author: Ruffin, Judge.

text:
    A98A0526.
    SYMS v. THE STATE.
    (502 SE2d 741)
   Ruffin, Judge.

On September 24, 1996, Leroy Syms, while represented by legal counsel, pled guilty to eight counts of forgery, nine counts of theft by receiving stolen checks and one count of financial transaction card theft. The trial court sentenced Syms to ten-year concurrent terms on each forgery count, twelve months on each theft by receiving stolen checks, and three years on the financial transaction card theft. On December 23, 1996, the trial court denied Syms’ pro se Motion for Modification of Sentence. On April 14, 1997, Syms filed a pro se Motion to Correct Void and Illegal Sentence. The trial court denied the modification motion by order dated September 4, 1997. Syms filed a pro se notice of appeal on September 22, 1997.

Syms’ notice of appeal was untimely. “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). In this instance, Syms did not file his motion for modification of sentence until three months after the sentencing order was entered. After the trial court ruled on the Motion for Modification of Sentence, Syms filed a Motion to Correct Void and Illegal Sentence. Neither motion extended or tolled the time for filing a notice of appeal. Henry v. State, 148 Ga. App. 712 (252 SE2d 179) (1979). Accordingly, we dismiss Syms’ appeal as untimely because he failed to file his notice of appeaf within 30 days after entry of the judgment as required by OCGA § 5-6-38 (a). Henry, supra.

Decided May 8, 1998

Reconsideration denied June 3, 1998

Leroy Syms, pro se.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

Appeal dismissed.

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

       Syms did not file the motion for modification of sentence with the Clerk of the Court, but apparently forwarded it by U.S. mail directly to the trial judge. The trial court filed the motion on December 31, 1996.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A0080.
    YEH v. ARNOLD.
    (503 SE2d 645)
   McMurray, Presiding Judge.

This is an interlocutory appeal from a denial of summary judgment in a slip and fall case. Defendant Yeh is the owner of Hollywood Heights Apartments, where plaintiff Arnold was injured. Plaintiff, as well as his sister and mother, were residents of the Hollywood Heights Apartments at the time of the incident in question. Plaintiff was injured when he left his sister’s apartment via stairs to the rear of the building en route to his mother’s apartment.

Plaintiff’s complaint alleges that he slipped due to the slippery condition of newly painted steps which were even more slippery due to a rain storm. When deposed, plaintiff presented an additional theory for his fall, that he lost his balance due to the height of the first step down from a porch. Plaintiff stated that there was a ‘big difference” in how far this step drops down as compared to a “regular step.” Plaintiff testified that this difference in the step height had not existed prior to recent repairs to the steps and that his fall had occurred the first time he used the steps following the repairs.

Defendant moved for summary judgment and his motion was denied. This Court then granted permission for this interlocutory appeal. Held:

Plaintiff’s deposition testimony was sufficient to establish the existence of the two hazardous conditions arising in connection with the steps. With respect to the abnormal height of the first step, defendant has argued that the open and obvious nature of this condition was sufficient to establish plaintiffs lack of due care for his own safety. Plaintiff acknowledged that one looking at the step could see the big difference in height and that he did not recall where he was looking when he stepped off the porch onto the top step. However, following the decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), plaintiff’s failure to observe where he was about to step does not constitute a failure to exercise ordinary care as a matter of law. “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.” Id. at 735. Under the guidance of the Robinson decision, it is clear that plaintiff was entitled to rely upon the owner to make the premises safe and was not obliged to inspect each footfall. Under these circumstances, jury questions remain as to issues of negligence and contributory negligence of the parties, and we conclude that the evidence does not plainly, palpably, and indisputably lead to a conclusion that plaintiff failed to exercise such prudence as the ordinarily careful person would use in such circumstances.

Decided June 3, 1998.

Sharon W. Ware & Associates, Susan E. Cartwright, for appellant.

Defendant also contends that he lacked superior knowledge of the hazards present on the property because he had purchased the premises only 12 days prior to plaintiff’s fall. However, defendant acquired the duties of an owner pursuant to OCGA § 51-3-1 along with the title to the property. These duties included the obligation to exercise diligence in making the premises safe, including a duty to inspect the premises to discover possibly dangerous conditions. Robinson at 740. The record contains no evidence as to any exercise of diligence on the part of defendant or explanation as to why the defective height of the step could not have been discovered and remedied in the available period of time. It is not self-evident that 12 days was an insufficient period of time to discover any hazards posed by the steps. Consequently, whether defendant had constructive knowledge of this hazard is an issue for determination by a jury. The state court did not err in denying defendant’s motion for summary judgment.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Orlando, Pagniello & Kopelman, Richard Kopelman, for appellee.


text:
    A98A0104, A98A0105.
    In the Interest of R. M. et al., children (two cases).
    (503 SE2d 635)
   McMurray, Presiding Judge.

The defendant father (Case No. A98A0104) and the defendant mother (Case No. A98A0105) appeal an order of the juvenile court terminating their parental rights in their children, R. M., J. D. M., and J. L. M. These children had initially been taken into the custody of the Murray County Department of Family & Children Services following the hospitalization of J. D. M. and J. L. M., who are twins and were at that time approximately six months old, for extensive injuries, including broken bones and bruises. J. L. M.’s injuries included a subdural hematoma, a skull fracture, a recent fracture of a rib and fractures of varying ages on both the left and right ribs, fractures in both femurs approximately one week old, fractures of both tibias. These were injuries which would have been very painful over a period of time during which the child would have been in obvious distress. J. D. M. had a detached retina. Subsequently, defendants were convicted of a number of criminal offenses arising from the incident. The defendant father was convicted of two counts of cruelty to children for failing to seek appropriate medical care for J. D. M. and J. L. M. The defendant mother was convicted of four counts of cruelty to children and two counts of aggravated battery for her part in causing the twins’ injuries as well as failing to seek medical care for them. After defendants failed to comply with the requirements of a reunification plan, termination proceedings were initiated. The parental rights of the defendants were terminated and these appeals followed. Held:

The sole enumeration of error submitted by each of the defendants questions the sufficiency of the evidence to authorize the termination of parental rights. In considering the termination of parental rights, the juvenile court was required to first determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). This determination is made by finding that the child is deprived, that the cause of that deprivation is lack of proper care or control by the parent, that the cause of deprivation will likely continue, and that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

A finding that the children were deprived was authorized after the juvenile court took judicial notice of a prior unappealed deprivation order in this case. Thereafter, only the three remaining criteria needed to be proven in order to show parental misconduct or inability. In the Interest of S. L. W., 221 Ga. App. 509, 512 (4) (471 SE2d 579) (overruled on other grounds in the case of In the Interest of C. W. S., 231 Ga. App. 444, 447 (3) (498 SE2d 813)).

The second criterion, that the lack of parental care or control caused the children’s deprivation, is supported by the evidence. There is an obvious link between defendants’ physical abuse of the twins and their criminal convictions. The juvenile court was authorized to consider the conviction of the parents for a number of felonies and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). Also, in determining whether the children were without proper parental care and control, the juvenile court was authorized to consider the evidence of physical, mental, or emotional abuse or neglect of the children pursuant to OCGA § 15-11-81 (b) (4) (B) (iv) and (v). The evidence also established that R. M., an older child who was two years of age when removed from defendants’ custody, had been neglected to an extent so as to be developmentally delayed, including having a vocabulary of only about ten words. Also, due to the age of R. M., this child, who had exhibited some behavioral problems when first removed from defendants’ custody, has exhibited self-injurious conduct, and was shown to be at an elevated risk of physical abuse if returned to defendants.

As to the third criterion, the past conduct of parents is properly considered in determining whether such conditions of deprivation are likely to continue. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368). A conviction of a crime and incarceration does not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903); In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666). Such aggravating circumstances are shown here in that defendants were found guilty of cruelty to their own children and by defendants’ failure to complete the requirements of the reunification plan. In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887).

The fourth criterion has also been satisfied. All three of the children continue to have substantial needs for medical care resulting from the physical and emotional abuse suffered at the hands of defendants. The prospects for reunification are dim due to defendants’ length of incarceration and failure to complete any significant progress towards rehabilitation. The juvenile court was authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217).

Decided June 3, 1998.

James E. Wilbanks, for appellant (case no. A98A0104).

Richard L. Yancey, for appellant (case no. A98A0105).

Eddie McDonald, pro se.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Jeffrey J. Dean, for appellee.

The second and remaining step of the termination of parental rights process requires that the juvenile court consider whether termination of parental rights is in the best interest of the child. OCGA § 15-11-81 (a). The same factors which show the existence of parental misconduct or inability can also support a finding that termination of parental rights would be in the best interest of the child. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490). In view of the egregious conduct of the defendants towards these children, this is surely such a case. A rational trier of fact could have found clear and convincing evidence of parental misconduct or inability, and that termination of the parental rights of defendants would be in the best interest of the children. In the Interest of L. M., 219 Ga. App. 746, 748, supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A98A0545.
    BURSE v. THE STATE.
    (503 SE2d 638)
   Smith, Judge.

Roger Keith Burse was indicted by a Gwinnett County grand jury on one count of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). He was convicted by a jury, his motion for new trial was denied, and he appeals. Finding no error, we affirm.

