author: Barnes, Judge.

text:
    A99A0966.
    In the Interest of M. G., a child.
    (521 SE2d 918)
   Barnes, Judge.

M. G. was adjudicated delinquent for the offense of child molestation by the Fulton County Juvenile Court. On appeal, he claims the juvenile court erred when it refused to allow him to cross-examine the State’s “outcry” witness about previous false allegations of child molestation made by this witness. We affirm.

The record shows that M. G., a twelve-year-old boy, was charged with two counts of aggravated child molestation and one count of statutory rape after his four-year-old female cousin, Q. R, reported to her grandfather, G. G., that M. G. had placed his penis in her vagina, rear end, and mouth the day before. After hearing this report, Q. R’s grandfather took her immediately to Grady Hospital for a medical examination. The doctor who examined Q. R testified that she found redness around Q. R’s rectal area and a “skin tag” that could have been caused by a child’s penis, but she did not know “for sure.”

During cross-examination by M. G.’s counsel, the victim’s grandfather volunteered the following testimony, without objection:

I had another little niece of mine that I had took in custody from my brother that passed. I had a female that was bathing her. This happened in Macon. Even spoke with the District Attorney about this. This certain night that I thought that my friend had did something to this girl, I called the police the same way I did about [M. G.]. She kept digging and turning and jumped on this bed. I called the police.
We took her to the Macon General Hospital. They had a whole investigation about it. It was because I didn’t want to touch the little girl. I didn’t have a female friend in with me to really bathe her. I even had went to my sister’s at times and asked her about bathing my baby because she wasn’t bathing herself right.

This testimony was followed by a lengthy colloquy between the court and counsel about whether M. G.’s counsel could cross-examine the grandfather about Q. P.’s previous vaginal odors and infections. When M. G.’s counsel was directed to move to another line of questioning, he announced a proffer “that this witness has made allegations that other children in his care have been molested and defense wants to talk to him about those allegations because they proved to be false.” After another colloquy between counsel and the court, the court apparently ruled, although it is not clear, that M. G.’s counsel would not be allowed to explore prior false allegations of molestation made by the grandfather. M. G.’s counsel then made another proffer, with no objection by the State, that he expected the evidence “to show that the grandfather has made prior allegations that children in his care have been molested, that investigations were conducted, and those allegations proved to be false.” The record shows that this issue did not arise again.

In his sole enumeration of error, M. G. claims reversible error because the juvenile court prevented him from establishing prior false allegations of child molestation by the outcry witness, the victim’s grandfather. In his brief, however, M. G. points to only one prior false allegation of molestation by the grandfather: the incident involving his niece in Macon. Although the grandfather did volunteer information about this incident, M. G. apparently complains because he could not explore it further, particularly with regard to its falsity.

“The defendant in a child molestation case is entitled to a thorough and sifting cross-examination of the State’s witnesses.” Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998). “[H]owever, the scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused. [Cits.]” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987). “The trial court can exercise its discretion in keeping the questioning within reasonable bounds and in curtailing it if the inquiry is not relevant or material.” (Citations and punctuation omitted.) Gilbert v. State, 193 Ga. App. 283, 286 (3) (388 SE2d 18) (1989).

M. G. argues that he was entitled to cross-examine the grandfather about prior false allegations of molestation in order to attack the credibility of this outcry witness and show that he “had made very serious allegations of child molestation in the past based on the very innocent behavior of a child.” Although this is an issue of first impression, we addressed similar issues in Letlow v. State, 222 Ga. App. 339, 342-343 (2) (474 SE2d 211) (1996) and Wand v. State, 230 Ga. App. 460 (496 SE2d 771) (1998) (physical precedent only).

In Letlow, supra, we held that the trial court erred when it refused to allow the defendant to cross-examine the State’s witness, who was not related to the victim, about the prior molestation of her own child. Id. Noting that great latitude should be allowed by a trial court when a party attempts to impeach or discredit a witness, we held that “a prior act of molestation committed against the child of a witness is relevant to show any possible bias against an accused child molester that the witness may entertain, unconsciously or deliberately.” Id.

In Wand, supra, the appellant argued that the trial court improperly disallowed cross-examination of the victim’s mother about her prior, allegedly false, allegations of sexual abuse of the victim. In this physical precedent only, panel decision, all of the judges agreed that the appellant’s conviction should be affirmed. They disagreed, however, about whether it is ever appropriate to cross-examine a non-victim witness about prior false allegations of molestation.

Judge Beasley wrote:

[T]he common law rule of relevancy generally applies to show false accusations made by the victim, not the victim’s mother. . . . Showing the victim made previous false allegations is directly relevant to the question of defendant’s guilt; showing the victim’s mother reported those allegations does not affect the victim’s credibility. The relevance of the mother’s reporting is marginal.

Wand, supra, 230 Ga. App. at 463 (2) (c).

In his special concurrence, Judge Smith questioned
whether Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), should be cited as authority for adopting a “black letter” rule that only the victim’s alleged prior false allegations may be admissible. First, although that case involved a factual situation in which the victim allegedly made false allegations, the Court did not appear to expressly limit its holding to such a factual scenario. Second, ... I cannot agree that the relevance of the mother’s credibility in this case is “marginal,” as stated by the majority. She reported the alleged incident to the police, and the alleged evidence of prior similar false allegations could impact on her credibility and propensity for making such allegations.

Wand, supra, 230 Ga. App. at 466.

The Constitutions of both the United States and the State of Georgia guarantee the right of a criminal defendant to confront the witnesses against him. U. S. Const., Amendment VI; Ga. Const, of 1983, Art. I, Sec. I, Par. XIV. This right to confrontation includes the right to cross-examine witnesses. Pointer v. Texas, 380 U. S. 400, 403 (85 SC 1065, 13 LE2d 923) (1965); Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975).

The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations.

(Citations and punctuation omitted.) Letlow, supra, 222 Ga. App. at 342.

In this case, the victim did not report that M. G. had molested her until after her grandfather repeatedly asked what was wrong with her. The grandfather testified that he asked these questions because the victim “just kept bouncing up and down” at a football game. Because the grandfather was the first to question the victim and report the alleged molestation, we find the trial court abused its discretion when it refused to allow the defendant to cross-examine him about a prior false allegation of molestation. Compare Lane v. State, 223 Ga. App. 740, 743 (5) (479 SE2d 350) (1996) (holding no need to address this issue because no evidence witness who allegedly made a prior false allegation of molestation reported the molestation at issue).

We must now consider whether this error was harmless, because the appellant must show harm as well as error to prevail on appeal. We can affirm only if we conclude that it is highly probable that the error did not affect the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). In this case, six witnesses, in addition to the grandfather, testified that the victim told them about M. G.’s molestation of her. Moreover, the victim also testified and was cross-examined at length about the circumstances under which she reported the molestation to her grandfather at the football game. Under these circumstances, it is highly probable that the lack of desired cross-examination did not contribute to M. G.’s delinquency adjudication. See Berry v. State, 235 Ga. App. 35, 38 (2) (508 SE2d 435) (1998).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

Decided September 2, 1999.

Torris J. Butterfield, for appellant.

Paul L. Howard, Jr., District Attorney, Sally G. Butler, Christopher M. Quinn, Assistant District Attorneys, for appellee.

       Judge Beasley and Presiding Judge McMurray both concluded that any error was harmless. Judge Beasley also concluded, and Judge Smith agreed, that the failure of the defendant to proffer evidence that the prior allegations were false precluded this Court’s review of the issue.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A1160.
    BERKLITE v. BILL HEARD CHEVROLET COMPANY.
    (522 SE2d 246)
   Phipps, Judge.

Deborah Berklite sued Bill Heard Chevrolet Company, seeking damages for fraud and violation of the federal Truth in Lending Act (TILA).

Berklite purchased a new truck from Bill Heard. As a down payment, she used a $1,000 promotional coupon and wrote checks to Bill Heard in the amounts of $2,000 and $4,000. She financed the remainder of the purchase. Berklite charges Bill Heard with fraud in misrepresenting to her that the $2,000 down payment check had been destroyed and in not applying the $1,000 coupon toward her purchase. She claims that the failure to give her credit for these sums was a violation of TILA disclosure requirements. Bill Heard claims Berklite was given credit for the $1,000 coupon as part of her trade-in allowance, both parties mistakenly thought the $2,000 check had been destroyed, and Bill Heard promptly refunded the $2,000 upon learning that the check had been deposited into one of its accounts.

On August 29, 1997, Berklite filed her complaint, and Bill Heard’s registered agent/attorney acknowledged service of the complaint and summons. The acknowledgment was filed on September 8. Bill Heard filed its answer and responsive pleadings on October 8, 40 days after service but 30 days after the filing of the acknowledgment of service. Bill Heard had not paid costs as of November 14. After learning of Berklite’s efforts to obtain a default judgment, Bill Heard on November 18 paid costs, filed a responsive brief arguing that its answer was timely, and filed a “cautionary motion” to set aside the default.

