text:
    77115.
    HANSON v. THE STATE.
    (373 SE2d 288)
    Decided September 21, 1988.

      Dan T. Pressley, Sr., for appellant.

      Michael H. Crawford, District Attorney, Leonard M. Geldon, As
      sistant District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Rodney Hanson, was convicted of armed robbery. On appeal, he contends that the trial court erred in denying the prosecutor’s motion for mistrial and in admitting into evidence a prior consistent statement of a State’s witness. Held:

. 1. The State’s evidence showed that Hanson and another man participated in the armed robbery of a convenience store. During his opening statement, the prosecutor without objection referred to other armed robberies that Hanson’s companion had committed, and during the trial the prosecutor attempted to adduce evidence of these other armed robberies. The trial court, however, truncated the State’s presentation of this evidence, because there was no connection between these other robberies and Hanson, other than the fact that his companion had committed them. The prosecutor then moved for mistrial, contending that the trial court’s exclusion of that evidence was tantamount to an improper judicial comment on the evidence, since the jury would be expecting to hear the evidence. Defense counsel indicated that “we don’t stand one way or the other as far as a mistrial,” and the trial court denied the prosecutor’s motion.

Hanson now contends that the trial court erred in denying the prosecutor’s motion for mistrial. However, because Hanson made no objection or motion for mistrial regarding this issue in the court below, we will not consider it. See McDonald v. State, 170 Ga. App. 884 (318 SE2d 749) (1984); Jones v. State, 159 Ga. App. 634 (2) (284 SE2d 651) (1981).

2. Under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), a prior consistent statement of a witness is admissible as substantive evidence. Therefore, the trial court properly admitted into evidence the prior consistent statement of the State’s witness in this case.

Judgment affirmed.

Carley and Sognier, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    77126.
    BRYANT v. THE STATE.
    (373 SE2d 289)
   Deen, Presiding Judge.

Ricky Bryant was indicted and tried for arson in the first degree, but convicted of the lesser included offense of criminal damage to property in the second degree. On appeal he asserts the general grounds, contending that the evidence was insufficient to prove beyond a reasonable doubt that he committed the crime for which he was convicted. Held:

An arson investigator for the Atlanta Fire Bureau testified that a fire which originated in the apartment of appellant’s girl friend, in a building owned by John Remachan, had been started in three separate rooms of the apartment and that the cause of the fire was incendiary. A neighbor testified that he heard a mild explosion shortly before the fire, and other evidence showed that some bricks had been blown off the exterior of the apartment unit. Appellant told the investigator that he had become angry about his girl friend’s behavior and had thrown a brass vase at a television set and that this act probably caused the explosion. He also claimed that he took forty or more bottles of perfume and cologne and threw them against the wall, and that he threw clothes about her bedroom and poured men’s cologne over them. The battalion chief in charge of the northwest Atlanta division of the fire department which responded to the fire alarm testified that “there was a very intense fire rolling inside this apartment,” that appellant approached him while the firemen were fighting the blaze and expressed concern as to whether the firefighters were going to be able to put the fire out without anyone being hurt, that “his girlfriend had been messing around on him,” and that he had “messed up her apartment and put gasoline on it.”

Criminal damage to property in the second degree is a lesser included offense of arson in the first degree. Gunder v. State, 183 Ga. App. 122, 124 (358 SE2d 284) (1987). OCGA § 16-1-6 permits an accused to be convicted of a lesser included offense to the offense charged in the accusation or indictment when: “(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” To warrant a conviction of the lesser offense than that charged in the accusation or indictment, “the allegations describing the greater offense must contain all the essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.” Porter v. State, 163 Ga. App. 511, 513 (295 SE2d 179) (1982).

Decided September 21, 1988.

John C. Tyler, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, R. Andrew Weathers, Assistant District Attorneys, for appellee.

In the instant case, the indictment contained the essential provisions of OCGA § 16-7-60 (a) in contending that Bryant “did unlawfully, by means of fire, knowingly and intentionally damage the dwelling house of John Remachan, without his consent . . . (address stated) and occupied by Diane Bellamy.” Under OCGA § 16-7-23, “[a] person commits the offense of criminal damage to property in the second degree when he . . . (2) [r]ecklessly or intentionally, by means of fire or explosive, damages property of another person.”

In Corson v. State, 144 Ga. App. 559 (1) (c) (241 SE2d 454) (1978), this court held that one who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a “less culpable mental state” under the criminal Code. OCGA § 16-1-6.

From the evidence adduced at trial, we find that a rational trier of fact could find beyond a reasonable doubt that Bryant committed the lesser included offense of criminal damage to property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77133.
    CUSTOM COATING, INC. v. PARSONS.
    (373 SE2d 291)
   Deen, Presiding Judge.

Appellant Custom Coating, Inc., was in the business of applying backing to carpet produced and sold by, inter alia, appellee Parsons, d/b/a Carpet Tones. Parsons’ bills for the application of the backing not having been timely paid for several months in 1986, Custom Coating sued on account for an amount in excess of $4,000.

Parsons disputed the amount allegedly due and counterclaimed in an amount in excess of $13,000 for work allegedly improperly performed; for accounts allegedly collected by appellant on appellee’s behalf but not passed on to appellee; and for damage to and/or disappearance of a number of rolls of carpet stored in appellant’s warehouse awaiting the application of backing. A Murray County jury awarded appellee some $9,000, an amount representing the difference between the amount allegedly due appellant on account and that allegedly due on appellee’s counterclaim. Custom Coating appeals, enumerating as error the denial of its motions for directed verdict on the account balance and on appellee’s claim that appellant was supposed to have (but did not) collected on three certain accounts and turned the proceeds over to appellee; and also the denial of appellant’s motion for judgment notwithstanding the verdict on the amount awarded, alleging that no set-off was made. Also enumerated as error is the trial court’s jury instruction on the duties of bailor and bailee. Held,-.

Decided September 21, 1988.

Henry C. Tharpe, Jr., for appellant.

William W. Keith III, for appellee.

1. OCGA § 9-11-50 (a) provides, in pertinent part: “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” The test is not merely that the evidence supports a verdict for the moving party, but that it demands it. Jenkins v. Gulf States Mtg. Co., 138 Ga. App. 835 (227 SE2d 522) (1976); Barber v. Atlas Concrete Pools, 155 Ga. App. 118 (270 SE2d 471) (1980). There were material conflicts in the evidence in the instant case, and the criteria for the award of directed verdicts were therefore not met. The trial court did not err in denying the motions.

2. The standards for granting a directed verdict and a judgment notwithstanding the verdict are the same. OCGA § 9-11-50 (b); Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983). This enumeration is without merit.

3. The challenged jury instruction comports word for word with OCGA § 44-12-44 and with the standard instruction appearing at p. 39 of Suggested Pattern Jury Instructions, I (2d ed.), Council of Superior Court Judges of Ga. (Civil Cases), 1984. This enumeration, too, is without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77176.
    THOMPSON v. THE STATE.
    (373 SE2d 292)
   Deen, Presiding Judge.

This case was previously remanded by the court “for a hearing and appropriate findings concerning . . . the issue of effective assistance of counsel.” Thompson v. State, 186 Ga. App. 471 (367 SE2d 320) (1988). After a hearing, the trial court made a written review of the evidence and found that trial counsel was in no way deficient in his representation of appellant and that there was no reasonable probability that the outcome would have been any different but for trial counsel’s alleged errors. Thompson appeals contending that the evidence presented at the hearing established that his trial counsel was ineffective and but for this ineffectiveness, the result of his trial would have been different. Held:

The evidence showed that the defense attorney met with appellant at least nine times in the three months prior to trial and several times after trial before sentencing. Counsel’s pretrial preparation included meeting with an assistant district attorney and a police prosecutor to negotiate an agreement which would permit appellant to enter a guilty plea to one count of child molestation on a five-count indictment if he wished. He refused. Counsel also interviewed seven potential witnesses, went to the crime scene and took photographs (several of which were introduced into evidence), prepared a diagram of the house involved in the crime, reviewed the tape and transcript of Thompson’s commitment hearing and a transcript of the juvenile hearing involving the victim and her father, reviewed the notes of two mental health counselors in the State’s file, advised appellant of his rights, discussed possible defenses with him and the likelihood of success at trial, and filed pretrial motions. He also prepared questions to ask the witnesses at trial and gave a typed copy to appellant for his personal use at trial. He researched the applicable law, made an opening statement, cross-examined witnesses and brought out the fact that the victim’s description of his car, where the assault allegedly took place, was incorrect, and made a closing statement.

Although the evidence showed that counsel was appointed three months before trial, appellant claims he was appointed a couple of weeks prior to trial and that the attorney only spoke with him three times prior to trial. He admitted that he did not tell his attorney that he allegedly took a walk during the time the crime was committed and claims to have made a long-distance telephone call to Texas. Counsel heard this defense for the first time from his client when he took the witness stand. Thompson also claimed that counsel failed to file a timely appeal, but later acknowledged that another attorney was appointed to represent him on appeal and that that attorney filed the notice of appeal.

