text:
    A90A0534.
    MARTIN v. THE STATE.
    (395 SE2d 391)
   Cooper, Judge.

Appellant was indicted on four counts of child molestation and one count of cruelty to children. Following his conviction by a jury on all counts of the indictment, appellant brings this appeal.

The victim, appellant’s fifteen-year-old daughter, testified that when she was approximately nine or ten years old appellant got in the bed with her and fondled her vagina. The victim further testified that on another occasion she awoke to find appellant lying next .to her with his penis between her legs; that on a third occasion while she and her father were playing he straddled her and began playing with her breasts; that on another occasion appellant pulled her pants and underpants down and began playing with her vaginal area; and that on another occasion appellant offered her money if she would let him play with her breasts. Count I of the indictment alleged an act of child molestation between September 1, 1982, and May 31, 1984; Count II alleged an act of child molestation between September 1, 1985, and December 25, 1985; Count III alleged an act of child molestation between February 1987 and April 1987; Count IV alleged an act of child molestation between September 1986 and April 1987; and Count V alleged an act of cruelty to children, between September 1987 and November 1987, by offering the victim money to fondle her breasts.

1. Appellant contends that the trial court erred in denying his motion for directed verdict of acquittal on Counts I, III, and V of the indictment. With respect to Count I appellant argues that the alleged offense was outside the four-year statute of limitation imposed by OCGA § 17-3-1. Prior to 1987, the statute of limitation for prosecuting felonies other than those specified in subsections (a) and (b) was four years. In 1987, OCGA § 17-3-1 was amended to provide that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime; however, the amendment only applies to offenses committed after July 1, 1987. The victim was uncertain about the exact date on which the first act of molestation occurred, but testified on cross-examination that it might have been between September 1, 1982, and May 31, 1984. Since appellant was indicted on October 4, 1988, Count I of the indictment does not allege an offense within the statute of limitation; nor did the State put forth any evidence that the act alleged in Count I occurred within the statute of limitation. Therefore, it was error to deny appellant’s motion for a directed verdict of acquittal as to Count I of the indictment.

The victim also testified on cross-examination, that no act of child molestation occurred after 1986. However, there was testimony from a friend of the victim who witnessed an act of molestation and a social worker who interviewed the victim, that at least one of the acts of molestation occurred in the spring of 1987. Appellant contends that the State failed to prove that any act of child molestation occurred after 1986, therefore, the court erred in denying his directed verdict for acquittal on Counts III and V of the indictment. “ ‘(T)he general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.’ [Cit.]” Eberhardt v. State, 257 Ga. 420 (2) (359 SE2d 908) (1987). Appellant argues that because the indictment was specific as to dates, the time periods were material to his alibi defense, and a fatal variance was created when the proof offered at trial as to time periods was different than alleged in the indictment. “[E]vidence of guilt of an accused is not restricted to the day mentioned in the indictment, but may extend to any appropriate date previous to the finding in the indictment, and within the statute of limitation for the prosecution of the offense charged.” Keri v. State, 179 Ga. App. 664 (4) (347 SE2d 236) (1986). Furthermore, “ ‘(assuming . . . that there was a variance between the allegata and the probata in regard to the time of the commission of the crime, a motion for directed verdict was not the proper vehicle for obtaining relief. The (appellant) should have made a motion for continuance, postponement or recess if surprised by a time variance.’ [Cit.]” Mann v. State, 167 Ga. App. 829 (1) (308 SE2d 12) (1983). See also Whittington v. State, 184 Ga. App. 282 (4) (361 SE2d 211) (1987). Accordingly, we find no error with the trial court’s denial of appellant’s motion for directed verdict of acquittal on Counts III and V of the indictment.

2. Appellant alleges that the trial court erred in failing to grant his motion for mistrial or in failing to rebuke the prosecutor as required by OCGA § 17-8-75. During the State’s cross-examination of appellant, the prosecutor asked the following question: “Is that correct? February 18, 1988, was also the day your wife was interviewed and told the DFCS workers that you had admitted you had been fondling your daughter.” Appellant’s counsel objected to the question and outside the presence of the jury moved for a mistrial. The trial court denied the motion, finding that the question was not of such a crucial nature that the jury could not disregard it. The court then instructed the jury to disregard the question and polled the jury to determine if there were any persons who could not disregard it. We find no error in either the trial court’s denial of appellant’s motion for a mistrial or in not rebuking the prosecutor for asking an allegedly improper question, particularly when the trial judge found that the question was not of a crucial nature. See Chancellor v. State, 165 Ga. App. 365 (24) (301 SE2d 294) (1983). Furthermore, an instruction to the jury to disregard improper remarks amounts to a rebuke of counsel. Ward v. State, 252 Ga. 85 (2) (311 SE2d 449) (1984).

3. Appellant enumerates as error the trial court’s refusal to admit into evidence a letter from a boy to the victim and a list of “goals set to accomplish” written by the victim. The trial court ruled that these documents were inadmissible under Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987), which held that in child molestation cases, evidence as to the victim’s reputation for nonchastity or evidence to discredit the victim by showing her preoccupation with sex is inadmissible. The victim testified that around the time she reported the molestation, appellant made some of her friends go home and as a result she was mad and embarrassed. The victim further testified that appellant’s sending her friends home had nothing to do with her reporting the molestation to her teacher. Appellant argues, citing Villafranco v. State, 252 Ga. 188 (2) (313 SE2d 469) (1984), that because the letter contained the following sentence: “By the way how come that son of a bitch run me off last night,” and because the first item on the list of nine goals was “revenge,” the documents were admissible in part to show the victim’s state of mind and possible motive for reporting the molestation to her teacher. We disagree. The exclusion of' the documents in no way impeded appellant’s right to a thorough and sifting cross-examination or his opportunity to impeach the victim. Appellant’s counsel pursued the issue of motive when he asked the victim on cross-examination whether appellant’s asking her friends to leave had anything to do with her report of molestation to her teacher. The documents appellant attempted to introduce would not have impeached the victim’s testimony or aided in the truth-seeking process. OCGA § 24-2-3 is a legislative attempt to exclude evidence which “might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Jones v. State, 190 Ga. App. 416 (1) (379 SE2d 189) (1989). Therefore, we find no error with the trial court’s exclusion of the documents.

Decided June 27, 1990.

Robert F. Oliver, for appellant.

Timothy G. Madison, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

4. Appellant contends that the trial court erred in denying his motion for new trial on the ground of newly discovered evidence. Appellant amended his original motion for new trial to add the ground of newly discovered evidence, but subsequently amended the amendment to delete that ground. At the hearing on the motion for new trial, appellant’s counsel stated that because the victim had “recanted her recantation of her testimony” he would not argue the new evidence grounds. “ ‘ “Enumerations of error which raise questions for the first time on appeal present nothing for decision.” ’ [Cit.]” Cooper v. State, 188 Ga. App. 297 (3) (372 SE2d 679) (1988).

5. Appellant also enumerates the general grounds. After a careful review of the evidence produced at trial, we find that a rational trier of fact could reasonably have found appellant to be guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed in part; reversed in part.

Banke, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A0624.
    RILEY v. THE STATE.
    (395 SE2d 394)
   Cooper, Judge.

A jury trial of appellant and co-defendants Melissa Riley and Vita Green resulted in the conviction of appellant for possession of cocaine with the intent to distribute and the conviction of Vita Green for possession of cocaine; Melissa Riley was acquitted. Appellant appeals the trial court’s denial of her motion for new trial.

The record reveals that while visiting her father and step-mother at the county jail, appellant gave the jailer a box of toothpaste which contained eleven tinfoil packets of cocaine and asked that it be delivered to her father’s cellmate, Anthony Laday. When the contraband was discovered, a lookout was placed for the vehicle appellant had been driving. Deputies stopped the car and arrested appellant and the co-defendants. The car was searched and a small quantity of cocaine was found in the trunk. Appellant testified that she knew nothing about the cocaine in the toothpaste or in the trunk of the car and that Sharon Wilson of Alma, Georgia, gave her the toothpaste to deliver to Wilson’s boyfriend, Laday. Wilson could not be located and as a consequence did not testify during the trial. Laday testified that he was married to a woman in Way cross; that he had never been to Alma; and that he did not know Wilson.

1. Appellant contends the trial court erred in allowing the State to present evidence of a similar transaction involving co-defendant Melissa Riley. At the time the prosecution sought admission of the evidence, counsel, representing appellant and two co-defendants, objected on the grounds that the similar act occurred subsequent to the offense for which co-defendant Riley was on trial and that it was an offense of which she had not been convicted. On appeal, appellant argues that the evidence constituted an improper attempt by the State to prove guilt by association. However, “ ‘[t]he trial court was not asked to rule on [this] ground and thus there is nothing to review. “It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Cit.)’ [Cits.]” Cooper v. State, 188 Ga. App. 297 (1) (372 SE2d 679) (1988). Accordingly, this contention will not be discussed here for the first time.

Appellant’s contention that the evidence was inadmissible because the similar act occurred five months after the incident at issue is also without merit. “Evidence of other criminal acts of a defendant is generally inadmissible because it tends to place a defendant’s character in evidence in violation of OCGA § 24-9-20. [Cit.] However, evidence of an independent crime is admissible if (1) the defendant was in fact one of the perpetrators, and (2) there is sufficient similarity or connection between the independent crime and the offense charged so that proof of the independent crimes tends to prove the offense charged. [Cit.] Once identity of the perpetrator is shown, the ‘other crime’ becomes admissible for the purposes of showing identity, motive, plan, scheme, bent of mind, modus operandi, and course of conduct. [Cits.] And, this rule is not changed where the ‘other offense’ is subsequent to the offense charged. [Cit.]” Flowers v. State, 191 Ga. App. 396 (2) (381 SE2d 768) (1989). The State introduced evidence that on another visit to the jail to visit her father and step-mother, Melissa Riley brought in clothes which contained a packet of cocaine. The similarities between the two acts are striking and inescapable. In addition, a five-month lapse of time does not render the evidence inadmissible. See Luckey v. State, 185 Ga. App. 262 (3) (363 SE2d 791) (1987). “The trial court is granted a wide discretion in the admission of evidence and an appellate court should not reverse his finding unless he has abused that discretion. [Cit.] We have found no abuse of discretion. [Cit.]” Flowers, supra.