The court granted Bill Heard’s motion to open the default and awarded summary judgment to Bill Heard on Berklite’s TILA claim. Although it was not granted summary judgment on Berklite’s fraud claims, a jury later returned a verdict in Bill Heard’s favor with respect to them.

1. Berklite first enumerates as error the grant of Bill Heard’s motion to set aside the default.

Bill Heard argues that this issue need not be reached because its answer was timely because it was filed within 30 days after the filing of the acknowledgment of service. We disagree. “The defendant may acknowledge service or waive process by a writing signed by the defendant or someone authorized by him.” OCGA § 9-10-73. “[Acknowledgment of service and waiver of process . . . [put] the party in precisely the same situation as though process were annexed and service effected by the proper officer.” Jackson v. Hitchcock, 48 Ga. 491, 494-495 (2) (1873). “[T]he sole purpose of waiver of service is to avoid formal service.” Jones v. Jones, 209 Ga. 861, 863 (1) (76 SE2d 801) (1953). Although OCGA § 9-11-4 (g) requires a return of service to be filed with the court, OCGA § 9-11-12 (a) generally mandates that the defendant serve its answer within 30 days after service. Compare Northside Corp. v. Mosby, 214 Ga. App. 806, 807 (449 SE2d 6) (1994). It logically follows that the answer must be filed within 30 days after service is acknowledged.

Did the trial court “abuse its broad discretion in opening [the] default[?]” Exxon Corp. v. Thomason, 269 Ga. 761, 763 (2) (504 SE2d 676) (1998).

At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

OCGA § 9-11-55 (b).

Berklite argues that Bill Heard showed neither excusable neglect, providential cause, nor a proper case for opening the default. We disagree. Statements by the parties in their appellate briefs show without material dispute that Berklite had previously filed an identical action against Bill Heard and, although the trial court in the prior action orally ruled that no TILA violation had been shown, an order granting summary judgment to Bill Heard on that issue was never entered and the action ultimately was dismissed without prejudice. Although Bill Heard did not answer this case in a timely fashion, it did file its defenses within 15 days of the default and, therefore, could have opened the default as a matter of right under OCGA § 9-11-55 (a) had it not neglected to pay costs. Upon being alerted that the case was in default, Bill Heard promptly paid costs and set up meritorious defenses. See Division 2, infra, as to Berklite’s TILA claim. Under the circumstances, the court did not abuse its discretion in finding that a “proper case” for opening the default was shown. See generally Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400 (314 SE2d 199) (1984); Whitley v. Bank South, 185 Ga. App. 896, 898 (2) (366 SE2d 182) (1988); Houston v. Lowes of Savannah, 136 Ga. App. 781, 782-784 (1) (222 SE2d 209) (1975).

Decided September 2, 1999

Roper & McPherson, John W. Roper, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, Clarence M. Mullin, for appellee.

2. Berklite next contends that the court erred in granting summary judgment to Bill Heard on her TILA claim.

As a general rule, TILA disclosures are required prior to the consummation of a credit transaction. 15 USC § 1601 et seq.

“[T]he Truth in Lending Act reflects a transition in congressional policy from a philosophy of let the buyer beware to one of let the seller disclose. By erecting a barrier between the seller and the prospective purchaser in the form of hard facts, Congress expressly sought ‘to . . . avoid the uninformed use of credit.’ [Cit.]” [Cit.]

Glenn v. Trust Co. of Columbus, 152 Ga. App. 314, 317-318 (1) (262 SE2d 590) (1979). In this transaction, the TILA required disclosure of the annual percentage rate of the loan, the dollar amount of the finance charge, the amount financed, the total payments after making all scheduled loan payments, and the total cost of the purchase on credit. Berklite complains of Bill Heard’s alleged failure to credit a down payment check and her promotional coupon toward her purchase. Although Bill Heard might have committed fraud and/or conversion if these allegations were true, it would not have violated the TILA because there is no charge that it failed to make the required TILA disclosures based on the amounts that were credited toward Berklite’s purchase.

Other issues in the case are moot.

Judgment affirmed.

McMurray, R J., and Ruffin, J., concur.


author: Miller, Judge.

text:
    A99A1266.
    BROWN v. THE STATE.
    (521 SE2d 925)
    Decided September 2, 1999.

      William M. Shingler, for appellant.

      Charles M. Ferguson, District Attorney, for appellee.
   Miller, Judge.

Convicted of selling cocaine, John Anthony Brown filed a motion for new trial, which the court denied. Claiming the trial court erred, he argues the evidence produced at trial was insufficient to support the verdict.

The denial of a motion for new trial is within the discretion of the trial court and will not be disturbed if there is any evidence to authorize the verdict. Pettus v. State, 237 Ga. App. 143 (1) (514 SE2d 901) (1999); see OCGA § 5-5-21. We review the evidence in the light most favorable to the verdict to determine if it is sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Pettus, supra; see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Georgia Bureau of Investigation Agent Posey was performing a narcotics investigation by making street-level crack cocaine buys when his undercover vehicle was approached by Brown and Joshua Gosier. A hidden camera recorded a videotape of the transaction, which was presented to the jury at trial. Agent Posey testified that he requested $60 of cocaine from Gosier who then extended his hand and received something from Brown. He further testified that “he [Gosier] then walked directly to me without even changing the position of his hand and without obtaining anything from his own person, handed me a quantity of suspected crack cocaine.” Although the videotape recorded the transaction with both Brown and Gosier present, it did not record Brown handing something to Gosier. Gosier, throughout his testimony, contended that Brown was not involved in the cocaine transaction and was merely observing.

Where there is conflicting evidence, it is solely within the purview of the jury to weigh the evidence and decide upon the credibility of the witnesses. As long as there is some competent evidence, even if contradicted, to support the facts necessary for the State’s case, the jury verdict will be upheld. Ellison v. State, 233 Ga. App. 637 (504 SE2d 779) (1998); Williams v. State, 231 Ga. App. 123, 125 (2) (497 SE2d 660) (1998).

The evidence sufficed to sustain the conviction. Jackson, supra.

Judgment affirmed.

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


text:
    A99A1401.
    DIAZ v. THE STATE.
    (522 SE2d 242)
   Miller, Judge.

Following a jury trial, Juan Diaz was convicted of two counts of selling marijuana and one count of possession of marijuana with intent to distribute. On appeal he challenges the admission of the videotape of the drug transactions, the failure to issue several jury charges, and the sufficiency of the evidence. Diaz also contends the trial court erred by allowing the prosecution to attack his character in closing argument. We affirm.

1. Diaz challenges the admission of the videotaped sale of marijuana recorded by McClelland, an undercover informant. He contends the prosecution did not lay the proper foundation to admit the videotape and that it was not authenticated. McClelland testified he used the videocamera to record the transactions and that he viewed the videotape prior to trial. He further testified that he was familiar with how the camera operated,.that it was working properly, and that the videotape was a fair and accurate representation of the events that took place during the drug buy. This testimony established a foundation and properly authenticated the videotape. Gantt v. State, 229 Ga. App. 207, 208 (1) (493 SE2d 608) (1997). The trial court overruled Diaz’s objection which implies a finding that the foundation witness was credible. Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995). This finding is not clearly erroneous.

2. Diaz contends the trial court erred in failing to give specific jury charges. However, following the court’s instructions to the jury, the court asked for any objections, to which Diaz’s counsel replied that he had none. Counsel’s failure to object to the jury charge as given constitutes a waiver of any objection on appeal. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994); Medina v. State, 234 Ga. App. 13, 15-16 (2) (505 SE2d 558) (1998).

An exception to this waiver arises when there has been some substantial error in the jury charge which was harmful to the defendant as a matter of law, depriving him of a fair trial, regardless of whether an objection was made. OCGA § 5-5-24 (c); Medina, supra. Here we find no substantial error. Diaz contends that the jury should have been charged on the contingency fee arrangement of the witness. The court in fact gave this charge in substance, which cures any problem. See Anderson v. State, 231 Ga. App. 807, 811 (3) (b) (499 SE2d 717) (1998). Diaz also claims that the jury should have been charged regarding the law of immunity or leniency, but the court correctly found no evidence of either. The court was also correct in refusing to charge the jury on impeachment since no witnesses were impeached. Finally, Diaz maintains that the jury should have been charged on the law of identification. The court dismissed this request, explaining that nothing contradicted the testimony that the person on the videotape was Diaz. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. [Cits.]” Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992).

Decided September 2, 1999.

Douglas C. Rogers, for appellant.