Decided September 21, 1988.

Keith F. Allen, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Acts which appellant contends rendered counsel ineffective can be classified as trial strategy: not pursuing prior sexual attacks on the victim by her father and brother because counsel feared the jury would become more sympathetic towards her, and failing to pursue more rigorous questioning of a certain witness because of the possible adverse effect on the jury. Counsel’s decision as to whether to object to the introduction into evidence of the victim’s panties also falls into the category of trial strategy. An expert witness testified that, in his opinion, trial counsel had rendered effective assistance.

Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). Brogdon v. State, 255 Ga. 64, 68 (335 8E2d 383) (1985). In Strickland at 466 U. S. 686, the court approved a “reasonably effective assistance” standard which had already been adopted in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). Thus, “[t]he reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. [Cit.] The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Brogdon at 68. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. Cherry v. State, 178 Ga. App. 483, 484 (2) (343 SE2d 510) (1986).

The evidence in this case supports the trial court’s finding of effective assistance of counsel. He was well prepared for trial, made opening and closing statements, and conducted a vigorous cross-examination of the witnesses in addition to extensive pre-trial preparation. In fact, counsel was so successful that Thompson was acquitted on two of the five counts against him.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77221.
    BROWN v. THE STATE.
    (373 SE2d 293)
   Deen, Presiding Judge.

The appellant, James Brown, was indicted for three counts of aggravated sodomy, three counts of sodomy, and five counts of sexual assault against persons in custody (SAAPIC), involving four different victims. Brown was found guilty of three counts of SAAPIC and one count of sodomy. The trial court directed a verdict of acquittal on one count of sodomy, because the evidence showed that the act occurred on a date different from that alleged in the indictment, under which the date was a material averment; the jury found Brown not guilty on the remainder of the charges. The trial court denied Brown’s motion for new trial, but found that the sodomy conviction merged with one of the convictions for SAAPIC, and modified the sentence accordingly. This appeal followed, in which Brown contends that his acquittal on an aggravated sodomy charge and a sodomy charge barred convictions for two of the SAAPIC charges because the former constituted lesser included offenses of the latter. Held:

1. Count 4 of the indictment charged Brown with having committed sodomy on August 11, 1986, by placing his mouth on the penis of a youth, and Count 6 charged Brown with committing SAAPIC by placing his mouth on the penis of the same youth who was a detainee at the DeKalb County Youth Detention Center (YDC). It is undisputed that both counts concern the same incident, and the state acknowledges that the sodomy charge, even though it would carry the greater punishment, could conceivably be the lesser included offense of the SAAPIC charge as a matter of fact. See Green v. State, 170 Ga. App. 594 (317 SE2d 609) (1984). Brown contends that the sodomy charge was such a lesser included offense of the SAAPIC charge and that his acquittal of the sodomy charge operated to bar his conviction for the SAAPIC charge in Count 6, relying upon State v. Rowe, 138 Ga. App. 904 (228 SE2d 3) (1976).

However, as emphasized by the State, the trial court directed a verdict of acquittal on the sodomy charge only because the date of the offense was made a material averment in the indictment, and the evidence showed that the act occurred one day before that charged. In this circumstance, double jeopardy considerations do not bar the SAAPIC conviction. OCGA § 16-1-7 prohibits multiple convictions, not prosecutions, where one crime is included in the other, but there were no multiple convictions in this instance. OCGA § 16-1-8 (a) (1) bars successive prosecutions where a former prosecution for the same crime based upon the same material facts resulted in an acquittal, but there was no successive prosecution here. State v. Rowe, supra, is in-apposite because it addressed the concern of successive prosecutions.

2. Brown’s contention that his acquittal on the aggravated sodomy charge in Count 9 of the indictment barred his conviction for SAAPIC under Count 7 is also without merit. Count 7 charged Brown with the offense of SAAPIC in that between January 1 and December 31, 1983, Brown placed his mouth on the penis of a detainee at the DeKalb YDC. Count 9 charged Brown with aggravated sodomy in that between June 1 and December 31, 1983, Brown placed his mouth on the penis of the same youth forcibly and against the will of the youth. The dates alleged for the two charges were different, and the victim recounted two separate incidents when Brown performed oral sex on him. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. OCGA §§ 16-1-7; 16-1-8.

Decided September 21, 1988.

Glenn Zell, for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Carley, Judge.

text:
    76999.
    CINCINNATI INSURANCE COMPANY v. WESTBROOK.
    (373 SE2d 386)
   Carley, Judge.

Appellant-defendant insurer issued Ms. Maycel Collier an insurance policy on her automobile. The policy provided liability coverage, basic personal injury protection coverage and medical payments coverage. Appellee-plaintiff, a pedestrian, was struck by a vehicle driven by Ms. Collier and, as the result, he incurred medical expenses in excess of $18,000. Appellee submitted to appellant a claim for medical expenses pursuant to the basic personal injury protection coverage of Ms. Collier’s policy. As to this claim, appellant paid appellee $2,500. See OCGA § 33-34-4 (a) (2) (A). However, appellant refused to pay appellee’s claim for benefits under the medical payments coverage of Ms. Collier’s policy.

Appellee then brought this suit against appellant, seeking to recover medical payments benefits under the policy, attorney’s fees, punitive damages, and bad faith penalties. In its answer, appellant denied that appellee was covered under the medical payments provisions of the policy. Cross-motions for summary judgment were filed as to the recoverability of benefits under the medical payments coverage of the policy. The trial court denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee. Appellant appeals from this order of the trial court.

1. Appellant enumerates the trial court’s rulings on the cross-motions for summary judgment as error, urging that, under the terms of Ms. Collier’s policy which are applicable to medical payments coverage, appellee is not a “covered person” who would be entitled to recover benefits.

Appellee concedes that, for purposes of medical payments coverage, he would not be a “covered person” as defined in the policy. He urges, however, that, notwithstanding any restrictive definition of “covered person” contained in the policy, he is nevertheless entitled to recover medical payments benefits because OCGA § 33-34-8 (d) mandates that, as a matter of law, he be afforded that coverage. OCGA § 33-34-8 (d) provides: “Medical payment benefits and uninsured motorists’ benefits payable under coverages in motor vehicle insurance policies shall be excess over any benefits required by this chapter.” Appellee argues that this statute means that one who has exhausted his recovery of no-fault benefits under a given policy “shall” then be entitled to recover benefits under the “excess” medical payments coverage of that policy.

Under the construction of OCGA § 33-34-8 (d) urged by appellee and apparently adopted by the trial court, an insured’s election to secure medical payments coverage would be the equivalent of his election to obtain optional no-fault coverage. An insured, by electing to secure medical payments coverage, would thereby obtain additional coverage which would be available to any individual having a viable no-fault claim. It is clear, however, that medical payments coverage and no-fault coverage are two entirely separate coverages. “Medical payments coverage was a common provision of automobile policies long before the advent of PIP coverage. Though not based on fault it is a separate coverage from ‘no-fault’ PIP similar to collision coverage. [Cit.]” Stegall v. Leader Nat. Ins. Co., 256 Ga. 765, 766 (2) (353 SE2d 484) (1987). Nothing in OCGA § 33-34-8 (d) purports to extend the separate medical payments coverage of a policy to a claimant merely because he is afforded coverage under the separate no-fault provisions of the policy. The statute only evinces the legislative intent that such benefits as may be available under the medical payments coverage of a policy are not to be paid until all applicable benefits under the no-fault coverage of the policy have been exhausted. See Hall v. State Farm &c. Ins. Co., 254 Ga. 633 (331 SE2d 530) (1985). Thus, as properly construed, OCGA § 33-34-8 (d) merely controls the priority of the payment of benefits under a policy’s medical payments coverage. The statute does not purport to control the scope of the medical payments coverage that is otherwise afforded under the policy. OCGA § 33-34-8 (d) simply provides that benefits which are available under the medical payments coverage of a policy “shall be excess over” the available no-fault benefits and, therefore, those benefits are not payable until the available no-fault benefits have been exhausted. Whether medical payments benefits are actually available to a claimant is not, however, determined by the claimant’s mere exhaustion of the no-fault benefits to which he is entitled.

Decided September 7, 1988

Rehearing denied September 22, 1988

William S. Goodman, Jennifer L. Houser, for appellant.

Alan Z. Eisenstein, for appellee.

2. “Since most states[, including Georgia,] do not mandate medical payments coverage, its scope generally must be determined by the policy language.” Appleman, Insurance Law & Practice, § 4902, p. 231 (1981). “[A] policy of insurance ‘. . . which, when construed reasonably and in its entirety, unambiguously and lawfully limits the insurer’s liability, cannot be extended beyond what is fairly within its plain terms.’ [Cit.]” Showers v. Allstate Ins. Co., 136 Ga. App. 792, 793 (222 SE2d 198) (1975). It is undisputed that, under the unambiguous terms of Ms. Collier’s policy, medical payments coverage would not be afforded to appellee because he is not a “covered person” for purposes of that coverage. There is no statute which would preclude appellant from limiting its medical payments coverage in the manner provided by the terms of Ms. Collier’s policy. It follows that the trial court erred in denying appellant’s motion for summary judgment and in granting summary judgment in favor of appellee.

