author: Andrews, Judge.

text:
    A95A2657.
    CHEM LAWN SERVICES et al. v. STEPHENS.
    (469 SE2d 375)
   Andrews, Judge.

We granted the application of Chem Lawn Services and its insurer for a discretionary appeal in this workers’ compensation case.

After Stephens suffered a blow to his left knee while working for Chem Lawn on June 26, 1992, Chem Lawn voluntarily paid medical expenses and disability benefits without an award. Temporary total disability benefits were paid until February 3, 1993, when Stephens obtained a physician’s release to return to normal work duties, and he returned to his regular work for Chem Lawn. Stephens continued to work for Chem Lawn until May 31, 1993, when he was unable to continue work because of gradually increasing pain in both knees, at which time he was terminated by Chem Lawn. After that date, Stephens sought additional medical treatment for his knee problems, and he eventually filed a claim on April 4, 1994, seeking temporary total disability from June 1, 1993, and also payment of contested medical expenses incurred after that date.

There was expert medical testimony at the hearing held on August 12, 1994, that, during treatment for the June 26, 1992 knee injury, Stephens was diagnosed as having a pre-existing disease in both knees known as osteochondritis dissecans (OD), the development of which was unrelated to a condition of his employment and which had developed over a long period prior to the June 26 accident. There was also a diagnosis of a possible fracture of the left knee from the June 26 accident. A surgical procedure was performed on Stephens’ left knee in July 1992 during which the surgeon looked for any signs of trauma or fracture to the knee caused by the June 26, 1992 injury and examined and treated the OD condition in that knee. No knee fracture was found. Based on his observations, the surgeon testified that the June 26, 1992 blow to the knee temporarily aggravated the preexisting OB condition and that the aggravation caused by the June 26 accident would have likely resolved in three to six weeks. However, during rehabilitation from the surgery to the left knee, the resulting shift of weight to Stephens’ right knee aggravated the pre-existing OD condition in his right knee. As a result, additional surgery was performed on Stephens’ right knee in November 1992. After additional rehabilitation therapy, Stephens was released to return to his normal work duties on February 3, 1993. Accordingly, there was medical evidence that the aggravation of the pre-existing OD caused by the June 26, 1992 knee injury was resolved prior to Stephens’ return to normal work duties in February 1993 and that Stephens’ subsequent knee problems were caused by a progressive worsening of the pre-existing OD as a result of resuming normal work duties, rather than the June 26, 1992 injury to the knee.

The WC-14 form on which Stephens filed his claim stated that he was first disabled on June 26, 1992, and that he was seeking “temporary total disability from 6/1/93 until released to return to duty.” Chem Lawn took the position that the June 26 accident caused a temporary aggravation of the pre-existing condition and that any temporary disability caused by the June 26 compensable accident had completely resolved by the time Stephens returned to normal work duties on February 3, 1993. At the hearing, the administrative law judge characterized the issue as whether there was a change in condition for the worse from the June 26, 1992 compensable injury. Based on evidence presented, the ALJ found that the compensable injury of June 26, 1992 was not the cause of the disability or medical expenses for which Stephens sought compensation in the present claim and that Stephens had failed to carry his burden of proving that he had experienced a change in condition for the worse from the prior compensable injury.

The appellate division of the Board accepted the findings of fact of the ALJ as supported by a preponderance of the competent and credible evidence. OCGA § 34-9-103 (a). The appellate division made additional findings of fact that, after Stephens returned to his regular work duties in February 1993, his normal work duties aggravated the OD condition to the extent that he became unable to work. The appellate division further found that, even though the June 26, 1992 knee injury only temporarily aggravated the pre-existing OD, “[w]hen employer/insurer accepted employee’s claim [from the June 26, 1992 knee injury] as compensable and paid both income and medical benefits for treatment of the OD, employer/insurer accepted the OD as the compensable injury. Therefore, the employer/insurer cannot now claim that it is not responsible for the treatment or disability caused by the OD condition which it has already accepted as compensable.” The appellate division also found that Chem Lawn and its insurer “cannot now controvert the claim for the OD condition” because, “[w]here an employer/insurer has accepted a claim which is later discovered to be non-compensable, the employer/insurer’s remedy is to controvert the claim on the grounds of newly discovered evidence [pursuant to] OCGA § 34-9-221 (h).” The appellate division concluded that Chem Lawn and its insurer were prohibited from controverting the claim for the OD condition because they failed to exercise due diligence, prior to voluntary payment of compensation for the OD condition, to discover that the employee’s OD condition was not caused by the injury or that any aggravation of the OD condition caused by the prior knee injury was only temporary.