J. David Miller, District Attorney, Wesley J. Lewis, A. Scott Gunn, Assistant District Attorneys, for appellee.

3. Diaz contends that the prosecution’s closing argument challenged his truthfulness and character. But Diaz failed to provide a transcript of the closing arguments showing any impermissible statements or showing that he objected to such statements. Review is precluded. Campbell v. State, 269 Ga. 186, 188 (11) (496 SE2d 724) (1998); Hand v. State, 206 Ga. App. 501, 503-504 (5) (426 SE2d 18) (1992).

4. Diaz urges that because of insufficient evidence, the denial of his motion for directed verdict was error. The standard of review is whether, in reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find Diaz guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Eyewitness testimony and a videotape showed that Diaz, on two separate occasions, sold marijuana to McClelland. Additionally, a sheriff’s deputy testified that in executing a search warrant of Diaz’s home, he found a jar containing marijuana in a closet. The evidence sufficed to sustain the convictions. Jackson, supra.

Judgment affirmed.

Barnes and Ellington, JJ, concur.


text:
    A99A1422.
    EUBANKS v. THE STATE.
    (522 SE2d 240)
   Miller, Judge.

Convicted of possession of cocaine, Darrell Eubanks challenges the sufficiency of the evidence and the effectiveness of his trial counsel. Because the State proved he was near the cocaine and possessed drug paraphernalia, and because he failed to include a transcript of the new trial hearing on appeal, we affirm.

1. Citing a lack of evidence, Eubanks claims the court erred in denying his motions for new trial and for a directed verdict. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), applies to our review of both rulings. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). The Jackson test is whether, based on the evidence as construed in favor of the verdict, any rational trier of fact could have found Eubanks guilty of possessing cocaine beyond a reasonable doubt.

Officer Jones observed Eubanks sitting in the driver’s seat, another man in the passenger seat, and a woman in the rear seat of Eubanks’ car at 3:00 a.m. in a deserted parking lot. He approached the vehicle and saw a glass pipe (commonly used to smoke crack cocaine) and a napkin (commonly used to hold a hot crack pipe) in Eubanks’ lap. He asked Eubanks to exit the car. As he exited, Eubanks dropped the pipe and crushed it with his foot with the specific intent of destroying incriminating evidence. With the help of a second officer, Officer Jones discovered raw cocaine in the mouth of the man sitting in the passenger seat. The second officer also found three plastic bags of cocaine in the man’s mouth. Each passenger possessed a crack pipe.

Eubanks argues that spatial proximity to contraband in another’s mouth is insufficient to establish constructive possession of the contraband. True, spatial proximity alone is insufficient to sustain a conviction of drug possession, even if based on joint constructive possession. Ryans v. State, 226 Ga. App. 595, 596 (1) (487 SE2d 130) (1997). But additional evidence such as defendant’s possessing drug paraphernalia will suffice. Id. at 597 (1); see Cooper v. State, 237 Ga. App. 837, 838 (2) (517 SE2d 85) (1999); Moody v. State, 232 Ga. App. 499, 501 (1) (502 SE2d 323) (1998); Leonard v. State, 228 Ga. App. 792, 797 (3) (492 SE2d 747) (1997).

Here police found Eubanks with a crack pipe and napkin in his lap. Eubanks even admitted to destroying the pipe to avoid incrimination. See Whitfield v. State, 159 Ga. App. 398, 401 (9) (283 SE2d 627) (1981) (efforts to destroy or conceal evidence may evince intent and participation in crime). The pipe was dark and had a screen filter, indicating it was recently used for cocaine smoking. Eubanks was sweating profusely, exuded a strong odor, and was nervous, jumpy, and talkative, all of which indicated recent drug use. The raw cocaine found in the passenger’s mouth was immediately available for use by as many as three people, and each occupant of the car had a crack pipe. This additional evidence connected Eubanks to the cocaine and sustained a finding of joint constructive possession.

2. To show ineffective assistance, Eubanks bore the burden of proving to the trial court that his counsel’s performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Johnson v. State, 266 Ga. 380, 381 (2) (467 SE2d 542) (1996). Eubanks’ appellate counsel raised the issue in an amended motion for new trial, and after holding a hearing the trial court denied the motion on each and every ground asserted.

Decided September 2, 1999.

James W. Gibert, for appellant.

Patrick H. Head, District Attorney, John C. Richter, Joel C. Pugh, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Eubanks failed to request or include a transcript of the hearing in the record on appeal. Georgia law is firmly established that absent a transcript, we must presume the trial court was authorized to find that Eubanks failed to meet the burden of proving the ineffectiveness of his trial counsel. Edwards v. State, 271 Ga. 3, 4 (2) (514 SE2d 833) (1999); Johnson v. State, 270 Ga. 234, 239-240 (7) (507 SE2d 737) (1998); Sorrells v. State, 267 Ga. 236, 241 (9) (476 SE2d 571) (1996); White v. State, 238 Ga. App. 367, 369 (2) (519 SE2d 13) (1999).

Judgment affirmed.

Barnes and Ellington, JJ, concur.


text:
    A99A1523.
    DIXON v. THE STATE.
    (521 SE2d 926)
   Miller, Judge.

Michael Dixon was convicted of aggravated battery (shooting a victim in the back resulting in paralysis), aggravated assault (shooting a victim in the chest), and possession of a firearm during the commission of a felony. He appeals on general grounds.

The victim, who identified Dixon with certainty in a pre-trial photo lineup and in court, testified unequivocally that Dixon shot him twice, in the chest and in the back, in broad daylight and at close range. The back wound resulted in temporary paralysis in the victim’s lower body and in permanent paralysis in three fingers. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. The police’s inability to recover the gun does not change this analysis. Barber v. State, 236 Ga. App. 294, 298 (3) (512 SE2d 48) (1999). Moreover, two of Dixon’s friends testified that soon after Dixon departed from their group toward the scene of the crime, they heard gunshots, whereupon Dixon immediately returned and announced to one, “I got him.” Dixon also admitted to police that he had carried a gun that day.

Dixon urges that because the State’s witnesses contradicted each other on various points, no rational trier of fact could have found guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). But

Decided September 2, 1999.

Hal T. Peel, for appellant.

J. Thomas Durden, Jr., District Attorney, Daniel E. Ellis, James S. Archer, Assistant District Attorneys, for appellee.

[c]onflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Thrasher v. State, 225 Ga. App. 717-718 (1) (484 SE2d 755) (1997).

The evidence adduced at trial was sufficient to sustain the convictions.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Ellington, Judge.

text:
    A99A1557.
    MURRAY v. FITZGERALD CONVENIENT CENTERS, INC.
    (521 SE2d 915)
   Ellington, Judge.

Debra Murray sued Fitzgerald Convenient Centers, Inc. (“the store”) for injuries sustained when she fell on the store’s premises. The trial court granted the store’s motion for summary judgment, and Murray appealed. Because we conclude that material questions of fact remain regarding the store’s negligence and regarding Murray’s exercise of care for her own safety, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record shows that Murray was traveling with her family when they stopped at the store to buy snacks and drinks. After she had made her purchases, Murray was crossing a concrete surface to return to her car. Her foot sank into a hole to a depth midway between her foot and knee. The hole provided access to an underground storage tank for gasoline deliveries, inventory measurements and other servicing. Inventory measurements were supposed to be made daily. The hole was normally covered with a metal manhole-type cover approximately 13 inches across. Whoever removed the cover, i.e., an employee of the gasoline supplier for gasoline deliveries, an employee of the store for inventory measurements, or an employee of a service company for other servicing, was responsible for properly securing the cover. The hole cover was not equipped with a bolt or latch to hold it in place but was held in place by its weight. When properly seated in the rim, the cover would not tip or shift when stepped or driven on. The only explanation offered for how Murray’s foot sank into the hole was that the cover was askew by at least an inch and flipped on its side when Murray stepped on it, allowing her foot to drop into the hole.

1. In her first enumeration of error, Murray argued that the trial court erred in granting summary judgment. We agree and reverse.

(a) Pursuant to OCGA § 51-3-1, a store owes a statutory duty to its customers, as invitees, to exercise ordinary care to keep the premises and approaches reasonably safe and “not to expose the invitees to unreasonable risk or to lead them into a dangerous trap.” (Citations omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Id. at 748-749 (2) (b).

The evidence is undisputed that Murray did not look down before she stepped on the hole cover. The store argues that, if the hole cover had been missing or askew enough to flip sideways when stepped on, Murray would have seen the hazard if she had looked and could have avoided stepping on the unstable cover; therefore, Murray failed to exercise ordinary care for her personal safety. The store, however, cannot establish as a matter of law that Murray failed to exercise ordinary care merely by showing that she admitted that she

did not look at the site on which [she] placed [her] foot or that [she] could have seen the hazard had [she] visually examined the [ground] before taking the step which led to [her] downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.

Robinson v. Kroger Co., 268 Ga. at 748.