Judgments reversed.

Deen, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    76988.
    STONEPECKER, INC. et al. v. SHEPHERD CONSTRUCTION COMPANY, INC. et al.
    (373 SE2d 295)
   McMurray, Presiding Judge.

Stonepecker, Inc. (“Stonepecker”) filed a claim of lien against real property owned by Cobb Place Associates, L.P. for amounts allegedly owed Stonepecker by Shepherd Construction Company, Inc. (“Shepherd”). Shepherd obtained a bond from St. Paul Fire & Marine Insurance Company, Inc. (“St. Paul”) to discharge the lien pursuant to OCGA § 44-14-364. Stonepecker later filed an action against Shepherd and St. Paul, seeking in part to recover on the bond based on Shepherd’s alleged failure to pay for the use of “rock crushing” equipment provided to Shepherd by Stonepecker. Metro Construction Equipment Company (“Metro”) intervened and alleged that it leased some of the “rock crushing” equipment used by Shepherd to Stonepecker and that it has not been paid for the use of said equipment. Metro sought quantum meruit recovery against Shepherd based on a theory that Shepherd “was a direct beneficiary of said leased equipment.”

Shepherd and St. Paul denied the material allegations of Stonepecker’s complaint and Metro’s “INTERVENER COMPLAINT” and defended against Stonepecker’s claim under the bond, asserting that Stonepecker failed to comply with the provisions of OCGA § 44-14-361.1. Subsection (a) of this Code section provides in pertinent part that “[t]o make good [mechanics’ and materialmen’s liens], they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective and enforceable: ... (3) The commencement of an action for the recovery of the amount of [the party’s] claim within 12 months from the time the same shall become due ...”

Upon Shepherd’s and St. Paul’s motion for summary judgment, the undisputed evidence showed that Stonepecker initiated the action to recover on its claim more than 12 months after the time the claim became due. From this and other evidence adduced by the parties, the trial court granted summary judgment in favor of Shepherd and St. Paul on all claims asserted by Stonepecker and Metro. This appeal followed. Held:

Stonepecker and Metro appeal jointly and challenge the trial court’s holding with regard to Stonepecker’s claim against the bond. The controlling issue in this appeal is whether Stonepecker can sustain its action against the bond more than 12 months after its claim became due.

In M. Shapiro & Sons v. Yates Constr. Co., 140 Ga. App. 675, 677 (231 SE2d 497), this court set forth that “a lienor suing on the bond would have to establish his rights to a lien including filing within the 90-day period and suing within the statutory twelvemonths time.” Notwithstanding, Stonepecker and Metro argue in the case sub judice that this court’s recent decision in Burgess v. Travelers Indem. Co., 185 Ga. App. 82 (363 SE2d 308), eliminates this “procedural” requirement. We do not agree.

In Burgess, this court held that a party asserting a claim under a lien was not required to comply with the notice of suit provision of OCGA § 44-14-361.1 (a) (3) after release of the lien under OCGA § 44-14-364. The basis of this holding was that the notice of suit filing was no longer a necessary procedural method of protecting persons interested in dealing with the real estate since the lien had been released by the bond. Burgess v. Travelers Indem. Co., 185 Ga. App. 82, 83, supra. In the case sub judice, the 12-month statutory period is not merely a procedural statute of limitation intended to protect persons interested in dealing with the property, it is a condition precedent to the creation of a substantive right, i.e., the creation of the lien. Lee v. Stokes, 135 Ga. App. 642, 645 (218 SE2d 654). As such, “ ‘ “the commencement of the action within the [statutory 12-month period] is an indispensable condition of the liability and of the action which it permits.” 34 AmJur 16, par. 7 . . .’ Gulden v. Berman, [82] Ga. App. 580, 581-582 (61 SE2d 692).” Lee v. Stokes, 135 Ga. App. 642, 644, supra. Consequently, since it is undisputed that Stonepecker failed to bring an action on its claim within 12 months of the time the claim became due, its action against the bond must fail. See 28 Mercer Law Review 207, 220 (1976). The trial court did not err in granting Shepherd and St. Paul’s motion for summary judgment as to Stonepecker’s claim against the bond.

Decided September 22, 1988.

Richard L. Roble, Gene A. Shaffer, for appellants.

David Flint, Timothy C. Batten, Marshall L. Helms, Jr., for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    77007.
    In the Interest of K. A. B.
    (373 SE2d 395)
   McMurray, Presiding Judge.

K. A. B., a 14-year-old child, was found to be delinquent and in need of treatment or rehabilitation in that he committed “the offense of BURGLARY” on or about January 20, 1988. Following a dispositional hearing, it was determined that the child committed a designated felony act (OCGA § 15-11-37 (2)). In this regard, the juvenile court noted that the child committed the offense which, if committed by an adult, would be the crime of burglary, a felony, and that he previously committed more than three offenses which would have been felonies if they had been committed by an adult, to wit: “Arson and Burglary (3 counts).” See OCGA § 15-11-37 (2) (E). Accordingly, the child was placed “in the custody of the Fulton County juvenile detention home pending placement by the Division of Youth Services.”

In this appeal, the child contends the juvenile court erred in finding that he committed a designated felony act. He argues that the previous adjudicated delinquent acts were not committed when he was 13 or more years of age and that, therefore, they cannot support a designated felony act disposition. We disagree.

OCGA § 15-11-37 (2) (E) provides that a designated felony act means an “act which, if done by an adult, would be a felony, if the juvenile committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies.” Unlike subsections A, B, C and D, this subsection has no age requirement whatsoever. (Subsections A, B and C require that the act be done by a child 13 or more years of age. Subsection D requires a burglary by a child 13 or more years of age if there is a previous adjudication for an act which would have been a burglary. The previous act of burglary to which subsection D refers carries no age requirement.) The only requirement is that the juvenile commit a felonious act after three previous adjudications for acts which would have been felonies if committed by an adult.

Decided September 22, 1988.

Lynne Y. Borsuk, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, George J. Robinson, Jr., Nancy A. Grace, Assistant District Attorneys, for appellee.

K. A. B. committed an act which, if done by an adult, would be a felony (burglary). He previously was adjudicated delinquent for more than three acts (“Arson and Burglary (3 counts)”) which would have been felonies if they had been committed by an adult. Accordingly, the juvenile court did not err in determining that K. A. B. committed a designated felony act. OCGA § 15-11-37 (2) (E).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Carley, Judge. Deen, Presiding Judge,

text:
    77036.
    NIMS v. OTTER.
    (373 SE2d 396)
   Carley, Judge.

Appellant-plaintiff contracted to purchase a cabin located in a subdivision which was being developed by appellee-defendant. Subsequent to moving into the cabin, appellant filed this suit, alleging that appellee had made certain misrepresentations which had induced her to enter into the contract. Appellant sought to recover damages under two theories: That appellee’s alleged misrepresentations were fraudulent or that they constituted violations of the Georgia Fair Business Practices Act (FBPA). Appellee answered and denied the material allegations of appellant’s complaint.

The case came on for a trial before a jury. At the close of the evidence, appellee moved for a directed verdict. Appellee’s motion was granted only as to the FBPA claim and appellant’s fraud claim was submitted to the jury. The jury returned a verdict in favor of appellee. Appellant appeals from the judgment entered on the jury’s verdict.

1. After the trial judge had voluntarily recused himself from hearing the case, an attorney was appointed to serve as judge pro hac vice. Two of appellant’s enumerations of error are predicated upon this appointment.

OCGA § 15-6-14 provides that “[w]hen from any cause the judge of the superior court or any city court is disqualified from presiding in any civil case and has failed to procure the services of a judge to try the case, then the parties litigant, by consent, may select any attorney of this state to preside in the case; the attorney so selected, when the consent is entered on the minutes, shall exercise all the functions of a judge in that case. Any senior judge of the superior courts may likewise be selected.” A review of the record shows that the procedure authorized by OCGA § 15-6-14 was utilized to appoint the attorney who served as judge pro hac vice in this case. Accordingly, there was no error in the appointment.

2. Appellant enumerates as error the trial court’s grant of appellee’s motion for a directed verdict as to the FBPA claim.

“[A] private FBPA claim has three elements: a violation of the Act, causation, and injury.” Zeeman v. Black, 156 Ga. App. 82, 86-87 (273 SE2d 910) (1980). Appellant’s complaint alleged that appellee had violated the FBPA by misrepresenting that the uninsulated cabin “would be fit for occupancy for ‘year around living. . . .’” At trial, however, appellant never affirmatively testified that appellee had told her that the cabin could be occupied year-round as a permanent residence. She testified only that he had told her that the cabin “would be suitable for year-round use” and that it “would be a year-round house.” It is not contested that the cabin would be considered suitable for year-round use as a rustic mountain retreat and that, even during periods of mild winter weather, it would be a year-round house for such limited purposes. It was apparently only because the wood stove, which the cabin had been designed to accommodate, provided insufficient heat in the dead of winter that the cabin would not be considered reasonably fit for year-round occupancy as a permanent residence. Appellee’s alleged misrepresentations are seemingly consistent with an uninsulated rustic mountain retreat. If there was no representation that the uninsulated cabin could be occupied, rather than used, year-round, there was certainly no violation of the FBPA.