Construed to support the verdict, the evidence shows that officers of the narcotics division of the Gwinnett County police department executed a search warrant at a residence. When the officers entered the house, they found one individual in the bathroom and three others, including Burse, in the living room. They “patted everybody down for officer safety,” and one of the officers found a plastic bag containing what appeared to be crack cocaine in Burse’s pocket. The plastic bag contained ten individual pieces wrapped in “little tinfoil balls” as well as small green ziplock bags. Burse also had approximately $200 in cash on his person. Burse’s arrest and conviction for possession of cocaine with intent to distribute 18 months earlier was introduced as a similar transaction under a limiting instruction from the trial court.

Burse presented evidence at trial that he was unaware the cocaine was in his pants pocket and that he had borrowed the pants from his brother-in-law. But the State presented opposing evidence, including testimony that Burse did not express surprise and did not deny ownership of the cocaine at the time of its discovery, that Burse was a much larger man than his brother-in-law, and that the pants Burse was wearing at the time of his arrest fit him “very well.”

1. While Burse asserts the general grounds, his argument on the sufficiency of the evidence is limited to the contention that the evidence failed to demonstrate his possession of cocaine with intent to distribute. It is true that mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980). But additional evidence may support proof of intent to distribute, including “the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.” (Citations and punctuation omitted.) McNair v. State, 226 Ga. App. 516, 517 (487 SE2d 100) (1997). Here, the State offered Burse’s earlier guilty plea to possession of cocaine with intent to distribute, as well as the testimony of several officers that, based on their experience as narcotics investigators, the cocaine in Burse’s pocket was packaged for distribution. One officer also testified that, in his opinion, the amount of cocaine in Burse’s possession was greater than that normally kept for personal use.

The two police officers properly testified that the amount of cocaine found was inconsistent with personal use and consistent with an intent to sell. As in Bacon v. State, 225 Ga. App. 326 (483 SE2d 894) (1997), although the police officers were not formally tendered by the State as expert witnesses, the prosecutor laid the foundation for their opinions by eliciting testimony about their experience in drug enforcement, training in drug interdiction, and knowledge of the customary methods employed in the use and sale of cocaine. Compare McNair, supra (officer not qualified as expert and prosecutor elicited no background information from which jury could infer expertise). In addition, Burse never objected to the officers’ opinions based on their experience and training. This evidence allowed the jury to find that Burse possessed cocaine with intent to distribute and to exclude the theory that Burse possessed the drug for personal use. Maddox v. State, 227 Ga. App. 602, 603 (1) (490 SE2d 174) (1997).

Moreover, Burse’s attorney, not the State, was the first to raise this issue during cross-examination of one of the officers. Burse cannot complain of a ruling caused in whole or in part by his own trial tactics or conduct. He may not ask a question and then demand reversal on appeal because the question elicited a damaging answer. Gill v. State, 229 Ga. App. 462, 463 (1) (494 SE2d 259) (1997).

This evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Davis v. State, 200 Ga. App. 44 (406 SE2d 555) (1991).

2. Burse next complains of the trial court’s instruction to the jury, claiming that the trial court failed to make clear the distinction between possession of cocaine with intent to distribute and the lesser included offense of simple possession of cocaine. He contends this deprived him of his defense that he lacked intent to distribute the cocaine. But the trial court fully charged the jury on the principles of intent, mere presence, and mere association, as well as the elements of the offense of possession of cocaine with intent to distribute. The trial court also charged the jury on the lesser included offense of simple possession in language taken directly from the Suggested Pattern Jury Charge on this issue adopted by the Council of Superior Court Judges. See Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 15 (2nd ed. 1991).

Burse, citing no pertinent authority, complains that the charge was error because it failed to use the words “lesser included offense.” The pattern charge does not contain the language sought by Burse, and there is no merit in his contention that the charge as given foreclosed or limited the jury’s consideration of the lesser included offense. Woods v. State, 208 Ga. App. 565 (1) (431 SE2d 167) (1993). See also Duggan v. State, 225 Ga. App. 291, 295-296 (4) (483 SE2d 373) (1997).

3. Burse’s final contention, that the revision of the sentencing provisions of OCGA § 16-13-30 (d) should be applied to him retroactively, was raised and rejected in Jackson v. State, 223 Ga. App. 471, 472 (2) (477 SE2d 893) (1996).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

Decided June 3, 1998.

Larry L. Duttweiler, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

       Burse’s attorney acknowledged that the trial court “clearly defined possession with intent and possession.”


author: Pope, Presiding Judge.

text:
    A98A0610.
    TYSON v. THE STATE.
    (503 SE2d 640)
   Pope, Presiding Judge.

Defendant John Tyson was convicted following a jury trial of child molestation, aggravated child molestation, distribution of obscene materials and aggravated sodomy. Defendant filed a motion for new trial, which was denied, and then appealed to this Court.

1. Defendant first enumerates as error the admission of similar transaction evidence on the grounds that the similar acts were too remote. We agree with defendant and reverse. The similar evidence witness, Mabel Gregg, was born in September 1945 and was 51 years old at the time of trial. She testified she first met the defendant when she was eight, and that he was a family friend who helped out her very large and very poor family. Gregg further testified that defendant began hugging, kissing and fondling her when she was about 11 years old and that over time he began performing oral sex on her. Gregg testified that any sexual activity with the defendant ended by the time she was 16, which was in 1961. The State presented evidence that the defendant began fondling the victim’s breasts and vagina in approximately 1988, when she was around eight or nine years old and that by the time she was twelve or thirteen years old the defendant was performing oral sex on her, attempting to have sexual intercourse with her, and using a vibrator on her genitals. The offenses charged in the indictment were alleged to have occurred between 1990 and 1994.

In Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), our Supreme Court considered the question of when similar transaction events that are remote in time should be excluded. While seeming to approve cases which allowed admission of similar transaction evidence which had occurred 11 and 19 years before the crimes now being prosecuted, the court went on to hold that “[i]t should be clear, however, that an event 31 years in the past is too remote.” Id. at 799. In this case, part of the similar transaction witness’ testimony concerned events which happened 40 years ago. The time span between the last act perpetrated upon the similar evidence witness and the first act of molestation perpetrated on the victim in this case was approximately 27 years. We agree with the defendant that under these facts the trial court should have found the similar transaction evidence inadmissible. Although in other sexual abuse cases this Court has allowed the admission of similar transaction evidence which was more than 20 years removed from the present offenses, our review of those cases shows they involve either a continuous course of criminal conduct, often involving different generations of the same family, see, e.g., Nichols v. State, 221 Ga. App. 600, 601-602 (3) (473 SE2d 491) (1996); Snow v. State, 213 Ga. App. 571, 572 (2) (445 SE2d 353) (1994); Starnes v. State, 205 Ga. App. 882, 883 (1) (424 SE2d 4) (1992), or situations in which the defendant has been incarcerated for some of the intervening time, see, e.g., Moore v. State, 207 Ga. App. 412, 415-416 (1) (b) (427 SE2d 779) (1993). As the defendant points out, there is no evidence of a continuing course of conduct in the case at bar, and no evidence of incarceration. And we also agree with defendant that the error in admitting the evidence was exacerbated by the trial court’s failure to instruct the jury that the evidence was being introduced for a limited purpose at the time it was admitted, although the court did so instruct the jury during the final charge. Under these circumstances, we agree with the defendant that the trial court erred in admitting the similar crimes evidence, and that since it is highly probable that the introduction of this prejudicial evidence contributed to the verdict, that defendant’s conviction must be reversed because of this error.

2. Defendant next argues that the trial court erred in excluding evidence that the victim had made prior false allegations of sexual molestation against another man. The transcript shows that the other man pled guilty to sexual battery after the victim reported that he put his hand inside her bathing suit bottom. However, the record also shows that the victim told authorities that the man molested her in other ways, and she admitted outside the presence of the jury that she “made a bunch of stuff up” and “lied or exaggerated about some things” involving the incident with the other man. We agree with defendant that evidence concerning these false allegations of molestation should have been admitted. “In Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) [(1989)], the Supreme Court of Georgia held that, subject to a threshold determination, evidence of prior false allegations by a molestation victim does not fall within the proscription of rape-shield laws and that such evidence may be admitted. However, before admitting evidence of prior false accusations the trial court, outside the presence of the jury, must determine that a reasonable probability of falsity exists. The threshold determination is included in the procedure mandated by the Supreme Court for the express purpose of protecting the prosecutrix from unfounded allegations that she has made false allegations in the past. . . .” (Citations omitted.) Hines v. State, 221 Ga. App. 193 (470 SE2d 787) (1996). The trial court apparently concluded that because an act of sexual misconduct had occurred, and the perpetrator had pled guilty to sexual battery, there was no “reasonable probability” that the allegations were false. But this finding was clearly erroneous. The facts here do not show a reasonable probability of falsity but a certainty that false allegations were made, because the victim admitted that she fabricated part of what she said the other man did to her. Although the defendant should not have been allowed to question the victim about the one part of her accusation that she never recanted (i.e., that the other man put his hand in her bathing suit) the jury should have been allowed to hear evidence concerning the accusations that were false in order to allow the jury to assess the victim’s credibility. Smith v. State, 259 Ga. at 136 (1), supra; Hines v. State, 221 Ga. App. at 194; Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312) (1992).