Based on these findings, the appellate division concluded that Stephens met his burden of proving a change in condition for the worse. The appellate division then noted that “even if the employee had only suffered a temporary aggravation of a pre-existing condition which resolved in February 1993 . . . the facts presented at [the] hearing could lead to a conclusion that [the] employee suffered a fictional new accident as of June 1, 1993, the date he was forced to cease work due to an aggravation of his pre-existing, unrelated OD condition.” On appeal, the superior court affirmed the award of the appellate division.

Chem Lawn and its insurer claim it was error for the appellate division, as affirmed by the superior court, to conclude they were es-topped from denying the compensability of the pre-existing OD on the basis that they paid for medical treatment and disability benefits related to the pre-existing condition. They claim benefits and treatment were provided as a result of the temporary aggravation of the pre-existing condition caused by the June 26 knee injury, and that there was no acceptance of a causal relationship between the June 26 accident and the pre-existing condition. We agree.

Based on evidence presented at the hearing, the ALJ found that the pre-existing condition was not caused by the June 26 accident, which had developed prior to Stephens’ employment. The ALJ concluded that the June 26 accident temporarily aggravated the pre-existing condition resulting in a compensable injury for which Chem Lawn paid benefits until the temporary disability ceased, and Stephens returned to normal work duties on February 3, 1993. These findings were accepted by the appellate division as supported by a preponderance of the competent and credible evidence in the record. There is no basis for concluding that Chem Lawn accepted the preexisting OD as the compensable injury. There was evidence that the disability benefits and medical treatment Stephens received until the date he returned to normal work duties for Chem Lawn on February 3, 1993, resulted from the June 26 blow to the left knee. In the initial surgical procedure in July 1992, the surgeon looked for signs of a fracture or trauma to the knee resulting from the June 26 injury and also treated the OD. The second surgical procedure on the right knee in November 1992 was necessitated by the shift of weight to the right knee during rehabilitation from the first procedure. Stephens returned to normal work duties after rehabilitation from the second procedure. Accordingly, the diagnosis and treatment of Stephens’ preexisting OD, including both surgical procedures and continuing disability during rehabilitation, directly or indirectly resulted from and was part of the treatment for the June 26 accident. Just because Chem Lawn accepted the compensability of the June 26 accident and provided benefits and medical treatment which not only treated the temporary aggravation of the pre-existing condition caused by the June 26 accident, but also incidentally treated the pre-existing condition, this was not a basis for concluding that Chem Lawn accepted the compensability of the pre-existing condition, nor was it a basis for concluding that Chem Lawn was estopped from contesting the compensability of any subsequent disability allegedly resulting from the pre-existing condition.

The only issue heard and determined by the ALJ was whether or not Stephens was entitled to additional compensation for the June 26 accident because of a change in condition for the worse. Since the appellate division agreed that a preponderance of the competent and credible evidence supported the ALJ’s finding that the aggravation of the pre-existing condition was a temporary disability which had resolved, it follows that the evidence did not support Stephens’ claim that his present disability resulted from a change in condition for the worse from the June 26 accident. In other words, a change in condition claim for additional compensation under the original injury was not viable where, based on the factual determinations made by the ALJ, there was no causal connection between the original injury and the present disability. See Slattery Assoc. v. Hufstetler, 161 Ga. App. 389, 390-391 (288 SE2d 654) (1982). One element of establishing a change of condition claim upon resuming work after an initial injury is “that the inability to work was proximately caused by the previous accidental injury.” ' • v. Ga. State Univ., 139 Ga. App. 212, 213 (228 SE2d 200) (1976). “[Where] the wear and tear of ordinary life or ordinary work [rather than a specific job-related incident] to some extent aggravates a pre-existing infirmity, when that infirmity itself, stemming from the original trauma, continues to worsen, the point where the employee is no longer able to continue his work is not a new accident but is a change of . . . condition entitling the claimant to compensation under the original award.” (Emphasis supplied and omitted.) St. Paul Fire &c. Ins. Co. v. Hughes, 125 Ga. App. 328, 330 (187 SE2d 551) (1972); see Central State Hosp. v. James, 147 Ga. App. 308, 309-310 (248 SE2d 678) (1978) (citing Hughes, supra, as authority for finding a change in condition rather than a new injury under these circumstances). Under such circumstances, additional compensation for a change in condition under the original injury is based on a causal connection existing between the original injury and the subsequent disability when the subsequent disability results from job-related deterioration of a condition which stemmed from the original injury. See Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 158-159 (338 SE2d 742) (1985) (change in condition found because of causal connection between original injury and subsequent cessation of work due to gradual worsening of condition). In Stephens’ claim, however, the ALJ’s factual findings established that the OD condition pre-existed the original injury, and the continued existence of the OD condition in Stephens’ knees after he returned to normal work duties was unrelated to the temporary aggravation caused by the original June 26 injury. Since the pre-existing OD did not stem from the original injury, any subsequent disability which may have resulted from aggravation of the OD by resumption of normal work duties would be a separate new injury without causal connection to the original injury. See Leatherby Ins. Co. v. Hubbard, 142 Ga. App. 476 (236 SE2d 168) (1977) (a completely resolved temporary aggravation of a pre-existing condition was not causally related to a subsequent claim based on the underlying condition).

