author: Pope, Chief Judge.

text:
    A92A2174.
    STEPHENS v. THE STATE.
    (430 SE2d 29)
   Pope, Chief Judge.

Defendant was convicted of trafficking in cocaine and possession of cocaine with intent to distribute. The trial court merged the convictions for sentencing, and defendant was sentenced to thirty years for the trafficking conviction, the last ten of which were to be served on probation. Defendant appeals following the denial of his motion and amended motions for new trial.

1. Relying on Cross v. State, 196 Ga. App. 714 (397 SE2d 125) (1990), defendant argues that the trial court erred in admitting evidence of a prior drug offense. In Cross this court held that test results which showed the presence of cocaine in defendant’s blood merely demonstrated defendant’s cocaine use and thus such results were inadmissible as similar conduct in defendant’s subsequent trial on charges of selling cocaine. In this case the prior offense evidence admitted at trial showed that defendant had pled guilty to the offense of possessing cocaine after a police officer observed defendant holding a bag containing cocaine residue. According to defendant this evidence shows only that defendant was a cocaine user, based on the assumption that there previously had been some greater quantity of cocaine in the bag defendant was observed holding, and that defendant, or his companions, had ingested the cocaine. We do not agree. Evidence of possession of a bag or container containing residue or traces of cocaine does not demand the conclusion that defendant used, rather than sold or distributed, the cocaine which had at one time been in the bag.

“Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” (Citations and punctuation omitted.) Collins v. State, 205 Ga. App. 341, 343 (422 SE2d 56) (1992). Our review of the evidence shows that the trial court did not err in finding sufficient similarity between the prior and present drug offenses. Consequently, this enumeration is without merit.

2. We reject defendant’s contention that the warrant for the search of the premises in which the contraband was found was issued without probable cause. See, e.g., State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984); Mize v. State, 173 Ga. App. 327 (1) (326 SE2d 782) (1985). Consequently, the trial court did not err in denying defendant’s motion to suppress.

3. Defendant also challenges the sufficiency of the evidence. The evidence adduced at trial, viewed in the light most favorable to support the verdict, showed the following: Officer R. M. Harrington of the Atlanta Police Department testified that he was on patrol in a marked police car when he observed the defendant and another man standing outside of a house located on McDaniel Street. According to the officer, the defendant was holding a plastic bag containing a substance which, based on the officer’s experience, appeared to be cocaine. The defendant and his companion saw the police vehicle and began running towards the house. Officer Harrington got out of his car and gave chase, but the men were able to enter the house and lock the door before the officer reached them. The men subsequently exited the house, but defendant locked the door behind them and refused to let the officer enter the house. Other officers arrived and a search warrant for the premises was obtained. Upon entering the house the officers discovered the house was bare of furnishings or other items which would indicate occupancy. However, the officers did find three plastic bottles wrapped with black tape concealed inside a space heater located in one of the bedrooms. Upon opening the bottles the officers discovered individual packets of crack cocaine. Officers also discovered more than $2,900 in cash in another space heater located in the living room. A plastic sandwich bag, such as the one the officer saw the defendant holding outside the house, was discovered in the toilet, but this bag was not retrieved by the officers.

In addition to the foregoing, and pursuant to the stipulation of the parties that the results of a polygraph examination would be admissible at trial (see, e.g., State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977); Fatora v. State, 185 Ga. App. 15, 19 (3) (363 SE2d 566) (1987)), the State also introduced testimony that defendant gave deceptive responses to questions concerning whether he knew about or owned the contraband and money found inside the house.

Defendant testified at trial and denied any knowledge of the contraband inside the house. Defendant further explained that the only reason he was present on the premises and had a key to the house was that he had been hired to do some work there. Defendant also presented other evidence that he had been hired to do work on the house and that he had been given a key the day before his arrest for that purpose.

It is axiomatic that the appellate court does not weigh the evidence or determine the credibility of the witnesses. E.g., Hamilton v. State, 202 Ga. App. 649 (415 SE2d 196) (1992). Applying the test enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize defendant’s conviction.

4. Defendant argues that the trial court erred in failing, without request, to charge the jury on the provisions of § 24-4-6, which provides as follows: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” We agree with the defendant that the evidence adduced at trial against him was entirely circumstantial (see, e.g., Jones v. State, 207 Ga. App. 46 (427 SE2d 40) (1993)), and thus the failure of the trial court to charge the provisions of OCGA § 24-4-6 constitutes reversible error under the facts of this case. See Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991); Price v. State, 180 Ga. App. 215 (1) (348 SE2d 740) (1986).

5. Because of our holding in Division 4, supra, it is unnecessary for us to address defendant’s remaining enumeration of error in which he asserts that both his pre-trial and trial counsel were ineffective.

Judgment reversed.

Carley, P. J., and Johnson, J., concur in judgment only.

Decided February 24, 1993 —

Reconsideration denied March 31, 1993.

Jeanne M. Canavan, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Sylvia A. Martin, Assistant District Attorneys, for appellee.

On Motion for Reconsideration.

As to Division 4, the State argues on motion for reconsideration that the evidence adduced against defendant at trial was not entirely circumstantial because “Officer Harrington saw [defendant] holding a bag of cocaine before [defendant] bolted into the house and locked the door.” The record shows, however, that the officer did not see defendant holding a bag of cocaine but rather observed defendant holding a bag containing a substance which the officer suspected was cocaine. The record also shows that the bag was never recovered and the substance in it was never tested or identified. The contraband that was discovered after the premises were searched was not packaged in plastic bags but rather was concealed inside black plastic bottles. Clearly, the unrecovered, untested and unidentified substance the officer saw the defendant holding, which the officer merely suspected to be cocaine, could not be considered direct evidence of either trafficking in cocaine or possession of cocaine with intent to distribute.

The evidence in this case, although sufficient, was entirely circumstantial and thus the trial court should have charged the provisions of OCGA § 24-4-6. Cf. Ebenezer v. State, 191 Ga. App. 901 (6) (383 SE2d 373) (1989).

The State’s motion for reconsideration is therefore denied.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A2318.
    FRAN’S ESCORT SERVICE et al. v. STRICKLAND.
    (430 SE2d 389)
   Carley, Presiding Judge.

The relevant facts in this workers’ compensation case are as follows: Appellee-claimant’s husband died in a work-related accident. At the time of his death, he had been employed by appellant-employer for the preceding two-and-one-half years as the driver of an escort vehicle. He was not hired to work a specified number of hours per week at a specified hourly, daily or weekly salary. Instead, his employment was entirely intermittent. He worked only when his employer called upon him to provide the services of an escort vehicle and, as his wages, he received a percentage of the fee charged by his employer for each trip on which he drove the escort vehicle. The number of trips driven and the length of each trip varied from week to week. Accordingly, his wages necessarily varied from week to week. It was stipulated that, for purposes of calculating the average weekly wage, subsection (3) of OCGA § 34-9-260 was the applicable statute. The Administrative Law Judge (ALJ) found that the average weekly wage was equivalent to the amount earned by appellee’s husband during one particular week some one-and-one-half months before the fatal accident. On de novo review, the Full Board found that the average weekly wage should be based upon the total earnings for a full calendar year divided by 52 weeks. On appeal, the superior court reversed, finding that the Full Board had “improperly calculated the . . . earnings based on a yearly computation rather than a weekly computation as required by OCGA § 34-9-260 (3).” The employer and appellant-insurer applied for a discretionary appeal and the instant case results from the grant of their application.

The ALJ, the Full Board and the superior court have each made a different determination as to how the average weekly wage is to be calculated under subsection (3) of OCGA § 34-9-260. In so doing, each has apparently felt bound by the parties’ stipulation that subsection (3) of OCGA § 34-9-260 is the applicable statutory provision for determining the average weekly wage. This is erroneous. The stipulation that subsection (3) of OCGA § 34-9-260 is the controlling statutory provision is not binding and would not serve to preclude those who are called upon to apply the law from performing their function of determining what constitutes the applicable law to be applied. “ ‘[Stipulations as to the law are invalid and ineffective. The same rule applies to legal conclusions arising from stipulated facts.’ [Cit.]” Andrews v. Willis, 133 Ga. App. 697, 699 (212 SE2d 24) (1975). “The stipulation of the parties cannot change the law.” Reeves v. Echota Cotton Mills, 123 Ga. App. 649, 651 (1) (182 SE2d 126) (1971). “Where [a] stipulation merely states an erroneous conclusion of law, the [B]oard should disregard it. [Cit.]” Lavender v. Zurich Ins. Co., 110 Ga. App. 196, 197 (138 SE2d 118) (1964). See also Globe Indem. Co. v. Legien, 47 Ga. App. 539, 540 (1) (171 SE 185) (1933).

By its terms, subsection (3) of OCGA § 34-9-260 applies only if subsections (1) or (2) “cannot reasonably and fairly be applied. . . .” Accordingly, only if subsections (1) and (2) of the statute can be eliminated from consideration would resort to subsection (3) then be authorized. “Unless the contrary appears, it is assumed that a normal workweek is five days, that the normal workday is eight hours, and that the employee’s daily wage is one-fifth of the weekly pay.” (Emphasis supplied.) Rule 260 (b) of the State Board of Workers’ Compensation. Here, the contrary does appear. However, the Full Board has made no independent determination that, under these circumstances, subsections (1) and (2) of OCGA § 34-9-260 “cannot reasonably and fairly be applied. . . Therefore, the superior court’s order of reversal is affirmed with direction to remand to the Full Board for an independent determination as to whether, without regard to the parties’ stipulation, subsection (3) of OCGA § 34-9-260 is indeed the controlling statutory provision for calculating the average weekly wage of appellee’s husband.