3. Defendant argues the trial court erred in admitting nude photographs of his wife. We agree that the trial court erred in admitting these photographs. The photographs were found in a locked box placed in an envelope marked “please do not open, for my wife only.” The defendant took these photographs of his wife approximately 25 to 30 years ago. The victim testified that she thought the envelope contained a letter for the defendant’s wife, to be opened when he died.

“The true issue is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition.” Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992). There is no evidence that the defendant ever showed the photographs to the victim, that she was aware the photographs existed or that the photographs were used in any way, shape or form in the crimes committed. The State argues that the photographs were admissible because they showed defendant’s propensity to take nude photographs of women (the victim testified the defendant took nude photographs of her, but no photographs were ever found) and because they showed the defendant’s lustful disposition. But the fact that the defendant took nude photographs of his wife 25 or more years ago does not show either of these things. We agree with the defendant that these photographs were irrelevant and prejudicial, and that the trial court erred in admitting them over defendant’s objection at trial.

4. We have examined defendant’s remaining enumerations of error and find they are either without merit or unlikely to recur on retrial.

Decided June 3, 1998.

Laura D. Hogue, Franklin J. Hogue, for appellant.

Kelly R. Burke, District Attorney, Kirsten L. Searle, A. James Rockefeller, Katherine E. Kelley, Amy E. Lambert, Assistant District Attorneys, for appellee.

Judgment reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

       The trial court merged the aggravated sodomy conviction into the conviction for aggravated child molestation for the purpose of sentencing.


author: Johnson, Judge.

text:
    A98A0666.
    SELF v. THE STATE.
    (503 SE2d 625)
   Johnson, Judge.

A jury found Elizabeth Self guilty of driving under the influence of alcohol. She appeals, and we affirm.

Viewing the evidence in a light most favorable to support the jury’s verdict, the record shows that a police officer was dispatched to a residence on August 27, 1996 and was speaking with an individual at the residence when Self drove up in her car. Self began arguing with the person with whom the officer was speaking. Self smelled of alcohol, had difficulty enunciating her words, had bloodshot eyes, and propped herself on the car as she argued with the other individual. The officer believed that Self was intoxicated and arrested her for driving under the influence of alcohol.

Self admitted to the officer that she had two beers. Evidence further showed that she drank parts of two bottles of champagne and another drink in addition to the two beers. Self was taken to Floyd Medical Center where a blood sample was taken. While at the hospital lab, she screamed, cursed, and threw her arms about. She staggered when she walked and appeared to have trouble sitting in a chair.

1. Self claims the trial court erred in submitting the issue of driving under the influence of alcohol to the jury because the accusation did not state a date on which the crime occurred. We disagree.

The accusation charging Self shows that in the first count, which charged her with driving under the influence of alcohol, Self’s home address rather than the date of the offense was typed. The second count, which charged Self with driving without a license, did allege the proper date. In addition, the undisputed testimony at trial was that the incident occurred on August 27, 1996, and the accusation was filed in February 1997. Therefore, the state proved that the incident occurred within the two year statute of limitation period prior to the filing of the accusation. This is all that is required when the date is not an essential element of the case, as is the case here. See Angevine v. State, 171 Ga. App. 658 (2) (320 SE2d 578) (1984). Moreover, Self made no motion for continuance on the ground that she had been surprised or prejudiced by the lack of a date in the accusation. See Parker v. State, 198 Ga. App. 838, 840 (2) (403 SE2d 897) (1991). Under these circumstances, the trial court did not err in submitting the charge of driving under the influence of alcohol to the jury.

2. The trial court also did not err in submitting the issue of whether Self was a less safe driver to the jury. A conviction under OCGA § 40-6-391 (a) (1) does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. See Anderson v. State, 203 Ga. App. 118, 119 (1) (416 SE2d 309) (1992). Circumstantial evidence may be sufficient to meet this burden of proof. Walsh v. State, 220 Ga. App. 514, 516 (3) (469 SE2d 526) (1996); Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994).

In the present case, the officer testified that he observed Self driving, she smelled of alcohol, she had difficulty enunciating her words, her eyes were bloodshot, and she propped against the car as she stood. After her arrest, Self admitted to the officer that she had two beers. In addition, at the lab nearly two hours after her arrest, Self staggered when she walked, had a hard time sitting in a chair, and had a blood-alcohol content of .16 grams. This evidence was sufficient to authorize the jury’s finding that Self was guilty, beyond a reasonable doubt, of operating a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Walsh, supra; Schoicket, supra. Issues of witness credibility and the resolution of inconsistencies or conflicts in the evidence are strictly matters for the jury to weigh and consider. Walsh, supra.

3. The trial court did not err in denying Self’s motion in limine to exclude her blood-alcohol test results. OCGA § 17-16-23 (b) requires the state in misdemeanor cases to provide the defendant with “a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal” provided the defendant requests copies of the written scientific reports in writing at arraignment or within a reasonable time prior to trial. OCGA § 17-16-23 (a) defines “written scientific reports” to include reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation and blood-alcohol test results done by a law enforcement officer or a private physician.

We need not address the issue of whether Self timely filed a proper request for the written scientific reports under OCGA § 17-16-23. See State v. Meminger, 249 Ga. 561, 563 (1) (292 SE2d 681) (1982). Self admits she received the state crime lab report long before trial. However, Self argues she did not receive all the documents to which she was entitled. While Self reviewed these other documents during a break at trial, there is no mention in the record regarding the content of these other documents. We note that "not all written documents appearing to fit within the ambiguous definition in the statute are ‘reports’ that are discoverable.” Renschen v. State, 225 Ga. App. 678, 679 (3) (484 SE2d 753) (1997). For example, Self was not entitled to internal documents and work products of the crime lab. See Walker v. State, 168 Ga. App. 130, 132 (3) (308 SE2d 404) (1983).

It is incumbent upon Self, as appellant, to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon her motion in limine, and mere assertions of error in her brief do not suffice. See Grogan v. State, 230 Ga. App. 876, 877 (497 SE2d 589) (1998); Gay v. State, 228 Ga. App. 248, 250 (491 SE2d 469) (1997). In the absence of a sufficient record, we must assume that the trial court’s ruling was proper and that Self received all reports to which she was entitled under OCGA § 17-16-23. See Gilbert v. State, 222 Ga. App. 787, 788 (4) (476 SE2d 39) (1996).

4. Self next maintains the trial court erred in admitting into evidence the blood-alcohol test results because the state failed to prove a proper chain of custody. We disagree.

According to the record, the arresting officer saw the blood sample drawn and the tube sealed at the lab. The individual who drew the blood testified that he sealed the tube in paraffin wax and labeled the tube with Self’s name, social security number, the date and the time. He then gave the tube to the officer. The blood sample tube remained with the arresting officer until she packaged it in an evidence bag, labeled the bag with the case number, officer, Self’s name and a description of the evidence, and placed it in the locked evidence refrigerator at the police station. Another officer took the sample, which was still in the sealed, labeled evidence bag from the refrigerator at the police station to the state crime lab. He then placed it into the drop box, which is normal procedure, and affixed an identifying card to the evidence. A drug chemist at the state crime lab testified that the sample was received, still in its sealed condition and labeled with Self’s name, and was secured until he performed his testing.

This evidence was sufficient to connect the blood test results with Self’s sample. See Price v. State, 269 Ga. 222, 226 (5) (498 SE2d 262) (1998). Any discrepancy in the amount of blood drawn or tested would go to the weight of the evidence and not its admissibility. Lewis v. State, 215 Ga. App. 486, 489 (3) (451 SE2d 116) (1994); see Johnson v. State, 184 Ga. App. 745 (1) (a) (362 SE2d 450) (1987).

Decided June 3, 1998.

Elizabeth F. Self, pro se.

Barkley & Garner, Larry J. Barkley, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Bryant G. Speed II, Assistant District Attorneys, for appellee.

5. In her final enumeration of error, Self contends the trial court erred when it questioned her expert witness. However, the record reveals that Self never objected to the trial court’s questioning. Thus, Self has waived her right to appellate review by failing to object at trial. See Barker v. State, 211 Ga. App. 279, 280 (3) (438 SE2d 649) (1993). This enumeration of error has no merit.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0739.
    STEPHENS v. THE STATE.
    (503 SE2d 643)
   Smith, Judge.

Willie James Stephens was convicted on one charge of burglary, OCGA § 16-7-1. His motion for new trial as amended was denied, and he appeals. We affirm.

1. We find no merit in Stephens’s contention that the evidence was insufficient to convict him. Construed in favor of the jury’s verdict, evidence was presented that Frank Girley, supervisor of the janitorial and custodial staff at LaGrange High School, discovered that a burglary had occurred inside the school. He stated that no windows were broken, that alarms were unarmed, and that keys had been used to gain entry. Part of a computer, a microwave oven, a digital camera, and a VCR component were missing. Stephens, who worked as a janitor in the school, was discovered later that day lying in a dazed state inside one of the classrooms. Police were summoned to the school, and Stephens made a statement confessing to stealing the school property. At trial, Stephens admitted that he took the items.

