author: Pope, Presiding Judge.

text:
    A01A2207.
    MONTFORD v. THE STATE.
    (564 SE2d 216)
   Pope, Presiding Judge.

John Montford was convicted and sentenced on one count each of aggravated assault on a police officer, serious injury by motor vehicle, fleeing or attempting to elude a police officer, interference with government property, reckless driving, and speeding. He challenges his conviction of aggravated assault on several grounds related to the argument that proof of that crime cannot be based upon mere criminal negligence.

Construed in favor of the verdict the relevant evidence shows that at about 4:45 a.m., police were called in response to allegations that Montford was harassing his former girlfriend in violation of a restraining order. Deputy Sheriff Robinson went to the woman’s home, and while the deputy was attempting to investigate, Montford fled in his car without activating his headlights. Robinson attempted to stop Montford by waving a flashlight, but had to step out of the road to avoid getting hit. Robinson had been on foot in the dark and could not say whether Montford saw him. Robinson called for help, and Officer Searcy, who was located in the direction that Montford was headed, responded to the call. Searcy placed his marked patrol car in Montford’s path, but not in such a way as to completely block the road, and turned on his emergency lights and blinking headlights. Montford drove past Searcy at about 35 or 40 mph and turned left onto Georgia Highway 96. Searcy activated his siren and pursued Montford. Searcy reached speeds of between 120 and 125 mph while chasing Montford for about six miles but never caught up. (He testified that Montford reached those speeds as well.)

Searcy called for more help, and Officer Gibson responded by coming down Highway 96 directly toward Montford in his patrol car. At one point, having yet to see Montford approaching, Gibson activated his emergency lighting and started to turn around in order to follow Montford when he passed. But seconds later, Montford crashed into Gibson’s patrol car seriously injuring Gibson and himself. There were no skid marks found on the pavement prior to the impact site. Montford was charged with aggravated assault on a police officer based on this collision.

1. Montford contends there was insufficient evidence to support the conviction of aggravated assault. Aggravated assault requires proof of certain aggravating circumstances and an assault. OCGA § 16-5-21. Assault requires showing either that the defendant attempted to injure someone, OCGA § 16-5-20 (a) (1), or that the victim was in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2). See Dunagan v. State, 269 Ga. 590, 591 (2) (502 SE2d 726) (1998). Montford urges that the State failed to show either.

According to the Supreme Court, the intent to injure necessary to support a conviction under subsection (a) (1) cannot be satisfied by a showing of criminal negligence on the part of the appellant. Dunagan, 269 Ga. at 591-592 (2) (a). See also Bowers v. State, 177 Ga. App. 36, 37-38 (1) (338 SE2d 457) (1985). In other words, no matter the degree, a wanton or reckless state of mind cannot be considered the equivalent of the specific intent to injure necessary to sustain this type of aggravated assault.

We disagree with this position and agree with Justice Carleas reasoning in his dissent in Dunagan. Justice Carley would hold that criminal negligence can substitute for the intent to injure in the crime of aggravated assault with a deadly weapon. Id. at 595 (Carley, J., dissenting). It stands to reason that Montford knew that his reckless and illegal conduct was likely to injure another person or result in the destruction of life. He was driving without lights, spéeding, eluding an officer, and driving in a reckless manner. While engaging in this reckless behavior, his car crashed into Officer Gibson’s patrol car and injured Gibson. Montford clearly recklessly disregarded the consequences of his actions and was heedlessly indifferent to the rights and safety of others. And reasonable foresight tells that injury would probably result. Thus, he intended to commit the unlawful acts which proximately resulted in serious injuries to another. In our view he had sufficient intent to support a conviction of aggravated assault with intent to injure.

Nevertheless, we are constrained to follow the holding of the majority in Dunagan, and, therefore, something more is required. To sustain a charge of aggravated assault under subsection (a) (1), the attempted or completed injury to the victim must be the intended consequence of the defendant’s act. Dunagan, 269 Ga. at 592 (2) (a). Thus, the question here is whether there was sufficient evidence from which a rational juror could have found beyond a reasonable doubt that Montford intended to injure Officer Gibson or that, under subsection (a) (2), prior to the collision Gibson saw Montford about to hit him. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) Montford denied intentionally trying to hit Gibson’s patrol car or injure him. He claimed that he looked away for a moment and when he looked up there was a car in front of him that he hit. He admitted that he was going at least 85 mph and not paying attention to where he was going.

Officer Searcy was about one-half mile behind Montford at the time of the accident. He saw Gibson coming toward Montford. He testified that “[Gibson] went to turn around and that’s when the defendant ran into him.” Searcy saw that Gibson had his blue lights on. Searcy could not tell whether Montford was proceeding straight along the road. But he did admit that Montford was in his lane, the eastbound lane, when the accident occurred, and not on the shoulder of the road. Searcy could not say whether Gibson had pulled in front of Montford during his attempt to turn around. But he admitted that, because the road had only two lanes, Gibson would have necessarily blocked Montford by attempting to turn around. Searcy testified, “In my opinion when [Gibson] went to turn around he misjudged how fast [Montford’s] vehicle was going, and that’s when he —.” Searcy did not complete his thought.

Gibson testified that he turned his blue lights on and was preparing to turn around in a straight section of the road to join the chase. As for the accident he said the following: “My intentions were to pull over, turn my vehicle around and get set up. At that point I started my turn around and I was hit. I never did see the car coming before I even begin [sic] to turn around. When I was trying to turn around that’s when I was hit. . . .” On cross-examination, this exchange occurred:

Q. So, why, if you were not pursuing anyone, why would you turn on your emergency lights?
A. I turned them on because they was coming toward me with the chase.
Q. Okay. I thought you didn’t see him?
A. I didn’t say I seen him. I said they were coming towards me with the chase. I was in the process of turning my vehicle around so therefore I turned my blue lights on.

Finally, Gibson did not recall exactly where he was when he was hit.

Applying Dunagan, this evidence is insufficient to support a conviction of aggravated assault under the Jackson standard. See Jackson, 443 U. S. at 307. There is no evidence that Montford intended to hit Gibson’s patrol car. As stated above, neither reckless nor negligent conduct is sufficient to sustain his conviction. Thus, the fact that Montford was speeding, eluding police, and not paying attention does not amount to intent to harm Gibson. Black v. State, 222 Ga. App. 80 (473 SE2d 186) (1996), is distinguishable. In that case, while speeding and attempting to elude law enforcement officers, Black made several attempts to ram one police car. Then, while he was in full control of his car, Black sideswiped another police car while turning his own. Id. at 80-81. These and other facts described in that opinion provide evidence of Black’s intent to harm. Id. at 81 (1). There are no such facts here. The one incident that might suggest such an intent, forcing Deputy Robinson to step off the road when Montford initially fled from his former girlfriend’s property, is inconclusive. Even Robinson admitted that he could not be sure that Montford saw him in the dark, and Montford did not have his lights on.

One could argue that surely Montford saw Gibson’s emergency lights; therefore, he must have had an opportunity to avoid the collision, but he chose not to do so (as is evidenced by the lack of skid marks before the accident site). But the facts on which this argument is based are too speculative to allow a rational juror to conclude beyond a reasonable doubt that that is what happened. Compare Cline v. State, 199 Ga. App. 532 (405 SE2d 524) (1991) (evidence supported conclusion in a high-speed chase that after first attempting to avoid police car, defendant turned back toward car).

(b) Nor is there evidence sufficient to show that Gibson apprehended that he was in danger of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2). There is simply no affirmative evidence that he saw Montford approaching. The State argues that Gibson’s testimony leaves room for the possibility that although he did not see Montford prior to beginning the turn, he did see him during his turn. But, speculation alone does not satisfy the Jackson standard. See generally Brooks v. State, 206 Ga. App. 485, 487 (1) (425 SE2d 911) (1992). Further, there was no evidence that Montford turned into Gibson or left his lane prior to the accident.

Decided March 27, 2002.

Davis & McPhail, Robert S. McPhail, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

Montford’s conviction of aggravated assault must be reversed.

2. Because each of Montford’s remaining enumerations challenge his trial counsel’s effectiveness with regard to requesting jury charges related to the aggravated assault charge, those enumerations are moot.

Judgment reversed in part.

Blackburn, C. J., and Mikell, J., concur.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A2335.
    STROZIER v. THE STATE.
    (562 SE2d 832)
   Blackburn, Chief Judge.

Cynthia Strozier appeals her conviction for aggravated assault, contending that the evidence was insufficient, a mistrial should have been granted, the jury should have been charged on reckless conduct as a lesser included offense, and the trial court should not have given a charge on presumption of truthfulness. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that, in the early morning hours of August 1, 1993, Strozier, during a confrontation with two other women, fired several shots, wounding both. During that confrontation, Strozier stated, “I’ll kill both of you.”

We evaluate [Strozier’s] challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, construing the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine the credibility of the witnesses. As long as some competent evidence, even though contradicted, supports each element of the State’s case, we must affirm the judgment on the jury’s verdict.

(Emphasis supplied.) Dunn v. State.