2. Appellant also enumerates the general grounds. After a thorough review of the evidence produced at trial, we find that a rational trier of fact could reasonably have found appellant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McKinney v. State, 192 Ga. App. 6 (1) (383 SE2d 608) (1989).

Decided June 27, 1990.

James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A0686.
    JENKINS v. GENERAL HOSPITALS OF HUMANA, INC. et al.
    (395 SE2d 396)
   McMurray, Presiding Judge.

This is the second appearance before this court of this dispute between plaintiff Jenkins, a physician, and defendant General Hospitals of Humana, Inc. (“Humana”). The action was initiated by plaintiff Jenkins via a six-count complaint against two corporate and 12 individual defendants. Plaintiff voluntarily dismissed his action against one corporate and ten individual defendants.

A jury trial was held to determine the issues raised by Count 6 of plaintiff’s complaint seeking a declaratory judgment in regard to the validity of a lease agreement. A valid oral lease was found to exist and plaintiff was also awarded $15,000 from defendant Humana for attorney fees and expenses of litigation. On appeal of the declaratory judgment, this Court upheld the determination that a binding oral lease was in effect, but reversed the award of attorney fees and expenses of litigation. General Hosp. of Humana v. Jenkins, 188 Ga. App. 825 (374 SE2d 739).

Upon remand to the superior court, the motions for summary judgment as to the remaining issues of defendants Humana and Jack D. Davis were granted. Plaintiff appeals from the grant of summary judgment in favor of Humana and in favor of Davis, who was sued individually and in his capacity as Executive Director of Humana Hospital-Newnan which is operated by defendant Humana. Plaintiff having abandoned his restraint of trade theory, contends that jury issues remain as to his allegations of tortious interference with business relations, tortious interference with contract rights, and intentional infliction of emotional distress. Held:

Plaintiff’s claim of tortious interference with business relations is predicated on allegations that defendants Humana and Davis conspired with two physicians (who had established their medical practices in the Newnan area in response to incentives offered by Humana) to drive plaintiff out of business, and that pursuant to this conspiracy acts were done which injured plaintiff’s medical practice. “ ‘In establishing a cause of action for malicious (or tortious) interference with business relations, a plaintiff . . . must demonstrate that the defendant ... (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ Hayes v. Irwin, 541 FSupp. 397, 429 (N.D. Ga. 1982); see NAACP v. Overstreet, 221 Ga. 16, 21 (142 SE2d 816) (1965), cert. dismissed, 384 U. S. 118, rehg. den., 384 U. S. 981 (1966) .” Integrated Micro Systems v. NEC &c. Electronics, 174 Ga. App. 197, 200 (3) (329 SE2d 554). In the case sub judice, plaintiff is unable to name a single patient he has lost or failed to acquire due to the actions of defendants, nor is plaintiff able to show any financial loss. Therefore, the grant of summary judgment against plaintiff on his claim for tortious interference with business relations was not error.

Plaintiff’s claim for tortious interference with contract rights arose from an office sharing arrangement which plaintiff maintained with another physician, Daniel J. Hennessy. The controversy was precipitated when Dr. Hennessy, whose primary medical office was located on the north side of Atlanta, elected to alter his status at Humana Hospital-Newnan. The change from the courtesy staff to the associate staff would permit Dr. Hennessy to admit a greater volume of patients at the hospital but the change of status incurred a concomitant increase in responsibilities to the hospital including full emergency room coverage responsibilities. After he was informed that plaintiff would cover for Dr. Hennessy’s new emergency room responsibilities, Davis, acting on behalf of Humana, wrote a letter to Dr. Hennessy advising him that plaintiff could not cover the emergency room for him due to concern for the “standard of care.” While Davis’ position was soon rescinded and plaintiff permitted to cover for Dr. Hennessy, plaintiff maintains that his relationship with Dr. Hennessy was adversely affected by the actions of Humana and that those actions played a part in Dr. Hennessy’s decision to terminate his space sharing arrangement with plaintiff. However, Dr. Hennessy testified that the letter was not the reason he quit seeing patients in plaintiff’s office. The evidence shows that Dr. Hennessy’s termination of his arrangement with plaintiff occurred due to the inconvenience of the distance from his primary office and certain “hassles” with the hospital. However, it appears that while Dr. Hennessy considered the hospital’s enforcement of its by-laws concerning privileges to be a “hassle” there is no evidence that he was singled out due to his association with plaintiff. As there was no evidence of any wrongful interference with any contractual relationship between plaintiff and Dr. Hennessy, summary judgment on this claim was appropriate. Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598); Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743).

Decided June 27, 1990.

Louis K. Polonsky, for appellant.

Alston & Bird, Kevin E. Grady, J. Kennard Neal, Frank G. Smith III, Reta E. Jordan, Glover & Davis, Michael E. Sumner, Jenkins & Eells, Frank E. Jenkins III, for appellees.

Georgia permits a recovery for the tort of intentional infliction of emotional distress only for conduct which is of an outrageous or egregious nature or so terrifying or insulting as to humiliate, embarrass, or frighten the plaintiff. Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328). The liability for intentional infliction of emotional distress clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Kornegay v. Mundy, 190 Ga. App. 433, 434-435 (379 SE2d 14). We do not find in the evidence concerning the various exchanges between plaintiff and Humana or Davis any indication of that extreme or outrageous conduct which authorizes a recovery for intentional infliction of emotional distress. Brown v. Winn-Dixie Atlanta, 194 Ga. App. 130, 133 (389 SE2d 530); Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1a) (385 SE2d 719); Lane v. K-Mart Corp., 190 Ga. App. 113, 114 (3) (378 SE2d 136).

Finally, since plaintiff may not recover general damages, punitive damages may not be awarded. Gallaher v. Teeple, 183 Ga. App. 31, 33 (1) (357 SE2d 808). Therefore, summary judgment against plaintiff on his claim for punitive damages was proper.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0766.
    LEE et al. v. BRITT.
    (395 SE2d 347)
   Banke, Presiding Judge.

The appellants, Mr. and Mrs. Lee, sued the appellee to recover for personal injuries, property damage and loss of consortium sustained as the result of an automobile collision. A jury returned a verdict awarding Mr. Lee total damages in the amount of $2,023.94, while awarding Mrs. Lee $247 for her personal injuries and $500 for loss of consortium. After giving the appellee a credit for certain no-fault insurance benefits which had been paid to the appellants, the trial court entered judgment in favor of Mr. Lee in the amount of $563.58 and in favor of Mrs. Lee in the amount of $500. The appellants thereupon filed a motion for new trial, which was denied by the trial court on November 16, 1989. This appeal followed. Held:

Decided June 12, 1990

Rehearing denied June 28, 1990 — Cert, applied for.

Kunes & Kunes, G. Gerald Kunes, for appellants.

Simpson & Gray, Joseph B. Gray, Jr., for appellee.

Pursuant to OCGA § 5-6-35, an application for discretionary appeal is required to be filed in “[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less.” OCGA § 5-6-35 (a) (6). In Barikos v. Vanderslice, 177 Ga. App. 884 (341 SE2d 513) (1986), this court held that the appellant was required to file such an application in order to appeal a judgment which totalled less than $2,500 after the application of a $5,000 set-off for no-fault benefits. Although the Georgia Supreme Court recently overruled Barikos in Bales v. Shelton, 260 Ga. 335 (_SE2d__) (1990), and held that no-fault set-offs may not be considered in determining whether the $2,500 threshold has been met, the Court specified that this holding would be applied prospectively only. It follows that the present case is controlled by Barikos, with the result that, assuming a direct appeal would have been authorized in the absence of the set-off for no-fault benefits, a direct appeal was not authorized from the judgment as entered.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A1211.
    GALLAGHER v. THE STATE.
    (395 SE2d 358)
   Deen, Presiding Judge.

Appellant Gallagher first met the child-victim and her parents when they became his patients at the public clinic operated by the chiropractic college where he was a student. After graduation Gallagher moved to another state but returned to Georgia to take his National Board examinations, and was the house guest of the victim’s family. The child-molestation incident which led to Gallagher’s arrest and the proceedings below occurred during that time.

At trial the child’s mother testified that the daughter had told her of the alleged molestation the morning after it took place, and that the child had thereafter steadfastly refused to allow their guest, whom she had always liked, to come near her. The child testified, after a competency hearing, that after she had gone to bed, appellant had touched her genital area with his hand and his penis. She demonstrated the details of the incident with anatomically correct dolls. The physician who examined the child four days after the incident testified that her findings were consistent with sexual molestation.

Decided June 19, 1990

Rehearing denied June 28, 1990 — Cert, applied for.

Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Nancy I. Jordan, Assistant District Attorneys, for appellee.

A Cobb County jury found appellant guilty as charged, and he was sentenced to fifteen years’ imprisonment. After denial of his motion for new trial he has appealed to this court, enumerating as error the trial court’s ruling that the seven-year-old victim was competent to testify. Held:

Our examination of the trial transcript reveals no error in the proceedings below. During the competency hearing the child demonstrated clearly that she understood the difference between the truth and a lie, understood the consequences of telling lies and telling the truth, and also understood that she was obligated to tell the truth. See, e.g., Hester v. State, 187 Ga. App. 873 (371 SE2d 684) (1988); Akers v. State, 179 Ga. App. 529 (346 SE2d 861) (1986); Bearden v. State, 159 Ga. App. 892 (285 SE2d 606) (1981). Appellant’s assertion that the child-witness in the instant case was incompetent because she did not know the historical or epistemological significance of placing one’s hand on the Bible, and did not know specifically what would happen to her if she lied in court, has no bearing upon the determination of competency.