Decided March 16, 1993 —

Reconsideration denied March 31, 1993.

Barrow, Sims, Morrow & Lee, Charles W. Barrow, for appellants.

Leon A. Wilson II, for appellee.

Judgment affirmed with direction.

Pope, C. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A92A2445.
    SOUTH CENTRAL FARM CREDIT et al. v. V. T. PROPERTIES, INC. et al.
    (430 SE2d 645)
   Andrews, Judge.

South Central Farm Credit (South Central) appeals the trial court’s grant of summary judgment to V. T. Properties, Inc. on South Central’s complaint seeking a distress warrant on crops pursuant to OCGA § 44-14-341.

Viewed with all inferences in favor of South Central, the opponent of summary judgment, the undisputed material facts were that when Cardin purchased farmland from Williams in 1985, Cardin had assumed the Federal Land Bank of Columbia loan of Williams and the Land Bank held the deed to secure debt. South Central is the successor of the Federal Land Bank and assumed Cardin’s deed to secure debt.

In May 1991, Cardin leased two tracts of farmland to V. T. Properties, Inc., owned by Womack. The first was signed on May 6, 1991 and involved two tracts of farmland. The second was signed on May 20, 1991 and was for 2,061 acres of cropland, including that farm purchased by Cardin from Williams. Each lease stated a rental of $70,000.

Cardin encountered financial difficulty, resulting in his filing for bankruptcy protection. He defaulted on his loan to South Central which foreclosed on the old Williams property and purchased it at sale on November 5, 1991. On November 4, 1991, a complaint for distress warrant was filed seeking the $70,000 rent alleged due under the May 20, 1991 lease. While that complaint stated in its preface that it was filed by Cardin and South Central, counsel who prepared the complaint claimed representation only of South Central and Cardin never appeared in the proceedings except for being deposed as a witness.

A consent order was entered allowing the crops to be sold and $70,000 from the sale to be placed in escrow pending resolution of the claim.

1. The complaint claimed a lien on crops currently being harvested and stated that “Plaintiff’s special lien for rent on crops grown on the farm lands has priority over the claims of [other defendant creditors]. OCGA § 44-14-341.”

After V. T. and Womack answered alleging that South Central was not then nor ever had been their landlord, South Central filed an amendment to the complaint on November 25, 1991 alleging that it was the “assignee of rents” of Cardin.

OCGA § 44-14-341 provides that “[landlords shall have a special lien for rent on crops grown on land rented from them, which lien shall be superior to all other liens except liens for taxes. . . .” Title 44, Chapter 7, Article 4 sets out the procedures regarding distress warrants. Section 44-7-70 provides that “[t]he landlord shall have power to distrain for rent as soon as the same is due if the tenant is seeking to remove his property from the premises.” The existence of the relationship of landlord and cropper is a prerequisite to enforcing such a lien. Trapnell v. Swainsboro &c. Credit Assn., 208 Ga. 89, 92 (1) (65 SE2d 179) (1951).

“As succinctly stated in Dawkins, Landlord & Tenant — Breach & Remedies, The Law in Ga., § 6-1: ‘Distraint may be described as a right vested in a landlord which allows the landlord to cause his tenant’s property to be summarily seized to satisfy the rental obligation of the tenant.’ (OCGA § 44-14-341) gives a landlord a general lien on the leviable property of his tenant, and the method prescribed for enforcement of this lien is a distress proceeding .... The remedy of distraint is purely a creature of statute, and is subject to strict rules of construction.” D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 484 (1) (333 SE2d 685) (1985). There being no question that South Central was not the landlord of V. T. Properties at the time the crops were sought to be distrained, South Central had no standing to assert the lien provided by that statute. Its attempt to amend its complaint to add its claim as a result of its foreclosure was not authorized under the distress proceeding and did not serve to save the action. Id.

Decided March 19, 1993 —

Reconsideration denied March 31, 1993

Short, Fowler & Castellow, Lester M. Castellow, for appellants.

Allen, Kelley & Sowell, Roy B. Allen, Jr., Reinhardt, Whitley & Wilmot, Bob Reinhardt, Moore & Studstill, Daniel L. Studstill, Fred W. Rigdon, Jr., for appellees.

Summary judgment to V. T. Properties was appropriate.

2. Our ruling in Division 1 makes unnecessary consideration of the remaining enumerations.

Judgment affirmed.

Beasley, P. J., and Blackburn, J., concur. Birdsong, P. J., not participating.

       Although the court also granted summary judgment to Virgil Womack individually, that has not been appealed.

       South Central obtained the necessary lifting of the bankruptcy stay to foreclose.


author: Birdsong, Presiding Judge.

text:
    A93A0140.
    WELLS v. THE STATE.
    (430 SE2d 611)
   Birdsong, Presiding Judge.

Dennis Lee Wells appeals his judgment of conviction of rape and his sentence. Appellant was found not guilty of solicitation of sodomy during the same incident.

Appellant asserts evidence insufficiency and also enumerates three errors pertaining to the admission of certain similar transaction evidence.

Appellant and the victim agree that in late August 1990, during the course of a date, appellant engaged in an act of sexual intercourse with the victim; however, appellant testified the act was consensual while the victim testified that the rape was not consensual, was completed against her will, and that, although she resisted to the best of her ability, her resistance was forcibly overcome by appellant. There exist obvious inconsistencies between the testimony of the victim and appellant not only as to the main issue of consent but as to the circumstances leading to their date, to the decision to attend the party at the house of the victim’s friend, to the degree, if any, of affection displayed by the victim toward appellant at the party, the degree of alcohol consumed by the victim, and the circumstances leading to the act of intercourse after the party. Medical evidence revealed no corroborating evidence of violence to the victim’s body; appellant’s clothing was not torn. However, appellant had four scratch marks on his shoulder, tending to corroborate that portion of the victim’s testimony that she thought she had clawed appellant’s shoulder when her hand was freed temporarily during her resistance. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Reviewing the transcript in this light reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of rape as convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the trial court erred in admitting evidence of an alleged similar transaction. Regarding the similar transaction incident, a female witness, aged 27, testified before the jury that, in February 1990, while working, she received three anonymous obscene phone calls. Each time the caller would ask her to perform oral sex or to allow oral sex to be performed upon her, and discussed other sexual activities using vulgar language. It appears the caller also requested anal sex. The caller obviously knew where the witness worked and the places she frequented for lunch. Even after talking obscenely to the witness, the caller stated he wanted a face-to-face confrontation so he could meet her and bring her things at her office. Following the third obscene phone call, she received a dozen roses with a card from the caller with X’s and O’s on the bottom. She informed the police. While the police were at her office, another call was received and the police advised her to arrange a meeting at her office with the caller. She complied. (At a previous out-of-court hearing, the witness testified that an officer witnessed this meeting and that the meeting was taped; she also testified that before appellant left her office she informed appellant she was going to charge him with making obscene calls, but he replied that she could do nothing and that she did not know the law.) The caller arrived at her office and admitted making the calls to her; she told appellant not to see her again. He acknowledged that he had no chance of a relationship with her and departed her office only to call a few minutes later and ask her for a date. The next day she observed appellant driving by her twice, waving and smiling at her; she informed the business she went into and they called the police to escort her back to her office.

(a) This case was tried before the opinion was issued in Williams v. State, 261 Ga. 640 (409 SE2d 649), establishing certain procedures and requiring certain express findings on the record before similar transaction evidence can be admitted. As appellant has not cited Williams, supra, or its progeny, and has not advanced any argument in its appellate brief that the new affirmative findings requirements of Williams, supra, were not adequately complied with, any determination of the Williams requirements is not appropriate on appeal. See Court of Appeals Rule 15 (c) (2); McGaha v. State, 204 Ga. App. 248 (2) (418 SE2d 802); Boatright v. State, 192 Ga. App. 112, 119 (10) (385 SE2d 298). Moreover, we note that the evidence presented by the State at the out-of-court hearing conducted just prior to the commencement of trial was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements of Williams, supra, had been satisfied. Compare Jefferson v. State, 206 Ga. App. 544 (4), n. 1 (425 SE2d 915). Harm as well as error must be established to necessitate case reversal. Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53).

Appellant’s identity as the perpetrator of the alleged similar transaction is not contested, and it has not been enumerated as an error that the State failed to prove appellant’s identity as the perpetrator of the similar transaction incidents in question. Accordingly, this issue is not before us on appeal. See, e.g., Smith v. State, 192 Ga. App. 298 (384 SE2d 459); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272). Likewise not before us on appeal is any issue regarding the adequacy of any limiting instructions given to the jury during the course of the trial regarding jury consideration and use of the similar transaction evidence.

(b) Appellant asserts the trial court erred by admitting similar transaction evidence as it was not sufficiently similar and lacked logical connection with the offenses for which appellant was being tried.

In support of his contention appellant cites and relies upon Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) and makes passing reference to Larkins v. State, 230 Ga. 418 (197 SE2d 367). That portion of Larkins, supra, cited in Wimberly, supra, for the proposition that the rule allowing admissibility of similar transaction evidence does not apply in rape cases where the only issue for the factfinder is whether the act of sexual intercourse was consensual as, in such circumstances, malice, intent, motive, etc. is “not relevant” (Wimberly, supra at 150 (1)) in effect was overruled in Thomas v. State, 234 Ga. 635, 636 (217 SE2d 152) and Hunt v. State, 233 Ga. 329, 331 (211 SE2d 288). See Franklin v. State, 201 Ga. App. 147, 148 (1) (410 SE2d 451), citing Taylor v. State, 195 Ga. App. 634, 635 (394 SE2d 597). Accordingly, we find that Wimberly is not controlling in the disposition of this matter. Rather, the current general rule as to the admissibility of similar transaction evidence is that announced in Williams, supra; with the added proviso that “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394); Oller v. State, 187 Ga. App. 818, 821 (2) (371 SE2d 455). (For reasons stated above, the issue of procedural compliance with the requirements of Williams, supra, is not before us for appellate adjudication.)