1. Strozier’s first claim is that the evidence was insufficient to convict her of aggravated assault. The elements of that offense, as charged in the indictment here, are an assault with a deadly weapon. OCGA § 16-5-21 (a) (2). Assault, in turn, so far as relevant here, is “[a]ttempt[ing] to commit a violent injury to the person of another.” OCGA § 16-5-20 (a) (1). Strozier contends that, because she was shooting only at the ground, she was not attempting to commit a violent injury to either woman. But, as we noted in McKibbons v. State,

criminal intention is a jury question, and a jury’s finding on that issue will not be disturbed on appeal unless contrary to the evidence and clearly erroneous. Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Additionally, a presumption exists that persons of sound mind and discretion intend the natural and probable consequences of their acts.

(Citations and punctuation omitted.) Id. Based on the evidence, the jury’s determination that Strozier intended to assault the other women is not clearly erroneous, and the evidence was sufficient to support the verdict.

2. Strozier next contends that the trial court should have granted her motion for mistrial after one of the women, in answer to a question on cross-examination by defense counsel — “[w]hat was going on when you got over there?” — replied, “[w]hen I got over there . . . Cynthia Strozier said ... I have killed before.” Defense counsel, out of the presence of the jury, moved for a mistrial on the basis that the witness’ testimony placed Strozier’s character into evidence. In response, the prosecutor pointed to the fact that the witness had given the same testimony, with no objection or motion, on direct. “A mistrial motion not made at the time the testimony objected to is given is not timely.” Altman v. State. Accordingly, this point is waived. Anderson v. State.

3. Strozier argues that the trial court should have charged the jury on reckless conduct as a lesser included offense, even though, as she admits, she made no request for such a charge. In particular, she relies on the doctrine that “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” Tarvestad v. State. Here, there is no indication in the record that Strozier made even an oral request. “Having presented some evidence on his sole defense, he was entitled to the jury instruction that he orally requested.” Id. Even assuming, however, that a lesser included offense charge is a “defense” for these purposes, Rogers v. State (“[a]ssuming, without deciding, that a lesser included offense is a ‘sole defense’ as used in Tarvestad”), Strozier requested and received jury charges on justification, self-defense, and no duty to retreat. Accordingly, not only was the lesser included offense of reckless conduct not her sole defense, it was not one of her defenses at all. And, as the Court in the case on which she relies stated, “[a] trial court . . . need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” Tarvestad, supra at 606. We thus find no error in the trial court’s failure, sua sponte, to give a lesser included offense instruction on reckless conduct.

4. Finally, Strozier argues that the trial court committed reversible error in instructing the jury that “if upon consideration of the evidence in the case if [sic] you find that there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it would be your duty to reconcile this conflict if you can so as not to attribute a false statement to any witness sworn.” As Strozier acknowledges, however, “the courts have failed to find that such a charge is reversible error.” This statement is borne out in Kennedy v. State: “Ms. Kennedy’s contention that [the quoted] charge is erroneous because it contains the ‘presumption-of-truthfulness’ charge that we disapproved in Noggle v. State has recently been decided adversely to her. [Mallory v. State.] Accordingly, this enumeration is without merit.” Id. Accordingly, as in Kennedy, we find this claim to be without merit.

Decided March 27, 2002.

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Bradford L. Rigby, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Dunn v. State, 248 Ga. App. 223, 224 (546 SE2d 27) (2001).

        McKibbons v. State, 226 Ga. App. 452, 453 (1) (486 SE2d 679) (1997).

        Altman v. State, 229 Ga. App. 769, 770 (3) (495 SE2d 106) (1997).

        Anderson v. State, 199 Ga. App. 559, 560 (2) (405 SE2d 558) (1991).

        Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

        Rogers v. State, 247 Ga. App. 219, 222 (4) (543 SE2d 81) (2000).

        Kennedy v. State, 274 Ga. 396, 398 (6) (554 SE2d 178) (2001).

        Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986).

        Mallory v. State, 271 Ga. 150, 151 (2) (517 SE2d 780) (1999).


text:
    A01A2344.
    DONALD AZAR, INC. v. CITY OF ATLANTA et al.
    (562 SE2d 831)
   Blackburn, Chief Judge.

Donald Azar, Inc. appeals from the trial court’s grant of judgment on the pleadings. For the reasons set forth below, we reverse.

On July 18, 2000, a complaint was filed against the City of Atlanta (“City”) and others by “Donald Azar, Plaintiff,” and, on August 21, 2000, the City answered the complaint. On January 12, 2001, the City moved for judgment on the pleadings on the basis that the named plaintiff was not the real party in interest, as the realty that formed the basis of the litigation was not owned by Azar individually but by Donald S. Azar, Inc. Exactly one month later, the City filed an amended motion “so as to include the additional claim that . . . Plaintiff lacks standing.”

On February 16, 2001, Azar amended his complaint “to correct a misnomer of the Plaintiff by adding the word INC. ... to show the corporate capacity of the Plaintiff,” and the City was served with a copy of the amendment. On the same day, Azar served and filed a brief in opposition to the City’s amended motion.

On February 23, 2001, the trial court entered an order in which it found that Azar failed to respond to the City’s motion for judgment on the pleadings. As such, the trial court granted the City’s motion.

OCGA § 9-11-15 (a) provides:

A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires. A party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, unless the court otherwise orders.

Decided March 27, 2002.

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellant.

Michelle L. Thomas, Bernard R. Thomas, Sr., for appellees.

In this case, Azar amended his pleading on February 16, 2001, prior to the entry of a pretrial order. This amendment obviated the City’s motion for judgment on the pleadings by clearing up the clerical error in Azar’s original complaint.

We note that, at the time that the trial court entered its order in this case, Azar’s proposed amendment and reply brief may not have made their way into the trial judge’s personal case folder. The records now before this Court, however, confirm that Azar’s responsive documents had indeed been filed prior to the trial court’s February 23, 2001 disposition, and, as such, they should have been considered and the City’s motion for judgment on the pleadings should have been denied.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

       This brief bore the heading “Brief in Support of Second Motion to Dismiss,” but it is clear that it was in opposition to the City’s amended motion — e.g., it stated that the “Plaintiff is filing with this Brief an Amendment to correct the misnomer ... of the Plaintifil, which] removes the need for consideration of the Cityt’s] . . . Motion to Dismiss.”

       Azar’s enumeration of errors does not address the trial court’s dismissal of his case against defendants other than the City for lack of service, and, accordingly, we do not consider that issue here.


text:
    A01A2362.
    ATLANTA ORTHOPEDIC SURGEONS et al. v. ADAMS.
    (562 SE2d 818)
   Pope, Presiding Judge.

Following a jury trial, David Adams appealed an adverse judgment but failed to pay for and obtain a trial transcript from the court reporter for many months. Although the court clerk possibly caused part of the delay, in all it took over three years and four months to get a transcript ready to forward to the Court of Appeals. We are asked to determine whether the trial court abused its discretion by denying three motions to dismiss the appeal for failure to obtain the transcript.

Dr. David Rouben and Atlanta Orthopedic Surgeons (hereinafter “Rouben”) performed back surgery on Adams, and Adams subsequently brought suit for medical malpractice. A jury found for Rouben, and judgment was filed on June 24, 1997. On July 18, Adams filed a motion for new trial, and the court scheduled a hearing for August 29. Two days prior to the hearing, Adams sought a continuance, which was granted, for a single time not to exceed ninety days so that the trial transcript could be prepared for use at the hearing. But Adams failed to pay the court reporter; consequently, the transcript was not prepared. The court denied Adams’ motion for new trial on December 19, 1997.

On January 16, 1998, within 30 days of the court’s order, Adams filed a notice of appeal. On January 30 the court reporter received a letter from Adams requesting that she prepare the transcript. Adams paid a $1,000 deposit at that time and was told that the transcript would not be available until July or August 1998. But Adams did not request that the court extend the 30-day period allowed to obtain the transcript. The clerk of court forwarded the record without the transcript to the Court of Appeals, and the case was docketed on April 8, 1998. However, it must be noted that the original notice of appeal did not indicate that a transcript of evidence and proceedings was to be transmitted as a part of the record on appeal as required by OCGA § 5-6-37. On April 28, apparently after learning that the case had been docketed without a transcript, Adams filed a motion in the Court of Appeals to remand the case to the trial court so the transcript could be completed. In the motion, Adams stated that he had “paid all or a portion of the costs of the preparation of the transcript.” The Court of Appeals remanded the case on May 7, 1998.

On about January 4, 1999, almost eight months later, Adams called the court reporter to request the balance due on the transcript and was informed that the transcript would be completed within ten days of receipt of the balance of $1,880.55. On February 8, Adams advised the court reporter that he was having trouble obtaining the funds, but still intended to pay.

On February 26, 1999, Rouben moved to dismiss the appeal pursuant to OCGA § 5-6-48 (c) because Adams had still not obtained the transcript. In response, Adams alleged that he was impoverished and could not pay the balance. Adams stated that he had been “out of work due to a work related injury” and had used the funds set aside for the transcript for daily living expenses. On May 14, after a hearing on the motion to dismiss, the trial court found that (1) Adams was not indigent; (2) the balance was unpaid; (3) the delay in the preparation of the trial transcript was unreasonable; (4) the delay was inexcusable; and (5) Adams caused the delay. Despite these findings, the court granted Adams an additional 30 days, through June 14, 1999, to pay the amount due, or else the appeal would be dismissed. Prior to the deadline, the court reporter notified the court that Adams had paid the balance in full, and consequently, Rouben’s motion to dismiss was denied.