The appellate division, as affirmed by the superior court, erred in applying the provisions of OCGA § 34-9-221 (h) and erred in concluding that Stephens had met his burden of proving a change in condition entitling him to additional compensation under the original June 26 injury.

Furthermore, we conclude the superior court erred by affirming the portion of the appellate division award which concluded the evidence supported a finding that Stephens incurred a new injury when he was unable to continue work after May 31, 1993. Since this issue was not heard or determined by the ALJ, Chem Lawn was not given notice and an opportunity to be heard and present a defense. See Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 (302 SE2d 701) (1983). “Under the Workers’ Compensation Act the employer is entitled to notice and an opportunity to be heard prior to being required to pay benefits. . . . See OCGA § 34-9-100.” (Emphasis omitted.) K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 872 (401 SE2d 5) (1991).

Although Stephens’ WC-14 form did not technically set forth a claim that his disability beginning June 1, 1993, was the result of a new injury on that date as opposed to a change in condition from the June 26, 1992 injury, it appears that an issue necessarily raised by the claim and the evidence presented at the hearing was whether or not Stephens experienced a new injury by aggravation- of the pre-existing OD by resumption of his normal work duties. See Colonial Stores v. Hambrick, 176 Ga. App. 544 (336 SE2d 617) (1985). In the administration of the Workers’ Compensation Act, technical niceties of pleading and procedure are not strictly followed, and the ALJ has full authority to hear and determine all questions with respect to a claim. OCGA § 34-9-100 (a); Continental Ins. Co. v. McDaniel, 118 Ga. App. 344, 345 (163 SE2d 923) (1968). Given the nature of the claim and the evidence presented, the issue was sufficiently presented such that it could have been heard and determined by the ALJ. See Board Rule 102 (c). Since the Workers’ Compensation Act is to be liberally interpreted to carry out its purpose of providing relief to injured employees while protecting employers from excessive damage awards (Samuel v. Baitcher, 247 Ga. 71, 73 (274 SE2d 327) (1981)), we reverse the decision of the superior court and remand with directions that the case be recommitted to the Board of Workers’ Compensation for a hearing in accordance with this opinion to address the issue of whether Stephens incurred a compensable new injury rather than a change in condition.

Decided February 19, 1996

Drew, Eckl & Farnham, Ann Bishop-Byars, Frederick L. Hubbs, Jr., for appellants.

Bates & Baum, Beverly B. Bates, for appellee.

Judgment reversed and case remanded with directions.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A2664.
    PRICKETT v. THE STATE.
    (469 SE2d 371)
   Johnson, Judge.

Dean Prickett, Jr., was charged with two counts of rape in that twice on the same day he forced the fifteen-year-old babysitter hired by him and his wife to have sexual intercourse with him. Prickett pled not guilty to the charges. The case was tried before a jury. At trial, Prickett testified that he engaged in one act of consensual sexual intercourse with the alleged victim, but denied that the other alleged instance of sexual intercourse took place. The jury found Prickett guilty on both counts of rape. He appeals.