The indictment returned against appellant averred not only the offense of rape but also averred the offense of solicitation of the same female victim on the same date to perform oral sodomy upon him. The trial court admitted similar transaction evidence of appellant’s solicitation of another woman to perform oral sodomy upon him.

The victim in the case at bar testified as follows: She is in her early twenties and is attending college. At the time of the incident she was working at a hospital as a nurse. She had left the hospital to pick up an order of food for the nurses on duty. Appellant, whom she had never met before, followed her out of the restaurant and offered to help her put her items in her car. Appellant asked the victim to come to his motel room for a drink when she got off work, but she declined. Appellant persisted in his attempt to go out with the victim so she gave her phone number to him at the hospital. Appellant called that night and again asked her to come over for a drink. The victim suggested appellant call her the next evening in an attempt to stall for time. Ultimately, she agreed to go with appellant to a social gathering, but ended up taking appellant to her friend’s house. Appellant could not keep his hands off the victim that evening and, after he had several drinks, he even attempted to follow her into the bathroom. The victim got into appellant’s car to be driven home but on the way appellant turned his car around and went to his motel to obtain something from his room. Appellant invited the victim into his room. She declined his offer, which he had repeated nine or ten times, until he eventually threatened not to take the victim home until she came into his room. Although she was scared, the victim finally agreed to go inside for a few minutes. Once inside appellant locked the door, pushed the victim onto the bed and forcibly engaged her in an act of intercourse without her consent and against her will. Appellant “talked through the whole thing,” and the victim “never heard such nasty language in all [her] life.” Appellant told her that she knew she wanted this, that he would spank her if she was not still, and that if she did not quit squirming, “he was going to make [the victim] perform oral sex on him.” Later when the victim started fighting him again, appellant “said that he was going to perform anal sex on [her] and that would hurt.” During the incident appellant also performed oral séx on the victim and “made” her utilize vulgarization and in such manner express vocally that she wanted him to engage in such conduct with her. Appellant had sex with her four or five different times, as he would engage in intercourse, stop and “run his mouth, and then he would continue, run his mouth again through the whole thing, talking nasty.” At the conclusion of the episode, appellant made the victim thank him. He also asked her how she was going to prove she had been raped. Appellant subsequently drove the victim to her friend’s home, “acted like nothing in the world had happened,” and asked her if she wanted to go out with him on Monday. After the victim went into her friend’s home, appellant went down the dirt road, turned off his car lights, and “drove back by real slow.”

To meet the “similarity” requirement for the admission and use of similar transaction evidence, there must be an affirmative showing by the State both before the trial judge and, in the event such evidence is admitted, a presentation of evidence to the trier of fact establishing (in addition to certain other separate requirements not here at issue) that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter. Williams, supra; Oller, supra. In this regard, there is no requirement that a previous offense or act be identical to the one being prosecuted in order to make it admissible. Blige v. State, 205 Ga. App. 133, 135 (2) (421 SE2d 547); Brown v. State, 197 Ga. App. 155, 156 (398 SE2d 34).

The criminal incident for which appellant was pending trial and the alleged similar transaction occurred within a reasonable time of each other, that is, approximately six months apart. In both instances the victims were young females. (In an offer of proof outside the presence of the jury, the prosecutor informed the trial judge that there was a similarity in the two criminal incidents for various reasons, including, inter alia, that both victims were white females in their early twenties. Neither the race nor skin color of the females was testified to before the jury; but, the jury would be able to view the witnesses as they testified.) In both cases, the victims were approached by appellant, who was a stranger to them, without benefit of a formal introduction. In both instances, appellant was quite persistent in his attempts to contact the victims, as evidenced by his phone calls and requests for dates. In both instances, appellant vocalized his willingness to engage in acts of oral sex with the victims. There exists some evidence that appellant also vocalized a willingness to engage in acts of anal sex. In both cases, appellant asked the victims for a date after having confronted them and having used obscene language. In both cases, appellant in essence informed the victims that they would not be able to prove that he committed any criminal misconduct, and tended to act as though nothing unusual had occurred between himself and the victims. Furthermore, in both instances, appellant’s demonstrated bent of mind was to talk to the victims using vulgar and obscene language, and either demand or attempt to entice the female to talk vulgarly to him. In fact, in determining appellant’s modus operandi, bent of mind, or motivation, a substantial connection exists between the repeated making of obscene phone calls and his repeated use of obscene and vulgar words each separate time he was penetrating his rape victim. Compare Henderson v. State, 204 Ga. App. 884, 887 (2) (420 SE2d 813) (in all but one incident defendant was totally silent during the attack or said two or less words). As the rule regarding the admissibility of similar transaction evidence is most liberally construed in cases involving sexual offenses (Oller, supra, and cases cited therein), we find, without merit, appellant’s enumeration of want of sufficient similarity or logical connection. Compare Watson v. State, 180 Ga. App. 82 (348 SE2d 557).

(c) Appellant, citing Tuzman v. State, 145 Ga. App. 761 (244 SE2d 882), asserts the trial court erred in allowing similar transaction evidence because it failed to meet the relevancy requirements of Georgia law; its probative value was unfairly outweighed by its prejudicial impact. We disagree.

Balancing the probative value of the similar transaction evidence against its prejudicial impact, in view of the affirmative showing of record of the nature of the logical connection or similarity of such evidence to the offenses for which appellant was then being tried (Oller, supra at 819 (2); accord Hammock v. State, 201 Ga. App. 614, 616 (4) (411 SE2d 743); Pinson v. State, 201 Ga. App. 555 (411 SE2d 564); Brown, supra; Smith v. State, 182 Ga. App. 740 (1) (356 SE2d 723)), we find that the probative value of such evidence outweighed its prejudicial impact. Further, the logical connection or similarity between the similar transaction evidence and the two offenses for which appellant was being tried was not weakened by the jury’s subsequent acquittal of appellant for solicitation of sodomy. For reasons addressed above, appellant’s reliance on Wimberly, supra, in an attempt to establish that the similar transaction evidence had no relevancy is not persuasive.

(d) Appellant, citing Story v. State, 196 Ga. App. 590 (396 SE2d 547), asserts the trial court erred in admitting the similar transaction evidence because the State failed to provide proper notice of its intention to introduce such evidence as required by USCR 31.3. Appellant concedes that written notice was given but asserts such notice was defective as the evidence introduced at trial far exceeded the scope of the notice given.

The notice pertinently stated: “The State further alleges that [appellant] has solicited sodomy from another woman on a previous occasion. The State contends that on February 28, 1990, [appellant] did solicit [the named specific transaction victim] to perform an act of sodomy, to-wit: to perform oral sex upon him, in the County of Beaufort, state of South Carolina. . . . The State believes that the currently indicted offenses and the prior transaction [ ] are factually similar and that evidence of the prior transaction [ ] would be helpful to the jury’s determination of the issues in the currently indicted offenses.”

The similar transaction victim testified, as above summarized, to numerous activities of appellant beyond the mere receiving of an obscene phone call on February 28, 1990. This testimony, in addition to discussing the receipt of this particular phone call by a caller who she later determined was appellant, included reference to conduct of appellant both before and after February 28. However, all of the testimony either was part of the res gestae surrounding the obscene conduct of appellant or was so closely connected therewith as to be inextricably separated therefrom in determining whether there existed a logical connection or sufficient similarity between the similar transaction incident and the incident on which the current charges against appellant were based.

Appellant refers in his brief to certain testimony concerning a vandalized car without providing any citation to the page in the record where such testimony is located. Examination of the testimony of the similar transaction witness does not reveal that she testified before the jury regarding a vandalized car, and we will not cull the record in search of alleged error. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463). The only apparent reference to the witness’ car being vandalized is contained within her reported testimony in an out-of-court hearing. At the onset, we note “[t]he trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff.” Rowe v. Rowe, 195 Ga. App. 493 (2) (393 SE2d 750). In any event, we find the State did not exceed the reasonable scope of its notice when the witness gave this particular testimony in an out-of-court hearing and not within the presence of the triers of fact.

Story, supra, is factually distinguishable from this case and is not controlling.

Uniform Superior Court Rule 31.3 (B), pertinently provides that “[t]he notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name[s] of the victim [s] for each similar transaction or occurrence sought to be introduced.” Review of the notice reveals that it includes all of these elements; the only question remaining is whether, by asserting that oral sodomy was solicited on February 28, 1990, appellant was limited to presenting only that portion of the evidence pertaining to the similar transaction incident which occurred on that particular date. We conclude that the State was not so limited.