In this case, Murray stepped on a manhole cover in the area outside a convenience store where customers are expected to park and walk to fuel their cars and to enter the store to pay for fuel and make other purchases. Whether the manhole cover should have alerted Murray to the possibility that a hole beneath was not properly covered remains a question for the jury to determine,

for it is the plaintiff’s knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.

Freyer v. Silver, 234 Ga. App. 243, 247 (3) (507 SE2d 7) (1998). Furthermore, in this case there is no direct evidence regarding how the cover actually looked before Murray stepped on it; therefore, the record on summary judgment did not establish as a matter of law that the hazard posed by the hole was open and obvious, as the store contends. Cf. MARTA v. Fife, 220 Ga. App. 298, 300-301 (2) (469 SE2d 420) (1996) (whole court) (drainage culvert was an open and obvious static condition); Tollman v. Zamani, 224 Ga. App. 518, 519-520 (481 SE2d 232) (1997) (a block, approximately ten inches high and thirty inches wide with metal bolts protruding from the top, was an open and obvious static condition). Under these facts, only a jury can decide whether the appearance of the cover, and any gap which existed between the cover and the rim of the hole, was such that an ordinarily careful person would have recognized that stepping on the cover posed a hazard. Therefore, the trial court erred in concluding as a matter of law that Murray failed to exercise ordinary care for her own safety.

(b) The trial court also erred in concluding as a matter of law that the store lacked constructive knowledge of the hazard. The store’s duty to use care toward making its premises safe for its customers “includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Robinson v. Kroger Co., 268 Ga. at 740 (1).

In this case, the store knew, and Murray did not know, that as part of the operation of the store’s business the manhole covers on the property were moved, on approximately a daily basis, to fill and inventory the storage tanks. The store presented no evidence that it performed reasonable inspections to ensure that covers, once moved, were restored to a secure and safe position. Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 510-511 (2) (496 SE2d 732) (1998). Furthermore, since the store failed to produce evidence within its control of when the covers in the area where Murray fell had last been moved for fuel delivery, inventory or servicing, OCGA § 24-4-22 allows an inference to be drawn that the cover had been out of place for a length of time sufficient to impute knowledge of the condition to the store. Jones v. Krystal Co., 231 Ga. App. 102, 107-108 (498 SE2d 565) (1998); see also Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 31 (1) (500 SE2d 353) (1998) (defendant’s failure to submit affidavits from the employees who carried out the purported inspections and sweeping allowed an inference to be drawn that their testimony would show that they did have actual or constructive knowledge of the hazard but negligently failed to remove it).

Material issues of fact remain as to whether the store had constructive knowledge of the hazard on its property and whether Murray exercised ordinary care for her own safety in detecting and avoiding the hazard posed by an improperly placed manhole cover on the store’s property. This case falls within the general rule that such matters “are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. at 748. The grant of summary judgment in this instance was in error.

2. In her second, third and fourth enumerations of error, Murray contends that the trial court erred in denying her three motions for sanctions under OCGA § 9-15-14. Because the record is devoid of any judgment, decision, decree or other ruling with regard to those motions, nothing has been presented for this Court to review. OCGA §§ 5-6-31; 5-6-33; 5-6-34; 5-6-35 (a) (10).

Decided September 2, 1999.

Kunle Ogundele, for appellant.

Misner, Scott & Grate, Donald J. Grate, Allison B. Lawler, for appellee.

Judgment reversed.

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

       In her fifth enumeration of error, Murray argued that the trial court, which cited only Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327) (1980), in support of the grant of summary judgment, applied the wrong standard. Although we agree that the trial court erred in granting summary judgment, we note that Alterman Foods a Ligón has not been overruled. See Robinson v. Kroger Co., 268 Ga. 735, 747-748 (2) (b) (493 SE2d 403) (1997).


text:
    A99A1656.
    HAY et al. v. DEVELOPMENT AUTHORITY OF WALTON COUNTY et al.
    (521 SE2d 912)
   Miller, Judge.

Samuel Hay, a resident of Newton County, and Laurie Ford, a resident of Walton County, object under OCGA § 36-82-23 to the validation of a bond anticipation note granted to the Development Authority of Walton County and to the counties of Jasper, Morgan, Newton, and Walton.

The initial validation hearing as required by OCGA § 36-82-21 was scheduled for October 29, 1998. Ford filed her objections and requested to be a party to the proceedings on October 28, and Hay did the same on the morning of October 29 prior to the hearing. On November 4, 1998, in an order recognizing the objectors as parties, the court dismissed the case due to Newton County’s untimely filing of its acknowledgment of service and the absence of the district attorney.

The case was re-filed and a hearing was held on January 12, 1999, that was continued on February 10, 1999. Hay and Ford refiled their objections and requests before the January 12 hearing date. On January 19,1999, the objectors moved to recuse the judge in the case. Although the court noted that all the events and statements cited as support for the recusal order occurred in the case that was previously dismissed, the order was granted and three judges were recused on January 29. On March 5, 1999, the court, with a new judge presiding, validated issuance of the bonds and found that Hay and Ford were not proper parties to the proceeding due to their failure to comply with OCGA § 9-11-24.

The court declared that Ford and Hay did not follow the intervention procedure set forth in OCGA § 9-11-24 (c), which requires:

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Code Section 9-11-5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

OCGA § 36-82-23, the statute authorizing county residents to object to bond validation, provides: “Any citizen of this state who is a resident of the county, municipality, or political subdivision desiring to issue the bonds may become a party to the proceedings at or before the time set for the hearing.”

The trial court concluded that OCGA § 36-82-23 “specifically provides for a mandatory intervention procedure.” However, the statute does not contain the word “intervene,” nor does it refer to the procedural requirements of OCGA § 9-11-24. If the legislature, in enacting OCGA § 36-82-23, intended the strict intervention procedures of OCGA § 9-11-24 to be used, it would have referenced the statute or at least used the term “intervene” or “intervention” when referring to the objecting residents. Cf. ADC Constr. Co. v. Hall, 191 Ga. App. 33, 34 (1) (381 SE2d 76) (1989). Indeed, when the legislature has intended such meaning, the term is used in the statute. See, e.g., OCGA §§ 2-10-33 (statute on the right of authority to declaratory adjudication of validity of lease contracts and intervention) (“[a]ny citizen of [this] state may intervene in such actions and assert any ground of objection”); 32-10-48 (statute on the right of authority to declaratory adjudication of lease contracts income to benefit of bonds being validated) (“[a]ny citizens of the state may intervene in such actions and assert any ground of objection”); 46-3-132 (d) (statute concerning validation of contracts for payments pledged as security for bonds) (“[a]ny citizen resident of this state may, at or before the time set for the validation hearing, intervene in the validation proceedings”). The term “intervene” has been used in a general sense to show compliance with the requirements of OCGA § 36-82-23 (formerly Code 1933, § 87-304), and is not intended to have a technical meaning requiring conformity with statutory intervention procedure. See Horton v. Downs Consolidated School Dist., 59 Ga. App. 77, 78 (200 SE 469) (1938).

In interpreting statutes, the court applies the ordinary signification of words. OCGA § 1-3-1 (b). Ordinary signification of the words of the statute, including “may become a party,” is simply that a citizen may become a party with no additional requirement other than being a resident of the county issuing the bond and requesting to become a party. Where a statute is plain and susceptible to one reasonable construction, the court has no authority to place a different construction and must construe it according to its terms. Andries v. State, 236 Ga. App. 842, 844-845 (512 SE2d 685) (1999). The words “may become a party” have a somewhat different meaning from “may intervene,” and on the face of OCGA § 36-82-23, there is no mandatory requirement of following the intervention procedure in OCGA § 9-11-24. Moreover, when a statute is silent as to the mechanism for intervention, a motion under OCGA § 9-11-24 cannot be held to be mandatory. In re Martin, 218 Ga. App. 79, 81 (2) (460 SE2d 304) (1995). OCGA § 36-82-23 does not provide for intervention by third parties, and we cannot say that becoming a party requires mandatory compliance with the procedure of OCGA § 9-11-24.

Decided September 2, 1999.

Samuel M. Hay III, pro se.

Laurie W. Ford, pro se.

Alan A. Cook, District Attorney, Lambert & Roffman, Allan R. Roffman, W. Dan Roberts, William T. Craig, John W. Spence, William R. Childers, Jr., for appellees.

Finally, substantial compliance with a statutory requirement shall be held sufficient. OCGA § 1-3-1 (c). Hay and Ford substantially complied with OCGA § 36-82-23. Both are residents of the counties desiring to issue the bonds, and both objected and requested to become parties (Ford explicitly in her objection) to the proceeding at or before the time set for the hearing. Therefore, both became proper parties and should be allowed to participate in the proceedings for validation of the bond anticipation note.