OCGA § 24-9-7 vests the trial court with discretion to determine the competency of witnesses, and, absent abuse, that discretion will not be overruled. Lancaster v. State, 250 Ga. 871 (301 SE2d 882) (1983); Pope v. State, 167 Ga. App. 328 (306 SE2d 326) (1983). We find no abuse of discretion here.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge. Sognier, Judge,

text:
    A90A0035, A90A0036.
    WILLIAMS v. THE STATE (two cases).
    (395 SE2d 399)
   McMurray, Presiding Judge.

Defendants Bernard Williams and Nancy Williams, husband and wife, were indicted for the offense of obstructing a law enforcement officer (felony grade) in that, on July 21, 1988, in Floyd County, Georgia, they “did unlawfully then and there knowingly and willfully obstruct, resist and oppose Rick Peace, a law enforcement officer in the lawful discharge of his official duties, by offering and doing violence to the person of said officer by hitting Rick Peace in the face and head. . . .” Following separate jury trials, each defendant was convicted of obstructing a law enforcement officer (misdemeanor grade) and sentenced accordingly. Each defendant moved for a new trial and upon their motions being overruled, defendant Nancy Williams appeals in Case No. A90A0035 and defendant Bernard Williams appeals in Case No. A90A0036.

The following evidence was adduced upon the trial of each case: Officer Peace, a City of Rome police officer, arrived at the scene of an automobile accident on Woodbine Avenue. One of the vehicles involved in the collision had been operated by defendant Bernard Williams. Defendant Nancy Williams, defendant Bernard Williams’ wife, was a passenger in his vehicle. Following a brief investigation, the officer determined that Mr. Williams was at fault for “improper backing.” The officer informed Mr. Williams that he would indicate that Mr. Williams was at fault on an accident report — but he added that he would not give him a ticket. Mr. Williams began “using his mouth” and he and the officer exchanged words. Thereupon, the officer asked Mr. Williams to sit in the officer’s patrol car. Mr. Williams replied that he would not get in the patrol car unless he was under arrest. Thereupon, the officer arrested him. When the officer began to place Mr. Williams in the patrol car, Mrs. Williams moved toward the officer, grabbed his arm and said, “no.” Fending off Mrs. Williams, who was seven months pregnant, the officer flung her against the side of the patrol car. Angered by what he perceived to be an attack on his wife, Mr. Williams hit the officer in the face, knocking him to the ground and rendering him unconscious. Defendants remained at the scene until other policemen arrived.

Witnesses testified Officer Peace initially placed Mr. Williams under arrest for improper backing. Officer Peace testified, on the other hand, that he arrested defendant Bernard Williams for disorderly conduct and improper backing. Held:

Case No. A90A0035

1. Although each defendant was accused of hitting Officer Peace “in the face and head,” the evidence demonstrated that Mrs. Williams did no more than grab the officer’s arm and say “no” as the officer tried to arrest Mr. Williams and put him in a patrol car. Accordingly, in Mrs. Williams’ trial, the trial court ruled that the evidence was insufficient to convict Mrs. Williams of felony obstruction of an officer. Nevertheless, the trial court let the case go to the jury on the lesser included offense of misdemeanor obstruction of an officer. See OCGA § 16-10-24; Clarke v. State, 239 Ga. 42, 43 (1) (235 SE2d 524). See also Patterson v. State, 191 Ga. App. 359 (381 SE2d 754).

Mrs. Williams contends the trial court erred in submitting the case to the jury on the offense of misdemeanor obstruction of an officer because of a fatal variance between the allegata and probata. In this regard, she points out that although she was accused of hitting the officer in the face and head, the evidence demonstrated only that she grabbed the officer’s arm. This contention is without merit. Mrs. Williams was not convicted of felony obstruction charges. Rather, she was convicted of the lesser included offense of misdemeanor obstruction. Since the offense of misdemeanor obstruction does not contain the element of “violence” (as does the offense of felony obstruction), any allegations regarding the means by which defendant committed the violence were unnecessary with regard to her conviction. “ ‘In criminal law an unnecessarily minute description of a necessary fact must be proved as charged; but an unnecessary description of an unnecessary fact need not be proved.’ [Cit.]” Bell v. State, 227 Ga. 800, 801 (1), 802 (183 SE2d 357).

Mrs. Williams relies upon Evans v. State, 138 Ga. App. 620 (227 SE2d 448), to support her contention that her conviction cannot be upheld. In that case, that defendant was indicted for obstructing law enforcement officers by biting one of the officers and kicking the other officer. He was also indicted for two counts of simple battery by biting one of these same officers and kicking the other of these officers. That defendant was convicted on the obstruction charge and acquitted on the simple battery charges. On appeal, the obstruction conviction was reversed because it was inconsistent with the simple battery acquittals.

Evans v. State, supra, is inapposite. Only one verdict was rendered in the case sub judice. Besides, unlike Mrs. Williams, Evans was not convicted of a lesser included offense.

Case No. A90A0036

2. Next, defendant Bernard Williams contends the trial court erred in refusing to allow him to argue the “illegality” of his arrest, and in instructing the jury that “you are not to concern yourself with whether the arrest [of Mr. Williams] was legal or illegal.” Defendant reasons that the jury had a right to determine whether his assault of Officer Peace was justified resistance to an unlawful arrest. See Mason v. State, 147 Ga. App. 179, 182 (6) (248 SE2d 302).

In the case sub judice, defendant Bernard Williams testified that he struck Officer Peace in defense of his wife, not in resistance to an unlawful arrest. On direct examination defendant Bernard Williams testified: “Q. . . . Why did you hit him? A. I hit him because he had slammed my wife against the car, and I thought he was trying to hurt her. ... I wasn’t trying to cause no harm to him whatsoever. I was protecting my wife. . . .” Under these circumstances, the trial court did not err in charging the jury that it was not to consider the legality or illegality of defendant Bernard Williams’ arrest. Nor can it be said the trial court erred in preventing defense counsel from arguing the “illegality” of defendant’s arrest. “[C]ounsel should not ‘ “go outside the facts appearing in the case . . . and lug in extraneous matters as if they were a part of the case. . . .” ’ Smith v. State, 74 Ga. App. 777, 792 (41 SE2d 541) (1947).” Conner v. State, 251 Ga. 113, 122 (6), 123 (303 SE2d 266). The enumeration is without merit.

Judgments affirmed in Case No. A90A0035 and in Case No. A90A0036.

Carley, C. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur fully in Case No. A90A0035 and specially in Case No. A90A0036. Although appellant Bernard Williams testified that he struck the officer in defense of his wife, there was some testimony from witnesses suggesting that the altercation arose from Williams’ protest that his arrest was illegal. Nonetheless, I agree with the majority’s conclusion on this enumeration because I believe the arrest of Williams was valid and thus the trial court’s ruling and charge were correct. The officer testified that he arrested Williams for improper backing (violation of OCGA § 40-6-240 (a)) and disorderly conduct. The arrest for disorderly conduct was valid pursuant to OCGA § 17-4-20 (a), which authorizes a warrantless arrest for a crime committed in the presence of or within the immediate knowledge of the arresting officer. See Veit v. State, 182 Ga. App. 753, 755-757 (2) (357 SE2d 113) (1987). Similarly, OCGA § 17-4-23 (a) provides that “[a] law enforcement officer may arrest a person a.ccused of violating any law or ordinance governing the operation ... of motor vehicles by the issuance of a citation, . . . [and] where the offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer.” I agree with the reasoning of the Eleventh Circuit in United States v. Wilson, 853 F2d 869, 872-873 (11th Cir. 1988), wherein the court concluded the “may arrest... lay the issuance of a citation” language in OCGA § 17-4-23 (a) affords law enforcement officers the discretion to arrest by issuing citations, but does not preclude a custodial arrest under the circumstances set forth in the statute, which were met here.

Decided June 28, 1990.

Patton & Price, Charles G. Price, for appellants.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.


author: Carley, Chief Judge. McMurray, Presiding Judge,

text:
    A90A0525.
    BENNETT v. BROWNING et al.
    (395 SE2d 333)
   Carley, Chief Judge.

In this workers’ compensation case, appellant Horace Bennett entered into an arrangement whereby he would lend one of his employees to appellee D & L Materials, Inc., when that employee’s services were not needed by him. When appellee borrowed appellant’s employee, it used him to drive one of its trucks. While he was working as appellee’s truck driver, the employee was subject to the control of appellee and appellee had the right to discharge him. Appellee paid appellant for the use of the employee as its driver.

When the employee sustained an injury while driving a truck for appellee, he sought workers’ compensation benefits. The Administrative Law Judge (ALJ) found that, at the time of employee’s injury, he was the borrowed servant of appellee and that the injury arose out of and in the course of his employment with appellee and not with appellant. The ALJ concluded that appellant had no liability for workers’ compensation benefits and entered an award against appellee only. The Full Board adopted the award of the ALJ. On appeal, the superior court amended the award so as to reflect that the employee was the servant of both appellee and appellant, and ordered that, pursuant to OCGA § 34-9-224, both contribute to the payment of workers’ compensation benefits in proportion to their wage liability to the employee. Appellant brings this appeal pursuant to our grant of his application for a discretionary appeal from the superior court’s order.

The ALJ found that, on the date of his injury, the employee “was in the general employ of [appellant]. . . .” This finding, as adopted by the Full Board, must be upheld under the “any evidence” rule. See Kelley v. West Point Peppered, 164 Ga. App. 187 (1) (296 SE2d 191) (1982). However, this finding is not necessarily inconsistent with the ALJ’s further finding that, on the date of his injury, the employee was a borrowed servant of appellee and that only appellee should be liable for workers’ compensation benefits. “Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him. [Cits.]” (Emphasis supplied.) Merry Bros. Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969). Indeed, in the ordinary case, “ ‘one is not the servant of two masters. . . . [Cits.]’ ” United States Fid. &c. Co. v. Forrester, 230 Ga. 182, 184 (196 SE2d 133) (1973). See also Merry Bros. Brick &c. Co. v. Jackson, supra at 719.