Uniform Superior Court Rule 31.3 (B) requires that notice be in a specific form to ensure that the State actually notifies the defendant of its intent to use certain evidence so that the defendant will have a meaningful opportunity to rebut that evidence. Maxwell v. State, 262 Ga. 73, 74 (2a) (414 SE2d 470). The rule also is designed to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize similar transaction evidence so that questions as to the admissibility of such evidence can be resolved before trial; and the purpose of the length of the notice period is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses. Devane v. State, 183 Ga. App. 60, 62 (2a) (357 SE2d 819). We find that the notice was adequate to fulfill all these requirements, and that the reference only to an obscene phone call on the date of February 28, 1990, when viewed in totality with the other evidence provided in the notice, posed no fair risk of misleading the appellant regarding that prior conduct of his which was sought to be introduced as similar transaction evidence. Compare Eidson v. State, 182 Ga. App. 321, 322 (2) (355 SE2d 691). The written notice reasonably placed appellant on actual notice not only of the State’s intent to introduce the fact an obscene call was received by the victim on the date specified, but as to all prior and subsequent relevant acts committed by appellant in the course of and pertaining to this continuing incident involving the same identified victim, particularly those acts that might tend to establish the identity of the caller as appellant or to establish the logical connection or similarity of the course of conduct involved in the prior transaction with that of one or more of the offenses for which appellant was currently charged. Moreover, the fact that appellant had not entered a plea of guilty to a criminal charge arising out of this prior conduct by February 28,1990, is of no legal significance in the adjudication of this issue. “It is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” Randolph v. State, 198 Ga. App. 291, 292 (2) (401 SE2d 310). Thus, the date provided in the notice could not mislead appellant into believing that the conduct involved could not be introduced merely because he had not yet been charged or convicted as of February 28, 1990.

Assuming arguendo the notice was technically deficient in failing to aver that the conduct occurred on or about February 28, 1990, or during the month of February 1990, nevertheless we are satisfied that the notice was at least in substantial compliance with the notice requirement of USCR 31.3 (B) and did not deprive appellant of procedural due process in any manner. Cf. Sweatman v. State, 181 Ga. App. 474 (352 SE2d 796).

Further, the record reflects that several weeks before the jury was selected in this case, and before the out-of-court hearing was conducted wherein the similar transaction victim testified under oath and subject to cross-examination, another trial judge had conducted a similar transaction evidence hearing at which “the State made in proffer” the expected similar transaction evidence sought to be introduced. The State asserted on the record at trial that accordingly any deficiency in the notice had been cured, and stated without contradiction by the defense that “I also stated in my place back a few weeks ago here in court what we expected the evidence to be, and finally yesterday [the similar transaction victim] testified.” Thus, the record affirmatively shows that appellant had actual notice as to the scope of the similar transaction evidence several weeks before trial. Compare Devane v. State, supra at 62 (2b). It is well established that, although the USCR 31.3 (B) clearly presupposes that the State’s failure to comply with the rule will result in harm to the defendant, “the State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State’s failure.” Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917).

Decided March 12, 1993 —

Reconsideration denied March 31, 1993

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, Jo Beth Gosdeck, for appellant.

Richard A. Malone, District Attorney, Melvin E. Hyde, Jr., Anne L. Latta, Assistant District Attorneys, for appellee.

Further, in this case, no transcript of the earlier hearing has been forwarded for our review as to. the issue of actual notice. Thus, for this additional reason, we must presume the trial court did not err in its ruling regarding the adequacy of the written notice pertaining to the admission in evidence of similar transaction evidence. See Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge. Pope, Chief Judge, Blackburn, Judge,

text:
    A92A1305.
    VITNER v. MILLER.
    (430 SE2d 671)
   Cooper, Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying appellant’s motion for summary judgment.

Appellant performed an abortion by suction curettage on appellee on March 11, 1989. A few days later appellee began experiencing pain and bleeding. Her physician in Mississippi determined that appellee retained products of conception despite the first procedure; therefore, she returned to appellant for a second suction curettage on March 15, 1989. According to appellee, after the second procedure, appellant promised her that he had correctly completed the procedure. On March 20, 1989, appellee was bleeding again, and she saw another physician who performed a third abortion. On March 18, 1991, appellee brought an action for medical malpractice against appellant alleging negligence in the performance of an abortion. Appellant moved the trial court for summary judgment on the ground that the complaint was barred by the statute of limitation. In its denial of summary judgment, the court concluded that based upon appellant’s statement after the second abortion that he correctly completed the procedure and the fact that the injury did not manifest itself until March 20 or 21, 1989, when the third abortion “completed” the two prior abortions, the statute of limitation began to run on March 20 or 21, 1989.

In four enumerations of error, appellant essentially contends the trial court erred in failing to hold that the action was barred by the statute of limitation. The statute of limitation applicable to this case is contained in OCGA § 9-3-71 (a): “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” At the outset we find that the third abortion was part of the “course of treatment” which resulted from appellant’s failure to remove all of the products, of conception in performing the abortion on appellee and was not the injury to appellee. Surgery Assoc., P. C. v. Kearby, 199 Ga. App. 716, 718 (405 SE2d 723) (1991). Appellant contends that appellee’s alleged injuries “occurred” on March 11, 1989 and March 15, 1989, the dates of the procedures performed by appellant which resulted in the retention of products of conception. Accordingly, with regard to any alleged negligence in the first procedure, the statute of limitation began running on March 11, 1989 and expired two years from that date, and as to the second procedure, the statute of limitation expired two years from March 15, 1989. However, the focus of OCGA § 9-3-71 (a) is not the date of the negligent act but the “consequence of the defendant’s acts on the plaintiff.” Jones v. Lamon, 206 Ga. App. 842, 845 (426 SE2d 657) (1992).

The record reflects that shortly after the first abortion, on March 14, 1989, appellee phoned appellant’s office, complaining of pain and bleeding, and her physician in Mississippi determined that she retained products of conception. Therefore, any injury which resulted from the first abortion occurred and physically manifested itself to appellee by March 14. Id. at 846. Because the suit was not filed within two years of March 14, the complaint was untimely as to the first abortion. However, with regard to the second abortion, the injury manifested itself on March 20, 1989, when appellee began to bleed and experience pain after the second abortion. Therefore, the complaint, filed on March 18, 1991, was timely filed as to alleged injury resulting from the second abortion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Pope, C. J., concurs specially. Beasley, P. J., Johnson and Blackburn, JJ., dissent.

Pope, Chief Judge,

concurring specially.

In Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), this court adopted the “discovery rule” in medical malpractice cases. Our Supreme Court denied certiorari in Whitaker, 188 Ga. App. 913, and that case has not been overruled; therefore, it must be followed by this court. The rationale underlying the discovery rule is that until symptoms of an injury or illness manifest themselves, it is impossible to know that a negligent act has occurred during medical treatment. To interpret OCGA § 9-3-71 (a) to hold that the statute of limitation begins running on the date of injury as the dissent advocates would work a manifest injustice in many medical malpractice cases in which no symptoms or other indications of the negligent act are manifested for several days or even several years so that the plaintiff is not aware of and, even assuming the exercise of reasonable care, cannot discover the injury on the day the negligent act occurred.

This court should also seize the opportunity presented by this case to adopt the doctrine of “continuous treatment” in medical malpractice cases. That doctrine provides: “ ‘(I)f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuous treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.’ ” (Emphasis in original.) Taylor v. Phillips, 801 SW2d 303, 304 (Ark. 1990) (quoting 1 D. Louisell and H. Williams, Medical Malpractice, § 13.08 (1982)). There are several bases for the rationale underlying this doctrine: (1) a patient should properly place trust and confidence in his physician and should be excused from challenging the quality of care being rendered to him until that confidential relationship terminates, Otto v. Nat. Institute of Health, 815 F2d 985, 988 (4th Cir. 1987); (2) to require a patient to bring suit against his physician before treatment is terminated would conceivably afford the physician a defense that the patient left before treatment was terminated and before the physician had a chance to effectuate a proper result, Taylor v. Phillips, 801 SW2d 303, 305 (Ark. 1990); and (3) the treating physician is in the best position to identify and correct the malpractice, Cooper v. Kaplan, 585 NE2d 373, 374 (NY 1991).

Applying the doctrine of continuous treatment to the facts of this case, the plaintiff was clearly under a continuous course of treatment by the physician who performed the first abortion until the plaintiff decided to discontinue her treatment by that physician when she experienced pain and bleeding after the second abortion. This is illustrated by the fact that any products of conception remaining after the second procedure were ultimately a result of the incomplete performance of not only the second but also the first procedure. Because both abortions constituted a continuous treatment by the defendant physician and plaintiff did not discover the injury, that is, that a complete abortion had not been performed until March 20, 1989 when she experienced pain and bleeding after the second abortion, I would hold that the complaint filed on March 18, 1991 was timely filed to encompass all injuries resulting from both abortion procedures performed by the defendant physician.

Blackburn, Judge,

dissenting.

I must respectfully dissent from the majority opinion’s partial affirmance of the denial of the appellant’s motion for summary judgment, because I believe that the appellant was entitled to complete summary judgment.

1. OCGA § 9-3-71 (a) provides that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” The whole court has had recent occasion to determine the proper starting date for the running of that limitation period, unfortunately without reaching a consensus. Jones v. Lamon, 206 Ga. App. 842 (426 SE2d 657) (1992). In that case, a four-judge plurality opinion settled upon the date of the injury or the date of the discovery of the injury, but avoided making a definite selection. The remaining five judges, in two separate dissents and one special concurrence, favored or seemed to favor selecting the date of the discovery of the injury as the starting point. The only date apparently ruled out was the actual date of the negligent act.

In the instant case, the majority opinion concludes that “the focus of OCGA § 9-3-71 (a) is not the date of the negligent act but when the injury resulting therefrom manifests itself,” and cites Jones v. Lamon, supra, for support of that conclusion. However, considering the splintered opinions in that case (a 4-2-2-1 vote), it is doubtful that the.case can support any proposition.

The language of the statute of limitation should be applied with as little contortion as possible. As stated above, that statute bars medical malpractice actions brought after two years from the date on which the injury occurred. Determination of the date an injury occurred often is difficult in cases of this nature, but that is the statutorily mandated focus. The majority opinion, however, in considering “when the injury . . . manifests itself,” instead applies a discovery of the injury rule.