The judgment is reversed and the case remanded with instructions to hold another validation hearing in which the objectors are allowed to participate as parties to the proceeding. This ruling moots the objectors’ request for an emergency order under Court of Appeals Rule 40 (b).

Judgment reversed and case remanded with instruction.

Pope, P. J., and Smith, J., concur.


author: Eldridge, Judge.

text:
    A99A1025.
    YEREMIAN v. ELLIS.
    (521 SE2d 596)
   Eldridge, Judge.

Appellant Zareh Yeremian appeals from a Fulton County Superior Court’s order confirming an arbitration award on a claim of breach of contract. We affirm the court’s order.

On September 9, 1993, Yeremian, owner of Flawless Creations Jewelry & Custom Designing, entered into a contract with Eugene Ellis, an architect/builder, for construction work on a space that Yere-mian had rented at North Point Mall, Fulton County; the contract contained a binding arbitration clause. Apparently, Ellis was not paid for the work.

On September 2, 1997, pursuant to the terms of the contract, Ellis filed with the American Arbitration Association (“AAA”) three copies of the AAA’s form “Demand for Arbitration,” along with the contract outlining the arbitration agreement and the filing fee; the original demand was served on Yeremian as respondent. On September 15, 1997, Yeremian responded to the demand with a letter to the AAA wherein he disclaimed liability, declined to participate in arbitration because the dispute was four years old, and threatened a counterclaim.

The AAA scheduled an arbitration hearing and sent notice to all parties. A hearing was held on November 17, 1997. Yeremian did not participate. The AAA then afforded Yeremian “an additional opportunity to submit to the Arbitrator in writing through the Association any evidence it wishes the Arbitrator to consider in this matter; or if Respondent desires that another oral hearing be arranged, that the Association be so notified.” Yeremian did not respond. An arbitration award was executed, finding in favor of Ellis and awarding him $10,000 plus interest; Yeremian was directed to pay all arbitration costs.

Thereafter, Ellis filed a motion to confirm the award in the Superior Court of Fulton County. At Yeremian’s place of business, Flawless Creations in North Point Mall, Yeremian’s brother accepted service of the motion on Yeremian’s behalf. A confirmation hearing was scheduled for April 23, 1998. Apparently, Yeremian participated. Thereafter, the trial court issued an order confirming the arbitration award. Yeremian appeals the trial court’s order confirming the award. Held:

1. Yeremian first challenges (a) venue as in Fulton County, and (b) the sufficiency of the service of the confirmation motion.

(a) Under the Georgia Arbitration Code, OCGA § 9-9-1 et seq., “[v]enue for applications to the court shall lie: ... In the county where any party resides or does business.” OCGA § 9-9-4 (b) (3). Since Yeremian’s place of business at North Point Mall is in Fulton County, venue was proper therein.

(b) Yeremian failed to raise the affirmative defense of insufficient service in the court below.

Under OCGA § 9-11-12 (b) the defenses of insufficient service, lack of personal jurisdiction and improper venue must be raised “before or at the time of pleading.” OCGA § 9-11-12 (b). Failure to raise these defenses either in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of these defenses. OCGA § 9-11-12 (h) [.] [CitJ

Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990). See also OCGA § 9-9-4 (c) (3).

2. Yeremian asserts that Ellis failed to serve him with the demand for arbitration pursuant to OCGA § 9-9-6 (c). He contends that all he received was a November 4, 1997 “notice” from the AAA scheduling the arbitration hearing date and, in that regard, directs our attention to the record which contains such notice.

However, the record also contains a letter from Yeremian to the AAA dated September 15,1997, three weeks prior to the above-referenced “notice,” wherein Yeremian declined to arbitrate pursuant to the demand. Further, the record shows that the AAA determined that petitioner Ellis had “met the filing requirements of the rules,” which require that the original demand be served upon the respondent. In addition, following the hearing on the motion to confirm, the trial court found as a matter of fact that “Defendant received the demand for arbitration, and acknowledged receipt of the demand for arbitration.” In light of the above, we find no merit to Yeremian’s bare assertion, unsupported by any evidence, that he was not served with the demand for arbitration.

3. Next, Yeremian asserts Ellis failed to comply with the terms of the contract, which state that the demand for arbitration “shall be made within a reasonable time after the dispute has arisen.” He contends that the four-year period between the filing of the demand and the origin of the dispute was unreasonable.

However,

[a]fter service of the demand, or any amendment thereof, the party served must make application within 30 days to the court for a stay of arbitration or he will thereafter be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court.

Decided August 10, 1999

Reconsideration denied September 3, 1999

5. Robert Hahn, Jr., for appellant.

Olim & Loeb, Jay E. Loeb, for appellee.

OCGA § 9-9-6 (d). Accordingly, we agree with the trial court that Yer-emian’s refusal to participate in arbitration or to file any response thereto waived his contentions regarding the validity of the arbitration clause of the contract or compliance therewith.

4. Yeremian contends that, since he declined to arbitrate, Ellis was required to proceed under OCGA § 9-9-6 (a) and thus to file a “motion to compel arbitration.” However, “an application to compel arbitration operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending[.]” Tillman Group v. Keith, 201 Ga. App. 680, 681 (411 SE2d 794) (1991). Ellis was not in such a procedural posture at the time of his request for arbitration. There is nothing about the statutory scheme of the Georgia Arbitration Code that requires a petitioner to proceed under subsection (a) of OCGA § 9-9-6 simply because the other party declines to participate. Instead, it was proper for Ellis to proceed under subsection (c) of OCGA § 9-9-6, wherein “[a] party may serve upon another party a demand for arbitration.”

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       In his brief before this Court, Yeremian asserts that he raised this affirmative defense in an answer; however, as noted by Yeremian, “the record does not contain Defendant’s special answer, for some reason at present unknown to Defendant; Defendant will move to supplement the record [.]” We granted Yeremian’s motion to supplement and ordered the Superior Court clerk to transmit a copy of Yeremian’s special answer, “if such appears in the records.” We are not in receipt of such supplement. “Appellant must show error by the record, not by unsupported assertions in its brief. [Cit.]” Tattersall Club Corp. v. White, 232 Ga. App. 307, 309 (501 SE2d 851) (1998).

       Pleadings under the Georgia Arbitration Code “shall be served in the same manner as pleadings subsequent to the original complaint and other papers are served under Chapter 11 of [Title 9, i.e., the Civil Practice Act].” OCGA § 9-9-4 (c) (3).


text:
    A99A1174.
    MCDOUGAL v. THE STATE.
    (521 SE2d 458)
   Phipps, Judge.

Sean McDougal was convicted of the rape and kidnapping with bodily injury of his estranged wife and given a sentence of life imprisonment. He moved for a new trial on grounds which included ineffective assistance of trial counsel. McDougal’s motion for new trial was denied. He now appeals.

The victim married McDougal in 1990. After having two children, they separated in September 1995. He continued living in their marital residence in Lawrenceville while she eventually moved into another home in Lilbum.

State’s evidence showed that on July 23, 1996, she was leaving her home in the early afternoon. For her protection, she was carrying a handgun. As she was locking the front door, defendant appeared. He ran toward her and knocked her to the ground. He shocked her with a stun gun several times, hurting but not incapacitating her. He then forced her to get into her minivan, retrieved her handgun which she had dropped, and drove the vehicle away. He was angry because she had a boyfriend. Eventually, he drove to a relatively deserted area behind a Reveo drug store, forced her to remove her clothing, and raped her. At trial, McDougal gave a different version of events, ultimately testifying that he and the alleged victim engaged in consensual sexual intercourse on the occasion in question. His defense was in part based on the assertion that the alleged victim had a motive to make false accusations against him in order to obtain advantage in a custody dispute over their two children. Additional evidence will be discussed as the enumerations are reviewed.

1. McDougal first contends that the evidence did not establish that the victim sustained the bodily injuries alleged in the indictment, so that the evidence is insufficient to support his conviction of kidnapping with bodily injury.

The indictment charged McDougal with causing bodily injury to the victim consisting of scratches around her left shoulder blade and red marks above her right buttock. Based on the testimony of Sergeant Dillard Hughes (an expert in electronic stun guns) McDougal argues that these were only marks left by the stun gun and not injuries. Hughes testified that stun guns are intended to incapacitate a person without causing bodily injury, that the contact probes on such guns leave “signature marks” resulting from oxidation caused by electricity passing through the skin, that these are not burn marks, and that the marks disappear within two to six weeks. The testimony of the victim, of Kristine Miller (the nurse who examined the victim at the rape crisis center), and of Martina Pusbach (an investigating officer) authorized the jury to find that the victim was hit with the stun gun with such force that it caused “scratches” or “abrasions” properly characterized as physical injuries. Any physical injury, however slight, suffices to support a conviction of kidnapping with bodily injury. Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358) (1989). This enumeration is without merit.