OCGA § 16-7-1 (a) provides in relevant part that one commits burglary when he or she enters or remains within a building without authority and with the intent to commit a theft therein. Although Stephens admitted to stealing the items from the school, he claimed at trial that he did not enter the school with the intent to steal. Instead, his defense was that he entered it for one of several reasons: to pray; to talk with his girlfriend; to call Girley to discuss some personal problems; or to commit suicide. He also claimed that Girley had given him “the idea” that he could stay inside the school anytime. Girley testified unequivocally, however, that Stephens did not have permission to be inside the school after work hours and that he never told him he could sleep there.

Even if Stephens did not intend to steal anything from inside the school when he initially entered it, intent to steal “need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises. [Cit.]” Hewatt v. State, 216 Ga. App. 550, 551 (455 SE2d 104) (1995). Because Stephens took the items from the school, any jury would have been authorized to conclude that he formed the intent to steal the items sometime before he removed them. Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), sufficient evidence was therefore presented upon which a rational trier of fact could convict Stephens of the offense of burglary.

2. Stephens contends the trial court erroneously refused to grant his motion for mistrial. The State asked its witness, Stephens’s former girlfriend, whether she went inside the school with Stephens and prayed with him. She answered by stating that she had never prayed with Stephens and that they had “a violent life together.” She also mentioned that he had kicked her several times in the head. Although Stephens raised an objection that the trial court sustained on the ground that the answer was unresponsive, he moved for mistrial only after both the State and he had finished examining the witness. It is well settled that a motion for mistrial must be made contemporaneously with the objectionable testimony. See, e.g., Benjamin v. State, 211 Ga. App. 670, 672 (440 SE2d 259) (1994). Stephens consequently failed to preserve the denial of his motion for our review. See Wesley v. State, 228 Ga. App. 342, 343 (2) (491 SE2d 824) (1997).

3. During cross-examination of Stephens’s former girlfriend, Stephens’s counsel attempted to elicit testimony that she was inside the school with Stephens on the night of the burglary. In response, the witness stated with reference to Stephens that “[h]e’s always been a thief.” Stephens contends that this statement placed his character in issue and that his counsel was ineffective in failing to request curative instructions or move for mistrial.

Assuming this testimony introduced evidence of bad character, we find no reversible error. To establish ineffectiveness of counsel, Stephens is required to show that his counsel's performance was deficient and that this deficiency prejudiced his defense. “Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. [Cit.]” Gentry v. State, 226 Ga. App. 216, 219 (3) (485 SE2d 824) (1997). In light of the overwhelming evidence of Stephens’s guilt, he has failed to make the required showing of prejudice. Id. See also Jenkins v. State, 224 Ga. App. 604, 605 (3) (481 SE2d 590) (1997). The trial court therefore did not err in denying Stephens’s amended motion for new trial based upon ineffectiveness of counsel.

Decided June 3, 1998.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Monique F. Kirby, Todd A. Orston, Assistant District Attorneys, for appellee.

4. Stephens also complains of the trial court’s failure to give his request to charge on criminal trespass. We find no reversible error. “Where the intent to steal is proved, the crime of criminal trespass . . . merges with or is included within the crime of burglary. . . . [Cits.]” Deese v. State, 137 Ga. App. 476, 477 (3) (224 SE2d 124) (1976). As discussed in Division 1, even if Stephens did not intend to steal anything when he initially entered the school, an intent to steal necessarily was formed at some time while he remained inside the school. The intent to steal was unquestionably proved, and the crime of criminal trespass therefore merged into that of burglary.

Hambrick v. State, 190 Ga. App. 119 (378 SE2d 340) (1989), relied upon by Stephens, is distinguishable. The defendant in Hambrick was discovered inside a store, but the evidence did “not establish without dispute that a burglary occurred.” Id. at 119-120. The defendant testified he was inside the store only to find food in the trash can, which would not have constituted a violation of any property right. Id. at 120. In this case, the evidence shows that a burglary did occur; Stephens admitted stealing the items from inside the school.

But even if the charge should have been given, we find no reversible error. Given the overwhelming evidence against Stephens, specifically his confession that he stole the property from the school, it is highly probable that the failure to give the requested charge did not contribute to the verdict. See Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: Eldridge, Judge.

text:
    A98A0820.
    HILLMAN v. THE STATE.
    (503 SE2d 610)
   Eldridge, Judge.

The defendant, Jacquelyn Aretha Hillman, appeals from the Walton County Superior Court’s denial of her motion to quash an indictment charging her with a violation of Georgia’s criminal abortion statute. After finding that this statute does not apply to the defendant’s conduct, we reverse.

In May 1997, the defendant was indicted under OCGA § 16-12-140 for allegedly using a handgun to shoot herself in the abdomen “with intent to produce a miscarriage and an abortion of her unborn child. . . resulting in the death of her unborn child[.]” At the time of the incident, the defendant was an eighteen-year-old single parent and approximately eight months pregnant.

1. In her first enumeration, the defendant asserts that she cannot be prosecuted under OCGA § 16-12-140 (a) for allegedly performing a criminal abortion on herself. After examining the plain language of the statute, we agree.

(a) OCGA § 16-12-140 (a) reads as follows: “Except as otherwise provided in Code Section 16-12-141, a person commits the offense of criminal abortion when he administers any medicine, drugs, or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.” (Emphasis supplied.) This statute is written in the third person, clearly indicating that at least two actors must be involved. “It is axiomatic that[,3 if an enactment is plain and unambiguous, we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b).” City of Buchanan v. Pope, 222 Ga. App. 716, 717 (476 SE2d 53) (1996). By its plain meaning, OCGA § 16-12-140 does not criminalize a pregnant woman’s actions in seeming an abortion, regardless of the means utilized. See OCGA § 1-3-1 (b).

Further, “‘[i]t has always been the law that criminal statutes must be strictly construed against the [S]tate.’ McAllister v. State, 122 Ga. 744 (50 SE 921) (1905).” Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). “The unambiguous words of a criminal statute are not to be altered by judicial construction so as to punish one not otherwise within its reach. Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896) (1944).” (Punctuation omitted.) State v. Luster, 204 Ga. App. 156, 158 (419 SE2d 32) (1992); see also Bouie v. City of Columbia, 378 U. S. 347 (84 SC 1697, 12 LE2d 894) (1964).

Accordingly, OCGA § 16-12-140 is not applicable, and the indictment issued thereon is defective as a matter of law. The trial court’s refusal to quash the indictment was error and must be reversed.

(b) This conclusion is further bolstered by an examination of the development of Georgia’s prohibition against criminal abortion. The state’s first criminal abortion statute was enacted in 1876. Brinkley v. State, 253 Ga. 541, 543 (322 SE2d 49) (1984). This statute has been repeatedly reenacted by the legislature in substantially the same form. In construing subsequent amendments to this statute, Georgia’s appellate courts have consistently ruled that the pregnant woman upon whom the abortion procedure was performed cannot be indicted for this offense. In Gullatt v. State, 14 Ga. App. 53 (9) (80 SE 340) (1913) (construing Penal Code 1910, § 81), this Court held that “[t]he female upon whom a criminal abortion has been performed is not an accomplice with the perpetrator of the offense, as she can not be indicted for that offense.” This Court subsequently construed an amended version of the statute, GCA § 26-1201, and reiterated that “a female is not guilty of a crime by her participation in an abortion operation.” Gaines v. Wolcott, 119 Ga. App. 313, 315 (167 SE2d 366), aff’d, Wolcott v. Gaines, 225 Ga. 373 (169 SE2d 165) (1969).

Although the legislature subsequently amended the criminal abortion statute to allow for legal abortions following the United States Supreme Court’s rulings in Roe v. Wade and Doe v. Bolton, such amendment did not change prior judicial constructions regarding a pregnant woman’s culpability under the statute. See Dortch v. Atlanta Journal, 261 Ga. 350 (405 SE2d 43) (1991); see also OCGA § 16-12-141; Brinkley v. State, supra at 544. “From the addition of words[,] it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication.” (Citations and punctuation omitted.) State v. Peters, 213 Ga. App. 352, 355-356 (444 SE2d 609) (1994).

The current statutory language is virtually identical to that of the previous statutes, with the exception of changes regarding gender references and other insignificant grammatical differences. This indicates that “the General Assembly accepted the ruling in Gullatt v. State, supra, . . . as a correct interpretation of the statute.” Wolcott v. Gaines, supra at 374. “[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts. [Cits.]” Buice v. Dixon, 223 Ga. 645, 647 (157 SE2d 481) (1967); see also Asberry v. State, 220 Ga. App. 40 (467 SE2d 225) (1996); State v. Camp, 189 Ga. 209, 210 (2) (6 SE2d 299) (1939).

Therefore, the legislative history indicates that, despite numerous opportunities, the General Assembly has refused to criminalize a pregnant woman’s acts in securing an illegal abortion. This Court cannot and will not usurp the function of the legislature by judicially enlarging an existing criminal statute. See Dunn v. United States, 442 U. S. 100, 112 (99 SC 2190, 60 LE2d 743) (1979); Bouie v. City of Columbia, supra at 353-354; Mitchell v. State, 142 Ga. App. 802, 803 (237 SE2d 243) (1977).

(c) Even so, the State argues that this Court should extend the criminal abortion statute to encompass the defendant’s acts because of the egregious conduct for which she is charged, i.e., intentionally inflicting a gunshot wound to a near-term fetus in order to produce an abortion. However, the potential ramifications of the State’s proposed overbroad construction of the statute certainly give pause.