The uncontroverted facts in this case are that on March 11, 1989, the appellee underwent an abortion procedure performed by the appellant. On March 15, 1989, the appellant performed a second abortion procedure, after another physician determined that the first procedure had not removed all of the products of conception. On March 20, 1989, the appellee saw another physician, who performed yet a third abortion procedure to remove products of conception. The appellee subsequently commenced this action on March 18, 1991.

I agree with the majority opinion that the third abortion procedure performed on the appellee was part of the course of treatment resulting from the appellant’s failure to remove all of the products of conception, and did not constitute the injury to the appellee. Surgery Assoc., P. C. v. Kearby, 199 Ga. App. 716, 718 (405 SE2d 723) (1991). In concentrating on the manifestation of the injury, however, the majority opinion fails to identify the actual injury to the appellee, viz., the retention of products of conception. That being the injury, it necessarily follows that the date of the injury’s occurrence would be the date of the procedure itself. In this particular instance, the date of the negligent act and the date of the injury would be the same.

In summary, with regard to the abortion procedure performed on March 11, 1989, the injury occurred upon the completion of the procedure on that same date. With regard to the second procedure performed on March 15,1989, the injury likewise occurred upon the completion of the procedure on the same day. Under these circumstances, the appellee’s commencement of this action on March 18, 1991, was more than two years after the date either injury occurred, and the action should be barred pursuant to OCGA § 9-3-71 (a). Accordingly, the appellant was entitled to summary judgment on the entire claim asserted against him.

In opposing the appellant’s motion for summary judgment, the appellee recalled statements made by the appellant following the second procedure, assuring her that he had correctly completed the procedure, and that “everything was now alright.” However, those alleged statements hardly constitute the type of representation or fraud such as will toll the statute of limitation until an injury can be discovered. Gillis v. Palmer, 178 Ga. App. 608 (344 SE2d 446) (1986); cf. Quattlebaum v. Cowart, 182 Ga. App. 473 (356 SE2d 91) (1987).

2. In conjunction with his motion for summary judgment, the appellant submitted his own affidavit as a medical expert, in which he averred that (1) his treatment of the appellee comported with the appropriate degree of care, skill, and diligence ordinarily exercised by members of the medical profession under the same or similar circumstances, and (2) an incomplete abortion is a risk ordinarily associated with an abortion. In response, the appellee submitted the affidavit of another physician who reviewed the medical records pertaining to the two procedures performed by the appellant and the third procedure performed by another physician.

Decided March 31, 1993

The appellee’s medical expert opined that the appellant “failed to follow generally accepted and customary medical practices and failed to exercise the degree of care generally employed by medical professionals in the field of obstetrics and gynecology.” As a matter of law, this affidavit was insufficient to create an issue of fact regarding any negligence on the appellant’s part.

“It is established in this state that in medical malpractice cases, the professional defendant may defend by asserting that in his treatment of the plaintiff, he complied with the specific standard of care in the profession; and if he does so, giving his own expert opinion or any others, then in order to prevail the plaintiff at the minimum must counter that expert opinion with a contrary expert opinion in her behalf, so as to create an issue of fact for a jury. [Cit.] . . . [T]he plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]” Loving v. Nash, 182 Ga. App. 253, 255 (355 SE2d 448) (1987).

In the instant case, the affidavit of the appellee’s medical expert also stated that the record fails to reveal any follow-up inquiries by the appellant to determine the appellee’s condition after the procedures, and that this failure to follow-up did not comport with accepted and customary medical practices. However, that omission, if any, was immaterial, as it bore no causal relationship to the injury complained of, i.e., the retention of products of conception. Inasmuch as the affidavit of the appellee’s expert was entirely conclusory, it failed to preserve an issue of fact regarding negligence on the appellant’s part, and the trial court should have granted summary judgment for the appellant on that basis as well.

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

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Eleanor L. Martel, for appellant.

Donald W. Johnson, for appellee.

       The doctrine of continuous treatment has been adopted by many other jurisdictions. See, e.g., Otto v. Nat. Institute of Health, 815 F2d 985 (4th Cir. 1987) (continuous treatment doctrine tolls statute of limitation in medical malpractice actions brought under the Federal Torts Claims Act in certain circumstances); Taylor v. Phillips, 801 SW2d 303 (Ark. 1990); Cooper v. Kaplan, 585 NE2d 373 (NY 1991); Vinklarek v. Cane, 691 SW2d 108 (Tex. Ct. App. 1985); Farley v. Goode, 252 SE2d 594 (Va. 1979); Samuelson v. Freeman, 454 P2d 406 (Wash. 1969); Metzger v. Kalke, 709 P2d 414 (Wyo. 1985).


text:
    A92A1705.
    GRO ASSOCIATES, INC. v. KERR et al.
    (430 SE2d 647)
   Andrews, Judge.

GRO Associates, Inc. appeals from judgment entered on the defendants’ verdict in GRO’s suit for breach of a real estate brokerage agreement. We reverse.

Viewed in favor of the verdict, the evidence showed that Mr. and Mrs. Kerr, defendants, owned and operated a lakeside mountain resort, Kerrs’ Lakeside Cottages. Because the business was not as profitable as anticipated, the Kerrs were attempting to sell the real estate and the business in May 1987. They had a “For Sale By Owner” sign in the yard in response to which George Oscar stopped to discuss the possibility of his listing the property with International Business Investments, a subsidiary of Corporate Investment Business Brokers (CIBB) which brokered both businesses and real estate.

Mr. Kerr explained that the cottages were closed from October through May each year and that he saw no sense in listing the property through the winter. Further, Mr. Kerr said he would not list the property exclusively. Oscar said if they came up with a buyer independently, there would be no problem. Mrs. Kerr also expressed concern over the year period and the non-cancellation clause in the contract. Oscar told them that, although the written broker agreement would reflect a selling period from May 26, 1987 to May 25, 1988 and stated that it was irrevocable, this was required by the company and there was no problem and the Kerrs could, in fact, cancel the agreement at any time. The Kerrs then signed the agreement. Having not seen Oscar for awhile, Mr. Kerr called CIBB in September and was told that Oscar no longer worked there. About two weeks later, Oscar came by the property and told the Kerrs that he had his own business, GRO Associates, and had prepared a cancellation notice for the Kerrs’ signatures to be used to cancel the CIBB agreement so that they could enter into one with GRO Associates.

Because the cottages were closing for the winter at the end of October, Mr. Kerr again discussed with Oscar that they would be cancelling the agreement then and Oscar again assured them that they could cancel at any time. They then signed the cancellation letter to CIBB which Oscar had prepared, dated September 28, and the new agreement with GRO Associates, which was dated September 30. That agreement was identical to the one signed with CIBB, except that GRO Associates was substituted as the broker.

On October 24, the Kerrs sent a handwritten letter cancelling this agreement, using the exact language which Oscar had prepared for their cancellation of the CIBB agreement. After Mr. Kerr left for his winter hunting trip, Glenda Parker Realty was contacted by Raymond, a developer who lived in the area, and asked to determine if the Kerr property was for sale. She then contacted Mrs. Kerr and the property was eventually sold to Raymond and a commission paid to Parker Realty.

GRO Associates, Inc. sued, contending that it was entitled to a commission under the Broker Agreement. The Kerrs defended, alleging fraud in the inducement of the contract, estoppel, and waiver.

1. GRO enumerates as error the denial of the motion in limine to exclude oral communications and agreements not contained within the four corners of the Broker Agreement.

At the beginning of the trial, GRO made its motion in limine, relying on Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 591 (6) (281 SE2d 332) (1981). After hearing argument, the court overruled the motion, but stated that “I may take another look at it when the evidence is offered.”

Thereafter, when the oral statements were introduced into evidence, no objections were made, nor was the motion in limine renewed. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which [the party] might have had.” (Citations and punctuation omitted.) Hall County Mem. Park v. Baker, 145 Ga. App. 296, 298 (4) (243 SE2d 689) (1978). Therefore, GRO has failed to preserve this objection for our review. Horan v. Pirkle, 197 Ga. App. 151, 152 (1) (397 SE2d 734) (1990).

Decided March 19, 1993 —

Reconsideration denied April 1, 1993

Oliver & Woods, Ernest H. Woods III, for appellant.

2. The second enumeration deals with the denial of GRO’s motion for directed verdict made at the close of the defendants’ case.

The motion was based on the terms of the Broker Agreement and was premised in part on the merger clause which stated that “[t]his Agreement constitutes the entire Agreement between the parties hereto, supersedes all previous agreements and understandings between them, and shall not be modified except in writing executed by the parties. No representation or promises are made other than as expressly set forth herein.” GRO argued that the parol evidence contradicting this clause was inadmissible to vary the terms of the written document which provided that, if the property sold during the one-year period, either through the efforts of the broker or otherwise, a commission was owed.

“[I]t has been generally held that where a contract contains [a ‘merger’ or ‘entire agreement’] clause, and the [party is] claiming fraud in the inducement . . . the [party] is precluded from making any assertion that he relied upon verbal misrepresentations, unless he can show that as a result of such misrepresentations he did not acquire knowledge of the contents of the contract. Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 141 (384 SE2d 235) (1989); Jain v. Carload Delivery Svc., 189 Ga. App. 95, 96 (375 SE2d 99) (1988); Del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333) (1988).” Great American Builders v. Howard, 207 Ga. App. 236, 239 (1) (427 SE2d 588) (1993).

Therefore, GRO was entitled to a directed verdict on the contract since there was no contention that the Kerrs had not read and understood the contents of the written agreement.

3. In light of our decision in Division 2, we need not consider the third and fourth enumerations dealing with claimed errors in the charge.