2. McDougal maintains that there was a fatal variance between the indictment’s allegation that the bodily injury to the victim consisted of scratches and red marks and the evidence showing that she sustained vaginal tears as a result of the rape. This enumeration is also without merit.

Where, as here, the evidence at trial is sufficient to authorize the jury to find that the defendant inflicted bodily injuries alleged in the kidnapping-with-bodily-injury indictment, the fact that there is evidence of other bodily injuries does not result in a fatal variance between the allegata and probata. See Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470) (1994). Rowland v. State, 228 Ga. App. 66, 69 (3) (a) (491 SE2d 119) (1997), relied on by McDougal, does not hold otherwise. The decision in Rowland was that evidence that the defendant committed an aggravated assault in a manner other than that alleged in the indictment could not serve as the basis for his conviction. Although McDougal complains of the trial court’s jury instruction as to how the offense of kidnapping with bodily injury could be proved, he has not enumerated error thereon.

3. McDougal challenges the admissibility of testimony by Kristine Miller that the vaginal tear she observed on the victim was consistent with non-consensual sex. “A person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will.” OCGA § 16-6-1 (a) (1). The terms “forcibly” and “against her will” are two separate elements. House v. State, 236 Ga. App. 405, 408 (1) (512 SE2d 287) (1999). The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion such as intimidation. Id.

Miller described the vaginal tear as an open wound that was inflamed and producing secretions. On the basis of her observations of the injury and her experience as a nurse conducting pelvic examinations in both routine cases and those involving sexual assaults, Miller testified that the vaginal injury in this case was consistent with trauma associated with non-consensual sex. Miller later explained her opinion in this regard by testifying that a traumatic event such as this is very painful and few people would consent to it.

The witness’s testimony was not objectionable. Nichols v. State, 177 Ga. App. 689, 692 (2) (340 SE2d 654) (1986), relied on by McDou-gal, held that an examining physician’s notation in a medical report that a rape had occurred was not admissible in evidence because it constituted a legal conclusion. Nichols, however, noted that it would have been proper for the medical expert to have testified that the intercourse had been forcible based on data observed by the expert or presented by other witnesses, because that would have been an opinion as to a fact. Although the expert in this case gave her opinion that the victim’s vaginal injury was consistent with non-consensual rather than forcible sex, the facts testified to by her could have served as the basis for either conclusion. The opinion she gave was factual and not legal. Under the circumstances, the witness’s testimony on this issue was admissible.

4. McDougal charges his trial attorney with ineffective assistance of counsel in numerous respects.

“To establish a claim of ineffective assistance of counsel, [McDougal] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. [Cit.] [McDougal] must establish both the performance and the prejudice components. . . . (Cits.)” [Cit.]

Nihart v. State, 227 Ga. App. 272, 273 (1) (488 SE2d 740) (1997). Insofar as deficient performance is concerned, McDougal must show that counsel’s actions fell below an objective standard of reasonableness. Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous. Kar-vonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

(a) McDougal claims that counsel was ineffective in failing to subpoena a witness who could have given testimony contradicting the victim’s denial that she was having an affair with a male living in her home. But the testimony given by trial counsel at the hearing on the motion for new trial showed that he made unsuccessful attempts to subpoena this witness and then sought to impeach the victim’s credibility by establishing the fact in issue through the testimony of other witnesses. McDougal has not shown that counsel’s actions were unreasonable.

(b) McDougal contends that his trial attorney was a material witness in the case and therefore should have disqualified himself before trial or moved for a mistrial during the trial.

Trial counsel, who had been representing McDougal for two and one-half years throughout the unresolved divorce proceeding between him and the victim, could have testified that a videotape made during that proceeding showed various individuals smoking suspected crack cocaine on the front porch of the victim’s residence. However, the events depicted in the videotape were admitted in evidence through the testimony of the private investigator who made the tape. Moreover, the record shows that McDougal, in consultation with his trial lawyer, decided before trial that he was better served by utilizing this attorney as his legal representative rather than as a fact witness. McDougal reaffirmed this decision in open court during the trial. There was no obligation on the part of trial counsel to provide McDougal with the assistance of another attorney in making this decision. Neither deficient performance by counsel nor harm to the defendant appears.

(c) McDougal charges his trial lawyer with ineffective assistance in failing to object to comments by the prosecuting attorney in closing argument to the effect that we have a judicial system which subjects complainants in a rape case such as this to questioning by the prosecuting attorney lasting forty-five minutes and by the defense attorney lasting five or six hours, and that for “our mothers and our daughters and our sisters,” we do not want such a system or one which requires such complainants to be “chaste and pure and beyond reproach.”

Decided August 5, 1999

Reconsideration denied September 3, 1999

Glyndon C. Pruitt, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

McDougal argues that these remarks constituted an impermissible condemnation of the exercise of his constitutional right of cross-examination. To the extent that the prosecutor’s statements may be subject to this criticism, there is no reasonable probability that the statements had the effect of changing the result of the trial. Burgess v. State, 264 Ga. 777, 785 (21) (450 SE2d 680) (1994).

5. Finally, McDougal contends that the trial court erred in failing to have bench conferences taken down by the court reporter, and he asks that the case be remanded for the purpose of attempting to reconstruct the missing portions of the transcript.

Although McDougal did not request that a transcript of the bench conferences be prepared pursuant to OCGA § 5-6-41 (d), the court in its order denying McDougal’s motion for new trial recounted the matters which had transpired during each of them. In this regard, the court found that they either involved administrative matters, or objections and rulings which were placed on the record, or instances in which defense counsel had asked to approach the bench or an objection by the defense had been sustained. McDougal does not challenge the accuracy of the trial court’s findings, even though he presumably could have through the assistance of his trial attorney. Therefore, neither harm to McDougal nor the necessity for a remand appears.

Judgment affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A1652.
    HALL et al. v. HARRIS et al.
    (521 SE2d 638)
   Eldridge, Judge.

In early June 1989, Joe Richard Harris, defendant-appellee, was the sole owner, officer, and manager of Harris Builders, Inc. and Multi-Pest Services, Inc., defendants-appellees, and acted as developer-builder/general contractor of a house at 80 Hidden Lakes Drive in Carrollton, Carroll County. Harris determined the design, materi-ais, and construction methods for such house, selected all subcontractors, inspected all work, and accepted all subcontractor work. He had the exterior of the house covered with synthetic stucco, known as “EIFS.” Harris also had his company, Multi-Pest Services, Inc., do the termite barrier treatment of the house.

Murphy, plaintiffs’ expert witness, testified that, in his expert opinion, the defendants had been negligent in the choice of materials and design, in construction and workmanship, and in inspection and acceptance of the work of subcontractors; that the defendants breached warranties; and that the defendants breached the contract provision that rotten wood in doors and windows would be replaced. He based such opinions upon a detailed inspection that he put into a report, which set forth the factual bases of his specific factual findings. The EIFS cladding was intended by the manufacturer for commercial and industrial applications and not residential structures, because residential structures have more doors and windows through which moisture can get behind the artificial stucco. The defendants chose to use EIFS although the house had 34 windows, 14 doors, and many penetration points through the cladding for utilities and fixtures, which increased the risk of moisture penetration behind the EIFS unless properly sealed. Murphy found, in fact, that moisture had penetrated at such points so that the door and window frames had rotted. Harris had knowledge and expertise in the area of stucco installation and application sufficient to allow him to detect defects by merely observing the work, so that he was aware of these defects or should have been.

At the time of construction, EIFS and other synthetic stucco products were generally known in the industry to retain or trap moisture so that wood beneath the EIFS would rot; that the trapped moisture would encourage termite infestation; and that extending the EIFS to and below ground level would provide concealed termite access. Such information was provided by the manufacturer as part of its specifications and installation instructions. Harris was aware of the special precautions that were mandated by the manufacturer when using EIFS, i.e., adequate prime coating, flashing, backer rods, sealant, and caulking. These precautions should be taken where the synthetic stucco abutted wooden doors, windows, decorative columns, frieze, fascia board, roof side wall junctures, and roof lines making seams; moisture barriers were essential at such potential access areas to keep rainwater from seeping behind the EIFS.

In this case, the EIFS was negligently extended to and below ground by the installer, contrary to the manufacturer’s installation directions and specifications for use of the product. Such improper installation was observable by the defendants during and after final installation, inspection, approval, and acceptance of the work. The defendants did not follow or require its installers to follow such general construction standards, precautions, and manufacturer’s specifications in either their contract with subcontractors, their acceptance of work from the installer, or their own or other subcontractors’ work. The defendants inspected and accepted such negligently and defectively performed work. Further, flat decorative surfaces at windows, doors, columns, and other areas provided water collection points and moisture entry areas, which were prepared and installed or inspected and accepted by the defendants. Where EIFS cladding was penetrated for deck attachments, electric meters, light fixtures, hose bibs, or similar utility openings, there were no proper back wraps, improper back wraps, base coats, backer rods, or sealants to prevent moisture penetration. All of such negligent installation procedures and defective conditions were readily observable by an expert like Harris, during and after the EIFS installation, or were the results of the acts or omissions of the defendants directly. Harris in the exercise of ordinary care, while carrying out contract compliance inspection and acceptance of the subcontractor’s work, should have discovered such defects and deviations from the workmanship standard of care. With time, damage from termites and wood rot directly resulted from such negligent acts, omissions, and defective workmanship.