Under such construction, any woman who suffers a post-viability miscarriage could be subject to scrutiny regarding whether or not she intentionally acted to cause the miscarriage. A woman would be at risk of a criminal indictment for virtually any perceived self-destructive behavior during her pregnancy which could cause a late term miscarriage, to wit: smoking or drinking heavily; using illegal drugs or abusing legal medications; driving while under the influence of drugs or alcohol; or any other dangerous or reckless conduct. See generally State v. Luster, supra. Taken to its extreme, prohibitions during pregnancy could also include the failure to act, such as the failure to secure adequate prenatal medical care, and overzealous behavior, such as excessive exercising or dieting. Clearly, the legal truism “hard cases make bad law” applies here.

To compound the problem, the State argues that the issue of whether a woman who has participated in this risky behavior intended to cause her subsequent miscarriage would be a jury question. In other words, a pregnant woman who suffers a late term miscarriage could be subjected to criminal investigation, indictment, and prosecution long before a jury is asked to determine whether she intentionally did anything to cause the miscarriage. This is a patently unjust approach.

Further, the State’s argument fails to address obvious due process concerns, i.e., whether the statute (as construed by the State) gives notice that certain behavior, which may otherwise be legal, is forbidden during pregnancy. See OCGA § 16-1-2 (2); see also Grayned v. City of Rockford, 408 U. S. 104, 108 (92 SC 2294, 33 LE2d 222) (1972); State v. Luster, supra at 157; Mitchell v. State, supra at 803.

Accordingly, we reject the State’s construction and overbroad application of this statute.

(d) Finally, this Court finds no merit in the State’s assertion that prior judicial constructions of the criminal abortion statutes do not apply in this case. The State points out that, in Gullatt v. State, supra, and Gaines v. Wolcott, supra, the pregnant women were not principal actors but were, instead, alleged to be accessories to the crime, while the defendant in this case was the principal actor. It is undisputed that no one else was involved in this incident.

However, the State of Georgia makes no distinction between an accessory before the act and a principal actor, treating both as parties to the crime and assigning equal culpability. OCGA §§ 16-2-20 (a); 16-2-21; see also Purvis v. State, 208 Ga. App. 653, 654-655 (433 SE2d 58) (1993). Therefore, regardless of whether the pregnant woman acts alone or with assistance, she cannot be charged under OCGA § 16-12-140, as that statute is specifically directed to prevent the conduct of persons other than the pregnant woman.

2. The defendant’s second enumeration is rendered moot by our decision in Division 1, supra.

Judgment reversed.

McMurray, P. J., and Blackburn, J, concur.

Decided June 3, 1998.

Joseph S. Rhymer, James C. Bonner, Jr., for appellant.

Alan A. Cook, District Attorney, for appellee.

       OCGA § 16-12-141 provides for the circumstances under which legal abortions must be performed.

       Under the rules of statutory construction, “[t]he masculine gender includes the feminine and the neuter.” OCGA § 1-3-1 (d) (4).

       “ ‘That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia.’ Ga. Laws 1876, p. 113.” Brinkley v. State, supra at 543, n. 1.

       See Ga. L. 1876, p. 113, § 2; Code 1882, § 4337b; Penal Code 1895, § 81; Penal Code 1910, § 81; Code 1933, § 26-1101; Code 1933, §§ 26-1201; 26-1203, enacted by Ga. L. 1968, p. 1249, § 1; Code 1933, § 26-1204, enacted by Ga. L. 1973, p. 635, § 1.

       Penal Code 1910, § 81 read as follows: “Any person who shall willfully administer to any pregnant woman any medicine, drug, or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to produce the miscarriage or abortion of such woman,... shall be guilty of a misdemeanor.”

       GCA § 26-1201 read as follows: “Except [when medically necessary,] a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.”

       Ga. L. 1973, pp. 635-637.

       410 U. S. 113 (93 SC 705, 35 LE2d 147) (1973).

       410 U. S. 179 (93 SC 739, 35 LE2d 201) (1973).

       Notably, the defendant has indicated that the gunshot wound was not intentionally inflicted but was, instead, the result of a botched suicide attempt.


author: Blackburn, Judge.

text:
    A98A0915.
    ROBERTS v. THE STATE.
    (503 SE2d 614)
   Blackburn, Judge.

Aldene Roberts appeals his conviction for child molestation, raising several enumerations of error. For the reasons set forth below, we affirm.

1. In his first enumeration of error, Roberts contends that the evidence was insufficient to support the verdict against him. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Roberts] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing [an appeal based on insufficiency of the evidence] is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The 14-year-old victim in this case, K. T., testified that Roberts drove her to a piece of property in Emanuel County, instructed her to get in the backseat of the car, and put his penis in her vagina. After intercourse, Roberts instructed K. T. to wipe herself off with white napkins he provided, and Roberts wiped himself off as well. Roberts then placed the soiled tissues into a plastic bag and hid them behind a brush pile at the scene of the crime. K. T. testified that Roberts had sexual intercourse with her on multiple times prior to this incident, including oral and anal sex.

Betty Colston, a counselor at K. T.’s school; Alton Spells, a worker for the Department of Family & Children Services; Richard Peacock, a police detective; and Dr. Curt Holmes, a clinical psychologist, corroborated K. T.’s description of events. Several weeks after the incident, Peacock accompanied K. T. to the scene of the crime, where he found a plastic bag containing soiled napkins as K. T. described. These napkins matched the napkins used at a prekindergarten school where Roberts worked as a custodian. Although the napkins, when tested, showed no evidence of semen, a crime lab forensic serologist testified that exposure to the elements could have negated the possibility of detecting any fluid on them. In addition, the backseat from Roberts’ car was removed, and it tested positive for Roberts’ semen. Based on these findings, there was ample evidence to support Roberts’ conviction for molestation. Although Roberts points out that he presented witnesses who testified as to his good character and innocence, “it is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses.” (Punctuation omitted.) Lester, supra at 378 (4).

2. In his second enumeration, Roberts contends that the jury’s verdict was strongly and decidedly against the weight of the evidence. “Our law vests in the trial judge alone the discretion to grant a new trial because the verdict might be decidedly and strongly against the weight of the evidence, and this court has no such power. Based upon the evidence discussed above, we do not find that the trial court abused its discretion.” (Citation omitted.) Wilson v. State, 211 Ga. App. 791, 792 (1) (440 SE2d 534) (1994).

3. In his third enumeration, Roberts contends that the court erred by refusing to allow him to question the victim about her past sexual conduct. We disagree.

“Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissable. Moreover, evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” (Citations and punctuation omitted.) Burris v. State, 204 Ga. App. 806, 809-810 (2) (420 SE2d 582) (1992). There are exceptions to this rule, however, as “[t]he fact that evidence may be inadmissible for one purpose does not warrant its exclusion when it is relevant and admissible for another purpose.” (Punctuation omitted.) Id. at 810. For example in Burris, supra, it was determined that the defendant should have been allowed to present evidence of a prior claim of molestation by the victim “[i]n light of the fact that there was some evidence in this case that the victim may have had a strong motive to fabricate her accusation against defendant . . ., that the victim had first falsely accused one of her uncles of “bad touching’ her so that she would not be forced to leave her grandmother, and that the victim did not initially accuse defendant of molesting her.” Id.

At trial, although Roberts attempted to introduce evidence of K. T.’s prior sexual history, he gave no valid reason indicating its relevance when objected to by the State. Roberts stated that the questions he wished to ask would be used to show that the victim was familiar with sexual terminology and that the victim was not “innocent.” Clearly, such grounds for admission of a molestation victim’s prior sexual activity are improper. See Chastain v. State, 257 Ga. 54 (354 SE2d 421) (1987). Moreover, although Roberts now attempts to argue that the questions should have been allowed because K. T. had a strong motive to fabricate her accusation, there was insufficient evidence shown at trial to trigger the exception to the general rule of exclusion set out in Burris. As such, we find no error.

4. In his fourth enumeration, Roberts contends that the trial court erred by allowing the State to ask the victim repetitive questions on redirect examination. Again, we disagree.

“The courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses. Hayslip v. State, 154 Ga. App. 835 (270 SE2d 61) (1980); Hanson v. State, 86 Ga. App. 313 (71 SE2d 720) (1952). In Hanson, this court specifically noted that the nature of the offense was sexual and held that in such a case, when the victim was of tender years, the trial court did not abuse its discretion in permitting repetitive and even leading questions. We find the same considerations to obtain here, and therefore find [Roberts’] enumeration without merit.” (Punctuation omitted.) Stine v. State, 199 Ga. App. 898, 900 (3) (406 SE2d 292) (1991). In this case, moreover, only a single repetitive question was asked to which Roberts objected. We find no error.

5. In his fifth enumeration of error, Roberts contends that the State was allowed to question Alton Spells as an expert witness even though he was not so qualified, thereby giving undue weight to his testimony. We disagree.

As an initial matter, we point out that Roberts has failed to identify in his brief a single question or response given by Spells that was objectionable. Instead, Roberts complains in a general sense that Spells was improperly treated as an expert. Spells, an employee of DFACS, testified that he had no special training in detecting molestation, but that his job was to assess the risks to a child in his or her environment. Spells further testified that he attended some seminars regarding child molestation and investigative techniques. Spells then answered several questions about the general information he learned at such seminars, and he opined that there was no standard description of how a molester would look.

“Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.” OCGA § 24-9-65. We note that Roberts neither made a motion to strike this testimony, nor did he ask for curative instructions. Furthermore, “the status of the witness as lay or expert would go, not to admissibility, but credibility.” McLelland v. State, 203 Ga. App. 93, 95 (6) (416 SE2d 340) (1992). Accordingly, we find no error.

Decided June 3, 1998.

Kathy S. Palmer, for appellant.

Richard A. Malone, District Attorney, Lance J. Hamilton, Assistant District Attorney, for appellee.

6. In his sixth enumeration of error, Roberts contends that the trial court improperly admitted the backseat of Roberts’ car and, concomitantly, the results of tests for semen on this backseat because the chain of custody was broken. Roberts argues that potential tampering was shown by the fact that the backseat had dirt on it when it arrived in the courtroom. Again, we disagree.

“In proving chain of custody, the [Sítate is not required to show that the substance was guarded each minute it is in one’s custody, and in the absence of a showing to the contrary, the chain is not thereby broken. In the absence of evidence of tampering with the substance the chain of custody has not been shown to be broken. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” (Citations and punctuation omitted.) Williams v. State, 153 Ga. App. 421, 422 (3) (265 SE2d 341) (1980). As only speculation of tampering was provided by Roberts, the backseat was properly admitted. Moreover, “[t]he item was not fungible but a distinct physical object and no custodial proof was required for admission of it.” Stubbs v. State, 201 Ga. App. 546, 548 (4) (b) (411 SE2d 525) (1991).

7. In his seventh enumeration of error, Roberts contends that the trial court improperly redacted a portion of a taped interview of K. T. in which she admitted to having sex with someone other than Roberts prior to his act of molestation. Roberts bases his contention on OCGA § 24-3-38 which provides: “When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence.” However, OCGA § 24-3-38 does not require irrelevant material to be admitted into evidence. As such, information about the victim’s past sexual experiences was not shown to be relevant by Roberts, and the trial court did not err by redacting such material from the taped interview of K. T. See Stancil v. State, 196 Ga. App. 530 (396 SE2d 299) (1990). Furthermore, Roberts’ argument that the tape was unduly repetitive must also be rejected. See Division 4, supra.

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0956.
    WHEELER v. THE STATE.
    (503 SE2d 628)
   Blackburn, Judge.

Rick Ira Wheeler was convicted following a jury trial of aggravated assault under OCGA § 16-5-21 (a) (2). He contends the trial court erred in denying his motion for a directed verdict of acquittal because the state failed to prove he attacked his victim with a deadly weapon. We disagree and affirm.

A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187) (1993). The test set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). On appeal a reviewing court may consider all the evidence in the case, and must view the evidence in the light most favorable to the verdict. Id.

Viewed in this light, the record reveals these pertinent facts: On June 3, 1996, Wheeler pulled the victim, a female acquaintance of his, into his hotel room. He stripped her of her clothes and beat her by striking and kicking her. Wheeler beat the victim about the face so severely that her eyes swelled shut and she could not see. The victim tried to flee, but Wheeler grabbed her and threatened to kill her if she left. When Wheeler went into the bathroom, the victim tried to phone for assistance. She testified that Wheeler caught her doing this, took the telephone receiver from her and beat her at least ten times with it. She testified that two of her teeth were broken out during the prolonged attack, most likely during the beating with the telephone. She was finally able to escape when Wheeler, who was drunk, passed out on the hotel bed. The victim stumbled, blind and naked, out of the room and eventually found help. The deputy sheriff who found her, testified that the victim was terrified that Wheeler was going to kill her. The victim’s face was so swollen and bruised following the attack that her mother did not recognize her.

Wheeler contends the state failed to carry its burden of proving an aggravated assault under OCGA § 16-5-21 (a) (2) because the state failed to present sufficient evidence that Wheeler used an object which when used offensively against the victim was likely to or actually did result in serious bodily injury. The victim’s testimony provided direct evidence from which the jury could conclude that Wheeler struck the victim with his hands and feet and with the telephone receiver. Although hands, feet, and a telephone receiver are not deadly weapons per se, “a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances.” Richards v. State, 222 Ga. App. 853, 854 (1) (a) (476 SE2d 598) (1996); Banks v. State, 169 Ga. App. 571 (1) (314 SE2d 235) (1984). “[W]hether the instrument used constitutes a deadly weapon is properly for the jury’s determination.” Quarles v. State, 130 Ga. App. 756, 757 (2) (204 SE2d 467) (1974). Given the circumstances of the attack, the nature of the victim’s wounds, and the manner in which Wheeler used his fists, feet, and the telephone receiver to beat the victim, we conclude the evidence was sufficient to authorize a rational trier of fact to find Wheeler guilty of aggravated assault beyond a reasonable doubt under the standard set forth above. See, e.g., Richards v. State, supra; Banks v. State, supra.

Decided June 3, 1998.

Pierce Winningham III, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0999.
    DURBEN v. AMERICAN MATERIALS, INC. et al.
    (503 SE2d 618)
   Blackburn, Judge.

Linda Durben was injured when her vehicle was struck by a truck owned by American Materials, Inc. and driven by one of its employees, Leon Wesley Palmer. Durben sued American Materials and its insurer, Nationwide Insurance Company, asserting claims of respondeat superior, negligent entrustment, and negligent hiring and retention, and also seeking to recover punitive damages. The trial court granted defendants’ motion for summary judgment as to all claims except the respondeat superior claim, and Durben appeals.

“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).

1. Defendants contend that they were entitled to summary judgment on Durben’s claims for negligent entrustment, hiring, and retention because American Materials admitted that Palmer was its agent and employee and acting within the scope of his authority at the time of the accident. Thus, American Materials would be liable to Durben for Palmer’s alleged negligent acts under the doctrine of respondeat superior. Generally, when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. See Bartja v. Nat. Union Fire Ins. Co., 218 Ga. App. 815 (463 SE2d 358) (1995); Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987); Chupp v. Henderson, 134 Ga. App. 808 (216 SE2d 366) (1975); Willis v. Hill, 116 Ga. App. 848, 863 (159 SE2d 145) (1967), rev’d on other grounds, 224 Ga. 263 (161 SE2d 281) (1968).

An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Under these circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims. Rather, “the appropriate solution for avoiding the prejudice to the driver is a separate trial on the negligent entrustment[, hiring, and retention issues]. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829 (435 SE2d 54) (1993); see Chupp[, supra at 809].” Bartja, supra at 817 (2).

Accordingly, the question to be resolved is whether Durben has a valid basis for punitive damages on her negligent entrustment, hiring, and retention claims. “Clear and convincing evidence of a defendant’s ‘willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences’ is required to warrant the imposition of punitive damages. OCGA § 51-12-5.1 (b). Negligence, even gross negligence, is insufficient to support such an award.” Bartja, supra at 818 (3).

In support of her claims against American Materials, Durben relies upon several documents. First, attached as an exhibit to her brief in response to defendants’ motion for summary judgment is an uncertified copy of a complaint against American Materials arising out of a prior accident involving Palmer, as well as an uncertified copy of a jury verdict against Palmer in such case. These documents are not competent evidence in this summary judgment proceeding. OCGA § 9-11-56 (c) authorizes a trial court, in ruling on a motion for summary judgment, to consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Nothing in the statute authorizes a trial court to consider uncertified pleadings from another case that are merely attached to a brief, without any attempt to authenticate or verify such documents or to offer them into evidence. Moreover, the allegations in the complaint constitute hearsay, which lacks probative value even in the absence of objection. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990).

Apart from the allegations in the complaint, there is no evidence whatsoever as to the circumstances surrounding the prior accident, which occurred 19 months before the collision in this case. Durben has pointed to no evidence showing that American Materials was aware of any facts surrounding the prior accident that should have put it on notice that Palmer was a dangerous driver. The complaint itself contains no allegations of such facts, merely reciting that Palmer collided with the plaintiff’s vehicle and that the accident was caused by Palmer’s negligence. The police report attached to the complaint shows that Palmer had not been drinking and was not given a DUI test, and he was cited for following too closely. The jury’s verdict against American Materials in the other case was not rendered until February 20, 1996, more than a year after the accident in this case. Other documents submitted by Durben indicate that this was the only prior accident involving Palmer while working for American Materials.

Durben also relies on documents she claims to have obtained from Palmer’s previous employer, PAM Transport. However, as with the documents discussed above, Durben makes no attempt to authenticate or otherwise offer into evidence these documents. Rather, she merely attaches these documents to a pleading entitled “Notice of Filing,” asserting that the documents constituted PAM’s responses to Durben’s requests to produce. Durben did not submit an affidavit from a PAM representative or any other evidence showing that the documents constituted business records of PAM. In the absence of such evidence, the documents constitute inadmissible hearsay, which lacks probative value even in the absence of objection. Pennypacker’s, supra.

Two of the documents purport to show that Palmer was terminated by PAM and was not eligible for rehire. However, the reason for the termination was not related to Palmer’s dangerous driving, but to his unauthorized use of and abandonment of a truck in an unauthorized location.