However, even assuming without deciding that the evidence would authorize a finding that the year-round livability of the cabin was misrepresented to appellant, she would nevertheless be entitled to no recovery unless that misrepresentation was made in the context of a transaction which falls within the scope of the FBPA. The underlying transaction was the sale of a cabin which was located in a subdivision that appellant was developing. Compare Zeeman v. Black, supra. However, the alleged misrepresentation did not relate to any matter concerning the overall development of the subdivision, so that future purchasers of any property therein would necessarily be affected by its repetition. Compare Campbell v. Empire Land Co., 163 Ga. 815 (137 SE 240) (1927); Lincoln Land Co. v. Palfery, 130 Ga. App. 407 (203 SE2d 597) (1973). Instead, the alleged misrepresentation related only to the attributes of the single cabin that appellant purchased. See generally Gross v. Ideal Pool Corp., 181 Ga. App. 483 (352 SE2d 806) (1987). “Absent either public advertising or a misrepresentation such that the specifics of which, if repeated, could be harmful to future similarly situated buyers of real property, it is difficult to find sufficient ‘public policy’ to authorize resort to the FBPA.” Zeeman v. Black, supra at 86.

Again, however, assuming without deciding that the evidence would authorize a finding that a misrepresentation was made, and further assuming that the misrepresentation occurred in the context of a transaction within the ambit of the FBPA, appellant would still not be entitled to recover unless the evidence also authorized a finding that she “was injured as the result of [her] reliance upon the alleged misrepresentation. . . . [U]nder [OCGA § 10-1-399] when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if [she] had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. [Cit.]” Zeeman v. Black, supra at 87. Accordingly, if the evidence would not authorize a finding that appellant was damaged as the result of her justifiable reliance upon appellee’s alleged misrepresentation, the motion for a directed verdict as to the FBPA claim was correctly granted.

It is undisputed that appellant had actual knowledge that, as constructed, the cabin lacked such conventional features as insulation and that she had asked appellee about it. According to appellant, appellee had “said it was perfectly fine without insulation just as long as [she] had a wood stove.” Knowing, however, that she intended to occupy the uninsulated cabin year-round, appellant made no independent effort to verify this or any other statement she attributed to appellee concerning the year-round livability of the cabin. Appellee’s alleged misrepresentations can be construed as nothing more than the mere expression of his subjective personal opinion as to whether appellant would find the wood stove to be an adequate year-round source of heat for the uninsulated cabin. “[W]here the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like . . . the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth. [Cit.]” (Emphasis in original in part and supplied in part.) Brown v. Mack Trucks, 111 Ga. App. 164, 167 (141 SE2d 208) (1965). “ ‘The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. “When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations.” [Cit.]’ [Cits.]” Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751) (1986). “ ‘ “Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.” [Cit.]’ [Cit.] However, in the instant case [appellant’s] failure to exercise proper diligence appears as a matter of law. [Cit.] It does not appear that there was either a confidential relation between the parties of that [appellant was] prevented, by artifice or fraud, from making an inspection to determine the truth or falsity of the alleged representation. [Cit.]” Zeeman v. Black, supra at 87.

Decided September 22, 1988.

Edward W. Clary, for appellant.

Accordingly, if there was any error, it was not in the grant of appellee’s motion for a directed verdict as to the FBPA count, but in the failure to grant appellee’s motion as to the fraud count. “The evidence showing that any damage [appellant] may have suffered . . . must be charged to [her] lack of diligence and not to [her] reliance upon any misrepresentation, [she has] not suffered any damage ‘as a result of’ a [possible] violation of the FBPA.” Zeeman v. Black, supra at 89.

3. Appellant “has not argued in [her] brief . . . the . . . remaining [enumeration] of error and[, therefore, it is] considered abandoned. Rule 15 (C) (2) [(cit.)].” MacDonald v. MacDonald, 156 Ga. App. 565, 569 (2) (275 SE2d 142) (1980).

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

One judge concurred in the judgment only in MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980); therefore, it has no precedential value. I find no fault in MacDonald and can agree with it. Thus, I concur fully in this case, which in effect resurrects MacDonald as a case possessing fully binding precedential value.

John A. Dickerson, David L. Hudgins, for appellee.


author: Benham, Judge.

text:
    76409.
    RUSH v. THE STATE.
    (373 SE2d 377)
   Benham, Judge.

Appellant was convicted of possession of LSD with intent to distribute (VGCSA). On appeal, he raises several enumerations of error challenging the sufficiency and the admissibility of evidence against him. Finding no error, we affirm the judgment of conviction.

1. In his first enumeration, appellant argues that others had equal access to the drug he was convicted of possessing, and that the evidence was insufficient to link him to ownership of the LSD. The evidence adduced at trial was that three confidential informants had provided information to police authorities that appellant possessed the contraband in question, and that a controlled buy was made to help confirm the information. A few days later, a magistrate issued a warrant to search appellant’s home on the basis of the information provided. When the police authorities executed the warrant, they found a total of 1,404 micro-dot tablets that proved to be LSD, and several hundred dollars in cash. The items were discovered in the drawer of a bedside dresser in appellant and his wife’s bedroom. Appellant was also found to have almost $4,000 on his person. The officers seized the discovered items and took appellant into custody. The next day, while appellant was in his jail cell, an officer came to read him the contents of his arrest warrant, and after he informed appellant that he was being charged with possession of a controlled substance with intent to distribute, appellant responded that the seized tablets were for his personal use due to his back problem and that he did not have them to sell or disburse.

Appellant’s wife testified that the house in which she and her husband lived had been built recently, and that as many as 40 workers had been in and out of it. Of the money found on her husband, she said that $2,000 of it was a loan repayment her sister had made, and that the rest of the money was the remainder of a $1,000 check she and her husband had cashed. She also testified that she had earned the remainder of the money when she was working the previous year, and that all of the money was to be used to pay laborers who had worked on the house. She denied that any of the money was drug sale proceeds, and denied knowing about the LSD tablets or the vials that contained them. She said that the front bedroom in which the contraband was found was her husband’s bedroom, and that she did not sleep there with him. Appellant did not testify. “Whether the evidence of equal access was sufficient to rebut the presumption of possession arising from the discovery of drugs in [appellant’s] bedroom . . . was a question properly left to the jury.” Kelly v. State, 184 Ga. App. 337, 340 (361 SE2d 659) (1987). The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of possession of LSD with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Kelly, supra.

2. Appellant contends his statement concerning ownership of the pills (see Division 1 of this opinion) should have been suppressed as evidence, because it was a custodial statement made without the benefit of renewal of the Miranda warnings, and because the law enforcement authority to whom it was made knew that appellant was already represented by counsel. We disagree with appellant’s analysis. The statement mentioned in Division 1, although made while appellant was in custody, was not made as part of an interrogation. “ ‘(T)he term “interrogation” under Miranda refers ... to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ [Cit.]” White v. State, 168 Ga. App. 794, 796 (310 SE2d 540) (1983). The facts show that the officer was merely .carrying out a function normally attendant to arrest and custody and did not solicit a response to the reading of the arrest warrant. Since no interrogation took place, the Miranda warnings were not necessary. Appellant’s volunteered response was admissible, and the trial court did not err in so ruling.

3. Appellant argues that the trial court erred in denying his motion to sever his trial from that of his co-defendant wife. Whether a motion to sever should be granted or denied is within the discretion of the trial court, and absent a clear abuse of that discretion the trial court’s ruling will not be disturbed. “In exercising its discretion the trial court should consider ‘whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary; and whether the co-defendants will press antagonistic defenses.’ [Cit.]” Rivers v. State, 178 Ga. App. 310, 311 (342 SE2d 781) (1986). Appellant did not show any of those considerations to be factors in his case. Under the circumstances, the motion to sever was properly denied.

4. In another of his pre-trial motions, appellant sought to have the identities of the confidential informants revealed. The trial court denied his motion, and appellant challenges that denial, contending that one of the informants was a “decoy” rather than a “tipster,” and thus his identity was not privileged. See Thornton v. State, 238 Ga. 160, 163 (231 SE2d 729) (1977). We agree with the trial court’s ruling that the informant was a mere tipster. “In the present case, [appellant] was charged with possession of [LSD] with intent to distribute based on the contraband that was discovered in [his home] at the time the warrant was executed. Because . . . the informant was not present at the time the warrant was executed and this contraband was found, the trial court was authorized to conclude that the informant was a mere tipster, who neither participated in nor witnessed the offense with which defendant was charged. Accordingly, the trial court did not err in refusing to require disclosure of the identity of the informant. [Cits.]” Skipworth v. State, 185 Ga. App. 636, 638 (365 SE2d 284) (1988).