In United States Fid. &c. Co. v. Forrester, supra at 185, relied upon by the superior court, the Supreme Court held that, under the facts of that case, the deceased employee could have been found to be the employee of both the general employer and the employer to whom he was alleged to have been loaned, or either. This court has upheld a Full Board determination that an employee was, at the time of his injury (see Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988)), in the employment of his special employer under the “borrowed servant” doctrine, but not of his general employer. Adams v. Johnson, 88 Ga. App. 94, 95 (76 SE2d 135) (1953). In the instant case, the evidence did not demand a finding that the employee was, at the time of his injury, in the joint employment of both appellant and appellee within the purview of OCGA § 34-9-224. Compare United States Fire Ins. Co. v. City of Atlanta, 135 Ga. App. 390, 392 (5) (217 SE2d 647) (1975). The ALJ and the Full Board were authorized to find that, at the time of his injury, the employee was in the employment of appellee so that appellee, and not appellant, was liable for payment of his workers’ compensation benefits. Adams v. Johnson, supra. The payment of the employee’s wages by appellee to appellant does not require a contrary finding. See United States Fid. &c. Co. v. Stapleton, 37 Ga. App. 707, 708 (2) (141 SE 506) (1928); Stephens v. Oates, supra. Thus, the superior court erred in reversing the award of the Full Board.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

The findings of the administrative law judge were adopted by the full board. The administrative law judge found that “[o]n June 10, 1988 claimant was in the general employ of [appellant]. . . .”

The general rule is that when one lends his servant to another for a particular purpose, the servant while viewed as a servant of the person to whom he is loaned, remains the general servant of the person who loaned him. Stephens v. Oates, 189 Ga. App. 6, 7 (1), 8 (374 SE2d 821); Merry Bros. Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924); Liberty Mut. Ins. Co. v. Kinsey, 65 Ga. App. 433, 441 (16 SE2d 179). Thus, the “loaned servant” or “borrowed servant” may look for workers’ compensation coverage to both the employer to whom he is loaned by his actual employer, and to his actual employer. United States Fid. &c. Co. v. Forrester, 230 Ga. 182 (196 SE2d 133); Scott v. Savannah Elec. &c. Co., 84 Ga. App. 553 (66 SE2d 179). It follows that the administrative law judge and the full board erred in determining that only the borrowing employer, D & L Materials, Inc., was liable for compensation of claimant. Adams v. Johnson, 88 Ga. App. 94 (76 SE2d 135), cited by the majority, as authority for its opposing view, may be distinguished since in that case there was a factual finding that the injured worker was not an employee of the alleged general employer.

Decided June 8, 1990

Rehearing denied June 29, 1990 — Cert, applied for.

Saveli & Williams, Tash J. Van Dora, Elmer L. Nash, for appellant.

J. Carol Sherwood, Jr., Reginald C. Wisenbaker, E. Lee South-well III, Chambless & Chambless, Vernon L. Chambless, for appellees.

The superior court was correct to overrule the board and hold that appellant is also liable for the compensation of claimant. While there may be certain harmless errors in the reasoning of the superior court, I would affirm under the right for any reason rule. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

I am authorized to state that Presiding Judge Banke and Judge Pope join in this dissent.


text:
    A90A0879.
    DANIEL v. THE STATE.
    (395 SE2d 638)
   Banke, Presiding Judge.

The appellant was found guilty on an indictment charging him with armed robbery, aggravated assault with intent to murder or rob, aggravated assault with a deadly weapon, and possession of a knife during the commission of a crime. He brings this appeal from the denial of his motion for new trial.

On June 1, 1989, a black male grabbed the manager of a pharmacy in Rome, Georgia, put a knife to her side, and said: “Give me the money, bitch. Don’t make a sound or I’ll kill you.” When the manager failed to enter the proper code to open the cash register, the assailant pulled her to the back of the store and repeatedly stabbed her, piercing her lung and lacerating an artery. The only other person present at the time was the store’s pharmacist, who testified that he had been too far away to identify the assailant but that he remembered having seen the appellant in the store some three or four weeks previously, at which time he (the appellant) had called the manager a “white bitch” after she asked him to refrain from talking to the store employees in a derogatory manner. Two individuals who had known the appellant for many years subsequently provided information to police implicating him in the offenses, and he was thereafter identified by the victim from a photographic lineup. The appellant presented an alibi defense at trial and sought to establish that the offenses had been committed by an individual named Alonzo Perkins. Held:

1. The appellant contends that the court erred in excluding evidence that Mr. Perkins had recently committed a similar armed robbery and that he fit the description of the assailant which had been provided to the police by the pharmacist. However, it was shown that a photograph of Perkins had been included in the array of photographs from which the victim in the present case had identified the appellant; and in the absence of any evidence actually linking him to the offenses for which the appellant was on trial, we hold that the court did not abuse its discretion in excluding as irrelevant the proffered evidence concerning Perkins’ criminal record and physical description. See generally Masters v. State, 186 Ga. App. 795 (4) (368 SE2d 557) (1988).

2. The appellant contends that the trial court erred in refusing to allow the victim’s doctor, a general practitioner, to be cross-examined with regard to certain statements the victim had made to him after the attack concerning her fear of black men. The court refused to permit such questioning based on a determination that the statements were protected by the patient-psychiatrist privilege because they involved “the areas that he treated the patient as a psychiatrist.”

Upon inquiry by the trial court as to what he expected the questioning at issue to prove, the appellant’s attorney replied that “there may be some other relevant information in his file, which he has . . . refused to . . . give us until the court orders him to go on the stand.” This was the sort of “fishing expedition” which was held impermissible in Bobo v. State, 256 Ga. 357 (4) (349 SE2d 690) (1986). Moreover, the transcript reflects that defense counsel was in fact allowed access to the witness’ medical records concerning the victim. Consequently, this enumeration establishes no ground for reversal.

3. The appellant contends that the trial court erred in refusing to declare a mistrial based on the introduction of several photographs showing a knife which had been seized from his immediate presence at the time of his arrest, but which was apparently not the knife with which the victim had been assaulted. This enumeration of error is wholly without merit. In the first place, “ ‘[i]t is well settled that all of the circumstances connected with an accused’s arrest, including any items taken from his person, are admissible as evidence at trial. . . . [Cits.]’ ” Shaw v. State, 179 Ga. App. 807, 809 (3) (348 SE2d 132) (1986). In the second place, the court excluded the photographs in question from evidence in response to the appellant’s motion for a mistrial and instructed the jury to disregard completely any testimony concerning them.

4. The appellant contends that the trial court similarly erred in refusing to declare a mistrial after a state’s witness volunteered the statement that “numerous threats” had been made against him because of his cooperation with the police investigation. In denying this motion for mistrial, the judge observed that the witness had not accused the appellant of having made the threats, stating that it was his impression that the witness had been referring to a “community type of response” to his cooperation with the police. We hold that, viewed in the context of the other evidence in the case, the witness’s statement was not so inherently prejudicial as to require the declaration of a mistrial. See generally Black v. State, 190 Ga. App. 137, 138 (2) (378 SE2d 342) (1989); Harris v. State, 190 Ga. App. 343, 346 (2) (378 SE2d 912) (1989).

5. The appellant contends that the trial court erred in refusing to merge the charge of aggravated assault with intent to murder or rob with the charge of aggravated assault with a deadly weapon. However, these two charges in fact were merged for sentencing. Consequently, this enumeration of error presents nothing for review. See generally Mobley v. State, 101 Ga. App. 317 (4) (113 SE2d 654) (1960).

6. The trial court did not err in refusing to give the appellant’s requested charge that the “[ijnterest of a witness in result of suit, such as anticipated reward proceeds, may always be considered in passing on his credibility. . . .” This was, of course, a criminal prosecution rather than a “suit”; and in instructing the jury on its obligation to judge the credibility of the witnesses, the trial court specifically charged that the “interest or lack of interest” of a witness was among the factors to be considered. “ ‘It is well established that a requested charge need not be given unless it embraces a correct and complete principle of law and has not otherwise been included in the trial court’s instruction to the jury.’ ” Daniels v. State, 183 Ga. App. 222, 223 (2) (358 SE2d 637) (1987). Accord Powell v. State, 192 Ga. App. 688 (2) (385 SE2d 772) (1989).

7. The action of the trial court in correcting the original sentence to bring it in compliance with the recidivist punishment requirements of OCGA § 17-10-7 (a), “was not only authorized but required. [Cits.]” Wallace v. State, 175 Ga. App. 685, 687 (5) (333 SE2d 874) (1985).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided June 29, 1990.

Hine, Carroll & Niedrach, Edward Hiñe, Jr., John F. McClellan, Jr., for appellant.

Stephen F. Lanier, District Attorney, for appellee.


author: Carley, Chief Judge.

text:
    A90A0568.
    SHELTON v. THE STATE.
    (395 SE2d 618)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of rape, statutory rape, incest, and child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. As to his convictions for rape and statutory rape, appellant enumerates the general grounds. Force, as an element of rape, need not be proven by evidence of physical violence. Raines v. State, 191 Ga. App. 743, 744 (1) (382 SE2d 738) (1989). Force may be inferred by evidence of intimidation arising from the familial relationship. Cooper v. State, 256 Ga. 631 (1) (352 SE2d 382) (1987); Treadaway v. State, 191 Ga. App. 111, 112 (3) (381 SE2d 43) (1989). Contrary to appellant’s contention, force was sufficiently shown in the instant case. Likewise, the testimony of the victim as to appellant’s commission of statutory rape was sufficiently corroborated by medical evidence and by the victim’s guidance counselor. Treadaway v. State, supra at 111 (2). Accordingly, the general grounds are without merit.