1. Prickett asserts that the trial court erred in admitting prior similar transaction evidence because the alleged prior acts are not sufficiently similar to the current offenses. The court allowed two teenage females to testify that approximately three years before the rapes alleged in this case, Prickett, as he drove by them on a tractor, grabbed his groin, flicked his tongue and gestured with the middle finger of his hand. We agree with Prickett that this testimony impermissibly placed his character in issue.

“Evidence regarding the character of a defendant is generally inadmissible unless the defendant puts his character in issue. As a corollary to this principle, evidence of independent offenses committed by a defendant is generally inadmissible due to its inherently prejudicial nature and minimal probative value.” (Citations and punctuation omitted.) Henderson v. State, 204 Ga. App. 884, 886 (2) (420 SE2d 813) (1992). But evidence of independent offenses may be admitted if the State introduces the evidence for a proper purpose, if there is enough evidence to prove that the defendant actually committed the prior offense and if there is sufficient similarity between the charged offense and the independent offense. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “To meet the ‘similarity’ requirement for the admission and use of similar transaction evidence, there must be an affirmative showing by the State . . . 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. [Cits.]” Wells v. State, 208 Ga. App. 298, 302 (1) (b) (430 SE2d 611) (1993).

In the present case, the State has not met this burden. The prior gestures purportedly made by Prickett are not similar to the forcible rapes alleged in this case and there is no evidence that such gestures were made in connection with these rapes. Consequently, proof that Prickett made the gestures does not tend to prove that he also committed the rapes. Because the inherent prejudice of the prior transaction testimony greatly outweighs its minimal probative value, the trial court erred in allowing that testimony. See Eiland v. State, 213 Ga. App. 838, 839 (1) (445 SE2d 765) (1994).

2. Prickett contends that the court compounded its error in admitting the prior transaction evidence by then failing to charge the jury on the limited purpose of such evidence. This is a valid contention even though, as the State points out, Prickett’s trial attorney failed to request such a charge. See Sloan v. State, 214 Ga. App. 784, 785-786 (2) (449 SE2d 328) (1994). Not only did he fail to request the instruction, but after the court’s final jury charge, Prickett’s lawyer said he had no exceptions to the charge. In spite of these procedural defects caused by Prickett’s trial counsel, we cannot ignore the court’s failure to give the prior similar transaction charge because this failure was so plainly erroneous as a matter of law that it deprived Prickett of his right to a fair trial to determine his guilt or innocence only as to the current charges, not on the purported prior acts. See Laney v. State, 184 Ga. App. 463, 467 (2) (361 SE2d 841) (1987).

“[Presenting a jury with such [prior acts] evidence serves no useful purpose unless the jury also is given adequate instructions regarding [the] issues of fact they must resolve from the evidence before they can consider the similar act or transaction for the limited purpose for which they were instructed such evidence was introduced. Moreover, providing the jury with adequate instructions as to the admission of any evidence of similar or logically connected offenses or transactions is necessary in the interest of justice. ...” (Emphasis in original.) Adams v. State, 208 Ga. App. 29, 37 (3) (e) (430 SE2d 35) (1993). Here, the trial court should have charged the jurors that Prickett is not on trial for the prior acts, that the limited purpose claimed by the State for introducing such evidence is only to show his state of mind and lustful disposition, that before considering the prior acts for this purpose they should determine if Prickett actually committed those acts, and if so, whether those acts are similar enough to the current rape charges so that Prickett’s commission of the prior acts tends to illustrate his state of mind in this case. See Rice v. State, 217 Ga. App. 456, 458 (2) (458 SE2d 368) (1995); Morris v. State, 212 Ga. App. 779, 780 (2) (442 SE2d 792) (1994); Adams, supra at 36 (3) (e). The court’s harmful error in not giving these necessary prior transaction charges compounded the harm of the improper admission of the prior acts evidence and mandates a reversal of Prickett’s conviction.

3. Prickett claims the court erred in qualifying a counselor as an expert on post traumatic stress disorder and rape trauma syndrome. The State attempts to rebut this claim by arguing that it did not submit the counselor as an expert on post traumatic stress disorder and rape trauma syndrome, but offered him only as an expert in counseling. The State’s argument is disingenuous because it is apparent from a review of the witness’s entire testimony that the State did not present him simply to testify about counseling; rather, he testified about his understanding of post traumatic stress disorder and rape trauma syndrome, and that he had diagnosed the alleged victim in this case as having post traumatic stress disorder. Thus, contrary to the State’s position, the court allowed the witness to testify as an expert on post traumatic stress disorder and rape trauma syndrome.