5. Claiming that evidence the State planned to use against him was the fruit of an illegal search of his residence, appellant moved to have the evidence suppressed. The trial court denied his motion, a ruling that appellant challenges here. He claims that the information relied upon by the law enforcement authorities in preparing the affidavit to support the search warrant was stale and defective as a matter of law. “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for concluding” that probable cause existed.’ Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1983).” Hayes v. State, 182 Ga. App. 319 (355 SE2d 700) (1987). Our review of the record reveals that the affidavit was based on information from three confidential informants, one of whom obtained almost 100 tablets of the drug just five days before law enforcement authorities arrested appellant. Although there were some statements by the informants that may have been inaccurate, “[t]here is no evidence that material misrepresentations were knowingly or recklessly included in the affidavit, and there was no showing of misconduct on the part of the affiant. [Cit.] In the absence of such evidence the presumption of validity of an affidavit executed in support of a search warrant must stand. [Cit.]” Id. at 320.

6. Nor does appellant’s contention that the warrant was unreasonably executed have any validity. The officers involved in the search and seizure knocked on the door and were invited into the house by a “young white male” who answered the door. Once inside, appellant invited the two officers to sit down, at which point they identified themselves as being law enforcement officers there for the purpose of serving a search warrant on appellant’s residence. We agree with appellant’s assertion that our federal and state constitutions require that searches must be reasonable as to time, place, and manner, but we fail to see and appellant fails to explain how this particular search violated those requirements. He apparently relies on the fact that approximately nine people were involved in securing the property to be searched, and that the two officers that arrived first were in civilian clothes and an unmarked vehicle. We are unaware of any cases that limit the number of officers who can be involved in execution of a search warrant, and the facts of this case certainly belie the notion that the officers overstepped their authority in executing the warrant. Compare Barclay v. State, 142 Ga. App. 657 (236 SE2d 901) (1977). We find no error.

7. As part of the search and seizure issue, appellant also claims that the trial court erred in allowing appellant’s private papers, i.e., his income tax return, to be seized in violation of OCGA § 17-5-21 (b), and that the seized papers were used to cross-examine appellant’s wife over counsel’s objection. Our review of the record reveals that the questions to which appellant objected involved the sources of appellant’s and his wife’s net income. At the time of the objection, there had been no reference to appellant’s tax returns, and the trial court allowed the prosecuting attorney to cross-examine the witness about the sources of income because appellant opened the door to that line of questioning on direct examination. When the words “tax return” were mentioned on cross-examination, appellant did not object. No tax returns were introduced into evidence. Having failed to object to the mention of the returns at the time such mention was made, appellant leaves us with nothing to review on appeal. Edwards v. State, 171 Ga. App. 264 (2) (319 SE2d 101) (1984).

8. The State introduced, as part of its evidence, two photographs. One, State’s Exhibit 5, was a photograph of the open drawer in which appellant’s contraband was found, and of the items found in the drawer. State’s Exhibit 6 depicted some money, a coffee cup, two vials, and a small pouch. The latter items had been containers for the pills in question, and were arranged on a white backdrop the investigating officers found at the searched location. The items in Exhibit 6 had also been found in the drawer but were not visible in Exhibit 5. Appellant objected to the introduction of Exhibit 6, arguing that the items in it had been arranged for photographing. On appeal he contends that this “orchestrated” photograph violated his right to a fair trial. We find no such error. Exhibit 6 merely showed items of evidence that were relevant to the proceeding, but that the jury was unable to see in the preceding photograph. “ ‘ “The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. [Cit.]””’ Manning v. State, 162 Ga. App. 494 (4) (292 SE2d 95) (1982). We find no abuse.

Decided September 6, 1988

Rehearing denied September 23, 1988.

Tamara Jacobs, for appellant.

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

9. Appellant complains that the trial court erroneously denied the motion for mistrial he made at the close of the State’s case. The motion was based on “all the inadmissible evidence and all the hearsay evidence that’s been talked about in front of the Jury today.” The trial transcript shows that although appellant objected to the testimony about which he now complains, and that some of his objections were sustained, he did not move for a mistrial contemporaneously with the alleged misconduct. Having failed to do so, appellant’s motion was not a timely one and was properly denied. Garner v. State, 180 Ga. App. 146 (1) (348 SE2d 690) (1986).

10. Appellant’s last enumeration is that the trial court erred in charging that “[a] person is concerned in the commission of a crime only if he directly commits the crime or intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime.” Appellant objected on the grounds that there was no evidence presented that anyone aided or abetted another or that anyone was party to a crime. “ ‘A charge on (parties to a crime) is error only where there is insufficient evidence, circumstantial or otherwise, to support the theory.’ ” Thomas v. State, 177 Ga. App. 33 (2) (338 SE2d 502) (1985). When the trial court gave the charge in question, appellant and his wife were both on trial for possession of the drug with intent to distribute. See Division 3 of this opinion. Since there was evidence, circumstantial and otherwise, that appellant had directly committed the crime for which he was convicted, and some evidence from which the jury could infer that appellant’s wife aided or abetted him (Division 1), the trial court did not err in giving the charge.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    76451.
    HALE v. THE STATE.
    (373 SE2d 250)
   Pope, Judge.

Jeffery Dennis Hale appeals his conviction of charges of driving with a suspended license and driving under the influence of alcohol.

1. Hale contends that proof of his conviction of driving with a suspended license was insufficient because “[o]ne of the elements of [the offense] is notice to the defendant of action in suspending the license, and absent proof by the State of actual or legal notice to the defendant a conviction for that offense cannot be sustained. [Cits.]” Sumner v. State, 184 Ga. App. 374, 375 (361 SE2d 536) (1987). At issue here is what constitutes legal notice, if no actual notice has been shown.

The Administrative Procedure Act provides that “[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has sent notice, by certified mail to the licensee, of individual facts or conduct which warrant the intended action and the licensee has been given an opportunity to show compliance with all lawful requirements for the retention of the license except where: . . . [t]he agency’s order is expressly required, by a judgment or a statute, to be made without the right to a hearing or continuance of any type.” OCGA § 50-13-18 (c) (2).

OCGA § 40-5-70 (a) expressly requires that “[t]he driver’s license of any person convicted of violating Code Section 40-6-391 [the DUI provision] shall by operation of law be suspended, and such suspension shall be subject to the terms and conditions provided in subsection (b) of this Code section.” (Emphasis supplied.) The italicized language does not appear in other code sections governing driver’s license suspensions. See OCGA §§ 40-5-51 through 40-5-63. Indeed, each of these provisions delineates the specific notice to be given. OCGA § 40-5-70 (b) sets forth the lengths and terms of suspensions upon the first, second and third convictions of DUI, and subsection (c) states that the period of suspension begins on the date of the DUI conviction. It thus appears that the legislature intended OCGA § 40-5- 70 to effectuate suspension or revocation automatically upon a conviction for DUI, the notice being the trial for violation of OCGA § 40-6- 391; i.e., notice “by operation of law.” Such a legislative intent is clearly contemplated in OCGA § 40-13-18 (c) which dispenses with notice requirements “where . . . [suspension] is expressly required by . . . statute.”

Hale was charged with notice of this law by OCGA § 1-3-6. Consequently, due process does not require that he be afforded a hearing before the decision suspending his license was made, because his driver’s license was suspended “not by a decision to revoke but by operation of law by his [conviction for DUI]” City Council of St. Marys v. Crump, 251 Ga. 594, 595 (2) (308 SE2d 180) (1983). “The term ‘legal notice’ has been referred to as the same as ‘constructive notice.’ ” 66 CJS, Notice, § 8 (1950). “Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it. Implied notice is that notice which is inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if inquiry were followed up with due diligence, would lead him directly to the knowledge of the main fact. [Cits.]” Hamilton v. Edwards, 245 Ga. 810, 811-812 (267 SE2d 246) (1980). We therefore conclude that the State met its burden of proving that Hale received legal notice, as contemplated by the statutory scheme, that he was driving with a suspended license.

2. The second element of proof necessary for a conviction of this offense is evidence showing that the defendant’s license has in fact been suspended. See Barrett v. State, 173 Ga. App. 452 (1) (326 SE2d 816) (1985). The State offered Hale’s record of driving offenses as such evidence. This record showed at the top that the status of Hale’s license was suspended and listed nine offenses, including two DUI convictions. Hale objected to admission of the entire record as irrelevant and prejudicial in light of the fact that he was on trial for a third DUI offense. Although the State indicated that it would agree to excise the bottom portion of the record, the trial court ruled that unless Hale stipulated that his license had been automatically suspended by operation of law due to the DUI convictions, it would allow the entire record in evidence in order to prove notice. Citing Hester v. State, 159 Ga. App. 642 (2) (284 SE2d 659) (1981), Hale argues that this was reversible error because “it is notice of one’s status as a non-licensed [offender], not the driving record underlying that status, that is an ‘essential element’ . . . .” Id. at 644.