Judgment reversed.

Birdsong, P. J., and Beasley, P. J., concur.

David E. Barrett, Gregory K. Morgan, for appellees.

       In addition, we note that “[t]he admission of evidence is discretionary with the trial court, and this court will not interfere with that court’s ruling absent abuse. [Cits.]” Williams v. Terry, 197 Ga. App. 209 (1) (398 SE2d 239) (1990). Fraud in the inducement of a contract may be pleaded as a defense to an action and evidence relating to it would be admissible. See Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (2) (354 SE2d 210) (1987).


author:
McMurray, Presiding Judge.
      Cooper, Judge,

text:
    A92A1756.
    CARROLL v. THE STATE.
    (430 SE2d 649)
   McMurray, Presiding Judge.

Defendant Carroll was convicted of the offense of cruelty to children in that she maliciously caused excessive physical pain by breaking the victim’s leg. This appeal is taken from the denial of defendant’s motion for new trial. Held:

1. Defendant’s first enumeration of error raises an issue as to whether the evidence is sufficient to authorize her conviction. Viewed in a light to support the verdict, the evidence shows that at the time of the events which led to her conviction defendant was caring for the victim, the three-year-old son of her boyfriend, with whom she was living. Defendant laced the victim’s shoes, gave the shoes to him and instructed him to get dressed while she hurriedly dressed herself. Shortly thereafter, defendant went to the victim to brush his hair and tie his shoes. The child was completely dressed; however, one of his shoelaces had become tangled in a knot, and the shoe would not come off. Appellant grabbed the back of the shoe and was twisting the foot when she heard a “loud pop,” and the victim cried out in pain. Medical expert testimony established that the victim suffered a spiral fracture to the tibia (which extended from the knee to the ankle) which was caused by a twisting of the bone at one end while the other end remained stabilized; that the injury was caused by “significant” and “deliberate” force; and that spiral fractures in children are presumed child abuse until proven otherwise.

Testimony provided by the Child Protective Services Investigator who interviewed the victim revealed, on the basis of interviews with the victim and defendant, that defendant was in a hurry to leave the house to run errands and was angered by the fact that the victim unlaced his shoestring and it had become tangled. The investigator testified that the victim said defendant was mad. The investigator also demonstrated for the jury how the victim described the incident to her. Ih a handwritten statement, defendant admitted attempting to jerk the shoe off the child’s foot before she realized the shoelace was knotted. Defendant indicated that when she asked the victim why he unlaced his shoe, she did not realize the anger she felt or the anger conveyed in her voice. She wrote that her nerves were “shot,” her patience was thin, and she felt that way most of the time because of the way her boyfriend treated her.

Defendant relied on the defense of accident and argues that the State has failed to prove that the injury was not accidental. Under the circumstances of the case sub judice the defense of accident raises an issue as to defendant’s intent. Such an issue is a question of fact to be determined upon consideration of defendant’s words, conduct, demeanor, motive, and all other circumstances connected with the act for which she is prosecuted. McGahee v. State, 170 Ga. App. 227 (1) (316 SE2d 832). “This court does not weigh the evidence. Questions of the weight to be given evidence and to the credibility of witnesses are solely for the jury.” Hayes v. State, 203 Ga. App. 409, 410 (417 SE2d 45). The evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Mitchell v. State, 206 Ga. App. 672 (1) (426 SE2d 171).

2. Defendant contends the trial court’s admission of her written statement violated her rights under the Fourth, Fifth and Fourteenth Amendments. The record reveals that when the Department of Family & Children Services received a report of possible child abuse, a Child Protective Services Investigator, Ms. Harris, and a detective from the sheriff’s department, went to defendant’s home to investigate. Defendant was interviewed by the detective, and based on her statement to the detective regarding the victim’s broken leg, she was arrested and taken to the sheriff’s department where she was advised of her Miranda rights and signed a written waiver form. Appellant was then given paper and a pen and was left alone to write her statement. Defendant argues that the initial interview at her home was an illegal investigatory seizure because she was not advised of her Miranda rights before the interview so that her subsequent arrest was without probable cause and her written statement was the inadmissible fruit of that illegal arrest.

“ ‘A person is not entitled to Miranda warnings as a matter of right, even through that person is a suspect, unless that person had been taken into custody or has been deprived of freedom of action in another significant way.’ Woods v. State, 242 Ga. 277, 279 (2) (248 SE2d 612) (1978), citing Beckwith v. United States, 425 U. S. 341 (96 SC 1612, 48 LE2d 1) (1976). Accord Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984). Although the focus of the investigation may be on defendant, he must also be in a custodial situation for Miranda to apply. Beckwith, supra at 347. Shy v. State, 234 Ga. 816, 818 (I) (218 SE2d 599) (1975).” Brinson v. State, 191 Ga. App. 151, 152 (4) (381 SE2d 292). In the case sub judice, defendant gave two statements to the detective. As to the first or oral statement, defendant was not in a custodial situation such as would invoke the protection of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). In this regard, it is clear from colloquy at the Jackson-Denno hearing that the trial court concluded that defendant was not in custody until the detective decided to arrest her after she had made the oral statement. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a defendant’s statement to law enforcement officers will be upheld on appeal. Frazier v. State, 257 Ga. 690, 697 (14) (362 SE2d 351); Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733); Whatley v. State, 196 Ga. App. 73, 78 (5) (395 SE2d 582).

The second or written statement was given after defendant’s arrest and after she was read the Miranda warnings. Therefore, the requirements of Miranda were satisfied in the case sub judice and there was no error in the admission of defendant’s statements.

3. In three enumerations of error, defendant asserts prosecutorial and judicial misconduct in the State’s impeachment of defendant based on portions of a physician’s appointment records which were subpoenaed by defense counsel, addressed to and delivered to the courtroom, and thereafter inadvertently given to the prosecutor by the trial judge. During the trial, the judge instructed defense counsel that the records needed to be admitted as evidence to perfect the trial record; however, counsel refused to offer them for admission. “ ‘It is a well-established appellate rule that “ ‘the burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issue raised by the enumeration of error, is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.’ ” (Cit.)’ [Cit.]” Wells v. State, 201 Ga. App. 398, 399 (411 SE2d 125) (1991). Thus, we must assume there was no prosecutorial or judicial misconduct.

4. Over objection, the trial court permitted a witness to testify who was not on a list of witnesses provided to defendant in response to a demand pursuant to OCGA § 17-7-110. Nonetheless, defendant was allowed ample opportunity to interview the witness so that the purpose of OCGA § 17-7-110 was satisfied. Under these circumstances the trial court properly permitted the witness to testify. Moss v. State, 196 Ga. App. 81, 83 (2) (395 SE2d 363).

5. In her final enumeration of error, defendant contends that the trial court erred in permitting a State’s witness to deliberately inject the defendant’s character in evidence. However, the testimony was relevant to show intent, motive, plan, scheme and bent of mind, and was not rendered inadmissible because it incidentally placed in issue the character of the defendant. Millis v. State, 196 Ga. App. 799 (1) (397 SE2d 71); Causey v. State, 154 Ga. App. 76, 79 (3) (267 SE2d 475).

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Blackburn, JJ., concur. Cooper, J., dissents.

Cooper, Judge,

dissenting.

I respectfully dissent. It is my view that the detective’s involvement in the initial interview at appellant’s home required the giving of Miranda warnings.

“Miranda warnings are not limited to station-house interrogations as long as there is some significant deprivation of an individual’s freedom of action. . . .” Aldridge v. State, 247 Ga. 142, 144 (2) (274 SE2d 525) (1981). The State contends that appellant was not “in custody” in her home during the initial interview and that it is not practical or legally necessary to extend Miranda to the initial inquiry at the scene of a child abuse referral. In Banther v. State, 182 Ga. App. 333 (355 SE2d 709) (1987), this court had the opportunity to rule in a case which, at first blush, appears to be on all fours with the instant case. In Banther, the defendant sought the exclusion of admissions made in an interview with a Department of Family & Children Services’ caseworker who was accompanied by a sheriff’s deputy. This court held that the trial court did not err in admitting the statements because the caseworker was not a law enforcement officer, and at the time of the interview, the defendant was at most a “potential criminal defendant” who had not been taken into custody or deprived of his freedom in any significant way. The court also rejected the defendant’s contention that the uniformed deputy’s presence required the conclusion that he was in custody because the deputy did not ask any questions, he was only present for the caseworker’s protection, and the defendant was free to leave at any time. However, whether a defendant is “free to go” is only a factor to be considered in determining whether Miranda warnings are required. Shy v. State, 234 Ga. 816, 819 (218 SE2d 599) (1975). In Shy v. State, the Georgia Supreme Court discussed several criteria to be considered in making the distinction between custodial and noncustodial interrogation: “ ‘probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.’ [Cit.] These all point to attempts by the police to gather incriminating information. [Cit.]” (Emphasis supplied.) Id. at 821. When an officer initially arrives at the scene of a crime, he “may make a threshold inquiry to ascertain if there were any current danger to himself or to others present at the scene. [Cit.] So long as the interrogation is not aimed at obtaining information to establish a suspect’s guilt but is instead aimed at determining the nature of the situation upon the arrival of the policeman on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given.” Aldridge, supra at 144-145 (2).