“Generally, nothing more is required to qualify an expert than that he has been educated in a particular trade or profession. This special knowledge may be derived from experience as well as study.” (Citations and punctuation omitted.) Morris v. State, 159 Ga. App. 600, 601 (1) (284 SE2d 103) (1981). In the case before us, there is insufficient evidence that this witness has special knowledge about post traumatic stress disorder and rape trauma syndrome. In attempting to qualify the witness as an expert, the State elicited testimony from him that he has been a counselor for eight years and licensed by the State for one year, has graduate degrees from two theological seminaries, was trained at the Georgia Baptist Medical Center in pastoral counseling, and has counseled approximately 150 sexual abuse victims. While this testimony may show the witness to be an expert in counseling, the State failed to present any evidence that special knowledge of counseling includes an expertise in the psychological theories of post traumatic stress disorder and rape trauma syndrome. It may be true that this counselor is an expert in those theories, but the record before us does not establish a foundation to support such a conclusion. Even though the trial court has discretion to qualify a witness as an expert, the witness’s testimony must relate to the scientific or technical knowledge within his area of expertise. Hicks v. State, 196 Ga. App. 311, 313 (2) (396 SE2d 60) (1990). Here, the trial court abused its discretion in allowing the counselor’s testimony to go far beyond the proved area of his expertise.

Moreover, it has not yet been determined whether post traumatic stress disorder and rape trauma syndrome are admissible scientific principles in Georgia, but because Prickett did not challenge the admissibility of these principles in the trial court, we do not reach that issue here. See Edmonson v. State, 212 Ga. App. 449, 450 (1), n. 1 (442 SE2d 300) (1994). Nevertheless, we note that the record before us does not contain enough evidence to support a finding one way or the other on this issue. The test to be followed in determining whether post traumatic stress disorder and rape trauma syndrome are admissible science in this state has been established by the Supreme Court. “In many states, the test for admissibility of novel scientific evidence is whether the scientific principle or discovery supporting the evidence is sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. United States, 293 F 1013, 1014 (DC Cir. 1923). This is not the test in Georgia. In Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982), [the Supreme Court] concluded: the Frye rule of counting heads in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure. We hold that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure rests upon the laws of nature. The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.” (Citations and punctuation omitted.) Caldwell v. State, 260 Ga. 278, 285-286 (1) (b) (393 SE2d 436) (1990). Accordingly, upon the retrial of this case, if the State again attempts to introduce testimony regarding post traumatic stress disorder and rape trauma syndrome, we caution the trial court to make the findings required by Caldwell on the record before ruling on the admissibility of such testimony.

Decided February 19, 1996.

John 0. Cole, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

4. Because of our holdings in the prior divisions, we need not address Prickett’s remaining enumerations of errors.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A2235.
    PHILLIPS v. THE STATE.
    (469 SE2d 292)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of child molestation. At trial, the 13-year-old victim testified that defendant (her father) committed acts which constitute the crime of child molestation. This appeal followed. Held-.

1. Defendant contends the trial court erred in allowing the testimony of the victim’s half-sister, who was 23 years of age at the time of trial, regarding sexual advances defendant made against her when the witness was 10 or 11 years of age. Defendant argues that the prior transaction was not sufficiently similar under Williams v. State, 261 Ga. 640, 642 (409 SE2d 649). We do not agree.

“Evidence of similar crimes has been most liberally extended in cases concerning sex crimes. Johnson v. State, 242 Ga. 649 (250 SE2d 394). Further, evidence concerning sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible when the accused is being tried for some form of sexual abuse of a child. Oller v. State, 187 Ga. App. 818, 820 (371 SE2d 455). See also Adams v. State, 208 Ga. App. 29, 32-34 (430 SE2d 35) (physical precedent).” Helton v. State, 217 Ga. App. 691, 692 (1b) (458 SE2d 872). After reviewing the record in the case sub judice, we find defendant’s prior sexual advances upon the victim’s half-sister sufficiently similar to warrant admission of the evidence at trial. “Consequently, we find [that] the evidence was admissible. Stephens v. State, 261 Ga. 467 (405 SE2d 483); Williams v. State, supra.” Helton v. State, 217 Ga. App. 691, 692 (1b), supra.