We do not agree. The trial judge was correct in his analysis of the relevance of this evidence, and Hale’s reliance on Hester is misplaced. Hester involved proof of operating a motor vehicle after being declared a habitual violator. A person may be declared a habitual violator for committing any of a number of driving offenses listed in OCGA § 40-5-58 (a), and must receive personal notice of the suspension of his license. In the instant case, notice of the suspension of Hale’s license by operation of law could only be shown by his DUI convictions under OCGA § 40-6-391. Thus Hale complains on the one hand that the State failed to prove notice, and on the other that the evidence presented to prove notice was too prejudicial to be admitted. Without Hale’s agreement to stipulate the DUI convictions, there was no recourse other than to admit the entire driving violations record to establish notice under OCGA § 40-5-70 (a). A mere showing of appellant’s suspended status, without proof of the OCGA § 40-6-391 violations, would have been insufficient. “ ‘Competent material evidence is not to be excluded merely because it is prejudicial.’ [Cit.]” Fowler v. State, 111 Ga. App. 856, 859 (2) (143 SE2d 553) (1965). Accord Blake v. State, 239 Ga. 292 (1) (236 SE2d 637) (1977). Therefore we find no grounds for reversal.

Decided September 8, 1988

Rehearing denied September 23, 1988

William L. Reilly, for appellant.

Roger Queen, District Attorney, Angela A. Byne, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76464.
    FOREHAND v. THE STATE.
    (373 SE2d 382)
   Benham, Judge.

Appellant was convicted of driving under the influence of alcohol, driving on the wrong side of the road, and carrying a concealed weapon. On appeal, he complains of the trial court’s conduct with jurors, of the refusal to give a charge, and of the prosecuting attorney’s closing argument. We find no error and affirm.

1. In his first enumeration of error, appellant complains that he was required to select a jury from a pool containing jurors with whom the trial court had had improper contact. It appears from the record that the trial judge regularly goes to the jury room after a jury has been dismissed for the purpose of answering any questions the jurors have. The trial judge explained on the record that he answers those questions he can answer without influencing the jurors in any way that might affect future service on a jury. Appellant does not allege that any improper communication occurred, just that it is improper for the trial judge to speak with jurors except in open court.

The Supreme Court held in Berryhill v. State, 235 Ga. 549 (12) (221 SE2d 185) (1975), that “[although all communications with the jury are to be discouraged except in open court with all persons present, the communication here did not amount to an instruction or charge to the jury and no reversible error is shown.” The latter portion of that holding is even more compelling in this case since the jury in Berryhill was then deliberating in that same case, whereas the jurors to whom the trial court spoke in this case had just finished service in a different trial and had not been chosen for this or any other trial. Although we find no harmful error here and approve of the trial court’s desire to educate the jurors, we share the concern expressed in Berryhill and suggest that the trial court answer questions in open court rather than in the jury room.

2. The second enumeration of error concerns the trial court’s refusal to give in its charge subsection (c) of OCGA § 16-11-126. That subsection concerns the manner in which a concealed weapon may be carried by one licensed to do so. The uncontradicted evidence in this case was that appellant was carrying a pistol in a jacket pocket, not one of the approved methods, and there was no evidence that appellant was licensed to carry a concealed weapon. Under those circumstances, the requested charge was not adjusted to the evidence and there was no error in refusing it. Daniels v. State, 184 Ga. App. 689 (1) (362 SE2d 775) (1987).

Decided September 6, 1988

Rehearing denied September 23, 1988.

G. Hughel Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

3. The final enumeration of error is that the trial court erred in permitting the prosecuting attorney to make statements of personal belief in his closing argument. Consideration of that issue is foreclosed by appellant’s failure to have closing arguments transcribed. Defense counsel expressly declined, on the record, to have closing arguments taken down. Under those circumstances, there is nothing for this court to review. See Ford u. State, 160 Ga. App. 707 (5) (288 SE2d 39) (1981).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Birdsong, Chief Judge.

text:
    76531.
    ROWELL v. McCUE.
    (373 SE2d 243)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court granting appellee/defendant’s motion for summary judgment.

Appellant initiated a suit for medical malpractice against appellee (Dr. McCue). In February 1983, appellee performed a carpal tunnel release operation on appellant’s right hand. Appellant noticed that following the operation she initially had more movement in her fingers, but the pain remained in equal or greater intensity than before the operation. Dr. McCue advised the appellant that the pain she was experiencing was normal, but the pain persisted. Appellant continued to have problems with her hands but, according to Dr. McCue, she did not exhibit symptoms normally associated with carpal tunnel syndrome. In an effort to determine what was wrong with her hands, Dr. McCue sent appellant to two other physicians, as he could not make a diagnosis of her problem at that time. Appellant asserts that she was unhappy with Dr. McCue and was looking for another doctor. After her surgery, appellant knew “definitely something was wrong.” Appellant remained in pain for a period of “some two years continuously.” Dr. McCue last saw the appellant on October 10, 1983; thereafter, she was seen by Drs. Brogdon, Gupta and Smithson. Finally, appellant was seen by Dr. Ramaden.

After attempting less severe treatment, Dr. Ramaden operated on appellant’s left hand in January 1985. Following that operation, appellant claims that Dr. Ramaden informed her that the alleged prior carpal tunnel release on her left hand had not been performed and that he suspected that the problem with her right hand was the same. Appellant was thus aware of this possibility in January 1985. Appellant’s right hand was operated on in June 1986. According to appellant, Dr. Ramaden told her following this operation that no carpal tunnel release had been accomplished on her right hand either. In addition to this hearsay evidence and appellant’s own lay conclusions that Dr. McCue had not performed the two operations, appellant offered the deposition testimony of Dr. Ramaden. Dr. Ramaden testified that appellant’s surgery on January 15, 1985, was performed by Dr. Ian Rogers with Dr. Ramaden’s assistance, and that the operative report reflects that appellant’s transverse carpaling was completely intact. The appellant’s hospital discharge summary reflects that it did not appear to Dr. Ramaden “the patient had complete release of the carpal tunnel before because her carpal ligament was intact, and, also, there was not evidence of any scar tissue around the nerve as usually happens after release of the carpal tunnel.” Appellee Dr. McCue in his affidavit expressly states that in both operations he carefully cut, under direct vision, the entire transverse carpal ligaments, and “[t]he transverse carpal ligaments were both cut through and through as a part of the surgeries on the two hands.” Further, Dr. McCue states that he has performed follow-up surgeries on patients who have undergone previous carpal tunnel releases and found scarring to be so minimal in some patients as to “give the appearance that no surgery had ever been performed.” Dr. McCue also refers to excerpts from an “authoritative and widely used” text on operative orthopedics in support of his observations, and attaches an excerpt from that text to his affidavit.

The trial court granted appellee’s motion for summary judgment and concluded that there is no evidence that appellee failed to exercise the requisite standards of care at any time during his care and treatment of the appellant, that the statute of limitations had run on this action as it was not filed within two years of the date on which the negligent or wrongful act or omission occurred, and that insufficient evidence existed to raise a question of fact as to fraud which would toll the statute of limitations. Held:

Appellant enumerates as her fourth enumerated error that the trial court erred in granting appellee’s motion for summary judgment on the basis that the statute of limitations had run for failure to file within the two-year statutory period, when the actions of defendant had deterred appellant from filing her action within the two-year statutory time. See generally OCGA §§ 9-3-71 (as enacted by Ga. L. 1976, p. 1363, § 1); 9-3-71 (as enacted by Ga. L. 1985, p. 556, § 1); 9-3-96. We will address this enumerated error first, as its resolution may be dispositive of the matter before us.

In resolving this issue, appellant as opposing party shall be given every benefit of all reasonable doubt, and the court shall construe the evidence and all inferences and conclusions arising therefrom most favorably toward the appellant. See Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531).

OCGA § 9-3-71, the applicable statute of limitations, requires that an action for an injury caused by medical malpractice be brought within two years after the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-96 pertinently provides that if “the defendant . . . [is] guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” “In order to toll the statute of limitation it [is] necessary for [appellant] to present evidence raising an issue of fraud or misrepresentation on the part of Dr. [McCue].” Hamilton v. Mitchell, 165 Ga. App. 717, 718 (302 SE2d 589). “In this regard, it should be noted that the proof proffered must be evidence which is admissible on the trial of the case.” Bray v. Dixon, 176 Ga. App. 895, 897 (338 SE2d 872). The testimony regarding what appellant was subsequently told by Dr. Ramaden “was pure hearsay and without probative value,” and as such “it did not carry [appellant’s] burden of showing that [there] was a genuine issue of material fact” as to fraud. Id. at 898.

“The physician-patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud which tolls the statute.” Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456). Thus, the doctor-patient relationship creates a duty to inform the patient of his or her condition. Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486). A “ ‘[fjailure to fulfill this duty would constitute fraud, which would operate to toll the statute of (limitation).’ ” Id. A fraud count, however, must be based on more than evidence of a misdiagnosis to withstand a motion for judgment on the pleadings. Lynch, supra at 390. Rather, the “patient must present evidence of a known failure to reveal negligence in order to show fraud.” (Emphasis supplied.) Hendrix, supra at 202; Bray, supra at 897.