Durben also points to documents purportedly received from PAM that show Palmer was involved in an accident in October 1991. According to a report of the accident, Palmer, while passing a car, scraped the side of the car and knocked off its passenger side mirror. However, this report constitutes hearsay within hearsay within hearsay, as it is a description by a PAM employee of his conversation with the car driver’s husband regarding what the driver told him about the accident.

Finally, Durben points to documents in the record showing that Palmer’s license was briefly suspended in early 1993 for failure to comply with an out-of-state citation. However, there is no indication as to what type of violation this citation involved, or even whether it involved a moving violation.

In short, apart from questions of admissibility, the evidence relied upon by Durben shows at most that (1) Palmer had two accidents in the three-year period before the incident in this case, (2) Palmer’s license was briefly suspended for failing to comply with an unknown citation, and (3) Palmer was terminated by his previous employer for reasons unrelated to his driving. There is no competent evidence in the record to support the above facts. Therefore, we do not reach the core question of whether such facts would create a jury question as to punitive damages, thereby authorizing the plaintiff to proceed with her negligent entrustment and negligent hiring claims in conjunction with her respondeat superior claim under Smith v. Tommy Roberts Trucking Co., supra.

In any ,event, in order to obtain punitive damages on her claims, Durben would have had to do more than show mere negligence, or even gross negligence, on the part of American Transport. She had to show that American Transport was guilty of “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Bartja, supra at 818 (4).

The competent evidence in the record is insufficient to meet this standard, and Durben is therefore not entitled to punitive damages on her claims for negligent entrustment, hiring, and retention. See Bartja, supra (affirming summary judgment on punitive damages where driver/employee had moving violations for running stop sign and driving on wrong side of road, clipped off an oncoming van’s mirror while driving rig on two-lane highway, was cited for driving rig into rear of automobile in emergency lane, and lost control of personal car on another occasion).

Because defendants admit the applicability of the respondeat superior doctrine, and because plaintiff is not entitled to punitive damages on her claims for negligent entrustment, hiring, and retention, the trial court did not err in granting defendants’ motion for summary judgment on such claims. See Willis, supra.

Decided June 3, 1998.

Hiles, Rowen & Klonoski, Sharon L. Rowen, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, Thomas P. Allen III, for appellees.

2. The trial court also granted summary judgment on Durben’s claim for punitive damages on the respondeat superior claim. To the extent that Durben’s enumeration of error encompasses this ruling, any objection to such ruling is abandoned as it is not addressed in Durben’s appellate brief. See Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (a) (487 SE2d 354) (1997); Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

McMurray, R J, and Senior Appellate Judge Harold R. Banke concur.

       Durben also sued Palmer, the driver, but her claims against him were dismissed for failure to timely effect service.


text:
    A98A1184.
    KOBRYN et al. v. McGEE et al.
    (503 SE2d 630)
   Eldridge, Judge.

Michael and Della Mae Kobryn filed suit against Lowell and Mary McGee in August 1996, asserting that the defendants encroached upon their riverfront property. The trial court granted the defendants’ motion for summary judgment on December 12, 1997. We affirm.

The facts of this case are as follows: the plaintiffs purchased their Camden County property from Elmer I. Berrie in May 1971. The deed specifically describes the property’s northern boundary as “running in a generally northwesterly direction . . . for a distance of 285.9 feet to a point, which is the center line of a ditch-, thence running south 01 degree 14 minutes east for a distance of 225.3 feet to the said two inch pipe, which is the point or place of beginning. . . . The tract of land herein conveyed is bounded on the north by the southerly low water mark of Little Satilla River, on the south by a road to Hickory Bluff Subdivision, on the east by the center line of a ditch, and on the west by the center line of a ditch” (Emphasis supplied.)

In October 1981, the defendants purchased adjoining property on the western boundary of the plaintiffs’ land. The defendants’ deed established their eastern boundary, which was adjacent to the plaintiffs’ western boundary, as beginning at the “southwest corner of the lands of Elmer I. Berrie . . . thence running South 1 degree 14 minutes East and long [sic] the line of lands of Elmer I. Berrie[.]” In May 1990, the defendants constructed a boat dock on the Little Satilla River. There is no dispute that the dock lies west of the centerline of the ditch.

Six years later, in February 1996, the plaintiffs notified the defendants that the dock encroached upon their land and demanded that the dock be removed. When the defendants refused, this suit was filed. The defendants moved for summary judgment on August 13, 1997, asserting that the plaintiffs’ evidence erroneously positioned the boundary line and, therefore, failed to establish any encroachment. The trial court granted the motion and this appeal followed. Held:

For the purposes of this appeal, the only issue is the location of the boundary line between the properties. The plaintiffs assert that the line is defined by the metes and bounds description in their deed, while the defendants claim that the boundary is the centerline of the ditch, as set forth in the plaintiffs’ deed. As such, the plaintiffs contend that a jury question exists regarding the location of their western property line, and that the defendants were not entitled to summary judgment. We disagree, because the boundary line, in this case, is a legal determination to be made from within the four corners of the plaintiffs’ deed as a matter of legal construction.

1. The plaintiffs rely on their deed as evidence that the defendants’ boat dock encroached upon their property. However, the plaintiffs’ deed is internally inconsistent. While one provision gives specific metes and bounds for the property lines, two other provisions set the western property line as the “center line of a ditch.” The referenced ditch provides drainage and also serves as a tidal basin for the river. Such ditch is a natural landmark within the meaning of OCGA § 44-4-5 (1) and is considered the “most conclusive evidence” of a land line. OCGA § 44-4-5 (1); Martin v. Patton, 225 Ga. App. 157, 162 (2) (483 SE2d 614) (1997); Efstathiou v. Saunders, 189 Ga. App. 470 (376 SE2d 413) (1988). Courses and distances shall be resorted to only in the absence of higher evidence. OCGA § 44-4-5 (4); Martin v. Patton, supra at 162. “ ‘Where the calls of a deed are for natural as well as known artificial objects, both courses and distances, when inconsistent, must be disregarded.’ Pindar, Ga. Real Estate Law & Procedure (4th ed. 1993), § 19-155, citing Riley v. Griffin, [16 Ga. 141, 147 (1854)].” Martin v. Patton, supra at 162; Lyons v. Bassford, 242 Ga. 466, 470 (249 SE2d 255) (1978).

The construction of a deed is a question of law for the trial court in the absence of ambiguity. OCGA § 13-2-1; Turk v. Jeffreys-McElrath Mfg. Co., 207 Ga. 73, 75 (60 SE2d 166) (1950); see also Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (407 SE2d 64) (1991); Foshee v. Harris, 170 Ga. App. 394, 395 (317 SE2d 548) (1984). When the trial court can apply statutory rules of construction to the express terms of the deed to reach only one legal meaning, no ambiguity exists. See Foshee v. Harris, supra at 395; Turk v. Jeffreys-McElrath Mfg. Co., supra at 75. In this case, the proper legal construction of plaintiffs’ deed clearly establishes the western property line as the center of the ditch.

2. However, the plaintiffs argue that the ditch is not the “most conclusive evidence” under OCGA § 44-4-5 (1) because that statute refers to “[n]atural landmarks, being less liable to change[.]” They argue that OCGA § 44-4-5 (1) is inapplicable in this case because the boundaries of the ditch have, in fact, changed over the past several years. Such asserted statutory construction is not supported by precedent and is inconsistent with analogous provisions in OCGA §§ 44-8-2 (regarding shifting of the boundaries and centerline of nonnavigable streams) and 44-8-6 (regarding nonnavigable tidewaters). Therefore, such construction will not be adopted herein. Further, it is undisputed that the centerline of the ditch in this case is discernible, has existed for a substantial period of time, and can be accurately defined, so that it qualifies as a natural landmark. Martin v. Patton, supra at 162.

Accordingly, not only does the plaintiffs’ deed fail to support their claim, it affirmatively disproves their claim as a matter of law.

3. The plaintiffs’ other evidence included a survey which ignored the references to natural landmarks in their deed and, instead, relied exclusively upon the metes and bounds description. Thus, pursuant to OCGA § 44-4-5 (1), it must be disregarded.

4. The plaintiffs also presented an affidavit by Wayne Harper, who previously owned the defendants’ property, which claims that his “understanding” was that the eastern boundary of his land was the “extreme west side of the ditch.” However, where the boundary line can be accurately determined from within the four corners of the deed by the proper application of the legal rules of construction, parol evidence cannot be resorted to by a party to vary the boundary. See generally OCGA §§ 13-2-1; 13-2-2 (1).

Further, there is no apparent basis for Harper’s “understanding,” nor is it supported by any documentation, e.g., the warranty deed from his predecessor in title. See generally OCGA § 9-11-56 (c). In fact, Harper’s “understanding” is irrelevant in that it directly conflicts with other portions of his affidavit, such as the text of the warranty deed from his conveyance of the property to the defendants. The terms of Harper’s deed to the defendants expressly establish the defendants’ eastern property line to run along “the line of lands of Elmer I. Berrie [(the plaintiffs’ predecessor in title)],” i.e., down the centerline of the ditch. As such, the affidavit does not support the plaintiff’s claim.

Decided June 3, 1998.

Alan D. Tucker, for appellants.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, for appellees.