Decided February 8, 1996

Reconsideration denied February 20, 1996.

Lorie A. Moss, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

2. The victim’s testimony that defendant touched her private parts is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2549.
    TALIAFARO, INC. v. ROSE.
    (469 SE2d 246)
   Andrews, Judge.

Rose sued Taliafaro, Inc. for breach of an employment contract. A jury rendered a verdict in favor of Rose, and Taliafaro, Inc. appeals from the judgment entered on the verdict.

Rose, a certified public accountant and a computer specialist, was hired by a subsidiary of Taliafaro, Inc. to supervise accounting functions and implement a computer system at the Housing Authority of New Orleans (HANO) as part of Taliafaro, Inc.’s contract with the U. S. Department of Housing & Urban Development (HUD) to manage HANO for the fiscal year ending September 30, 1990. Under the employment agreement, in addition to a base salary, Rose was entitled to a $10,000 fee for the closing of the HANO books at the end of the fiscal year and a $10,000 fee for design and installation of a computer system at HANO during the fiscal year. Taliafaro, Inc. contended Rose was not entitled to either of the $10,000 fees because the HANO books were not closed at the agreed upon time, and the computer system was not implemented. Rose sued to collect the fees and obtained a jury verdict for both $10,000 fees and for $8,000 in attorney fees pursuant to OCGA § 13-6-11.

1. Taliafaro, Inc. contends the trial court erroneously denied its motion for a directed verdict on Rose’s claim for $10,000 for computer design and installation. Citing OCGA § 13-3-4, Taliafaro, Inc. claims the installation of the computer system during the fiscal year was a condition precedent to the payment of the $10,000 and that, since the computer system was not installed, Rose was not entitled to the $10,000 fee. Although it was undisputed the computer system was not installed during the fiscal year, Rose produced evidence that he successfully designed a computer system that obtained the necessary HUD approval, but that he was unable to install it because Taliafaro, Inc. failed to carry out its duty to obtain the computer equipment necessary to install the system.

Where a contract provides for performance of an obligation, the party bound to perform the obligation may be relieved and the obligation waived, where the other party to the contract repudiates the obligation by act or word, or takes a position which renders performance of the obligation useless or impossible. Stokes v. Walker, 131 Ga. App. 550, 552 (206 SE2d 564) (1974); OCGA § 13-4-23. Evidence that Taliafaro, Inc.’s failure to obtain the computer equipment prevented Rose from full performance was sufficient to create a jury question as to whether Rose was entitled to the $10,000 fee. The trial court correctly denied the motion for a directed verdict.

2. Taliafaro, Inc. claims the trial court should have granted its motion for a directed verdict on Rose’s claim for $10,000 for the closing of the HANO books. There was conflicting evidence as to when the books had to be closed under the employment agreement in order for the $10,000 to be paid. Various testimony from Taliafaro, Inc. officials indicated that the agreement was for the books to be closed at the end of the fiscal year on September 30, 1990, or within 45 days of the end of the fiscal year, or within 60 days of the end of the fiscal year, or on a “timely basis” after the end of the fiscal year. Rose testified that the agreement was for payment of the $10,000 fee upon closing of the HANO books according to normal accounting procedures after the end of the fiscal year and that the books were expeditiously closed according to those procedures. A former employee of HANO whose job was to monitor Taliafaro, Inc.’s HUD management contract testified that HANO’s books were closed in February 1991, and, although HUD had the power to impose sanctions for failure to timely close the books, no sanctions were imposed for closing the books in February 1991.

Even if the parties failed to agree as to a specific time within which the HANO books were to be closed for payment of the $10,000 fee, a reasonable time will be implied, and it was up to the jury to determine what was reasonable. Griffith v. Federal Deposit Ins. Corp., 242 Ga. 367, 368-369 (249 SE2d 54) (1978). Since there was evidence that both parties agreed the books would be closed on some unspecified “timely” or “normal” basis after the end of the fiscal year, it was a jury issue as to what was a reasonable time under the circumstances. The trial court correctly denied the motion for a directed verdict.