In this case, the most favorable inference which can be drawn from the testimony of Dr. Ramaden is that the appellee failed to sever the entire carpal ligaments on both the right and left hand of appellant. This testimony is circumstantial in nature, and is refuted by the direct testimony of the appellee that he cut through both transverse carpal ligaments. We have consistently held that “ ‘ “[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” ’ ” Dozier v. Wallace, 169 Ga. App. 126, 130 (311 SE2d 839). It thus appears that in view of the “uncontradicted and unimpeached evidence produced by [appellee] in support of [his] motion for . . . summary judgment, the record demonstrates no genuine issue of material fact” as to appellee’s negligence. Id.

Decided September 7, 1988

Rehearing denied September 23, 1988.

Harold E. Martin, for appellant.

Assuming arguendo that appellant in fact failed to cut both of the transverse carpal ligaments in appellant’s hands, there exists no evidence “ ‘from which we can make any inference that (the defendant doctor) had any knowledge of improper conduct on his part or that he tried to cover up such conduct in any way.’ ” Hendrix, supra at 202. In fact, while appellee did advise plaintiff that the pain she was experiencing was normal, he did not attempt to prevent her from obtaining an accurate diagnosis of her condition. In fact, it is undisputed that appellee referred appellant to two other doctors, and that the appellant also sought other medical advice as she was unhappy with appellee and knew “definitely something was wrong.” The facts of this case are distinguishable from those in Gillis v. Palmer, 178 Ga. App. 608 (344 SE2d 446). At most, appellee’s statements of assurance to appellant, informing her that her symptoms of persisting pain were normal, would under the circumstances constitute a mere misdiagnosis insufficient to raise an issue of fraud. See, e.g., Hendrix, supra at 203. Thus, as in Hendrix, we find that the appellee has pierced plaintiff’s mere allegation of fraud and is entitled to summary judgment.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

On Motion for Rehearing.

We have reconsidered our opinion in light of all relevant facts of record, together with all reasonable inferences that can be therefrom drawn, and adhere to the disposition directed.

Motion for rehearing denied.

C. Ashley Royal, for appellee.


text:
    76539.
    ORTIZ v. THE STATE.
    (374 SE2d 92)
   Birdsong, Chief Judge.

Appellant Daniel Ortiz appeals his conviction of one count of aggravated child molestation and three counts of child molestation. He was sentenced to 21 years in custody on the aggravated child molestation count and concurrently, to 20 years, with 15 in custody, on each child molestation count. Appellant seeks reversal on seven grounds. Held:

We find none of them meritorious.

1. Appellant claims the trial court erred in granting the State’s motion in limine which excluded testimony regarding molestation of these victims by persons other than the appellant. Appellant contends that such testimony should be admissible as being part of conversations previously admitted into evidence by the State. Appellant cites Strickland v. State, 164 Ga. App. 845, 847 (297 SE2d 491), where this court held that “ ‘(w)here counsel for one party elicits from a witness part of a conversation, the other [party] is entitled to have the witness state all that was said at the time and in the same conversation.’ ”

A careful reading of Strickland and supporting case law reveals that the rule is limited to situations where the omitted conversation is relevant and serves to explain the previously admitted portions. “It is the universal rule, in both civil and criminal cases, that, if part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted.” West v. State, 200 Ga. 566 (1) (37 SE2d 799).

In the present situation, appellant seeks to introduce testimony which is in no way relevant to the admitted testimony. It relates only to other perpetrators who allegedly molested the victims, not the appellant. This would only add new and unrelated issues to the case. The past sexual experiences of a child in a case such as this, where consent is not a defense, is irrelevant as to the issue of whether molestation was committed by the defendant. Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421). Such testimony is not only collateral and immaterial to the present case against the appellant, it also confuses the issues and as such we find no error in its exclusion.

Nevertheless, appellant asserts evidence of molestation by other persons is relevant and necessary to support the defense of misidentification. Although the ruling on the motion prevented appellant from cross-examining the victims about prior incidences of molestation, appellant had full and ample opportunity to raise the issue of misidentification by itself. He failed to do so. At no point in the trial did the appellant question the victims as to their recognition of the appellant as the person who molested them. Moreover, the fact that the appellant is the grandfather of the victims would as a general proposition indicate that misidentification was highly unlikely. We conclude that if there was an issue of fact as to misidentification, it was not such as to render relevant and necessary the admission of this otherwise irrelevant and prejudicial evidence that other persons had molested the victims. As it is within the sound discretion of the trial court to limit the scope of cross-examination, the trial court did not abuse this discretion, nor did it err in granting the State’s motion in limine. Rhodes v. State, 168 Ga. App. 10 (308 SE2d 33).

In addition, appellant asserts such testimony should be admissible as to the credibility of the victims. This very question was recently addressed in Pittman v. State, 178 Ga. App. 693 (344 SE2d 511).

In Pittman, as in the present case, the trial court refused to allow the appellant to cross-examine a child molestation victim about an incident involving persons other than that appellant. Although the appellant in Pittman also argued that such line of questioning relates to the victim’s credibility, the court held that since the appellant offered no proof or other showing that the incident was in any way material to the issue of appellant’s guilt of the crime charged, its exclusion was correct. We fail to recognize the relevance and necessity of such questioning. The introduction of past sexual experiences of the victims is not only irrelevant and prejudicial, but it also fails to address the issue of credibility. A child is no more or no less credible because of prior incidents of molestation. We find no merit in appellant’s contention that the trial court erred in excluding testimony regarding molestation of the victims by persons other than appellant.

2. In his second enumeration of error, appellant claims he was denied his constitutional right to confront the witnesses. Because of the tender ages of the victims, the trial court allowed the witness chair to be turned at an angle so the victims would not be forced to directly face the appellant. The trial court assured there would be “at least as good as a 90 degree angle [of the child’s face] with the jury,” and the record reflects no transgression from this assurance.

The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” U. S. Const. Art. IV. The right secured to criminal defendants by this amendment is applicable to the states by operation of the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400, 403 (85 SC 1065, 13 LE2d 923).

“The primary object of the [confrontation clause is] ... a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis supplied.) Kentucky v. Stincer, 482 U. S._(slip op. p. 5), quoting Mattox v. United States, 156 U. S. 237, 242 (15 SC 337, 39 LE 409).

The right of confrontation is provided “not for the idle purpose of gazing upon the witness or of being gazed upon by him,” but, rather to allow for cross-examination. (Emphasis supplied.) 5 J. Wig-more Evidence § 1397, p. 150 (J. Chadburn Rev. 1974). See also Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347). In Coy v. Iowa, 56 LW 4931, Blackmun, J. (dissent) stated that the ability of the witness to see the defendant while the witness is testifying does not constitute an essential part of the protections afforded by the confrontation clause. Confrontation is guaranteed “for the purpose of cross-examination which can not be had except by the direct and personal putting of questions and obtaining immediate answers.” Id. at 4936.

In Coy, the U. S. Supreme Court held that a one-way screen which is specifically designed to enable the complaining witnesses to avoid viewing the appellant as they give their testimony violated the defendant’s right to a face to face encounter. A literal interpretation of this statement must be limited to situations in which it is impossible for the witness to view the defendant, for the majority in Coy specifically states that the confrontation clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Coy at 4933. Although in the present case the angle of the witness chair did make it possible for the young victims to avoid looking directly into the eyes of the appellant, it was also possible that the victims could see the appellant with the mere turning of their head. There was no physical device used in this case that made it impossible for the witness to avoid viewing the appellant. Not only did the appellant have the opportunity to a thorough and sifting cross-examination of each victim, but the victims’ in-court testimony occurred in view of the judge and jury, who were able to observe their demeanor and determine the credibility of their testimony.

The U. S. Supreme Court has time and again stated that the confrontation clause “reflects a preference for face to face confrontation at trial,” but this preference may be overcome in a particular case if close examination of “competing interests” so warrants. (Emphasis supplied.) Coy, supra at 4934. Ohio v. Roberts, 448 U. S. 56, 63-64 (100 SC 2531, 65 LE2d 597). See also Chambers v. Mississippi, 410 U. S. 284, 295 (93 SC 1038, 35 LE2d 297), where the court said, “[o]f course, the right to confront ... is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”

Clearly, the prosecution of child sex abuse cases poses substantial difficulties because of the emotional trauma frequently suffered by child witnesses who must testify about the sexual assaults they have suffered. Coy, dissent at p. 4936. “ ‘(T)o a child who does not understand the reason for confrontation, the anticipation and experience of being in close proximity to the defendant can be overwhelming.’ [Cit.]” Id. at 4936.