5. Finally, the plaintiffs attempt to prove their case by attacking the defendants’ deed, which does not refer specifically to the ditch as a boundary line. The plaintiffs contend that the defendants are, therefore, limited to the metes and bounds descriptions in the deed. However, as previously noted, the defendants’ deed describes the eastern property line as running along “the line of lands of Elmer I. Berrie[.]” “When the lines or courses of an adjoining tract are called for in a deed or grant, the lines shall be extended to them, without regard to distances, provided these lines and courses be sufficiently established.” (Citation and punctuation omitted; emphasis supplied.) Martin v. Patton, supra at 162. Therefore, the defendants’ deed cannot be construed to support the plaintiffs’ case and is dependent upon the plaintiffs’ deed being correctly construed.

Accordingly, the trial court was correct in finding, as a matter of law, that the defendants were entitled to summary judgment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       In fact, Harper’s predecessor in title, Carey Branch, stated in an affidavit that the centerline of the ditch always was understood to be the boundary line between the two properties. See generally OCGA § 44-5-34.


text:
    A98A1193.
    PLANE v. UNIFORCE MIS SERVICES OF GEORGIA, INC. et al.
    (503 SE2d 621)
   Blackburn, Judge.

Glenn R. Plane sued Uniforce MIS Services of Georgia, Inc. d/b/a Brannon & Tully, Inc. (Brannon & Tully), Christine Scheurer, Kalik Enterprises, Inc., and Vinson A. Brannon, asserting claims of fraud and breach of contract. The trial court granted defendants’ motion for summary judgment, and Plane appealed. In Plane v. Uniforce MIS Svcs. of Ga., 223 Ga. App. 731 (479 SE2d 18) (1996), we affirmed the grant of summary judgment on the contract claim, but reversed the grant of summary judgment on the fraud claim. The case then proceeded to a jury trial on the fraud claim, as well as on Plane’s claim for attorney fees under OCGA § 13-6-11. At the close of Plane’s case, the trial court granted a directed verdict as to the individual defendants, Brannon and Scheurer. The jury returned a verdict against the remaining defendants, awarding $10,000 in damages and $23,000 in attorney fees. The trial court subsequently granted defendants’ motion for judgment n.o.v. with respect to the attorney fees claim. Plane now appeals the trial court’s grant of directed verdict and judgment n.o.v.

“When considering whether the trial court erred by [granting] motions for directed verdicts and motions for judgment n.o.v., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict [or, in the case of a directed verdict, in favor of the party opposing the motion for directed verdict]; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a ‘one-way’ verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.” (Citation and punctuation omitted.) Dunaway v. Parker, 215 Ga. App. 841, 849 (4) (453 SE2d 43) (1994).

The essential facts surrounding Plane’s fraud claim were summarized in our prior opinion as follows: “In February or early March 1994, Plane entered into employment discussions with representatives from [Brannon & Tully], a firm that provided temporary technical consultants to corporate clients such as BellSouth. Although employed by Brannon & Tully, these technical consultants worked at the corporate client’s offices on specific projects for and at the direction of the client. Before Brannon & Tully hired a consultant, that individual interviewed with the prospective client, which made final decisions regarding the consultants they wished to use and how long those consultants would remain on a project.

“Plane’s employment discussions with Brannon & Tully concerned a possible consulting position at BellSouth Mobility (‘Bell-South’). During these discussions, Plane interviewed at BellSouth’s offices with Tom Weincko, who, although not employed by BellSouth, was interviewing consultants for the position. Weincko told Plane that, contingent on clearing up any conflict with his then-current employer and discussing compensation with Brannon & Tully, Plane ‘had the job’ with BellSouth. According to Plane, Brannon & Tully representatives subsequently contacted him and stated that Bran-non & Tully had ‘come to an agreement with BellSouth Mobility; the contracts were signed, and if (he) wanted the job, at (his) leisure (he should) come and sign (an employment) contract with (Brannon & Tully).’

“On March 29, 1994, Plane entered into an at will employment contract with Brannon & Tully. Pursuant to this contract, Brannon & Tully initially assigned Plane to work with BellSouth. The contract further provided that Brannon & Tully would pay Plane $37 per hour based upon the number of hours Plane worked for clients. Plane gave his notice of resignation to his then-current employer on March 30, 1994, and planned to begin work with Brannon & Tully on April 18, 1994.

“According to appellees, Brannon & Tully believed that a consulting position existed at BellSouth for Plane. Several days prior to his start date, however, Plane learned from Weincko that no consulting job was available at BellSouth and that Brannon & Tully did not have an agreement with BellSouth to provide a consultant for such a position.” Plane, supra at 733.

In reversing the grant of summary judgment on the fraud claim, we stated as follows: “According to Plane, Brannon & Tully representatives informed him before he executed his employment contract that Brannon & Tully had come to an agreement with BellSouth and ‘the contracts were signed.’ Yet, the record reveals that Brannon & Tully and BellSouth never signed a written contract regarding the anticipated position. In fact, appellee Brannon testified that Brannon & Tully typically relied upon verbal confirmation from a client regarding the availability of a consulting position. From this evidence, a jury could find that Brannon & Tully representatives misrepresented, either intentionally or recklessly, the existence of a signed contract between Brannon & Tully and BellSouth.

“We further conclude that a jury could find intent to deceive. Plane testified that these same Brannon & Tully representatives ‘badgered’ him with numerous telephone calls about interviewing for the BellSouth position and told him that he should not turn down such an opportunity. Even if the representatives believed that Plane had the position at BellSouth, a jury could determine that they intentionally or recklessly misrepresented the existence of an executed agreement with BellSouth to help convince Plane to sign a contract with Brannon & Tully. . . . The record presents sufficient evidence from which a jury could find a knowing misrepresentation intended to deceive.” Id. at 734-735 (2)

1. In his first enumeration, Plane contends that the trial court erred in directing a verdict as to the individual defendants, Brannon and Scheurer. Defendants, however, contend that there was no evidence that either of these individuals was involved in the misrepresentation about the existence of a written contract with BellSouth.

With respect to Scheurer, there was some evidence from which a jury could conclude that she was involved in any misrepresentation that may have occurred. Plane testified that, after his interview with Weincko, he had a discussion with Nancy Thompson of Brannon & Tully regarding the status of negotiations with BellSouth. Subsequently, he had another three-way conversation with Thompson, Scheurer, and Tracy Adams, in which “they said all the paper work is done, contract’s been signed we got for you at thirty-seven dollars an hour. Come in and sign the contract with us. You have got the job.” Plane testified that all three of the other parties said that all of the paperwork was signed. Scheurer also told Plane that the BellSouth job was a great opportunity for him and would give him a good career. Plane then went into Brannon & Tully’s offices and signed an employment contract. The contract was signed by Scheurer on behalf of Brannon & Tully.

In our prior decision, we held that the misrepresentation about the existence of a written contract with BellSouth could form the basis of a fraud claim. With respect to Scheurer’s participation in such misrepresentation, the evidence at trial was not materially different from the evidence before us in our earlier decision. The jury was authorized to conclude that Scheurer intended for Plane to rely on such misrepresentation by leaving his current job and signing an employment agreement with Brannon & Tully. Accordingly, we must conclude that there was some evidence from which the jury could have found against Scheurer on the fraud claim, and that the trial court therefore erred in granting a directed verdict as to Scheurer.

With respect to Brannon, however, Plane fails to point to any evidence adduced at trial showing that he was involved with, or aware of, the misrepresentation that Brannon & Tully had a written agreement with BellSouth relating to Plane. The only evidence pointed to by Plane with respect to Brannon was that, when Plane came in to sign the employment contract, Brannon congratulated him and told him he had a great career ahead of him. This evidence does not show that Brannon participated in or was aware of any misrepresentation, which is the basis of Plane’s fraud claim. Although Brannon was an officer and owner of the corporation, this fact alone does not render him personally liable for torts committed by the corporation or its employees. See Jennings v. Smith, 226 Ga. App. 765, 766 (1) (487 SE2d 362) (1997). Accordingly, the trial court correctly granted a directed verdict as to Brannon.

2. In his second enumeration, Plane contends that the trial court erred in granting a judgment n.o.v. with respect to his claim for attorney fees. We agree.

In its ruling on defendants’ motion for judgment n.o.v., the trial court stated that, “[considering the evidence in the light most favorable to [Plane], the evidence in this case was that, at most, Defendants were not vigilant as they should have been in making certain that a BellSouth job for [Plane] truly existed before he resigned from his current position. ... No evidence was presented of bad fáith by any Defendant, nor was any evidence presented that any Defendant was stubbornly litigious or caused the Plaintiff unnecessary trouble and expense.”

Decided June 3, 1998.

Clifford H. Hardwick, for appellant.

Silfen, Segal, Fryer & Shuster, Keith E. Fryer, for appellees.

As discussed above, however, the jury was authorized to conclude that defendants committed fraud by intentionally misrepresenting the existence of a written contract with BellSouth in order to induce Plane to leave his current job. “It is well established as the law of this state that every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees. Moreover, bad faith is a question for the trier of fact to be determined from consideration of the facts and circumstances in the case.” (Citation and punctuation omitted.) Hudspeth v. A & H Constr., 230 Ga. App. 70, 72 (3) (a) (495 SE2d 322) (1997). As the jury was authorized to find fraud, it was also authorized to find bad faith, and the trial court therefore erred in granting judgment n.o.v. with respect to the claim for attorney fees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Eldridge, J., concur.