2. Appellant urges that his separate conviction for child molestation must be reversed because it merged with his conviction for statutory rape. However, the dates were not made material averments of the indictment and the victim testified to a separate act of molestation which was independent of the act of statutory rape to which she testified. Accordingly, there was no merger. OCGA § 16-1-6; Jimmerson v. State, 190 Ga. App. 759, 762 (4) (380 SE2d 65) (1989); Huggins v. State, 192 Ga. App. 820, 821 (2) (386 SE2d 703) (1989).

3. Appellant enumerates as error the introduction into evidence of statements that were made by him to an investigating officer.

Contrary to appellant’s assertion, OCGA § 17-7-210 is not applicable because he was not in police custody at the time he gave the statement. “OCGA § 17-7-210 ‘relates only to those statements made by defendant while in police custody. [Cit.]’ [Cit.]. . . . Consequently, defendant’s statements . . . were not subject to discovery pursuant to OCGA § 17-7-210.” Hudgins v. State, 186 Ga. App. 883, 884 (2) (369 SE2d 54) (1988). Accordingly, the trial court did not err by admitting the evidence over appellant’s objection that it had been improperly withheld.

The exhortations of the investigating officer were not threats of harm or promises of leniency within the meaning of OCGA § 24-3-50. Nothing that the officer said could reasonably have been interpreted by appellant as eliciting an untrue confession of guilt. Wilson v. State, 19 Ga. App. 759, 770 (4) (92 SE 309) (1917). “ ‘(T)he hope or fear contemplated by (OCGA § 24-3-50) must be induced by another. A hope or fear which originates in the mind of the person making the [statement] and which originates from seeds of his own planting would not exclude a [statement].’ [Cit.]” Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986). The trial court did not err either in admitting appellant’s statements into evidence, or in overruling appellant’s motion for mistrial predicated upon the introduction of this evidence.

4. The State made a motion in limine to exclude evidence that the victim had falsely made similar accusations against others. After establishing that the alleged prior false accusations related to entirely separate events having no factual connection with the victim’s accusations against appellant, the trial court granted the motion in limine on the ground that such evidence did not “pertain to the facts of this case. . . .” This evidentiary ruling is enumerated as error.

Pretermitting the absence of any factual connection, evidence that the victim had previously made false accusations of sexual misconduct against others would nevertheless be a relevant inquiry in the instant case. “[E]vidence of prior, false accusations is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. [Cits.]” Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989). Accordingly, the trial court erred in granting the State’s motion in limine without having first made “a ‘threshold determination (outside the presence of the jury) that [no] reasonable probability of falsity exists. (Cites omitted.)’ [Cit.]” Smith v. State, supra at 137-138 (1). However, we conclude that the grant of the State’s motion in limine without holding a hearing on the reasonable probability of falsity “is error which can be cured by a post-trial hearing in the trial court. Accordingly, appellant’s judgments] of conviction ‘will be affirmed with direction that the trial court conduct a hearing to consider this issue. If on the basis of evidence introduced at such hearing the trial judge concludes [that a reasonable probability of falsity exists so as to render the victim’s prior false accusations against others admissible as impeaching and substantive evidence], he must order a new trial. Appellant is granted leave to file a new appeal within 30 days of a trial court decision adverse to appellant on this issue if appellant contends the trial judge (erred) in his ruling.’ [Cit.]” Sapp v. State, 184 Ga. App. 527, 531 (6) (362 SE2d 406) (1987).

Decided June 21, 1990.

John R. Emmett, Hill & Henry, Wm. Ralph Hill, Jr., for appellant.

Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

Judgments affirmed and case remanded with direction.

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


text:
    A90A0166.
    BRYANT et al. v. KERN & COMPANY, INC. et al.
    (395 SE2d 620)
   McMurray, Presiding Judge.

Plaintiffs Laura Peters Bryant and John Randall Bryant brought this personal injury action against Kern & Company, Inc. and Robert F. Kern, the sole general partner of WFK Hi-Tech Limited, in the Superior Court of Gwinnett County. They alleged that defendants owned and developed Executive Drive South in Gwinnett County; that Laura Peters Bryant was injured in an automobile collision as she was driving on Executive Drive South and entered the intersection of Executive Drive South and Breckinridge Boulevard; that at the time of the collision, neither a stop sign nor a traffic light was in use at the intersection; that defendants were negligent in failing to erect a traffic control device or sign at the intersection; and that Laura Peters Bryant’s injuries were the direct and proximate result of defendants’ negligence. John Randall Bryant sought damages for loss of consortium.

Defendants answered the complaint and denied any liability to plaintiffs. Specifically, defendants alleged, inter alia, that although they formerly owned and developed the surrounding area, they were not the owners of Executive Drive South at the time of the collision. In connection with that allegation, defendants Kern & Company, Inc., and Robert F. Kern, the sole general partner of WFK Hi-Tech Limited, filed a third-party complaint against Gwinnett County (third-party defendant) seeking indemnity in the event they are deemed liable to plaintiffs. Therein, defendants (now also third-party plaintiffs) alleged that at the time of the collision, the intersection was owned by Gwinnett County.

Gwinnett County answered the third-party complaint and it, too, denied any liability. Insofar as ownership of the intersection was concerned, Gwinnett County alleged that at the time of the collision, Executive Drive South was not a public street inasmuch as the dedication of Executive Drive South had not been accepted by Gwinnett County.

Plaintiffs amended their complaint to seek punitive damages against the original defendants (Kern & Company, Inc. and Robert F. Kern, the sole general partner of WFK Hi-Tech Limited). Additionally, plaintiffs alleged: “Should it be determined that the third-party defendant, Gwinnett County, was the owner of the road at the time of the collision then it is liable to the Plaintiffs, jointly, with the other defendants, for the damages the Plaintiffs sustained.”

Following discovery, defendants moved for summary judgment. We summarize the evidence adduced in the trial court as follows:

Defendant Kern & Company, Inc., owned the land which became Executive Drive South and it contracted with various entities to design and build that road. Defendants intended for Executive Drive South to become a public road upon its completion. To that end, Kern & Company, Inc., dedicated the road to Gwinnett County pursuant to a plat which was approved by the Gwinnett County Board of Commissioners on March 6, 1987, and recorded in the Gwinnett County Deed Book on March 12, 1987.

Before the plat was approved, Gwinnett County required the posting of a one-year maintenance bond covering 20 percent of the total cost of the road. To meet this requirement, Kern & Company, Inc., purchased an $8,800 maintenance bond on January 27, 1987. The purpose of the bond was to insure that the road would be maintained by defendants until the end of the one-year bonding period.

Gwinnett County took no steps to construct, maintain or improve the road prior to March 31, 1987. As the road was being built, however, the Gwinnett County Development Department (“Development Department”) inspected the road 50 or 60 times to insure compliance with proper building techniques and county specifications. By February 3, 1987, the Development Department was satisfied that the road was built properly. The Development Department was not concerned, however, with the placement of traffic control signs. That was the responsibility of the Gwinnett County Traffic Engineering Department (“Engineering Department”).

The Engineering Department viewed the road as being under construction until March 11, 1987. Thereafter, during the week of March 13, 1987, the Engineering Department determined that the road was ready for the installation of traffic signs. Subsequently, during business hours on March 23, 1987, a work order was issued by the Engineering Department to erect a stop sign at the intersection of Executive Drive South and Breckinridge Boulevard. Later in the day, the collision giving rise to this action occurred.

At no point did Gwinnett County expressly accept the dedication of Executive Drive South. In fact, as late as June 12, 1989, the name Executive Drive South did not appear in Gwinnett County’s Street Master List.

Based on the foregoing facts, the trial court ruled: “The Court concludes that there is no material issue of fact, and as a matter of law, all of these actions constitute an implied acceptance by the County of this roadway. Accordingly, Defendants’ Motion For Summary Judgment is granted, and the lawsuit is hereby dismissed in its entirety as the third party complaint concerns the liability of Defendants.” Plaintiffs appeal. Held:

1. “[T]o complete a dedication of land to a public use, there must not only be an offer to dedicate, but also an acceptance, either express or implied, by the appropriate public authorities or by the general public. Ross v. Hall County Commrs., 235 Ga. 309 (219 SE2d 380) (1975).” Smith v. Gwinnett County, 248 Ga. 882, 884 (2), 885 (286 SE2d 739). In the case sub judice, the parties agree that Executive Drive South was dedicated to Gwinnett County. They also agree that the dedication was not accepted by the county formally. Was the dedication accepted by the county impliedly?

An implied acceptance of a dedication may be demonstrated by any action undertaken by the governing authority. As it is said: “Where an owner of land makes an express dedication of a particular portion of his land to a municipal corporation, its acceptance may be shown by any act of the municipality recognizing the existence of the street and treating it as one of the streets of the city.” (Emphasis supplied.) Ellis v. Mayor & Aldermen of Hazlehurst, 138 Ga. 181, 184 (75 SE 99).

In our view, Gwinnett County impliedly accepted the dedication of Executive Drive South. After all, the county did more than simply approve the plat dedicating Executive Drive South. See in this connection, Smith v. Gwinnett County, 248 Ga. 882, 884, 885, supra. It inspected the road on numerous occasions, requiring defendants to build the road to county standards; it required the posting of a maintenance bond; and, viewing the road as complete, it undertook the placement of traffic signs, ordering the erection of a stop sign at the intersection in question.

Plaintiffs assert the procurement of the maintenance bond by Kern & Company, Inc., demonstrates that Executive Drive South was not accepted impliedly by the county since Kern & Company, Inc., remained obligated to repair the road. To the contrary, the fact that the county required the procurement of the maintenance bond demonstrates that the county viewed the road as its own. If the county believed otherwise, it would not have deemed a maintenance bond necessary since it would have had no interest in seeing that the road was maintained.