On January 19, 2000, twenty months after the remand and seven months after the first motion to dismiss was denied, Rouben filed a second motion to dismiss on the grounds that the trial transcript had still not been filed with the superior court clerk’s office. A hearing was held on February 16, and neither Adams nor his counsel appeared. The trial court contacted Adams’ attorney and was told that he had received notification of the hearing and that he had notified the superior court clerk that he was no longer Adams’ counsel; however, he had not filed a motion to withdraw as counsel. Consequently, on February 21, 2000, the trial court dismissed Adams’ appeal after again finding that Adams caused an unreasonable and inexcusable delay in obtaining the transcript.

However, on Márch 1, the trial court reversed its decision because it discovered that at some point, perhaps as early as June 1999, the court reporter had completed the record and transmitted it to the clerk of court, but that the clerk had no record of that event. Furthermore, the court noted that Adams contended he did not receive notice of the February 16, 2000 hearing. The trial court found that Adams had met his obligation to pay costs on June 11, 1999, and that any further delay was caused by the clerk’s office. Therefore, although Adams caused the initial delay, he complied with the May 14, 1999 order requiring payment within 30 days, and, accordingly, the court vacated its dismissal of the appeal and denied Rouben’s second motion to dismiss the appeal.

On March 5, 2001, over one year after the reversal, Rouben filed a motion to reconsider because the transcript had still not been filed with the clerk’s office or transmitted to the Court of Appeals. On April 25, Adams’ attorney finally moved to withdraw as counsel. The trial court granted the withdrawal on April 26. Then, on April 27, 2001, the trial court denied Rouben’s motion for reconsideration and ordered the court reporter to file another copy of the trial transcript with the superior court clerk’s office by May 2, 2001. The court reporter filed the copy on that day.

Rouben contends that the trial court abused its discretion by granting Adams an additional thirty days to pay the costs of the transcript in May 1999 because, by that time, 511 days had passed since Adams filed the notice of appeal and the court had made all three findings required by OCGA § 5-6-48 (c). Second, Rouben contends the trial court erred by wrongly placing the burden on the clerk of court relative to Adams’ failure to ensure that the transcript was filed, when an additional nine months passed after Adams paid the balance but before the court denied the second motion to dismiss on March 1, 2000. Finally, Rouben contends the trial court abused its discretion by denying the motion for reconsideration because another thirteen months passed after Adams paid the balance, bringing the total delay to over three years and four months, yet the transcript was still not filed with the clerk, and therefore the delay is so severe as to cause a substantial delay in the ultimate docketing of the appeal, thereby rendering it stale.

We find the final argument persuasive and reverse.

OCGA § 5-6-48 (c) provides that the trial court “may” order the appeal dismissed “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” The trial court has discretion in passing on these questions, but that discretion is subject to appellate review for abuse. Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 499 (1) (458 SE2d 377) (1995).

The above facts can be viewed in four phases: (1) almost four months between the initial appeal through the remand from this Court; (2) thirteen months between the remand and when Adams paid the balance due on the transcript; (3) almost nine months following the payment for which the trial court partially blamed the clerk of court for the delay; and (4) over thirteen months between the time that the court denied Rouben’s second motion to dismiss and when a second copy of the transcript was finally filed with the clerk of court.

In phase 2, 13 months passed after the remand during which Adams failed to pay the balance due on the transcript. The trial court itself found all three elements required to dismiss the appeal: (1) the delay in preparation of the transcript was unreasonable; (2) the delay was inexcusable; and (3) Adams caused it. See OCGA § 5-6-48 (c). A review of the record easily supports these findings. Further, the court found that Adams’ excuse for not paying, that he was indigent, was not true. Oddly, the court granted Adams 30 days more time and Adams finally paid the costs. Arguably, the trial court abused its discretion at this point. Over 500 days had passed between when Adams filed a notice of appeal and when he paid the balance due on the transcript, and the court made all the findings necessary to support dismissal.

In phase 3, based on the court reporter’s statement that she had filed the transcript with the clerk of court, the court concluded that the additional delay after Adams paid the balance could not be attributed to Adams. We find this finding questionable because Adams had a duty to diligently inquire as to the transcript’s status with the court reporter to make sure it had in fact been filed. Jackson, 217 Ga. App. at 504. The fact that nine months passed in phase 3 during which there is no evidence that Adams inquired of anyone about the transcript suggests that he shirked this duty.

But we base our decision on phase 4 and the overall delay caused in large part by Adams which cause the appeal to be stale. At the end of phase 3, all parties were painfully aware that the clerk of court did not have a transcript. Yet another thirteen months passed before the transcript, or a second copy, was filed, bringing the delay in filing the transcript to a total of over three years and four months. Even so, the court again denied Rouben’s motion to dismiss.

The burden for making sure the transcript was filed, not just paying for it, belonged to Adams. OCGA § 5-6-42 (“Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed. . . .”). See also Dunbar v. Green, 232 Ga. 188 (205 SE2d 854) (1974); Jackson, 217 Ga. App. at 504; Allen v. Seaboard Coast Line R. Co., 128 Ga. App. 391 (196 SE2d 878) (1973). There is no evidence that Adams took any steps whatsoever to ensure that a second copy of the transcript was filed with the court during these 13 months, nor did Adams request any extensions. Because of this and the extraordinary total delay involved, most of which was caused by Adams, we conclude that the appeal is stale and that Rouben has been prejudiced by the delay. See Cousins Mtg. &c. Investments v. Hamilton, 147 Ga. App. 210 (248 SE2d 516) (1978).

The Supreme Court and this Court have stressed that the purpose of the rules regarding timely preparation of the transcript should not be strictly enforced to prevent appeals unless the delay is unreasonable so as to affect the appeal itself. Sellers v. Nodvin, 262 Ga. 205, 207 (1) (415 SE2d 908) (1992); Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1) (363 SE2d 265) (1987). Also, this Court has stated that “the policy of the law is to avoid a dismissal of the appeal and reach the merits of the case where it is reasonable to do so.” Galletta, 185 Ga. App. at 21-22.

However, in Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994), the court stated that delay is unreasonable where it

may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

(Citations and emphasis omitted.) Id.

Here, it is beyond question that Adams’ actions have significantly delayed the appeal of the merits of a case that was tried in 1997 — it still has not been docketed. Furthermore, even assuming Adams’ main appeal should be meritorious — possibly requiring a retrial, Rouben would be prejudiced by having to defend himself from the same allegations years later after memories have faded and subtleties regarding the matter have been lost.

Decided March 27, 2002.

Hall, Booth, Smith & Slover, Alexander H. Booth, Culley C. Carson TV, for appellants.

David G. Adams, pro se.

In Cousins Mtg., a case involving a delay of only ten months after the judgment of the trial court, where the appellants deliberately, temporarily abandoned their appeals by failing to pay costs in the trial court, this Court held that the appeals had become stale, and it reversed the trial court with direction to grant the motions to dismiss the appeals therein. Cousins Mtg., 147 Ga. App. at 211-212.

Although we could remand this case for the trial court to make findings regarding staleness, no such remand is necessary under the egregious facts of this case where Adams so obviously shirked his responsibilities. Adams has not even responded to this appeal despite an order from this Court to do so. As stated by Chief Justice Duck-worth, “Justice delayed is often justice denied.” George v. American Credit Control, 222 Ga. 512, 513 (150 SE2d 683) (1966). The decision of the trial court is reversed and the case remanded with direction to dismiss the appeal.

Judgment reversed and remanded with direction.

Blackburn, C. J., and Mikell, J., concur.


author: Miller, Judge. Andrews, Presiding Judge,

text:
    A01A2386.
    CITY OF WINDER v. McDOUGALD et al.
    (562 SE2d 826)
   Miller, Judge.

The City of Winder appeals from the trial court’s denial of its motion for summary judgment. On appeal Winder contends that the trial court erred by (1) failing to strike plaintiffs’ expert affidavit, and (2) specifying the wrong legal standard on summary judgment and denying summary judgment to Winder. We discern no error and affirm.

Viewed in the light most favorable to the plaintiffs, the evidence reveals that at 3:00 a.m. on June 21, 1999, Ashley McDougald snuck out of her parents’ home and took their car without permission. Ashley, who was 14 years old and did not have a license, drove without her headlights on and passed a police officer. The officer followed Ashley, and when Ashley did not turn on her headlights, the officer turned on his blue lights and siren.

Instead of pulling over, Ashley attempted to flee by accelerating down the road. The officer chased her, and Ashley sped through a parking lot, where she damaged her parents’ car and nearly collided with two parked cars. Ashley then drove on the wrong side of the road and sped up to 70 mph with the police officer still in pursuit two to three car lengths behind. When another officer heard over the radio that the pursuing officer was traveling at 70 mph, he told the pursuing officer to back off and terminate the pursuit. The pursuing officer continued the pursuit nevertheless. As the pursuing officer and Ashley approached a curve in the road, the pursuing officer began to slow down because he did not believe that he could negotiate the curve at 70 mph. Ashley sped through the curve and was killed when she crashed into a utility pole.