In Banther, supra, it was significant that the caseworker was not a law enforcement officer; that the deputy sheriff did not participate in the questioning; and that the deputy merely accompanied the caseworker to insure her safety. In addition, the purpose of the interview was to determine whether the defendant’s stepdaughter should be placed in foster care. However, in the instant case, the record demonstrates that prior to the interview, appellant- was a target in the investigation. The detective and Ms. Harris had received information that appellant was allegedly responsible for the victim’s broken leg; that appellant was a “very angry person”; and that all the children in her care allegedly had been mistreated and were at risk. Therefore, the purpose of the interview was specifically to obtain information from appellant regarding her involvement in the victim’s broken leg. The record also reveals that although appellant allowed the detective and Ms. Harris to enter her home, she was nervous and upset. The investigators had to quell appellant’s fears to encourage her to talk about the victim’s broken leg. Moreover, the interview was not conducted by Ms. Harris. Instead, the detective questioned appellant specifically about the victim’s broken leg and promptly arrested her based on her answers. Thus, it appears that the “focus of the interview” was not solely to ascertain whether there was any continuing danger to the victim, the other children, Ms. Harris or the detective but was “ ‘aimed at obtaining information to establish [appellant’s] guilt.’ [Cit.]” State v. Overby, 249 Ga. 341, 343 (2) (290 SE2d 464) (1982). Although we have recently held that “[i]t was not incumbent upon the caseworker to advise defendant of his Miranda rights because she was not a law enforcement officer” (Rucker v. State, 203 Ga. App. 358 (2) (416 SE2d 871) (1992)), because the detective conducted the interview of appellant, Miranda warnings should have been given. Accordingly, appellant’s written statement, given after her unlawful arrest, should have been suppressed.

Decided March 19, 1993 —

Reconsideration denied April 1, 1993

J. M. Raffauf, Alden W. Snead, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.


text:
    A92A1834.
    A92A1835.
    DEPARTMENT OF TRANSPORTATION v. PRICE. DOUGHERTY COUNTY v. PRICE.
    (430 SE2d 602)
   Birdsong, Presiding Judge.

We granted these interlocutory appeals to determine whether the trial court erred in applying OCGA § 32-2-6 to reinstate this suit against Dougherty County. Appellee Price originally filed suit against Dougherty County and the Georgia Department of Transportation for an injury which allegedly occurred on a county road. Summary judgment in favor of the county was previously granted on grounds of sovereign immunity, the county having purchased no liability insurance. See Constitution of Georgia 1983, Art. I, Sec. II, Par. IX.

Three years later, Price successfully moved to reinstate the suit against the county on grounds that OCGA § 32-2-6 provides a “total waiver” of the county’s sovereign immunity. Both the county and DOT, which is required to defend the county, appeal. Held:

1. OCGA § 32-2-6 (a) provides that DOT “shall defend . . . and be responsible for all damages” for which a county is responsible “under existing laws whenever the cause of action accrues on a public road which . . . [is] a part of the state highway system.” The waiver of sovereign immunity plainly referred to in the statute and in the case authorities is the waiver of DOT’s immunity, to the extent that DOT must be “vouched in” to answer for a suit against a county. Such a suit may be maintained against a county only if and to the extent that a county has waived its own sovereign immunity by purchasing liability insurance. See Dept. of Transp. v. Land, 181 Ga. App. 94, 97 (351 SE2d 470) (1986). If the county is not responsible for damages because of sovereign immunity, there is nothing for which DOT can be made responsible on the county’s behalf. The statute says nothing about waiving a county’s sovereign immunity and nothing in the statute creates a waiver of a county’s immunity. It simply makes DOT responsible for the county’s liability when the county is liable “ ‘under existing laws.’ ” Christian v. Monroe County, 203 Ga. App. 342, 344 (417 SE2d 37); OCGA § 32-2-6 (a).

The trial court held three years ago that Dougherty County is not liable in this action because it had no liability insurance and thus retained its sovereign immunity; under OCGA § 32-2-6 there is nothing which DOT must defend or for which it must be responsible on behalf of the county.

In contending that OCGA § 32-2-6 provides a total waiver of the county’s constitutional sovereign immunity, Price relies on language in Sikes v. Candler County, 247 Ga. 115, 118 (274 SE2d 464), and Powell v. Ledbetter Bros., 251 Ga. 649, 650 (307 SE2d 663). Price also quotes from Dept. of Transp. v. Land, 181 Ga. App. 94 (351 SE2d 470), affirmed in principle and reversed in part by Dept. of Transp. v. Land, 257 Ga. 657 (362 SE2d 372). Price also argues that DOT’s waiver of its own immunity by the purchase of liability insurance for its employees, as held on a previous appellate visit of this case in Price v. Dept. of Transp., 257 Ga. 535, 537 (361 SE2d 146), somehow works through § 32-2-6 to create a “total” or “partial waiver” of the county’s immunity. Obviously, however, the fact that DOT may be liable as a defendant in its own behalf in this case does not create a waiver of the county’s constitutional immunity. OCGA § 32-2-6 does not say or imply such a thing.

The idea that § 32-2-6 creates a statutory waiver is invented by Price out of thin air by lifting portions of sentences and passages out of their plain context, and by then labeling these lifted passages as “clear and consistent” substantive and procedural rules. Price’s creations much resemble the emperor’s clothes. From Sikes, supra at 118 (and Dept. of Transp. v. Land, 181 Ga. App. at 96) is lifted a statement that “suit may be brought against the county.” In context, however, the statement is that if and when suit “may be brought” against the county, DOT must defend it.

Price further creates the idea that § 32-2-6 is a statutory waiver of county immunity, by lifting this statement from Powell, supra at 650: “This statute requires suit be brought against the county.” But in context, the statement refers to the statutory scheme which requires DOT to defend a suit brought against the county and not vice versa.

Price also lifts her idea of a statutory waiver of county immunity from the statement in Powell at 651, that an action alleging negligence on the part of the county “is an action where sovereign immunity exists and the statute provides the waiver.” But one has only to read the case to see that the waiver referred to is the waiver of DOT’s immunity, not the county’s; Powell says that although DOT on its own behalf may have constitutional immunity in a case, that immunity “must be waived” where the county’s immunity is waived, so that DOT can be required to defend the county and to pay the county’s damages.

The trial court erred in reinstating this suit against the county on grounds that § 32-2-6 (a) creates a statutory waiver of a county’s immunity. •

2. Price’s attempt to file a supplemental record which Price says would show that the road was a county project, and her attempt to conduct deposition and discovery on such question to supplement the record therewith during the pendency of this appeal in this court and while the trial court was without jurisdiction to proceed in such manner, as is very well established law, were improper, superfluous, irrelevant and frivolous. See OCGA §§ 5-6-46 and 5-6-34 (b); Walker v. Walker, 239 Ga. 175 (236 SE2d 263); Tyree v. Jackson, 226 Ga. 642 (177 SE2d 159); Carter v. Data Gen. Corp., 162 Ga. App. 379, 381 (291 SE2d 99). Moreover, evidence that Dougherty County built the road does not alter the fact that the county is immune from suit and OCGA § 32-2-6 (a) does not create a waiver of that immunity. The filing of a supplemental record allegedly containing evidence that Dougherty County built the road or otherwise was involved with the road project is but another attempt to confuse the issue in this case. Price asserts that all her extra procedural maneuvers during this appeal were necessary because such evidence distinguishes this case from Christian, supra, which Price says appellants newly cited on appeal and which Price says held the county not liable to suit because there was no evidence that the county built the road. Id. at 342. But clearly the county was not liable in Christian (and thus DOT was not liable on the county’s behalf), not because the county did not build that road, but because the county had purchased no liability insurance and thus was immune, and OCGA § 32-2-6 (a) was held to create no waiver. The matter of who built the road in this case is likewise not pertinent to the issue of waiver of immunity.

Decided March 8, 1993 —

Reconsideration denied April 1, 1993

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellant (case no. A92A1834).

W. Spencer Lee IV, for appellant (case no. A92A1835).

Burt & Burt, Hilliard P. Burt, Ben Kirbo, for appellee.

Judgments reversed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

Price insists that OCGA § 32-2-6 allows her to sue DOT and thereby provides a waiver of the sovereign immunity which the county has “under existing laws.” Id. Nowhere in its terms does the statute create a waiver of the county’s immunity; this is an idea conjured up by wishful thinking. Price confusedly contends she is in a “Catch-22” position because before she amended to sue the county under § 32-2-6, DOT blamed the county for negligence, whereas “now that this [statute] has entered this action,” DOT and the county “stonewall any attempt to involve the county.” This is a non sequitur. In fact, § 32-2-6 has not “entered this action” because the county is immune to suit “under existing laws.” By resisting Price’s attempt to twist this statute to her wishes, DOT and the county are not “stonewalling” a valid attempt to sue the county; they are simply relying on their plain legal rights. As for Price’s dilemma of DOT’S pointing blame on the county, DOT is at liberty to defend against its own liability on this basis, but the county cannot be sued and no imagination on Price’s part can alter this fact.

Motion for reconsideration denied.


text:
    A92A1925.
    LAM v. THE STATE.
    (430 SE2d 775)
   Pope, Chief Judge.

Defendant Thomas H. Lam, Jr. was charged in a multi-count indictment with violation of the Georgia RICO (Racketeer Influenced & Corrupt Organizations) Act (Count 1), eleven counts of theft by taking (Counts 2-13) and three counts of forgery in the first degree (Counts 14-16). The trial court, sitting without a jury, granted defendant’s motion for directed verdict on Counts 2 through 13 (the theft by taking charges) and on Count 15 (one of the forgery charges), and returned a verdict of guilty on Counts 1, 14 and 16. Defendant appeals.