This court is unable to recognize any compelling logical reason for which a victim of child molestation would be forced into direct eye to eye contact with the appellant at all times. The right to confrontation is a right to ask and secure answers to questions from a witness who is present in court and in full view of the trier of fact. See Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752). This condition was satisfied by the trial court’s resolution in this case. In many cases, to require eye-to-eye contact between the victim and the appellant would not only be intimidating, and very possibly exacerbate the damage done them, but it also serves no meaningful purpose in the search for truth. Would the victim be more likely to tell the truth if forced to stare the defendant in the face? Certainly not as a matter of law and certainly not as a matter of fact. We have no information as to such a proposition and only superstition would suggest it.

The victims are at a tender age and they understand their obligation to tell the truth. The mere fact that the trial court used its discretion in allowing the victims to sit at an angle where they would not have to directly face the appellant in no way violated the appellant’s constitutional right to confrontation. The appellant had the full opportunity to confront each victim with a thorough and sifting cross-examination and to expose each victim to the court and jury.

Thus, we find no error in this enumeration.

3. As his third enumeration of error, appellant claims the trial court erred in admitting testimony by the mother of one of the victims concerning allegations made by her child to her against the appellant. OCGA § 24-3-16 admits into evidence any statements “made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another” provided that two conditions are met: (1) the child is available to testify in the proceedings; and (2) the trial court finds the circumstances of the statements provide sufficient indicia of reliability.

The standard to be applied in determining whether a statement sought to be introduced under § 24-3-16 provides sufficient indicia of reliability has been discussed by this court in Newberry v. State, 184 Ga. App. 356 (361 SE2d 499). In Newberry, the court considered atmosphere, circumstances, spontaniety, and demeanor in judging the reliability of the statement. In the present case, these factors and more were considered. The State presented testimony concerning the purpose of the meeting, the child’s condition, the absence of threats or promise of benefits, the absence of drugs or alcohol, the time, the place, the people present, the child’s age, the child’s general credibility, and the child’s demeanor. Such testimony provides or at least equals the indicia of reliability present in Newberry. Thus, we find no merit in this enumeration.

4. In his fourth enumeration of error, appellant complains the trial court erred in failing to give his requested charge on the credibility of the youthful witnesses.

The trial court gave the substance of the requested charge though not in the identical language. This court has repeatedly held that a trial court’s failure to charge in the exact language requested is not error where the substance of the request is given in legally sufficient and correct terminology. Nelson v. State, 247 Ga. 172, 177 (12) (274 SE2d 317); Walls v. State, 166 Ga. App. 503 (304 SE2d 547). This enumeration is without merit.

5. Appellant also contends that the trial court erred in allowing two of his adult daughters to testify that the appellant had molested them when they were young girls. Appellant objected to the admissibility of such evidence on the basis that the prior sexual acts were too far removed in time to be admissible as similar acts or transactions, citing Pickelseimer v. State, 154 Ga. App. 223 (267 SE2d 845).

“Although lapse of time is one of the more important factors to weigh in considering the admissibility of evidence of similar crimes, it is not wholly determinative.” Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877). In Cooper, as in the case sub judice, the appellant was convicted of sexually molesting his granddaughters. As in this case, the appellant’s daughters in Cooper testified that they were molested by the appellant when they were the age of the victims. In response to the appellant’s time-span argument in Cooper, which also relied on Pickelseimer, the court stated that “[ojbviously many years are going to elapse between the time such acts occur with his daughters and the time such acts occur with the children of [his] daughters. Under such circumstances, we do not believe the lapse of time between the independent crimes and the offenses charged is a determinative factor which would make such evidence inadmissible.” Cooper, supra at 255. As the circumstances of time span are precisely those in Cooper, the trial court did not err in admitting the testimony as to similar acts of molestation.

6. Appellant raises the general grounds. We have carefully reviewed the record and find that the evidence is such that a rational trier of fact could thereon find guilt beyond any reasonable doubt. Chapman v. State, 170 Ga. App. 779 (1) (318 SE2d 213); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided September 7, 1988

Rehearing denied September 23, 1988

Leonard C. Parks, Jr., for appellant.

C. Andrew Fuller, District Attorney, Anne H. Watson, Assistant District Attorney, for appellee.

7. Appellant contends the sentence imposed by the trial court constitutes cruel and unusual punishment. OCGA § 16-6-4 (b) provides that the sentence for child molestation be punishment by imprisonment for not less than one nor more than 20 years. OCGA § 16-6-4 (d) provides the sentence for aggravated child molestation be punishment by imprisonment for not less than two nor more than 30 years. The sentence of the trial court on each of the three counts of child molestation was 20 years, with 15 in confinement and the sentence on the aggravated child molestation count was 21 years in custody, with all sentences to run concurrently. The sentences are clearly within the statutory limits and therefore appellant’s contention of cruel and unusual punishment is meritless. Sherrell v. State, 170 Ga. App. 798 (318 SE2d 221); Fain v. State, 165 Ga. App. 188 (300 SE2d 197). This court is without authority to review sentences that are within the statutory range. Id.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76597.
    COPELAND v. ASHLAND OIL, INC. et al.
    (373 SE2d 629)
   Banke, Presiding Judge.

Appellant Copeland brought this wrongful death action against the appellees, Ashland Oil, Inc., and John B. Hagler, Jr., to recover for the loss of her daughter, who died from severe burns sustained while utilizing a chemical manufactured by Ashland Oil to remove paint from a concrete floor. Recovery was sought against Ashland Oil on the basis of allegations that it had failed to provide adequate warnings of the danger of the chemical, known as methyl ethyl ketone, on the container in which it was shipped. Recovery against Hagler, who was employed as a sales representative for Ashland Oil, was sought on the basis of allegations that he had negligently failed to provide additional warnings regarding the highly flammable and explosive qualities of the chemical. This appeal is from the grant of the appellees’ motion for summary judgment.

The chemical was shipped by the manufacturer in a 55-gallon drum which was affixed with a warning label containing an illustration portraying flames and stating, in large, bold print, “FLAMMABLE LIQUID.” The label contained the following additional warnings in smaller print: “DANGER! FLAMMABLE LIQUID . . . Keep away from heat, sparks and fire ... Do not transfer to unmarked container. . . . This product is not suitable for use as a general purpose cleaner because of its flammability. . . . Never use welding or cutting torch on or near any container (even empty)—explosions can result.”

The chemical being used by the decedent had been purchased by her employer, transferred by a co-employee from its original container to a smaller, unmarked can, and then given to the decedent for use in removing paint from the concrete floor of the employer’s factory. The explosion and fire were precipitated by sparks generated by the decedent’s movement of a metal scraper across the floor to remove the paint after it had been loosened by application of the chemical. The appellant contends that a jury issue remains as to whether the label affixed to the drum was adequate to provide the necessary warning regarding its combustibility to those who might forseeably need it, and also as to whether appellee Hagler should, in the exercise of reasonable care, have provided additional warnings to the decedent’s employer regarding the potential hazards associated with the chemical. Held:

1. “Strict liability is not imposed under [OCGA § 51-1-11 (b)] merely because a product may be dangerous. Many products cannot be made completely safe for use and some can not be made safe at all. However, such products may be useful and desirable. If they are properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions, they can not be said to be defective.” See Center Chem. Co. v. Parzini, 234 Ga. 868, 870 (218 SE2d 580) (1975).

Normally, where a warning has been provided by a manufacturer, “[t]he sufficiency of that warning is for the jury.” Beam v. Omark Indus., 143 Ga. App. 142, 145 (237 SE2d 607) (1977). However, the sufficiency of the warnings provided in the present case is apparent as a matter of law. The label affixed to the outside of the drum clearly and graphically advised that the chemical was both flammable and explosive and that it should not be exposed to sparks. Additionally, it was shown that the manufacturer had supplemented the warnings contained on the label by providing additional safety data to the purchaser on a periodic basis, advising caution when using the product around ignition sources such as sparks. We can conceive of no additional steps the manufacturer could reasonably have taken to warn of the potential for danger. Certainly, it could not be expected to monitor or prevent the transfer of the chemical to other containers by the purchaser. Under the circumstances, we hold that the evidence of record negates the appellant’s allegation that the manufacturer failed to provide adequate warning of the product’s potential danger.

Decided September 6, 1988

Rehearing denied September 23, 1988

David F. Walbert, David H. Bedingfield, for appellant.

Ben L. Weinberg, Jr., Deborah R. Heyman, for appellees.

2. From our conclusion that the warnings provided by the manufacturer were adequate as a matter of law, it necessarily follows that Hagler was under no duty to provide additional warnings.

Judgment affirmed.

Birdsong, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

What is crucial as I view it is that the Material Safety Data Sheets expressly warned of the very properties which plaintiff contends were absent on the label: 1) that the vapor, and not only the liquid, could explode; 2) that the vapor could pool because of its weight; 3) that the vapor itself could be ignited by so minor a thing as a spark produced even by a means other than fire, because of its low ignition or flash point (20 degrees fahrenheit).

The label stated: “Contact employer for additional handling instructions and for Material Safety Data Sheet.” The employer was given the sheets. I agree that these warnings fulfilled the duty of the manufacturer to warn, as a matter of law.