The McDougalds sued the pursuing officer and the City of Winder for the death of their daughter. The officer and Winder moved for summary judgment. In response, the McDougalds submitted an affidavit from an expert in police training and procedures, which stated that the pursuing officer had violated several national and Winder police policies in his continued pursuit of Ashley. The expert contended that the accident that resulted in Ashley’s death could have been prevented had proper procedures been followed. Winder moved to strike the affidavit because the various national policies and some of the other documents identified in the affidavit were not attached to the affidavit. Winder admits, however, that several of the documents, including the Winder policies on Vehicle Pursuit Actions, were part of the record before the court. The trial court granted summary judgment to the pursuing officer, but determined that genuine issues of material fact remained regarding whether or not the pursuing officer “acted negligently in his pursuit of the decedent’s vehicle.” The trial court stated that Winder could be liable to the extent that the officer’s negligence was covered by insurance.

1. Winder contends that the trial court erred by failing to grant its motion to strike the McDougalds’ expert affidavit. More specifically, Winder argues that the affidavit should not have been considered because some of the national policies and other documents that the expert relied upon were not attached to the affidavit.

Although the record contains no ruling on Winder’s motion to strike, we will presume that the trial court reviewed all of the evidence before it in deciding the motion for summary judgment. See E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 600 (2) (409 SE2d 235) (1991). As Winder admits, several of the documents identified in the affidavit are matters of record. “[A]n affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.” (Citation and punctuation omitted.) Augustine v. Frame, 206 Ga. App. 348, 349 (1) (425 SE2d 296) (1992). To the extent that there are portions of the affidavit that rely on documents that are not a part of the record, we will not consider those portions of the affidavit here in determining whether the affidavit is sufficient to create a genuine issue of material fact to preclude summary judgment. Cf. Jones v. Rodzewicz, 165 Ga. App. 635, 636-637 (3), (4) (302 SE2d 402) (1983).

2. Winder argues that the trial court erred by applying the wrong legal standard and denying its motion for summary judgment. Winder contends that in determining a basis for holding Winder liable, the trial court applied a negligence standard to the pursuing officer’s conduct instead of the proper recklessness standard, and further contends that the McDougalds have failed to create any genuine issues of fact to preclude summary judgment. We hold that issues of fact preclude summary judgment.

When reviewing the grant or denial of summary judgment, we conduct a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the non-movant. Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001). Even if the trial court may have applied the wrong legal standard below, because our review on appeal is de novo we address the merits of the trial court’s denial of Winder’s motion for summary judgment.

To the extent that Winder maintains insurance, it can waive governmental immunity and be sued based on damages arising from the use of a motor vehicle. See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001); OCGA § 33-24-51. In this regard, Winder’s liability could be predicated on specific conduct of the pursuing officer:

OCGA § 40-6-6 (d) (2) expressly pertains to those special circumstances where a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit. In such circumstances, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. OCGA § 40-6-6 (d) (2). That is, under amended OCGA § 40-6-6, a finding of proximate cause or contributing proximate cause must be supported by evidence that the officer acts with reckless disregard for proper law enforcement procedures in initiating or continuing the pursuit and this reckless disregard actually causes the damage, injury, or death.

(Citations and punctuation omitted; emphasis in original.) Lang v. Becham, 243 Ga. App. 132, 133 (530 SE2d 746) (2000).

Viewed in the light most favorable to the McDougalds, the evidence reveals that the pursuing officer continued to chase Ashley after a fellow officer instructed him to end the pursuit. Although the pursuing officer slowed down as he approached the curve where the accident occurred, he did not indicate that he was abandoning the chase, but only that he was slowing down because he was afraid that he could not negotiate the curve at such a high speed. Furthermore, the McDougalds submitted an affidavit from an expert with over 30 years of teaching experience in law enforcement. After reviewing the Winder policies on Vehicle Pursuit Actions and various other matters of record, including the statements of the pursuing officer and of the officer who instructed the pursuing officer to terminate the chase, the expert opined that the pursuing officer’s actions were in violation of Winder police policies and showed a “reckless disregard for proper police procedure.” The expert further opined that local police procedures required that the pursuit, which was initiated over a minor traffic violation, should have been terminated once Ashley recklessly drove past parked cars and started driving on the wrong side of the road. The expert testified that if the pursuing officer had followed proper procedures, the victim’s life could have been saved.

The McDougalds therefore presented some evidence that the pursuing officer acted with reckless disregard for proper police procedures, and the trial court properly denied Winder’s motion for summary judgment. See Lang v. Becham, 243 Ga. App. at 134.

Judgment affirmed.

Johnson, P. J., Eldridge, Ellington and Phipps, JJ, concur. Andrews, P. J., and Ruffin, J., dissent.

Andrews, Presiding Judge,

dissenting.

I respectfully dissent.

The City of Winder is entitled to summary judgment because the sole proximate cause of the car crash that tragically killed 14-year-old Ashley McDougald was the child’s unlawful operation of the car and high speed flight from a City police officer attempting to carry out his lawful duty.

This is not a claim by an innocent third person who was injured or killed in a vehicular collision with a fleeing violator or the pursuing police officer. This suit was brought against the pursuing officer and his employer, the City of Winder, on behalf of the underaged driver who committed a traffic violation in the presence of the officer, ignored the officer’s attempts to stop her, and was killed when she struck a utility pole while fleeing from the officer at high speed. Georgia’s appellate courts have not previously addressed such a claim by a fleeing violator for damages suffered during unlawful flight from an identified police pursuer.

Because there was no evidence the police officer acted with malice or an intent to injure in initiating or continuing the pursuit, the trial court properly granted summary judgment to the individual officer on the basis of official immunity. Cameron v. Lang, 274 Ga. 122, 123-126 (549 SE2d 341) (2001). The trial court denied summary judgment to the City, however, finding the City waived its immunity to the extent of insurance purchased to cover the officer’s car and that questions of fact existed as to whether the officer was negligent and the City was liable for that negligence on the basis of respondeat superior. See Gilbert v. Richardson, 264 Ga. 744, 753-754 (452 SE2d 476) (1994); Cameron, 274 Ga. at 126-127. The majority concludes the trial court properly denied summary judgment, but that it should have applied the “reckless disregard” standard set forth in OCGA § 40-6-6 (d) (2) instead of a negligence standard.

OCGA § 40-6-6 sets forth policies for officers engaged in vehicular pursuit of actual or suspected violators of the law. OCGA § 40-6-6 (a), (b), and (c) provide that a police officer using an audible signal and a flashing or revolving red or blue light while in vehicular pursuit of an actual or suspected violator may proceed past a red or stop signal after slowing down, exceed maximum speed limits as long as life or property is not endangered, and disregard regulations governing direction and turning. Subsection (d) (1), (2), and (3) address issues regarding the duty to other persons owed by an officer engaged in vehicular pursuit and the proximate cause of damage, injury, or death occurring during the pursuit. Subsection (d) (1) provides that subsections (a), (b), and (c) “shall not relieve the [officer] from the duty to drive with due regard for the safety of all persons.” Subsection (d) (2) further provides that:

When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.

Finally, subsection (d) (3) provides that “[t]he provisions of [subsection (d)] shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.”

Taken as a whole, the provisions of OCGA § 40-6-6 cannot be construed to create a duty owed by pursuing police officers to fleeing violators. Rather, § 40-6-6 gives officers exceptional rights in operating vehicles while pursuing actual or suspected violators and establishes duties owed by pursuing officers to innocent persons other than fleeing violators. Although subsection (d) (1) (formerly subsection (d) of the pre-1995 version of the statute) refers to an officer’s “duty to drive with due regard for the safety of all persons,” this language was construed in the former version of the statute as creating a duty owed to innocent third persons, not to fleeing violators. Mixon v. City of Warner Robins, 264 Ga. 385, 387 (444 SE2d 761) (1994); Archer v. Johnson, 90 Ga. App. 418, 423-424 (83 SE2d 314) (1954). Subsection (d) (2) shows on its face that it applies only to claims by innocent third persons and creates no duty owed by a pursuing officer to an actual or suspected fleeing violator. It provides that an officer’s pursuit “shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures. . . .” OCGA § 40-6-6 (d) (2). To apply this subsection to a claim by a fleeing violator, it must be read to stand for the absurd proposition that a pursuing officer may be held liable as “the proximate cause” of a fleeing suspect’s injury or death when the injury or death was “caused by the fleeing suspect.” It also makes the implausible presumption that the legislature intended to treat claims by fleeing violators the same as those made by innocent third parties by applying the same “reckless disregard” standard to both.

If this were a case involving claims against the officer and the City by an innocent third person injured or killed in a collision with the fleeing violator, the provisions of OCGA § 40-6-6 (d) (2) would mandate application of the “reckless disregard” standard to the claim against the officer, as well as to the claim that the City was liable for the officer’s actions based on the principle of respondeat superior. Accordingly, a finding of proximate cause or contributing proximate cause would have to be supported by evidence that “the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.” OCGA § 40-6-6 (d) (2). Since the legislature has determined for reasons of public policy that an innocent third person must satisfy a stringent “reckless disregard” standard, common sense and public policy dictate that a more stringent standard applies to any claim by a fleeing violator.