The house was constructed by the defendants with other defects in design, workmanship, and material; the failure to waterproof the foundation walls was below the reasonable standard of care used by a reasonable homebuilder. The floor joists span of 11/8", with the 2" x 10" joists notched to 2" x 6" at each end, reduced the joist load capacity to the equivalent of a only 2" x 6" with a span of 9'8". Concentric loading of piers for the floor joists was at a single pier located under the kitchen. The roof had no felt or other underlayment beneath the shingles, no flashing under valleys, a slope over the living room of only 3Y2' in 12', and shingles in such area with only a 51//' reveal.

In June 1989, the house was scheduled for, but never inspected for, a certificate of occupancy by the Carroll County Building Inspector’s office. Carroll County never issued a certificate of occupancy on this house. Between 1990 and 1992, renters made complaints to the Carroll County Building Inspector’s office about construction and water problems; Harris was aware of such complaints prior to the sale to the plaintiffs. The Building Inspector’s office refused to issue an occupancy certificate. On September 11, 1992, Harris swore in an affidavit in another suit with regard to this house that “[i]n fact, because of water problems, Carroll County would not and to this day will not issue a certificate of occupancy.” However, Harris by deposition in this case, swore that a certificate of occupancy was issued in 1989; he failed to explain such material conflict in his testimony. He sought to provide instead a questionable document purporting to be an authentic certificate of occupancy.

In early 1993, Harris, by brochure, represented that the house had “the look and feel of luxury,” “so much quality,” and “impressive stucco.” The plaintiffs, Joseph M. and Creaestia Hall, saw the brochure and inquired of Harris. Harris made the oral, material misrepresentation that the house had been “code approved.” Harris also represented that the house was a “quality” house, requiring “low maintenance,” and that “you won’t find a house that is better built than this one anywhere in Carrollton.” The plaintiffs relied upon such oral representations in meeting the builder-seller’s asking price.

The sales contract required “[s]eller to replace all rotten wood around all windows and doors.” On April 21,1993, Harris, as builder-seller, signed a “Seller’s Property Disclosure Statement” representing that no building codes were violated and that there were no structural problems with the house. Murphy’s inspection revealed that many, if not most, of the doors and windows with rotten wood were installed in 1989 or 1990 from the affixed manufacturer’s codes and had not been replaced.

Harris requested that the plaintiffs use Multi-Pest Services, Inc. to inspect for termites and to provide the termite letter for the house without disclosing that he owned and controlled the company. The termite letter certified that the house was free of termites and that neither the termite inspector “nor the Company has, had or contemplate having any interest in the property involved, nor is acting in association with any party to the transaction.” However, Murphy’s inspection revealed present and past evidence of termite and carpenter ant damage and infestation. In 1993, prior to the sale of the house, Harris admitted to Caralee Haygood of the Georgia Department of Agriculture that the house had prior termite infestation and wood rot. Multi-Pest Services, Inc. reported to the plaintiffs that all the rotten wood had been replaced.

Plaintiffs presented (1) the affidavit of their expert witness, who gave his opinion based upon a thorough inspection, showing defects, negligent inspection and construction, breach of contract, and a basis for fraud; (2) their own affidavits; (3) the affidavit of a Carroll County Building Inspector; (4) Harris’ affidavit in another case which conflicts with his sworn deposition testimony; (5) the deposition of Harris; (6) the deposition of Jack Barr; (7) the affidavit of Christopher Pyles; and (8) the affidavit of Caralee Haygood. However, the trial court granted the defendants’ motion for summary judgment on all theories of liability. Because the trial court failed to follow Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), as to the procedure for the grant of summary judgment, for burden of proof, for favorable inferences for the plaintiffs, and for evidence presented in opposition to a motion for summary judgment, we reverse the trial court’s grant of summary judgment on all but one theory of liability.

1. Plaintiffs contend that the trial court erred in granting summary judgment as to the fraud count. We agree.

The defendant made material oral statements that were false that the house was “code approved”; that the house had a certificate of occupancy; and that the house was a “quality house.” Such were material misrepresentations of fact, not puffing, because the house had never received an occupancy certificate, was clad in negligently and defectively installed synthetic stucco, had prior insect damage, and had a foundation that had never been waterproofed and which leaked water. The written real estate disclosure statement contained material misrepresentations of fact, e.g., minimal past water problems, no code violations, no structural problems, and minimal past termite and other insect damage. Multi-Pest Services, Inc. represented that rotten wood around doors, windows, and flashing had been replaced when it had not. Further, Harris sought to conceal the absence of a certificate of occupancy and absence of a final inspection by presenting an allegedly fraudulent official document issued long after the fact by a former' county official. Harris did not disclose that the stucco had been improperly applied; that there had been repeated water problems; that the pest company was controlled by him; or that there had been insect damage, although he knew such were material facts important to the plaintiffs.

“Fraud is of itself subtle, and slight circumstances may be sufficient to carry conviction of its existence. [Cits.]” McNeil v. Cowart, 186 Ga. App. 411, 412 (1) (367 SE2d 291) (1988); accord Joseph v. Bray, 182 Ga. App. 131, 132 (354 SE2d 878) (1987). Evidence of moral fraud is peculiarly within the province of the jury to determine from the circumstances. Ketcham v. Franklyn Gesner Fine Paintings, 181 Ga. App. 549, 554 (353 SE2d 44) (1987); Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127, 129 (267 SE2d 635) (1980), rev’d on other grounds, 246 Ga. 411 (271 SE2d 811) (1980). This was a case where material issues of fact regarding the existence of actual fraud and concealment were raised by the evidence for jury determination. Accordingly, the trial court erred in granting summary judgment as to the actual fraud allegations.

2. Plaintiffs contend that the trial court erred in granting summary judgment as to the claim for negligent misrepresentation. We agree.

The theory of negligent misrepresentation in Georgia is based upon Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983). In this case, statements were made directly to the plaintiffs to induce their reliance and action; these statements included the disclosure statement and the document presented to the plaintiffs as a valid certificate of occupancy. These representations could be found by a jury to have been intentionally made to deceive or negligently made. Such statements could also include that the water problems were caused by bad paint or groundwater; that the house was in compliance with all building codes; that the synthetic stucco was adequate; and that all rotten wood around windows, doors, and flashing had been replaced. These statements created a fact issue as to negligent misrepresentation. Id. Plaintiffs presented evidence that after the exercise of due diligence, they reasonably relied upon such statements following their expert’s inspection. There was evidence that plaintiffs relied upon such statements in purchasing the house to their detriment. Such evidence created a material issue of fact as to negligent misrepresentation. See Real Estate Intl. v. Buggay, 220 Ga. App. 449 (2) (469 SE2d 242) (1996); Hightower v. Century 21 Farish Realty, 214 Ga. App. 522 (2) (448 SE2d 271) (1994).

3. Plaintiffs contend that the trial court erred in granting summary judgment as to the claim for negligent repairs. We agree.

The affidavit of Murphy showed that certain windows that should have been replaced had not been replaced and were the original windows. Murphy’s opinion was based on the manufacturer’s identification of window models as “Doorco ‘89” and “Doorco ‘90,” which were the years of installation, as well as the model years.

The expert testified that failure to replace such original windows constituted a failure to exercise reasonable care in deviation from the standard of care for such industry. This evidence created a jury issue. See Williams v. Runion, 173 Ga. App. 54 (325 SE2d 441) (1984); Hudgins v. Bacon, 171 Ga. App. 856 (1) (321 SE2d 359) (1984).

4. Plaintiffs contend that the trial court erred in granting summary judgment on the theory of breach of contract. We agree.

The special stipulation of the sales contract provided that the defendants would “replace all rotten wood.” The evidence presented raised an issue of fact that rotten wood that preexisted the closing had never been replaced.

Further, implied in every contract by a builder-seller is the implied duty that construction was performed in a “fit and workmanlike manner.” Holmes v. Worthey, 159 Ga. App. 262, 270 (282 SE2d 919) (1981), aff’d, 249 Ga. 104 (287 SE2d 9) (1982). Such contract duty is breached when the builder fails to exercise a reasonable degree of care, skill, and ability under similar conditions and like surrounding circumstances as is ordinarily employed by others in the same profession. See Williams v. Runion, supra at 60; Hudgins v. Bacon, supra at 860; Howell v. Ayers, 129 Ga. App. 899 (202 SE2d 189) (1973). There was substantial evidence in the record raising factual issues as to the failure of the defendants in building the house in a fit and workmanlike manner.