Inasmuch as the road had been accepted impliedly by the county prior to the time of the collision, plaintiffs may not look to the original defendants for compensation. Having accepted the property, the county became the owner of the premises.

Decided June 21, 1990

Rehearing denied July 2, 1990 — Cert, applied for.

Clark & McLaughlin, Michael C. Clark, for appellants.

Dean, Rosskopf & Brenskelle, G. Gibson Dean II, Neely & Player, Taylor T. Daly, for appellees.

2. Plaintiffs also contend the trial court erred in granting defendants’ motion for summary judgment even if the county did accept the road. In this regard, they argue defendants are liable for their own negligence in failing to erect a traffic control device at the intersection in question whether the county owned the road or not. This argument misses the mark. At the time of the collision, it was incumbent on the county, not defendants, to erect traffic control devices on Executive Drive South. Defendants had no duty to erect such devices at that time. It is axiomatic that in the absence of such a duty, the original defendants cannot be deemed liable. See generally Slaughter v. Slaughter, 122 Ga. App. 374, 376 (177 SE2d 119).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0229.
    CLEVELAND et al. v. FULTON COUNTY et al.
    (396 SE2d 2)
   Cooper, Judge.

Appellants, the mother and administrator of the estate of Ronnie Cleveland, a patient at Georgia Mental Health Institute (“GMHI”), brought this action against appellees alleging negligence under state law and violations of 42 USC § 1983. At an early stage in the case, partial summary judgment was granted to the appellee county on the state law claims and the federal claims were reserved. Over three years later, the trial court granted summary judgment to all appellees on the federal claims, denied summary judgment as to the state law claims against the individual appellees, and denied appellants’ motion to reconsider the earlier grant of partial summary judgment. Appellants then filed a notice of appeal from the latter order of the trial court.

Ronnie Cleveland, a diagnosed alcohol dependent, experienced seizures while he was a patient at GMHI. GMHI personnel called the emergency “911” number. Although GMHI is located in DeKalb County, the call was received by the Fulton County 911 Communications Center (the “Fulton Center”). The policy of the Fulton Center was to immediately transfer incoming calls from another county to the appropriate emergency center. The dispatcher receiving the call from GMHI was uncertain as to the location of GMHI and rather than immediately transferring the call, affirmatively responded to the request for emergency assistance, hung up, and then conferred with his supervisor. The supervisor advised him that the call may have been from a mental patient and that if it were a real emergency they would call back. The second call was transferred to DeKalb County and an ambulance was then dispatched, but not in time to save the life of Ronnie Cleveland.

1. Appellant first enumerates that the trial court erred in granting summary judgment to all appellees on the 42 USC § 1983 claims. We disagree. To recover under 42 USC § 1983, appellants must establish the threshold element — “that they suffered a deprivation of ‘rights, privileges or immunities secured by the Constitution and laws’ of the United States. . . . [Cit.]” Wideman v. Shallowford Community Hosp., 826 F2d 1030, 1032 (11th Cir. 1987). Appellants assert that, under the instant circumstances, the Fourteenth Amendment of the Constitution imposed a duty on the county to provide adequate emergency care services. The Wideman case clearly establishes that “there exists no . . . general [constitutional] right to the provision of medical care and services by the state. ...” Wideman, supra at 1034. Further, that “special relationship” which would impose a duty to provide such services upon the state does not exist under these circumstances. Such a “special relationship” arises “from the limitation which [the state] has imposed on [the person’s] freedom to act on his own behalf.” DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S__(109 SC 998, 103 LE2d 249, 262) (1989). “The key concept is the exercise of coercion, dominion, or restraint by the state.” Wideman, supra at 1035-1036. Ronnie Cleveland was not under the dominion or control of Fulton County, and any other alternative emergency care service could have been freely chosen to help him. Mr. Cleveland’s condition was not caused by, and cannot be attributed to, any actions of the county and did not occur while Mr. Cleveland was in county custody or under county control. Under these circumstances, the county had no constitutional duty to provide emergency medical care and services to Ronnie Cleveland. Nor does appellants’ argument that a duty on the county arose because it undertook to provide some medical care, have merit. “Because the Constitution does not require municipalities to provide any emergency medical services at all, it would be anomalous indeed to hold them liable for providing limited services which happen to be less extensive than a particular citizen may desire.” Wideman, supra at 1036.

It may well be that state law duties are implicated in this case, however, the “Due Process Clause of the Fourteenth Amendment. . . does not transform every tort committed by a state actor into a constitutional violation. [Cit.]” DeShaney, supra, 103 LE2d at 263. Because appellants have failed to establish the threshold element necessary to their 42 USC § 1983 claim, it is not necessary for us to reach the other elements of their claim.

2. Appellants’ second enumeration that the trial court erred in granting partial summary judgment to the county on the state law claims is also asserted without success. The order granting partial summary judgment was filed on February 27, 1986. No appeal of that order was taken. The motion for reconsideration which was filed on April 10, 1989, was denied on May 10, 1989, and the May 10 order was appealed. No direct appeal was filed within 30 days of the order granting partial summary judgment. See OCGA § 9-11-56 (h). Instead, an appeal “ ‘was filed subsequent to the denial of a motion for reconsideration of this order several [years] later. It has repeatedly been held that, unlike a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict, a motion for reconsideration does not extend the time for filing a notice of appeal. . . . Thus we lack jurisdiction to entertain the appeal.’ [Cits.]” Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

On Motion for Rehearing.

On motion for rehearing, appellants cite the case of Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978) for the proposition that a party against whom summary judgment is granted may appeal that decision either after the grant of summary judgment or after a final judgment has been rendered in the case. Appellants argue that Lomas and its progeny require this court to consider on this appeal the earlier grant of partial summary judgment to Fulton County on the state law claims. While Lomas contains a correct statement of the law, it is inapposite in this instance. The order appealed from in the instant case is not a final judgment. Since the individual appellees’ motion for summary judgment on the state law claims was denied, this issue remained to be resolved and the order did not constitute a final ruling on all the merits of the action. See Vurgess v. State, 187 Ga. App. 700 (1) (371 SE2d 191) (1988). That aspect of the case remained pending in the trial court. OCGA § 5-6-34 (a) (1). “Where there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. [Cit.] In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the requirements of OCGA § 5-6-34 (b).” Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677) (1983). Neither of these requirements was complied with herein. The instant appeal is predicated on OCGA § 9-11-56 (h), which allows a direct appeal from a grant of summary judgment, and appeals the trial court’s grant of summary judgment to all appellees on the federal claims. “In [Olympic Dev. Group, Inc. v. American Druggists’Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985)], this court held that where the appellants had failed to bring a timely appeal from a grant of partial summary judgment, they could not obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order did not constitute a final judgment in the case.” Hutchison v. Nat. Services Indus., 191 Ga. App. 885, 886 (1) (383 SE2d 212) (1989). See Gulf Oil Co. v. Mantegna, 167 Ga. App. 844 (1) (307 SE2d 732) (1983). Since, as we stated in our opinion, a motion for reconsideration does not extend the time for filing a notice of appeal, appellants’ second enumeration is without merit.

Decided June 8, 1990

Rehearing denied July 2, 1990 — Cert, applied for.

Ford & Haley, James L. Ford, Johnson & Vandiver, C. Donald Johnson, Jr., for appellants.

Susan B. Forsling, for appellees.

Appellants’ argument premised on Wideman v. Shallowford Community Hosp., 826 F2d 1030 (11th Cir. 1987) has been discussed in our main opinion and appellants present nothing new to review on motion for rehearing.

Motion for rehearing is denied.


text:
    A90A0463, A90A0464.
    SUPERIOR INSURANCE COMPANY v. BROWNE.
    (395 SE2d 611)
   Carley, Chief Judge.

On February 10, 1986, appellee-plaintiff became an at-will employee of appellant. As a “new employee” under the provisions of the handbook for appellant’s employees, appellee earned several days of paid vacation during 1986 and, when she voluntarily resigned on January 29, 1987, appellant paid her for the one vacation day that she had earned in 1986, but had not yet taken. However, appellee insisted that, under the terms of the employees’ handbook, she was entitled to be paid for an additional 10 days of vacation that she had earned in 1987, but had not yet taken. When appellant refused to pay her for more than one day of vacation, appellee brought this action to recover an amount equivalent to her salary for 10 days, and she originally named Standard Plan, Inc. (Standard Plan) as the defendant. However,- after Standard Plan answered, denying that it was appellee’s employer, and filed a counterclaim for abusive litigation, appellee dismissed her action as against it and served her complaint on appellant. After discovery, cross-motions for summary judgment were filed both as to appellee’s claim against appellant and Standard Plan’s claim against appellee. After conducting a hearing, the trial court granted summary judgment in favor of appellee as to both claims.

In Case No. A90A0463, appellant appeals pursuant to our grant of its application to bring a discretionary appeal from the $961.50 summary judgment that was granted in appellee’s favor. In Case No. A90A0464, appellant appeals directly from that same order.

Case No. A90A0464

1. Appellant is not authorized to bring a direct appeal from the trial court’s grant of the $961,50 summary judgment in favor of appellee. Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 (344 SE2d 440) (1986). Accordingly, this unauthorized direct appeal is dismissed for lack of jurisdiction.

Case No. A90A0463

2. With regard to appellee’s entitlement to be paid for an additional 10 days of vacation, appellant enumerates as error the denial of its motion for summary judgment and the grant of summary judgment in favor of appellee.

“It is the accepted law of this state that an additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them. . . . [Cits.]” Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981). “ ‘Where no matter of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court; a contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more permissible meanings represents the true intention of the parties. (Cit.)’ [Cit.]” Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125, 126 (329 SE2d 208) (1985).