A police officer’s duty to apprehend actual or suspected violators of the law is balanced under OCGA § 40-6-6 with a corresponding duty not to recklessly disregard the safety of innocent third persons during vehicular pursuit of those violators. Pearson v. City of Atlanta, 231 Ga. App. 96, 98 (499 SE2d 89) (1998); Cameron, 274 Ga. at 128. As to the fleeing violators themselves, the officer’s duty to pursue and apprehend them is a paramount public interest. Even if an officer’s pursuit is the cause in fact of injury to a fleeing violator during the pursuit, there is no corresponding duty to protect fleeing violators from their own criminal actions taken to avoid apprehension. See Lindstrom v. City of Corry, 563 Pa. 579 (763 A2d 394) (2000). To impose this duty would discourage police from pursuing the violators and encourage flight, thereby leaving potentially dangerous drivers on the road. It would also reward fleeing violators with causes of action for damages flowing from their own wrongdoing.

Where an actual or suspected violator flees from a police officer identified as such, the only basis for concluding that the officer’s vehicular pursuit may be the proximate cause or contributing proximate cause of damages, injury, or death suffered by the violator during the pursuit is evidence that the officer acted with actual malice or an intent to injure in initiating or continuing the pursuit. In other words, there must be evidence the officer had a deliberate or premeditated intention to inflict injury or take life, not merely an intention to do the act purportedly resulting in the injury or death. Kidd v. Coates, 271 Ga. 33 (518 SE2d 124) (1999); Adams v. Hazelwood, 271 Ga. 414, 415 (520 SE2d 896) (1999). Moreover, the absence of actual malice or intent to injure may be shown by evidence that the officer’s intentional acts were justified as taken in self-defense or in the defense of a third person. Kidd, 271 Ga. at 34. This is the standard applied to determine if an officer is entitled to official immunity from individual liability in all cases. It should not be easier for a fleeing violator to recover from the officer’s governmental employer which has waived its immunity to the extent of insurance coverage.

There is no claim and no evidence the pursuing officer acted with actual malice or an intent to injure in initiating or continuing the pursuit, so there is no basis for concluding that any action taken by the officer was the proximate cause or contributing proximate cause of the fatal crash suffered by the fleeing violator. Because the pursuing officer had no duty to protect the fleeing violator from her own actions, and the sole proximate cause of the fatal crash was the unlawful high speed flight by the violator, the City of Winder is entitled to summary judgment.

Decided March 27, 2002

Carothers & Mitchell, Richard A. Carothers, William M. Coolidge III, for appellant.

William S. Hardman, for appellees.

I am authorized to state that Judge Ruffin joins in this dissent.

       Compare Poole v. City of Louisville, 107 Ga. App. 305 (130 SE2d 157) (1963) (the pursued did not know he was being chased by a police car, which was unmarked and gave no identifying signal, and was injured during a frightened attempt to escape).


author: Smith, Presiding Judge.

text:
    A01A2462.
    A01A2463.
    HUGHLEY v. FRAZIER et al. FRAZIER v. HUGHLEY.
    (562 SE2d 821)
   Smith, Presiding Judge.

Austin Hughley brought this medical malpractice action against Dr. Mary Frazier and Dr. Raymond Rubin alleging that as a result of their misdiagnosis of his medical condition, surgery was required which rendered him permanently incontinent. Both defendants moved for summary judgment on the ground that the two-year statute of limitation had run on Hughley’s claims. The trial court granted Dr. Rubin’s motion but denied that of Dr. Frazier, concluding that under the “continuous treatment” doctrine discussed in Williams v. Young, 247 Ga. App. 337 (543 SE2d 737) (2000), questions of fact existed as to whether Frazier’s treatment of Hughley was terminated within the applicable statute of limitation. In Case No. A01A2462, Hughley appeals from the grant of Dr. Rubin’s motion for summary judgment, and in Case No. A01A2463, Frazier appeals from the denial of her motion. Because Hughley failed to bring his action against Dr. Rubin within two years from the date of his injury as required by OCGA § 9-3-71 (a), we affirm the trial court’s grant of summary judgment to him. As for Dr. Frazier’s motion, however, although the “continuous treatment” doctrine was struck down in Young v. Williams, 274 Ga. 845 (560 SE2d 690) (2002), we conclude that she failed to pierce the pleadings with respect to Hughley’s claim that she committed fraud that tolled the statute of limitation. We therefore affirm the denial of summary judgment to Dr. Frazier.

Sometime in March or April 1996, Hughley sought treatment from Dr. Frazier for rectal complaints. The parties dispute the dates of treatment concerning those complaints. Frazier testified by affidavit, and Hughley’s medical records show, that she first treated this condition on April 29,1996. Hughley testified, however, that on April 1, 1996, Dr. Frazier examined him and diagnosed him as having “ ‘external hemorrhoids’ with large rectal opening” and began treatment for that condition. On April 11, Hughley was referred to Dr. Rubin, a gastroenterologist who performed various tests on that date and again on May 2 and diagnosed Hughley as having internal and external hemorrhoids, without any thrombosis. Dr. Rubin testified that he performed no further examinations after May 2, 1996.

Meanwhile, according to Hughley, Dr. Frazier examined him on April 29 and May 9. At both visits, Dr. Frazier diagnosed his condition as hemorrhoid-related. Dr. Frazier testified that she examined Hughley on May 7 and May 9 and that Hughley cancelled a scheduled appointment for May 16. It appears to be undisputed that on May 16, Hughley was examined by Dr. Earl Pennington, a proctologist. Dr. Pennington allegedly diagnosed Hughley with an “anal fistula and chronic abscess” and immediately referred him to a surgeon, Dr. Oscar Grablowsky. Dr. Grablowsky examined Hughley on May 20 and on May 21 performed a surgical procedure. Hughley testified that Dr. Grablowsky informed him that this condition had been present for many months and that the size of the fistula and abscess required the division “of the internal and external sphincter muscles.” Hughley believed that this surgical procedure “directly caused [him] unnecessarily to become permanently incontinent.” His complaint in this case alleges that the

size of the fistula and abscess was proximately and directly caused by the failure of defendants to timely properly diagnose, treat and/or surgically remove it and refer plaintiff to a proctologist for this purpose, when its size and deepness during their course of treatment would not have required such division of the internal and external muscles posteri-orly, but could have been successfully treated and/or removed without such division being necessary.

This complaint was originally filed on May 18, 1998, but was later dismissed. The action was refiled as a renewal action on April 17, 2000. The central issue on appeal is whether the original action was filed against Dr. Frazier and Dr. Rubin within the two-year statute of limitation for medical malpractice actions.

1. We first address Hughley’s contention that the action was timely filed against Dr. Rubin under the “continuous treatment” doctrine adopted in Williams, supra. In Williams, we concluded that if misdiagnosis occurred during a continuous course of examination and treatment of a particular condition, the two-year statute of limitation for medical malpractice claims began to run on the date the course of examination or treatment for the condition terminated. Id. at 341. But Williams was recently reversed. In Young, supra, the Supreme Court of Georgia found that Williams erroneously modified the legislatively prescribed two-year statute of limitation by adoption of the continuous treatment doctrine, stating that “the judicial branch is not empowered to engraft such a provision on to what the legislature had enacted.” Id. at 848. Therefore, in general,

in most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA § 9-3-71 (a).

(Citations and punctuation omitted.) Ford v. Dove, 218 Ga. App. 828, 830 (3) (463 SE2d 351) (1995), overruled in part on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (1) (526 SE2d 609) (1999). See also Crawford v. Spencer, 217 Ga. App. 446, 448 (457 SE2d 711) (1995); Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994).

The record is undisputed that Rubin did not treat Hughley after May 2, 1996. “It is true that in ruling upon a motion for summary judgment, the court must construe all reasonable inferences in favor of the non-movant. Here, however, our search of this record discloses no specific fact other than general arguments that may lead to inferences favorable to [the non-movant].” (Citation and punctuation omitted.) Crown Ford, Inc. v. Crawford, 221 Ga. App. 881, 885 (3) (473 SE2d 554) (1996). Dr. Rubin’s alleged misdiagnosis, which occurred no later than May 2, 1996, occurred outside the two-year statute of limitation for medical malpractice claims, and the trial court correctly granted summary judgment to this defendant.

Hughley cites several cases in support of his argument that summary judgment was improperly granted to Dr. Rubin. But we find the facts and reasoning of those cases to be inapplicable. Relying on Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770 (278 SE2d 653) (1981), and Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), Hughley contends that the confidential relationship between him and Dr. Rubin prevented him from discovering his injury until May 16, 1996. But Gowers was not a misdiagnosis case, and some evidence showed that defendants treated plaintiff within two years of plaintiff’s filing of his lawsuit. Here, however, Dr. Rubin’s treatment of Hughley ended May 2, 1996, outside the limitation period.

