clothes and a cradle, finally became suspicious; and, when appellant and Faith arrived at the Reynolds home on Monday afternoon to pick up Christopher, the police were called.

1. Relying on Watson v. State, 235 Ga. 461 (5) (219 SE2d 763) (1975), appellant argues that the trial court erred in refusing to charge the jury on interference with custody because interference with custody is a lesser included offense of kidnapping, the essential difference between the crimes lying in the degree of culpability required to establish the commission of each crime. However, appellant’s reliance on Watson is misplaced because Watson was decided under subsection (b) of the former kidnapping statute, OCGA § 16-5-40 (b), which was repealed in its entirety by Ga. L. 1982, p. 970, § 1. Thus, we need to determine whether interference with custody is a lesser included offense of the current kidnapping statute.

OCGA § 16-5-40 provides: “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will” (Emphasis supplied.) OCGA § 16-5-45 (b) (1) provides: “A person commits the offense of interference with custody when without lawful authority to do so the person: (A) Knowingly or recklessly takes or entices any child . . . away from the individual who has lawful custody of said child. . . .” (Emphasis supplied.) Hence, the difference between the offenses does not lie in the degree of culpability required to establish the commission of each crime as alleged by appellant, rather the offenses differ in the classification of the victim which each statute seeks to protect — the person abducted and held against his will in the case of kidnapping, and the lawful custodian whose custody has been interfered with in the case of interference with custody. OCGA § 16-1-6. See also Shuler v. State, 195 Ga. App. 849, 850 (395 SE2d 26) (1990); Moore v. State, 140 Ga. App. 824 (2) (232 SE2d 264) (1976). In that the indictment did not allege that the mother of the child was the victim of any crime, interference with custody is not a lesser included offense of kidnapping, as a matter of law or fact, in this instance. Accordingly, appellant’s first enumeration is without merit.

2. Appellant argues that the trial court should have granted her a new trial because of purported juror misconduct during the trial. In support of her motion, appellant attached the affidavit of her sister stating that she heard two jurors in the stairwell discussing the case, apparently outside the presence of the other ten jurors. “[T]he verdict may not be impeached by the affidavit of a third person establishing the utterance by a juror of remarks which may impeach his verdict. [Cit.] Appellant sought to impeach the verdict in precisely this manner which, under similar circumstances, has repeatedly been disallowed by both this court and the Supreme Court. [Cits.] The trial court thus properly denied appellant’s motion for new trial based on this ground.” Arnold v. State, 166 Ga. App. 313 (1) (304 SE2d 118) (1983).

3. Appellant next enumerates the general grounds claiming that the evidence was insufficient to support her conviction of kidnapping. “Determination of the witnesses’ credibility is, of course, within the discretion of the trier of fact. [Cits.]” Miasso v. State, 191 Ga. App. 222, 223 (381 SE2d 315) (1989). Based upon the evidence adduced at trial, any rational trier of fact could have found the appellant guilty of kidnapping beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant lastly argues that the trial court erred in failing to grant a new trial because the State’s witness, Elizabeth Faith Walker, perjured herself on the stand. In support of her motion, appellant submitted the witness’ affidavit stating that the State had threatened to take her baby away from her, if she would not testify against appellant at trial. “A post-trial declaration by a State witness that [her] former testimony was false is not cause for a new trial. [Cits.]. Hence, this enumeration of error is without merit.” Pryor v. State, 179 Ga. App. 293 (2) (346 SE2d 104) (1986).

Decided July 9, 1991.

Ferguson & Ferguson, Pamela P. Ferguson, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.