The handbook for appellant’s employees provides that “[v]acation is earned according” to a listed schedule of “calendar years of service” and that for those employees having one-to-four “calendar years of service” 10 days of “[v]acation is earned. . . .” It is apparently appellee’s contention that, as of January 1, 1987, she achieved the status of an employee with one “calendar year of service” and that she therefore had earned 10 additional days for 1987, even though she was in appellant’s employ for less than a full month of that “calendar year.” It is clear that appellee’s status as a “new employee” did end on December 31, 1986. However, it is equally clear that, as of January 1, 1987, appellee did not automatically attain the status of an employee with one “calendar year of service.” Appellee could not have one “calendar year of service” as appellant’s employee unless and until she had remained in appellant’s employment through December 31, 1987. The employees’ handbook otherwise unambiguously provides that “[v]acation is officially earned at the rate of one day per full month of employment after [three months of probation] (up to a maximum of 10 days),” It is thus clear that, as of January 1, 1987, appellee was merely eligible to earn 10 days of vacation during her first “calendar year of service.” She did not automatically earn 10 days of vacation by merely being in appellant’s employment on the first day of the first month of her first “calendar year of service.”

Decided June 20, 1990

Rehearing denied July 2, 1990.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellant.

Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, for appellee.

It is undisputed that appellee was paid for the one day of vacation that she earned in 1986 as a “new employee,” but did not take. It is also clear that appellee did not earn even one additional vacation day because she resigned on January 29, 1987, and was not, therefore, in appellant’s employment for a “full month” during that calendar year. It follows that the trial court erred in granting appellee’s motion for summary judgment and in denying summary judgment in favor of appellant.

3. Appellant also enumerates as error the grant of summary judgment in favor of appellee as to Standard Plan’s claim for abusive litigation.

Since Standard Plan is apparently a separate entity which asserted its own separate abusive litigation claim against appellee, appellant has no standing to raise this issue on appeal. See generally Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781) (1986), aff’d 257 Ga. 9 (356 SE2d 27) (1987).

Judgment reversed in Case No. A90A0463. Appeal dismissed in Case No. A90A0464.

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


author: Pope, Judge.

text:
    A90A0527.
    BARTLETT v. THE STATE.
    (396 SE2d 31)
   Pope, Judge.

Defendant Charles Franklin Bartlett was convicted of two counts of child molestation. He appeals the denial of his motion and amended motion for new trial. We affirm.

1. In his first four enumerations of error defendant contends the trial court erred in denying his pre- and post-trial motions for an in-camera inspection pursuant to Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987) and in refusing to conduct an in-camera examination of Dr. Joseph Peek, a psychologist who had at one time counseled the victims (defendant’s girl friend’s daughters), and who testified on defendant’s behalf at trial. We find no error. Although it was contended that Dr. Peek’s communications with the victims (which occurred prior to the incidents alleged in the indictment) and their mother were privileged pursuant to OCGA § 24-9-21, the trial court granted defendant’s pre-trial motion to conduct an in-camera inspection of Dr. Peek’s files and entered an order stating that no exculpatory materials had been found. Although the trial court subsequently denied defendant’s post-trial motion to re-inspect the files for impeaching information, the court did so on the basis that it had previously examined the files for both exculpatory and impeaching information. The trial court also noted in its order that it was “aware that its duty to disclose is on-going. If the court became aware that any materials originally deemed immaterial had become important as the proceedings progressed, counsel for defendant would have been furnished with these materials.” Nevertheless, defendant asserts on appeal that we should again undertake a review of Dr. Peek’s files, presumably in a quest for information that would impeach the testimony of the victims, although defendant does not assert knowledge that Dr. Peek’s files, in fact, contain such information. This we decline to do. “According to Pennsylvania v. Ritchie, the defendant is entitled to an in-camera inspection by the trial judge to determine what, if any, material information should be released as useful to the defense.” Sosebee v. State, 190 Ga. App. 746, 749 (380 SE2d 464), cert. denied, 110 SC 323 (1989). Here the trial court conducted such an examination and found no material which was exculpatory or impeaching. That does not mean, however, that the trial court failed to conduct properly its examination of the files, and there is nothing in the record to suggest thqt the examination was not properly undertaken in this case. Under these circumstances, “[defendant] has no grounds to appeal the trial court’s review of the . . . file, much less to ask this court to call up the file and examine it . . . .” Barnes v. State, 157 Ga. App. 582, 589 (277 SE2d 916) (1981).

Likewise, we find no merit to defendant’s contention that the trial court also should have conducted an in-camera examination of Dr. Peek, as well as Dr. Peek’s files. Relying on Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986), defendant argues that this case should be remanded for an “in camera examination of Dr. Peek for discovery of his findings and any statements made by [the victims] to him material to the issues on trial.” Bobo v. State, however, specifically prohibits the kind of “fishing expedition” defendant wishes the trial court to embark on here. Id. at 360. Thus we decline defendant’s request to remand the case for this purpose.

2. In his next four enumerations of error defendant contends the trial court erred in the manner in which it conducted its in-camera examination of the State’s and Department of Family & Children Services’ files pursuant, to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), and in denying his renewed and post-trial Brady motions. Defendant requests that this court undertake an independent examination of these files. As stated in Division 1, supra, the trial court informed defendant it had provided him with all material of an exculpatory or impeaching nature, and clearly indicated it realized its obligation in this regard was on-going throughout the trial. “The trial judge’s discretionary ruling on the lack of exculpatory [or impeaching] matter in the [relevant files] established that as a fact absent a counter-showing. We will not call up the [S]tate’s files for review unless the [defendant] can show cause, by showing that particular evidence was suppressed which was material.” (Citations and punctuation omitted.) Upshaw v. State, 172 Ga. App. 671, 672 (324 SE2d 529) (1984). See also Barnes v. State, supra.

3. Lastly, defendant contends the trial court erred in charging the jury, upon request by the State, as follows: “I charge you that a single count of an indictment may charge in [sic] commission of the offense in different ways. According [sic] on the trial of a defendant under an indictment charging the defendant with the commission of the offense in different ways, it is not necessary for the State to prove all such separate ways or methods alleged in the indictment; but the State makes a prima facie case upon it’s [sic] establishment by proof of any one of them.” Although defendant concedes that the charge as given was a correct statement of the law as it pertains to the ability of the State to withstand a motion for directed verdict, he argues it was improper to so instruct the jury, because the charge may have misled the jury as to the applicable burden of proof. Pretermitting the question of whether the trial court erred in giving the complained of portion of the charge, we find no grounds for reversal here. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citations and punctuation omitted.) Sharp v. State, 192 Ga. App. 353, 354 (2a) (385 SE2d 23) (1989). Accord Cordova v. State, 191 Ga. App. 297, 298 (3) (381 SE2d 436) (1989). Here the trial court thoroughly and accurately charged the jury regarding presumptions of innocence, burdens of proof and reasonable doubt. “It is clear to us beyond a reasonable doubt that any error in [the charge] did not contribute to the verdict of guilty and thus was harmless. [Cits.]” Mattox v. State, 185 Ga. App. 787, 789 (2) (366 SE2d 158) (1988).

Decided July 2, 1990.

Douglas N. Peters, for appellant.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0865.
    PEEBLES v. THE STATE.
    (395 SE2d 640)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty on five counts of burglary and one count of theft by taking. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends in his first enumeration of error that the trial court erred in admitting his two custodial statements. The evidence adduced at a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), revealed the following:

On December 16, 1984, defendant was “arrested and taken to the Fannin County Sheriff’s office. ...” Defendant was there interviewed by Special Agent Peter Connelly of the Federal Bureau of Investigation (“FBI”) and Special Agent Jimmy Berry of the Georgia Bureau of Investigation (“GBI”). Special Agent Berry advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Defendant acknowledged that he understood his rights and he then executed a “standard GBI acknowledgement of waiver of rights form [which acknowledged that defendant] understood his rights and that he was waiving his rights at that time and was willing to speak to [the law enforcement officers].” The waiver form more specifically provided that defendant was “willing to talk about theft by receiving.” Defendant then answered “questions regarding items of [stolen property] found at his residence. . . .”

On December 17, 1984, Special Agents Connelly and Berry went to the Pickens County Jail, where defendant was then being held, and “attempted to reinterview . . .” defendant. However, defendant “did not wish to speak to [the agents] and [he] exercised his right to legal counsel.” The interview was terminated.

On December 21, 1984, Fannin County “Deputy Webb” informed Agent William Daniel Duncan of the GBI that defendant “wanted to talk with a GBI agent.” Agent Duncan went to the Fannin County Jail and “asked [defendant] what he wanted and [defendant] asked [the agent to get] him some personal items, tobacco and clothes and this type of thing.” Agent Duncan informed defendant that either he “or some of the deputies would go [to defendant’s residence, but that they would have] to have a consent, some type of consent signed, giving them permission to go on [defendants] property and get it.” Defendant executed such a consent. “[H]e was [then] locked back up.”

On December 26, 1984, “Investigator [Donald B.] Payne [, Chief Investigator for the Fannin County Sheriff’s Department] told [Agent Duncan] that [defendant] had told two or three deputies that he wanted to talk ...” The next day, Agent Duncan went to the Fannin County Jail with another agent. Agent Duncan “told [defendant] that the deputies had told [the agents] that he wanted to talk. ...” Defendant said “yes, [that] he wanted to talk . . . about the death of Mary Dunn. At that time[, Agent Duncan] advised [defendant] of his constitutional rights under [Miranda v. Arizona, supra,] of a waiver and [defendant] signed the waiver and [the agents] did interview [defendant] at that time.” No one threatened, coerced or intimidated defendant into making the statement; defendant was not given the slightest hope of benefit or reward in exchange for the statement; defendant did not appear to be under the influence of. drugs or alcohol at the time he waived his constitutional rights or during the interview and defendant seemed to “understand everything” before and during the interview.

a. Defendant argues that his first statement was the product of his being misled in the initial questioning in that he was told that he “was under suspicion for theft by receiving and signed a waiver so stating ... No mention was made to [him] at that time that he was being suspected of burglary, theft by taking or possible murder charges.” This argument is without merit.