Whitaker, supra, can also be distinguished. In Whitaker, this court did create a limited exception to the general rule that a misdiagnosis constitutes the injury under OCGA § 9-3-71. We stated that “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.]” Id. at 708 (1). But the facts of that case differ from those here. There, the record showed that defendants misdiagnosed the presence of cancer in a mole removed from plaintiff’s back in 1978. Id. at 706. For approximately seven years, plaintiff remained free of cancer symptoms, but in 1985, a biopsy of tissue from the mole revealed the presence of cancer. Id. She filed suit against her doctor and others in May 1986, within a year of her diagnosis of cancer. Id. Noting that plaintiff suffered no symptoms of cancer for several years after the misdiagnosis, this court concluded that questions of fact existed as to whether the subsequent metastasis was a separate injury. Id. at 708 (1). But here, Hughley had been continuously experiencing the effects of his condition when he was diagnosed by Dr. Rubin. In fact, his complaint alleges that the anal fistula existed before his first visit with Dr. Rubin. Therefore, any injury he may have sustained occurred at the time of the misdiagnosis.

Hughley also argues that the permanent incontinence occasioned by his subsequent surgery was a new injury. We first note that the surgery, and the allegedly resultant incontinence, was part of the course of treatment of his condition resulting from the alleged misdiagnosis and was not a new injury. See Surgery Assoc. v. Kearby, 199 Ga. App. 716, 718 (405 SE2d 723) (1991), citing Whitaker, supra; Stone v. Radiology Svcs., 206 Ga. App. 851, 852-853 (426 SE2d 663) (1992) (physical precedent only) (Whitaker not applicable because injury had manifested itself at time plaintiff examined by defendants). This case is also distinguished from Walker v. Melton, 227 Ga. App. 149 (489 SE2d 63) (1997), and Staples v. Bhatti, 220 Ga. App. 404 (469 SE2d 490) (1996), cited by Hughley. In Walker, manifestations of the plaintiff’s injury subsided for a time after the misdiagnosis, so that the date of any “new injur/’ was impossible to determine. Id. at 150-151 (1). Similarly, in Staples, although not a misdiagnosis case, the plaintiff showed no symptoms of cancer after the defendant failed to inform her that her mammography examination indicated the possibility of cancer. Instead, the cancer manifested itself several years later. Id. at 404-405. We concluded that the action filed by her one year after the symptoms manifested themselves was not barred by the statute of limitation. Id. at 406 (1). But here, as discussed above, Hughley’s alleged rectal pain was continuous before and throughout Dr. Rubin’s treatment. The injury occurred no later than May 2, 1996, and the two-year statute of limitation therefore expired before Hughley filed his lawsuit.

In addition, we find no merit in Hughley’s contention that Dr. Rubin’s alleged misdiagnosis constituted a continuing tort. The cases cited by Hughley do not support a conclusion that a continuing tort was involved in this case, as they either are not misdiagnosis cases or are not medical malpractice cases at all. In addition, the “continuing tort” theory has been generally applied when a period of time elapsed between the commission of the alleged negligent act and the infliction of injury putting the recipient on notice of the injury. See Piedmont Pharmacy v. Patmore, 144 Ga. App. 160, 161 (1) (240 SE2d 888) (1977), cited by Hughley. But here, as discussed above, Hughley’s symptoms and complaints were continuously present during his limited treatment by Dr. Rubin. Furthermore, Patmore was decided under prior law, when “the period of limitation commenced on the date on which the negligent or wrongful act occurred,” Young, supra at 846, as opposed to the date of the injury. The trial court correctly granted Dr. Rubin’s motion for summary judgment.

2. We next address that portion of the trial court’s order denying summary judgment to Dr. Frazier. The court concluded that under the continuing treatment doctrine, material issues of fact existed as to the last date on which Dr. Frazier treated Hughley. That doctrine is no longer viable, as discussed above. But we find the trial court’s order to be correct for a different reason.

In his complaint, Hughley alleged that Dr. Frazier committed fraud that tolled the statute of limitation. He maintained that Dr. Frazier misled him as to whether a medical specialist existed with respect to rectal problems but that he later learned of “a specialty in medicine for the treatment of the rectum, being proctology, and he realized at that time that Defendant Frazier had lied to him as to the non-existence of this specialty.” He further alleged that he “relied to his detriment in believing and trusting” Dr. Frazier’s statements concerning the medical specialty, that she knew her statement to be false, and that her statement debarred or deterred him from learning of the negligence.

In limited circumstances, a plaintiff in a medical malpractice action may be able to show that a defendant committed fraud that tolled the statute of limitation until the plaintiff’s discovery of the fraud. See generally Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) (389 SE2d 339) (1989). Here, the fraud issue was not addressed in Dr. Frazier’s motion for summary judgment. She moved for summary judgment solely on the ground that the statute of limitation had expired, without piercing Hughley’s pleadings concerning her alleged fraud. Therefore, whether Dr. Frazier committed fraud tolling the statute of limitation remains a question of fact, and she was not entitled to summary judgment. See Collier v. Evans, 199 Ga. App. 763, 766 (5) (406 SE2d 90) (1991).

Decided March 27, 2002

W. Dent Aeree, for appellant.

McLain & Merritt, M. David Merritt, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Mary K. Greene, Michael A. Strickland, for appellees.

Judgments affirmed.

Phipps, J., concurs. Barnes, J, concurs and concurs in judgment only as to Division 1.

       In Ezor, supra, we overruled Ford only to the extent that it applied the self-contradictory testimony rule to an expert witness. Id. at 279 (1). And this court purported to overrule Ford and Crawford in Williams, supra. Id. at 342. But given the reversal of Williams by the Supreme Court, the general rule concerning the statute of limitation in misdiagnosis cases discussed in Ford and Crawford remains viable.

       This opinion does not purport to determine the validity of the fraud claim. We hold only that the fraud issue was not addressed or decided below and that we therefore cannot say at this stage of the proceedings that the trial court erred in denying Frazier’s motion for summary judgment.


author: Johnson, Presiding Judge.

text:
    A02A0771.
    GREEN v. THE STATE.
    (562 SE2d 835)
   Johnson, Presiding Judge.

James Green appeals from his conviction of possession of a firearm by a convicted felon. His sole enumeration of error on appeal is that the evidence was insufficient to prove beyond a reasonable doubt that venue was properly laid in DeKalb County. Because we find the evidence was sufficient to prove venue, we affirm Green’s conviction.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Green placed a gun to his girlfriend’s head and threatened to kill her and take his own life after she tried to terminate their relationship. Green claims there was insufficient evidence to prove that this act was done in DeKalb County. However, the record shows that Green’s girlfriend testified that she fell asleep in Green’s car, and when she woke up, they were “at a wooded area in DeKalb County.” When asked if she was sure the wooded area was in DeKalb County, the victim responded, ‘Yes.” She then described the wooded area, including the surrounding construction and a fence. She testified unequivocally that Green’s actions occurred on Waldrop Road in DeKalb County.

In addition, a DeKalb police detective testified that he interviewed the victim, who told him what happened and took him to the incident location on Waldrop Road. The detective testified unequivocally, “[fit’s in DeKalb County, Georgia.” The detective further confirmed the victim’s statements describing the wooded area, the fence, the highway, and the dirt road.

Decided March 27, 2002.

Ruth L. Rocker, Laila A. Washington, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Venue is a jurisdictional fact, an essential element in proving that the accused is guilty of the crime charged, and must be proven beyond a reasonable doubt. In the present case, venue was proven beyond a reasonable doubt through the testimony of the victim and the police detective. Green argues that the victim’s testimony regarding venue is incredulous because she was asleep when they arrived at the location. However, since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. The credibility of a witness, even on the issue of venue, is for the jury to determine. Moreover, the detective’s testimony confirming that the location was in DeKalb County was sufficient to prove venue beyond a reasonable doubt. As there is proof of venue in DeKalb County, Green’s enumeration of error is without merit.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Turner v. State, 273 Ga. 340, 343 (3) (541 SE2d 641) (2001).

       See Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000).

        White v. State, 193 Ga. App. 428, 429 (1) (387 SE2d 921) (1989).

       See Casey v. State, 231 Ga. App. 701, 702 (500 SE2d 613) (1998).

       See Dandy v. State, 238 Ga. App. 435 (1) (518 SE2d 907) (1999).


author: Eldridge, Judge.

text:
    A02A0995.
    HEAD v. THE STATE.
    (562 SE2d 815)
   Eldridge, Judge.

A Gwinnett County jury found Carlos Quinchell Head guilty of aggravated assault and possession of a firearm during the commission of a felony, which charges arose when Head shot a man in the parking lot of Poor Richard’s Pub in Norcross. He appeals, claiming that two errors in the playing of his videotaped statement to the police require reversal; that the prosecutor improperly commented on Head’s right to remain silent; and that the evidence was insufficient to support his conviction. Finding each of these alleged errors meritless, we affirm.

1. Head moved in limine to redact that portion of his videotaped statement to the police wherein Head told the interviewing officer that he had a suspended driver’s license. The trial court granted the motion in limine and ordered the State to mute the videotape’s sound when Head made reference to his suspended license. Head claims error in this ruling, asserting that the muting technique “created an inference in the minds of the jurors that something negative about the Defendant was being hidden from them.”