1. Defendant first challenges the sufficiency of the evidence to support his conviction on Counts 14 and 16. The evidence adduced at trial concerning Count 14 shows that defendant, acting without authority, endorsed a check made payable to his then employer, Bill Fricks Furniture as follows: “Bill Fricks to Thomas H. Lam deposit,” deposited the check into his personal account and appropriated the funds for his own use. As to Count 16, the evidence adduced at trial shows that defendant, acting without authority, endorsed a check made payable to Bill Fricks Furniture as follows: “Bill Fricks Furniture deposit T H Lam,” deposited the check into his personal account and appropriated the funds for his own use. The evidence was sufficient to authorize defendant’s conviction of the crimes charged. McBride v. State, 202 Ga. App. 556 (415 SE2d 13) (1992); Dyous v. State, 195 Ga. App. 99 (392 SE2d 730) (1990); Gaily v. State, 181 Ga. App. 906 (1) (354 SE2d 442) (1987); cf. Morgan v. State, 77 Ga. App. 164 (48 SE2d 115) (1948).

2. In his second and third enumerations of error, defendant posits that the trial court erred by admitting into evidence transcripts from certain bankruptcy and civil court proceedings without first determining whether defendant’s testimony, including certain admissions made by the defendant as to the crimes for which he was on trial in the present case, was voluntarily given in those proceedings. The record shows that when the State sought to introduce the transcript of the civil court proceedings the defendant raised the following objections: the evidence could be used for impeachment only; the evidence was without probative value; at the time the testimony was given criminal charges had not been brought against the defendant; the earlier proceedings involved different parties; the State did not give the defendant notice of intent to use the statements at trial; and defendant was not given Miranda warnings prior to the testimony in the earlier proceedings. When the State sought to introduce the defendant’s testimony from the bankruptcy proceedings, defendant reiterated his prior objections and raised as an additional objection the fact that the State sought to introduce only a portion, instead of the entire transcript, of those proceedings. However, defendant did not request that the trial court conduct a hearing to determine the voluntariness of the prior testimony, or urge that the evidence should be excluded because no hearing was held. “[T]here is no constitutional requirement that the trial court conduct, sua sponte, a Jackson v. Denno hearing on voluntariness. . . .” Hudson v. State, 250 Ga. 479, 485 (6) (299 SE2d 531) (1983). “The trial court was not required to conduct a . . . hearing or enter findings as to whether defendant’s statement was voluntarily made since such issues were not raised before the trial court, but were raised for the first time on appeal. [Cits.]” Yearby v. State, 195 Ga. App. 757, 758 (3) (395 SE2d 29) (1990) . See also Nixon v. State, 255 Ga. 656, 658 (2) (a) (340 SE2d 7) (1986). See generally United States v. White, 589 F2d 1283 (5th Cir. 1979); United States v. Vecchiarello, 569 F2d 656 (D.C. Cir. 1977); United States v. Cecil, 457 F2d 1178 (8th Cir. 1972) (in which civil trial or deposition testimony was held to be admissible in a subsequent criminal proceeding).

3. Defendant also urges that OCGA § 17-7-210 should be extended to cover statements made by a defendant while testifying under subpoena. That section, however, clearly applies only to statements “made by [a] defendant while in police custody.” Shelton v. State, 196 Ga. App. 163 (3) (395 SE2d 618) (1990); OCGA § 17-7-210 (a). It is not the function of this court to rewrite the laws enacted by our General Assembly. This enumeration is without merit.

4. Defendant challenges the sufficiency of the evidence as to his conviction for violating the RICO Act, contending that there was a complete failure of proof as to all 85 of the predicate acts charged in the indictment. A RICO conviction requires proof that a defendant has committed two or more offenses of the kind included in the RICO statute; it does not require the State to prove all of the alleged predicate offenses. Bethune v. State, 198 Ga. App. 490 (1) (402 SE2d 276) (1991) . Our review of the transcript in this case shows that the evidence was sufficient to enable a rational trier of fact to find defendant guilty of two or more of the predicate offenses charged beyond a reasonable doubt. See id.; Dover v. State, 192 Ga. App. 429 (1) (385 SE2d 417) (1989). This enumeration is without merit.

5. Defendant asserts for the first time on appeal that his trial counsel was ineffective. The record shows that trial counsel filed the notice of appeal in this case and that appellate counsel was appointed or retained during the pendency of the appeal. Because that issue was raised at the first opportunity, it is appropriate that this case be remanded to the trial court for a hearing and entry of appropriate findings of fact of the issue of ineffective assistance of counsel. Hayes v. State, 261 Ga. 439 (5) (405 SE2d 660) (1991); Brown v. State, 199 Ga. App. 856 (1) (406 SE2d 516) (1991), and cits.

Decided March 17, 1993 —

Reconsideration denied April 1, 1993.

Gammon & Anderson, W. Wright Gammon, Jr., John E. Sawhill III, for appellant.

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

6. Lastly, defendant contends he was denied his right to a fair trial because prior to the commencement of his bench trial the trial judge received correspondence from defendant’s trial attorney notifying the court of defendant’s willingness to enter a guilty plea. Although defendant attaches copies of these letters to his brief to this court, they do not appear in the record and thus are not properly before this court for consideration. See, e.g., Taylor v. State, 197 Ga. App. 678, 680 (399 SE2d 213) (1990). We note also that the correspondence apparently was sent to the court by defendant’s own attorney and that no motion was made to recuse or disqualify the judge from hearing the case based on any alleged prejudice that may have resulted from his receipt of the correspondence. See Lynott v. State, 198 Ga. App. 688, 689 (3) (402 SE2d 747) (1991). This enumeration is without merit.

Judgment affirmed and case remanded with direction.

Johnson, J., and Justice George H. Carley concur.


text:
    A92A1976.
    COBB COUNTY KENNESTONE HOSPITAL AUTHORITY v. MARTIN et al.
    (430 SE2d 604)
   Birdsong, Presiding Judge.

In this suit by appellee Martin, who alleges that he is permanently disabled from an infection acquired at Kennestone Hospital, we granted interlocutory appeal to determine whether the trial court erred in compelling discovery of Kennestone Hospital’s factual information regarding the infection rate at the hospital during the relevant time period, from the infection rate nurse who is a member of the hospital’s peer review committee.

Kennestone Hospital contends that OCGA § 31-7-133 (a), which provides a privilege as to proceedings of a review organization of a health care facility, creates an “absolute embargo” (see Emory Clinic v. Houston, 258 Ga. 434, 435 (369 SE2d 913)) on the discovery of this matter, which is “the subject of evaluation and review by such organization.” The hospital urges that under this statute “no person who was in attendance at [such] meeting . . . shall be permitted or required to testify ... as to any evidence or . . . matters produced or presented during the proceedings ... or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof.”

We conclude OCGA §§ 31-7-133 and 31-7-143 do not prevent plaintiff’s discovery of the recorded data pertaining to the. hospital’s infection incidence during the relevant time period. The privilege is granted to “findings, recommendations, evaluations, opinions, or other actions” of a peer review committee. The statute expressly provides that “information, documents or records otherwise available from original sources” are not immune from discovery “merely because they were presented during [review proceedings], nor should any person who testifies before ... or who is a member of such organization be prevented from testifying as to matters within his knowledge.” (Emphasis supplied.) Martin seeks factual data from the original hospital records which the infection rate nurse used to compile the information she presented to the peer review committee, and under the language just quoted, this information is not privileged. See also OCGA § 31-7-143.

OCGA §§ 31-7-133 and 31-7-143 are designed to ensure effectiveness and competence of health organizations by providing an atmosphere for candor and constructive criticism within the organization, and can do so only by protecting professional peers’ opinions and findings as to the competence or performance of members and employees. But the statute embraces the goal of encouraging medical staff candor at the cost of impairing plaintiff’s access to evidence to which the law would otherwise give him access toward discovery of the truth; it is in derogation of the general liberal policy in favor of discovery and admissibility of probative evidence, and therefore should not be construed loosely or extended beyond its spirit and precisely stated limits. Hollowell v. Jove, 247 Ga. 678 (279 SE2d 430). To say otherwise would render health care facilities virtually immune to suit, by making privileged all factual information which the facility chooses to present or discuss at a peer review even though that information would otherwise be discoverable from its original source.

The information sought here is obtainable from “original sources,” that is, hospital medical records and information within the knowledge of the infection rate nurse. Under OCGA §§ 31-7-133 and 31-7-143, what is not discoverable is the “infection rate nurse’s” presentation and testimony before the review committee, or any findings, recommendations, evaluations, opinions, or actions of the committee or any member or the nurse herself; or records generated solely to provide peer review (see § 31-7-15 (d); Georgia Hosp. Assn. v. Ledbetter, 260 Ga. 477 (396 SE2d 488)), or information obtained exclusively through or by the committee for investigation by peer review, that is, discovery relative to medical or peer review. Emory Clinic v. Houston, supra.

Decided March 8, 1993 —

Reconsideration denied April 1, 1993

Barnes, Browning, Tanksley & Casurella, Benny C. Priest, for appellant.

Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, Leslie J. Bryan, Eugene B. Chambers, Jr., for appellees.

Although the trial court’s order granting appellee’s motion to compel is not specific as to what discovery is permitted, appellee suggests the information sought is the medical records of all persons hospitalized at Kennestone during the relevant time period. We caution that §§ 31-7-133 and 31-7-143 do not themselves provide that “original sources” are discoverable, but merely that the matter presented to the peer review committee is not privileged if it is obtainable from original sources.. The medical records of all persons hospitalized at Kennestone during any period may be subject to their own confidentiality. See, e.g., OCGA § 31-7-285. Therefore, the scope of discovery should be limited to what is pertinent to the inquiry: not the medical records of all patients, but the infection incidence data among patients and medical records directly related thereto.

Judgment affirmed.

Beasley and Andrews, JJ., concur.