“A suspect’s awareness of all the crimes about which he may be questioned is not relevant to determining the validity of his decision to waive [his] Fifth Amendment privilege; accordingly, [Special Agents Connelly’s and Berry’s] failure to inform [defendant] of the subject matter of the interrogation could not affect his decision to waive that privilege in a constitutionally significant manner.” Colorado v. Spring, 479 U. S. 564, 565 (107 SC 851, 93 LE2d 954).

b. Next, defendant argues that his first statement should have been suppressed because he invoked his right to counsel the day after he made the statement.

“The effect of this assertion by [defendant] of his right to counsel was to render inadmissible any statement subsequently given by him in violation thereof. Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). It did not, however, have the effect of rendering inadmissible any previous statement which [defendant] had already made pursuant to a valid waiver of his constitutional rights.” Stephens v. State, 170 Ga. App. 342 (1), 343 (317 SE2d 627). Consequently, since evidence authorized a finding that defendant’s first custodial statement was made after a knowing and voluntary waiver of his constitutional rights, the trial court did not err in allowing the statement into evidence.

c. Finally, defendant challenges the admissibility of his second custodial statement, arguing that it was made after he invoked his right to counsel.

“[A]n analysis of whether a suspect who has invoked his right to counsel under Miranda [v. Arizona, supra], has later waived that right proceeds in two steps. First, a determination as to whether the defendant initiated further talks with the police, and second, if so, whether his waiver was shown to be voluntary under the totality of the circumstances. Oregon v. Bradshaw, 462 U. S. 1039 (103 SC 2830, 77 LE2d 405). See also Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378).” Sanders v. State, 182 Ga. App. 581. (1), 582 (356 SE2d 537). In the case sub judice, the evidence authorized a finding that defendant initiated the second interview with Agent Duncan and that defendant freely and voluntarily waived his constitutional rights before the interview. The trial court did not err in allowing evidence of defendant’s second custodial statement.

2. In his second enumeration, defendant contends the trial court erred in failing to grant his motion for change of venue.

“ ‘ “The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion. Allen v. State, 235 Ga. 709, 713 (221 SE2d 405) (1975); Jarrell v. State, 234 Ga. 410, 415 (216 SE2d 258) (1975).” Patterson v. State, 239 Ga. 409, 418 (5) (238 SE2d 2) (1977). Chancey v. State, 256 Ga. 415, 429 (5), 430 (349 SE2d 717). Tn order to prevail on a motion for change of venue, (1) the defendant must show such extensive and prejudicial pretrial publicity that the county in which the crime occurred presumptively is incapable of providing a fair trial to the defendant, or (2) he must establish from the jury selection process itself — the voir dire examination and qualification of prospective jurors — that a change of venue is necessary. Devier v. State, 253 Ga. 604, 608-609 (323 SE2d 150) (1984).’ Lee v. State, 258 Ga. 82, 86 (9) (365 SE2d 99).” Lubiano v. State, 192 Ga. App. 272, 277 (5) (384 SE2d 410). In the case sub judice, defendant argues that “pretrial publicity and discussions” prevented him from receiving a fair trial.

“ ‘ “On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial. Stroble v. California, 343 U. S. 181, 191-195 (72 SC 599, 96 LE 872) (1952); Mooney v. State, [243 Ga. 373, 385-387 (254 SE2d 337)]; Brooks v. State, 244 Ga. 574, 578-581 (261 SE2d 379) (1979). . . .” Kesler v. State, 249 Ga. 462, 471-472 (7) (291 SE2d 497) (1982).’ Chancey v. State, 256 Ga. 415, 429 (5), supra.” Lubiano v. State, 192 Ga. App. 272, 277 (5), 278, supra.

In the case sub judice, defendant points to eight newspaper articles, reporting crimes which defendant was suspected of committing. There is no evidence of the size of the community affected, if any, by this pretrial publicity and there is no mention of publicized admissions or confessions by defendant. In fact, only four of the articles mention defendant by name and none of these reports speculates as to defendant’s guilt or innocence. On the contrary, the articles reflect accurate reporting, unembellished by speculation or emotionalism. Under these circumstances, the trial court could not have abused its discretion in denying defendant’s motion for change of venue.

3. Next, defendant contends the trial court erred in failing to give his fourth request to charge, i.e., “I charge you further that you may not infer an unauthorized entry from any recent possession by an accused of the stolen goods.”

“ ‘ “A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.” (Cit.) . . .’ Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811) (1976).” Daniels v. State, 184 Ga. App. 689 (1), 690 (362 SE2d 775). In the case sub judice, defendant’s fourth request to charge was not accurate as “there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary. . . .” Bankston v. State, 251 Ga. 730 (309 SE2d 369). Consequently, the trial court did not err in refusing defendant’s fourth request to charge.

4. In his final enumeration, defendant challenges the sufficiency of the evidence.

Decided July 2, 1990.

David E. Ralston, for appellant.

Roger G. Queen, District Attorney, Jeffrey L. Floyd, Assistant District Attorney, for appellee.

The evidence in the case sub judice showed that defendant was in possession of property which had recently been the object of five burglaries. Defendant was also in possession of building materials which had recently been taken from a local business establishment’s construction site. The burglary victims and the theft victim were either acquainted with defendant or they owned property which was easily accessible to defendant’s home. Further, defendant’s explanation of possession of the stolen property was that his co-defendant forcibly coerced him to participate in the crimes. This evidence, evidence showing defendant’s inconsistent statements regarding his participation in the crimes and evidence showing that defendant attempted to flee when confronted by warrant-bearing law enforcement officers was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of five counts of burglary and one count of theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Rogers v. State, 185 Ga. App. 211 (1) (363 SE2d 846), where it was held that evidence of recent possession of a stolen truck plus defendant’s unbelievable explanation of his possession of the stolen property was sufficient to sustain a conviction for theft by taking.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A90A0871.
    HICKS v. THE STATE.
    (396 SE2d 33)
   Sognier, Judge.

Howard David Hicks was convicted of theft by taking in a jury trial in Hall County, and he appeals from the judgment entered on the verdict.

1. Appellant first enumerates the general grounds, contending that the State’s evidence did not establish beyond a reasonable doubt that he exercised dominion or control over the stolen vehicle. Jerry Greenway, owner of Green way Motors, testified that he was working in his office at the dealership on the night of February 8, 1989. Around 9:00 or 10:00 p.m., he heard noises outside, but saw nothing when he went out to investigate. He left the dealership at about 10:00 o’clock. Lt. Bobby McMahan of the Hall County Sheriff’s Department testified that he was driving past Greenway Motors sometime after 10:00 p.m. when he saw a jeep parked at the entrance to a mobile home park approximately 500 yards from the dealership. A man he identified as appellant was standing beside the open door on the driver’s side. When McMahan stopped to offer assistance, he noticed that the steering column was “busted and broken,” wires were hanging out of the steering column, and small particles of metal were scattered on the floorboard on the driver’s side. Appellant told the officer his name was Michael Troy Bowers and that he was trying to jump start the car for a friend. Deputy Sheriff Gerald Couch testified that when he responded to McMahan’s call for backup, appellant accompanied him on a search for the friend, and when that task proved unsuccessful appellant admitted his true identity.

We find this evidence sufficient to authorize a conviction for violation of OCGA § 16-8-2 under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While appellant is correct that mere presence at the scene of a crime is insufficient to support a conviction, Simmons v. State, 149 Ga. App. 589, 590 (254 SE2d 907) (1979), here the evidence establishing that appellant was standing beside the open driver’s door of a jeep that belonged to a dealership located 500 yards away was sufficient to establish wrongful asportation and wrongful exercise of dominion over the vehicle. See Ford v. State, 144 Ga. App. 599 (241 SE2d 481) (1978). Given the evidence that the jeep had been stolen and appellant’s failure to provide a satisfactory explanation for his possession of the vehicle, especially when the steering column had been damaged and appellant gave a false name to the investigating officers, the jury was authorized to conclude that appellant was guilty of the theft of the jeep. See Williamson v. State, 248 Ga. 47, 49 (1) (a) (281 SE2d 512) (1981).

2. The trial court charged the jury that “[i]n theft cases the slightest change of location whereby complete control of the property is transferred from the owner to another is sufficient evidence of carrying away or removal.” Appellant contends the giving of this charge was erroneous because there was no evidence from which the jury could conclude that appellant had changed the location of the jeep. This enumeration is without merit. Since we concluded in Division 1 that the evidence was sufficient to establish that the jeep had been removed from the dealership lot without permission and that appellant was responsible for this removal of the vehicle, we hold the charge was a correct statement of the law, see Ford, supra, and was authorized by the evidence.

Judgment affirmed.

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

Decided July 2, 1990.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Assistant District Attorney, for appellee.


text:
    A90A1001.
    KENDRICK v. THE STATE.
    (395 SE2d 644)
    Decided July 2, 1990

      Paul S. Liston, for appellant.

      Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of trafficking in cocaine. Defendant’s trial attorney filed a motion for new trial asserting the general grounds and upon the denial of the motion this appeal followed. Although defendant’s trial attorney filed the notice of appeal, it appears that another attorney is representing defendant on appeal as he has filed with this Court a motion to remand the case for a hearing on. defendant’s claim of ineffective assistance of trial counsel. Held:

Where a defendant’s appellate counsel does not participate in a motion for new trial and the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for a hearing on the issue of ineffectiveness of counsel. Johnson v. State, 259 Ga. 428, 429 (3) (383 SE2d 115). In the case sub judice, defendant’s appellate counsel did not participate in the motion for new trial and the issue of ineffective assistance of counsel is raised for the first time on appeal. Consequently, the case is remanded to the trial court for an evidentiary hearing on defendant’s claim of ineffective assistance of counsel.

Case remanded for evidentiary hearing.

Carley, C. J., and Sognier, J., concur.