Head’s motion, made just before trial, gave the State no opportunity to edit the tape. And to the extent that the irrelevant matter of a suspended driver’s license should even provide a basis for a motion in limine in this aggravated assault case, not permitting the jury to hear such information was sufficient under the circumstances. This is especially true in light of the fact that no motion for mistrial was made with regard to this issue, nor was a curative instruction requested regarding a possible “negative inference,” the existence of which would be pure speculation in any event. This claim of error is meritless.

2. Head contends “the court erred when it denied Defendant’s Motion to Redact the portion of the tape where [the interviewing officer] told Defendant that witnesses had told him he (Defendant) had a gun.” Head claims that such comment was hearsay and, as such, impermissibly bolstered the credibility of the victim. We disagree.

Our review of the record shows that the comment about which Head complains was not a statement of fact, but was a question, i.e., “if witnesses stated that you had a gun, they would be lying?” The content of the question at issue was not offered for the truth of the matter asserted therein, but was asked in order to elicit either a yes or no response from Head. Further, prior to the playing of the videotape, the victim testified that Head had a gun and shot him in the leg. Accordingly, the officer’s question, even if viewed as a statement, had a factual basis and was cumulative of legally admissible evidence. “The erroneous admission of hearsay is harmless where legally admissible evidence of the same fact is introduced.” Further, the investigator’s question was not “impermissibly bolstering.” Such question did not reflect the officer’s opinion about the truthfulness of the victim so as to either bolster or impeach the victim’s trial testimony. Accordingly, this claim of error is without merit.

Decided March 27, 2002.

3. Head next complains that the prosecutor, during closing argument, improperly commented on his right to remain silent by stating, “The defendant, he’s still hiding. He’s still hiding today in open court. He’s hoping you don’t notice him. You’ll see the pictures. You see he shaved off his afro. He shaved off his goatee. He’s still hiding in the bushes.”

Head did not raise objection to the prosecutor’s argument, which waives the right to complain on appeal. Further, the prosecutor’s argument went to Head’s change of appearance as “hiding” his identity, not to his failure to testify.

4. Finally, Head challenges the sufficiency of the evidence against him because “conflicts within the testimony of the victim, coupled with the lack of evidence tying Defendant to the gun or simply having a motive, create ample reasonable doubt in this case.” However, “[t]he jury determines credibility and resolves conflicts in the evidence; this Court does not reweigh the evidence but only determines its legal sufficiency.” Thus, any alleged conflicts in the testimony of the victim and/or a determination as to motive were all resolved by the jury in determining Head’s guilt. Our sufficiency of the evidence review shows that the testimony of the victim, alone, factually established the essential elements of the offenses of aggravated assault and possession of a firearm during the commission of a crime, as well as established that Head was the perpetrator of such offenses. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Accordingly, a rational trier of fact could have found Head guilty beyond a reasonable doubt of the offenses as charged.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Scott A. Drake, for appellant.

Daniel J. Porter, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

       Under this same claim of error, Head also complains about portions of the videotape where, at the end of the interview, the officer told Head that he thought Head was lying and where, immediately thereafter, Head told the officer he no longer wished to talk with him and the interview was concluded. However, these portions of the videotape were not muted. They were redacted altogether when the prosecutor stopped playing the tape to the jury prior to reaching such portions.

       (Citation and punctuation omitted.) White v. State, 273 Ga. 787, 791 (4) (546 SE2d 514) (2001).

       See, e.g., Boddie v. State, 269 Ga. 5, 6 (3) (494 SE2d 651) (1998).

       Head was found by the police hiding in some shrubbery near the incident locale.

        Bellamy v. State, 272 Ga. 157, 162 (11) (527 SE2d 867) (2000); Sutton v. State, 245 Ga. App. 881, 883 (3) (539 SE2d 227) (2000).

       (Citation omitted.) Banks v. State, 250 Ga. App. 728, 731 (4) (552 SE2d 903) (2001).

       OCGA § 24-4-8. (“The testimony of a single witness is generally sufficient to establish a fact”).

       (Footnote omitted.) Copeland v. State, 248 Ga. App. 346, 350 (4) (546 SE2d 351) (2001).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Miller, Judge.

text:
    A01A1963.
    HOLBROOK et al. v. STANSELL et al.
    (562 SE2d 731)
   Miller, Judge.

Doris Holbrook and her grandson appeal from the trial court’s grant of partial summary judgment to defendants Roger and Evelyn Stansell on Holbrook’s claim for negligent infliction of emotional distress and on her and her grandson’s claims for attorney fees. Since Holbrook and her grandson have failed to create any genuine issue of material fact with respect to these claims, we discern no error and affirm.

Viewed in the light most favorable to plaintiffs, the evidence reveals that Holbrook’s grandson owned a thoroughbred horse. While the horse was giving birth, Holbrook saw a dog standing behind the horse that she suspected was attacking the newborn foal. Although Holbrook never saw the dog actually bite or attack the foal, she ran toward the pasture where the alleged attack was taking place and injured herself when she climbed over a gate. Holbrook’s husband managed to chase the dog away without Holbrook being touched by the dog. Holbrook saw the injuries to the newborn foal and eventually had the foal put to sleep.

Holbrook and her grandson sued the Stansells, suspecting that it was their dog that attacked the foal. Holbrook sued for, among other things, negligent infliction of emotional distress for having witnessed the attack on the foal. They both sued for attorney fees pursuant to OCGA § 13-6-11 and as alleged “consequential damages” under OCGA § 4-8-4.

The Stansells successfully moved for summary judgment on Hol-brook’s negligent infliction of emotional distress and on all attorney fees claims. Holbrook filed an additional affidavit in opposition to the Stansells’ motion for summary judgment after the trial court had already issued its order granting summary judgment to the Stan-sells. Holbrook and her grandson contend that genuine issues of material fact exist regarding Holbrook’s claim for emotional distress based on witnessing the attack on the foal and that issues of fact remain regarding their claims for attorney fees. We disagree.

When reviewing the grant or denial of summary judgment, we conduct a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the non-movant. Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001). Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

1. There is no independent tort in Georgia for negligent infliction of emotional distress. See Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 588 (III) (533 SE2d 82) (2000). Generally, “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Citation omitted.) Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); but see Nationwide &c. Ins. Co. v. Lam, 248 Ga. App. 134 (546 SE2d 283) (2001) (allowing recovery for emotional distress absent physical injury where trespass to personal property resulted in pecuniary loss and plaintiff suffered mental injury). The impact rule has three elements: (1) physical impact to the plaintiff; (2) the impact causes physical injury to the plaintiff; and (3) the physical injury causes the plaintiff’s mental suffering or emotional distress. Lee, supra, 272 Ga. at 586 (I).

As it is undisputed that Holbrook was not touched or injured by the dog in any way during the alleged attack on the foal, she cannot satisfy any of the elements of the impact rule and therefore cannot recover for any of her emotional distress from viewing the attack. Holbrook was merely a witness to the attack, and the physical injuries that she suffered when climbing over the gate to get to the pasture bore no relation to the emotional distress that she claims to have endured from witnessing the attack. Moreover, there was no evidence before the trial court showing injury to Holbrook’s personal property resulting in any pecuniary loss connected to Holbrook’s mental injury. Holbrook’s grandson owned the foal, not Holbrook. Indeed, Holbrook cannot recover for emotional distress from merely witnessing damage to another person’s property. The trial court properly granted summary judgment to the Stansells on this claim.

2. The trial court also properly granted the Stansells summary judgment on Holbrook’s and her grandson’s claims for attorney fees pursuant to OCGA §§ 13-6-11 and 4-8-4 (a). Holbrook and her grandson argue that under OCGA § 13-6-11, they are entitled to attorney fees because the Stansells acted in bad faith by denying liability in this case and being stubbornly litigious. However, bad faith under OCGA § 13-6-11 relates to the transaction giving rise to the cause of action, not the manner in which the case is defended. Candler v. Wickes Lumber Co., 195 Ga. App. 239, 242-243 (1) (b) (393 SE2d 99) (1990). There is also a bona fide controversy as to whether the Stan-sells’ dog actually attacked the foal, further precluding an award of attorney fees under OCGA § 13-6-11. See id. at 242. As for their claim for attorney fees as “consequential damages” pursuant to OCGA § 4-8-4 (a), such a claim is without merit because the statute itself does not expressly authorize such an award. See Johnson v. G. A. B. Business Svcs., 170 Ga. App. 686 (1) (318 SE2d 78) (1984) (“The general rule is that fees for services rendered by an attorney must be paid by the person who employs him, and are not recoverable by a litigant against the opposite party except in those cases which are specifically provided for by contract or by statute.”) (citation and punctuation omitted; emphasis supplied). The trial court properly granted summary judgment to the Stansells on these claims.

Decided March 6, 2002

Reconsideration denied March 28, 2002

Alton M. Adams, for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, M. Steven Heath, Josh B. Wages, for appellees.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.


author: Mikell, Judge.

text:
    A01A1818.
    BIRDSALL v. THE STATE.
    (562 SE2d 841)
   Mikell, Judge.

After a bench trial, Alfred John Birdsall was found guilty of driving with an unlawful alcohol concentration and of failure to maintain lane. He appeals from the denial of his motion for new trial, arguing that the trial court erred in permitting the state’s expert to testify to the results of Birdsall’s blood test, despite the state’s failure to provide him with a copy of the printout of the gas chromatograph, on which the testimony was based. For the reasons that follow, we affirm.