5. The plaintiffs contend that the trial court erred in granting summary judgment as to the claim for negligent construction and negligence per se. We do not agree. While the evidence raised a strong issue that the defendants were negligent, the evidence is also unrebutted that the statute of limitation had run prior to the plaintiffs acquiring the property from the defendants, so that the defendants cannot be held liable under a negligence theory.

OCGA § 9-3-51 (a) (2) provides for a statute of repose of “eight years after substantial completion of such an improvement,” within which period an action for damages to realty may be brought. Such statute did not extend the applicable statute of limitation, but provided the absolute limit within which any action could be brought under the appropriate statute of limitation. Such statute of repose provided the framework within which the appropriate statute of limitation was to operate. Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 427-428 (241 SE2d 184) (1977); R. L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 226 (1) (264 SE2d 731) (1980); Landon v. Williams Bros. Concrete Co., 149 Ga. App. 699 (256 SE2d 99) (1979). An action under OCGA § 9-3-30 for a construction defect for improvement to realty must be brought within four years of substantial completion of the work, because the right of action immediately vested for the defective work at such time, commencing the running of the statute of limitation. See Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (1) (368 SE2d 732) (1988); Hanna v. McWil-liams, 213 Ga. App. 648, 649-650 (2) (446 SE2d 741) (1994); Broadfoot v. C & S Nat. Bank, 208 Ga. App. 382, 384 (430 SE2d 638) (1993), overruled on other grounds, Hanna v. McWilliams, supra at 651.

This action was commenced on April 9, 1997, which was within the eight years of the statute of repose, but which was more than four years after the substantial completion of the construction of the house and defendants’ acts or omissions in constructing, inspecting, and accepting the house in a damaged and defective condition. Defendants retained title to the house for four years and until the statute of limitation for tortious damage to realty had run. The house was transferred to the plaintiffs on May 12, 1993, which barred any action by a successor in title, because the house was completed in late May or June 1989. Substantial completion occurred prior to the completion date; therefore, the four years ran either in May or in an earlier month in 1993. Even if fraud tolled the statute of limitation for the few remaining days of the statute of limitation in May 1993, after plaintiffs acquired the house, the suit in April 1997 was brought more than such short unexpired time after the discovery of the fraud so that the bar of the statute clearly attached.

Arguably, the defendant with title to the house had a cause of action in tort against the other defendants to the extent that such defendant was not a joint tortfeasor; thus, this statute of limitation ran against such prior owner prior to the title passing to the plaintiffs. If an action is barred against a prior owner, then it is also barred against a subsequent owner. U-Haul Co. of Western Ga. v. Abreu & Robeson, Inc., 247 Ga. 565, 567 (277 SE2d 497) (1981).

Decided August 11, 1999

Reconsideration denied September 3, 1999.

Gorby & Reeves, Douglas R. Kertscher, Mary D. Peters, for appellants.

Hopkins & Taylor, James J. Hopkins, for appellees.

Judgment affirmed in part and reversed in part and case remanded.

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


text:
    A99A2062.
    HOLDER v. THE STATE.
    (522 SE2d 59)
   Miller, Judge.

Rodney Holder was convicted of driving in excess of the posted speed limit of 40 mph. On appeal he complains the accusation was defective in that it did not mirror the Uniform Traffic Citation issued by the investigating officer. He asserts in his brief that he made proper objections below.

Holder failed to order a transcript of his trial or to construct a record of the trial, as was his obligation if he desired to show he preserved his objections at trial. Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998). “It cannot be presumed from a silent or non-existent transcript of a hearing below that a proper objection was interposed, and hence we must conclude that these enumerations are waived.” Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999).

Nothing in the pre-trial documents filed with the trial court or in any of the record forwarded to this court reflects an objection by Holder to the accusation or to any of the proceedings. Failure to object to such a defective accusation or indictment at or prior to trial waives the right to appellate review of the issue. See O’Toole v. State, 258 Ga. 614, 616 (5) (373 SE2d 12) (1988); Selley v. State, 237 Ga. App. 47, 50 (6) (514 SE2d 706) (1999).

Having failed to show any objection below, Holder is precluded from raising the issue on appeal. This ruling moots the State’s motion to dismiss the appeal.

Decided August 18, 1999

Reconsideration denied September 7, 1999

Rodney Holder, pro se.

Gwendolyn R. Keyes, Solicitor, Ladonya S. Horton, Thomas E. Csider, Assistant Solicitors, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Blackburn, Presiding Judge.

text:
    A98A0987.
    TOLBERT et al. v. MANER.
    (522 SE2d 260)
    Decided September 7, 1999.

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

      Lester B. Johnson III, for appellee.
   Blackburn, Presiding Judge.

In Tolbert v. Maner, 271 Ga. 207 (518 SE2d 423) (1999), the Supreme Court reversed our decision in Tolbert v. Maner, 233 Ga. App. 611 (504 SE2d 772) (1998), in which we held that the trial court correctly granted summary judgment to Maner and correctly denied summary judgment to Tolbert. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s grant of summary judgment to Maner and denial of summary judgment to Tolbert are reversed.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A0850.
    In the Interest of B. K., a child. In the Interest of R. K., a child.
    A99A0851.
    (522 SE2d 255)
   McMurray, Presiding Judge.

The children, B. K. and R. K., age 14 (and apparently twins), were adjudicated delinquent by the Juvenile Court of Troup County for being outside their residence past their probationary curfew without their probation officer’s permission, allegedly in violation of OCGA § 15-11-2 (6) (B). At their joint hearing, Kenneth Kennedy, probation officer, testified that on the evening of October 21,1998, he was performing curfew checks. He went by the home of B. K. and R. K. about “9:50 p.m., and the two-[children] were not home.” On the way to the home of the children’s aunt, Probation Officer Kennedy “saw [B. K.] walking home up by Callaway Monument.” Returning to the children’s residence, R. K. still “was not at home.” Probation Officer Kennedy then visited the restaurant where the children’s mother worked and left B. K. in her care. The next day, Probation Officer Kennedy went to the Alternative School and “spoke with [R. K, who] was honest with [the officer]. [R. K.] said, T was just walking around.’ ” For the delinquent act of violating probation, the juvenile court revoked a suspension of disposition to serve 90 days and committed B. K. to the Department of Juvenile Justice for 90 days. For the delinquent act of violating probation, R. K. was placed on (further) probation under the supervision of Kenneth Kennedy, subject to some special conditions, and further subject to “the same terms and conditions of probation as previously ordered by this court.” From these dispositional orders, separate notices of appeal were filed, and each child urges only the general grounds in identical enumerations of error. The two appeals are hereby consolidated for decision. Held:

In each case, the child contends the evidence is insufficient to authorize an adjudication of delinquency, because no prior court order was ever tendered into evidence, showing either child was under probation and subject to a curfew. We agree and reverse.

Neither child was alleged to be delinquent under OCGA § 15-11-2 (6) (A) for committing an act designated as a crime. Rather, the petitions refer to acts in disobedience to the terms of court-ordered supervision, expressly invoking OCGA § 15-11-2 (6) (B). Georgia’s Juvenile Court Code provides greater procedural protections to the child than those mandated in criminal proceedings, and so consequently, “juvenile revocation of probation proceedings [are] not [completely] analogous to adult probation revocation hearings.” K. E. S. v. State of Ga., 134 Ga. App. 843, 846 (1) (A) (216 SE2d 670). For purposes of this appeal, we assume without deciding that the petitioner probation officer’s burden of proof is a mere preponderance of the evidence, as employed in adult probation revocations under OCGA § 42-8-34.1 (a), rather than the “beyond a reasonable doubt” standard required for delinquencies based upon the commission of acts designated as crimes. See In the Interest of T. S., 211 Ga. App. 46 (2) (438 SE2d 159). Nevertheless, the evidence of record fails to prove any prior adjudications of delinquency and related dispositions of probation and the terms thereof.

“The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” OCGA § 24-5-4 (a). The requirement that a prior adjudication of delinquency and any disposition, like “a prior conviction [,] be proved by a certified copy is an application of the ‘best evidence’ rule. . . . [Cits.]” McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476). The children expressly objected to the absence of competent evidence to prove probation and curfew. In the absence of competent proof that either child was subject to court-ordered probation and to a defined curfew as a term of that probation, we are bound to hold the evidence is insufficient to support the juvenile court’s adjudication of delinquency for probation violation as authorized by OCGA § 15-11-2 (6) (B). Compare Harp v. State, 169 Ga. App. 670 (1) (314 SE2d 686).

Decided September 7, 1999.

William L. Jones, for appellants.

Peter J. Skandalakis, District Attorney, for appellee.

Judgments reversed.

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