On March 18, 1998, Birdsall filed a written demand for “statutory discovery” under OCGA §§ 40-6-392 (a) (4) and 17-16-23, specifically requesting machine-printed results of all tests performed on the defendant. On that date, the Supreme Court had decided Price v. State, in which it held that the printed results of a gas chro-matograph analysis of a defendant’s blood sample were discoverable under OCGA § 40-6-392 (a) (4). In addition, Birdsall filed two motions in limine, seeking to suppress the results of his blood test. Finally, in April 1998, the state filed a motion pursuant to Gaston v. State, asking the court to determine, in advance of trial, the admissibility of the blood test results.

A hearing was held on the motions on July 17,1998. At the hearing, James W. Panter, supervisor of the implied consent section of the forensic sciences division of the Georgia Bureau of Investigation, testified that a gas chromatograph was used to determine the blood alcohol content of Birdsall’s blood sample, which was 0.24 grams. Birdsall’s counsel announced: ‘Your honor, of course, I would reserve objections to these results based on all of my motions.” The prosecutor inquired as to counsel’s specific objections, and counsel replied that Panter’s testimony was not based on his personal knowledge. During cross-examination, Panter testified that his personal knowledge of the results was based on the numerical data printed out by the chromatograph. Panter also testified that an official report was generated in the case, indicating the defendant’s name, a description of the evidence received, the test results, Panter’s opinion as to the blood alcohol level, and Panter’s signature. The prosecutor moved to admit the official report, which had been marked for identification as Exhibit 6, stating: “If he has any objections to it being tendered, I’d ask him to raise it so I can respond and cure whatever problem he says exists, if there is any.” Defense counsel interposed a hearsay objection. The prosecutor laid a foundation for the admission of Exhibit 6 under the business records exception to the rule against hearsay. The state then moved to tender Exhibit 6 as a business record. The following colloquy ensued:

The court: I think it’s probative. It certainly counts under the business record exception, possibly others.
Mr. Eidex: ... So its admitted as state’s Exhibit number 6.
Mr. Chestney: Your Honor, for the record, that being admitted, my other objections are the objections I’ve raised in my motions that it would take me some time to argue. I’ll be happy to submit it.
The court: ... I am not going to fail to consider all of your objections.

The state’s attorney then suggested further argument at a later date, and the matter was rescheduled. Defense counsel did not mention that the state had failed to provide him with a copy of the printout.

No additional argument occurred. On June 4, 1999, the trial court issued an order denying Birdsall’s motions in limine. The order did not address the state’s Gaston motion. Accordingly, the discovery dispute was not resolved prior to trial.

The case was tried on October 7,1999. The state called Panter as a witness and laid a foundation for the admission of the report of Panter’s opinion as to the blood alcohol level. Birdsall objected to the testimony about the results on the ground that the numerical results printed out by the chromatograph would be the best evidence of the analysis of his blood. Panter stated that he had brought the printout with him. At that point, defense counsel again objected to any testimony about the results because the state had neglected to produce the printout in response to the defense’s discovery demand. The court noted that the state sought to introduce only the summary report (Exhibit 6), not the printout. Counsel argued that the admission of Exhibit 6 and any testimony concerning Birdsall’s test results would obviate the discovery process. The court overruled the objection and permitted Panter to testify to the result of the blood analysis. This ruling is enumerated as error.

The precise issue in this case is one of first impression in this state, and we frame it thusly: Does a trial court commit reversible error when it permits an expert to testify, over objection, to the results of a defendant’s chemical test, when the state has failed to furnish the test data underlying those results, and the data were properly requested pursuant to OCGA § 40-6-392 (a) (4)? The answer is: not always.

At the outset, we note that the penalties set out in OCGA § 17-16-23 (c) for the state’s failure to furnish the written scientific reports to the defense prior to trial are inapplicable to the case at bar. That is because the printout sought by Birdsall does not constitute a scientific report within the meaning of Rayburn v. State.

The common element of scientific reports is the inclusion of the examiner’s findings based on scientific analysis or his or her opinion. Checklists, expert’s notes, work product, recor-dation of data, internal documents, and graphs do not fall in this definition. Nor do individual test results that do not include any expression of the expert’s conclusions or opinion.

In the case sub judice, the documents sought by the defense were not included in the record. However, as we understand from the transcripts and briefs, the gas chromatograph prints out data on a chart called a “chromatogram” (hereinafter “printout”). The expert looks at the printout and then prepares a report. In this case, the report, Exhibit 6, was entitled “Division of Forensic Sciences OFFICIAL REPORT.” It concluded with the chemist’s opinion that the “blood is positive for ethyl alcohol 0.24 grams Exhibit 6 is clearly the “scientific report” contemplated by Rayburn and OCGA § 17-16-23. The printout, on the other hand, is a graph or “recordation of data” and is not a scientific report. Therefore, Rayburn, along with other cases interpreting OCGA § 17-16-23, do not govern the outcome of the case at bar.

Instead, the case is controlled by OCGA § 40-6-392 (a) (4), the narrow statute dealing with chemical tests for the detection of alcohol or drugs in a driver’s blood. This statute provides that a person who has submitted to a chemical test shall be given, upon request, “full information concerning the test.” Thus, it is reversible error for a trial court to quash a subpoena seeking the printout Birdsall requested. Moreover, Birdsall is correct that Price and the statutory language imply that a subpoena is not required and that a request for discovery directed to the state is adequate to prompt production of the printout, whether it is in the hands of the prosecutor or in the files of the state crime laboratory. Therefore, Birdsall was entitled to the printout pursuant to OCGA § 40-6-392 (a) (4).

This does not end our inquiry, however. Unlike OCGA § 17-16-23, OCGA § 40-6-392 (a) (4) specifies no deadline for requesting “full information,” no timetable for supplying the information, and no penalty for the state’s failure to produce it. Neither the timing of the defendant’s request nor the timetable for production is an issue in this appeal. But the penalty for noncompliance is squarely raised by the enumeration of error and briefs. We do not agree with Birdsall that the penalty should necessarily be exclusion of the printout and any oral testimony based on the test results, which were, in turn, based on the printout.

Decided March 28, 2002

Chestney-Hawkins Law Firm, Robert W. Chestney, Sherry B. Lantz, for appellant.

Carmen D. Smith, Solicitor-General, Oliver E. Murray, Jody L. Peskin, Assistant Solicitors-General, for appellee.

On the other hand, exclusion of the printout, and the resulting test results and oral testimony, might be very appropriate upon a showing of bad faith, or upon a showing of a failure to obey an order requiring production. If the record revealed any additional attempt by the defense to obtain the printout, other than including it in a list of items sought early in the litigation, exclusion of the expert’s opinion might well be required. However, there was no attempt by the defense to push for discovery of the printout, no refusal by the state to produce that document, and no request by the defense for a continuance for additional time to examine the printout, which was available at trial. Under these narrow circumstances, we are unwilling to hold that the trial court abused its discretion in admitting the testimony of the state’s expert witness, despite the prosecutor’s failure to produce the printout before trial.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

       269 Ga. 222 (498 SE2d 262) (1998).

       227 Ga. App. 666, 669-670 (2) (490 SE2d 198) (1997).

       We do not agree with the state’s assertion that the defense, by letter, withdrew its objection to Exhibit 6. The letter did not address that issue.

       The state had provided the summary report to the defense on April 14, 1998.

       234 Ga. App. 482 (506 SE2d 876) (1998).

       (Citations omitted; emphasis supplied.) Id. at 484 (2). The appellant’s brief incorrectly states that we reversed the trial court in Rayburn. Actually, we held that the trial court’s failure to compel discovery and its decision to admit testimony concerning the results of the defendant’s performance on a field sobriety test were harmless error. Id. at 485.

       Accord Williams v. State, 251 Ga. 749, 754 (3) (c) (312 SE2d 40) (1983) (holding that a microspectrophotometer graph printout was not a scientific report discoverable under OCGA § 17-7-211, which was repealed and reenacted to apply to misdemeanor cases. See OCGA § 17-16-23; Ga. L. 1994, p. 1895, § 4); Dunn v. State, 178 Ga. App. 6, 9 (2) (341 SE2d 877) (1986) (holding that the printout of a machine used to weigh marijuana was not a scientific report).

        Price, supra.

       The state’s argument that it did not possess the printout and therefore could not have produced it is controlled adversely to the state by Moody v. State, 210 Ga. App. 431, 432 (1) (436 SE2d 545) (1993) (an existing scientific report in the possession of the state crime lab is deemed to be available to the prosecution).

       See generally Mowery v. State, 234 Ga. App. 801 (507 SE2d 821) (1998) (exclusionary rules are not favored).

       Unlike the statute governing reciprocal discovery in felony cases, OCGA § 17-16-6, the general statute concerning discovery of scientific reports in misdemeanor cases, OCGA § 17-16-23, does not require a showing of prejudice and bad faith before exclusion. However, a trial court’s failure to suppress under OCGA § 17-16-23 can be harmless error. Compare Rayburn, supra, with Wester v. State, 260 Ga. 228 (391 SE2d 765) (1990), and Alexander v. State, 203 Ga. App. 375 (416 SE2d 762) (1992).