Decided January 31, 1996

Reconsideration denied February 20, 1996

Pat D. Dixon, Jr., for appellant.

Antonio L. Thomas, for appellee.

3. Taliafaro, Inc. claims there was no evidence to support the award of $8,000 in attorney fees pursuant to OCGA § 13-6-11. Rose claims he was entitled to attorney fees because there was evidence Taliafaro, Inc. acted in bad faith during the course of the employment contract by wilfully misusing HUD funds which should have been used to purchase the computer equipment for the system he was hired to design and install for HANO.

“OCGA § 13-6-11 provides for expenses of litigation where the defendant has acted in bad faith . . . The statutory bad faith must have arisen out of the transaction on which the cause of action is predicated rather than defendant’s conduct in defending the case. Bad faith . . . other than mere refusal to pay a just debt may authorize the jury to award attorney fees, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive.” (Citations and punctuation omitted.) McDonald v. Winn, 194 Ga. App. 459, 460 (390 SE2d 890) (1990). There was no evidence in the record to support the bad faith claim. See Ostrom v. Kapetanakos, 185 Ga. App. 728, 730 (365 SE2d 849) (1988). Accordingly, the portion of the verdict and judgment awarding attorney fees in the amount of $8,000 is reversed. Id. at 730-731.

Judgment affirmed in part and reversed in part.

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


text:
    A95A2574.
    CLARK v. THE STATE.
    (469 SE2d 250)
   Andrews, Judge.

Bobby Joe Clark, Jr. appeals the trial court’s denial of his plea of former jeopardy. Clark contends that a criminal sentence following his suspension from high school after being arrested and indicted for armed robbery is a violation of his constitutional right not to be placed in double jeopardy. We disagree and affirm the judgment of the trial court.

Clark, a 17-year-old student at Clinch County High School, was arrested on September 6, 1994, for the armed robbery of a convenience store. On September 8, 1994, Dr. Hinson, the principal at the high school, assessed Clark a ten-day suspension based on his confession of involvement in the armed robbery. The notice of discipline mailed to Clark’s parents stated that this ten-day suspension was a Step 9 level of punishment. In addition, the record shows that Hinson recommended that a tribunal hearing be held to determine whether a long-term suspension should be imposed. Clark’s counsel filed a plea of former jeopardy, claiming that the school suspension was a separate punishment by the State and triggered state and federal constitutional protections against double jeopardy. The trial court denied the plea of former jeopardy. Clark subsequently pled guilty to robbery by intimidation and was sentenced to ten years, four to serve and the balance probated. Clark now appeals the judgment of the trial court on his guilty plea, raising as error the court’s denial of his plea of former jeopardy.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Georgia Constitution also contains a double jeopardy clause which provides “[n]o person shall be put in jeopardy of life or liberty more than once for the same offense.” Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. The double jeopardy clause “protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993) (citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969)).

Until recently, a civil sanction did not constitute a prosecution or punishment for purposes of the double jeopardy clause. But, two recent Supreme Court cases have held that certain administrative proceedings may trigger double jeopardy protection. See Dept. of Revenue of Montana v. Kurth Ranch, 511 U. S. _ (114 SC 1937, 128 LE2d 767) (1994) (excessive tax on defendants for possession of illegal drugs after conviction on drug charges was functional equivalent of a successive criminal prosecution); United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989) (statutory penalty assessed under the False Claims Act was a second punishment in violation of the double jeopardy clause).

In Halper, the Supreme Court held that, for purposes of the double jeopardy clause guarantee against multiple punishments for the same offense, a civil sanction may constitute punishment if it can only be described as punitive. In addition, a civil sanction that does not bear a rational relation to a nonpunitive purpose will be treated as punishment. Id. at 449.

Decided February 2, 1996

Reconsideration denied February 20, 1996.

J. Mark Hatfield, for appellant.

Richard E. Currie, District Attorney, Kathy L. Register, Assistant District Attorney, for appellee.

Therefore, in order to determine whether the ten-day suspension is punishment, Halper requires “a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.” Id. at 448. Further, whether a sanction constitutes punishment is not to be determined from the defendant’s perspective, but rather, “it is the purpose actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” (Emphasis supplied.) Halper, supra at 447, n. 7.

Applying these guidelines to our case, we find the purpose actually served by the suspension did not constitute a punishment. Clark was in jail at the time and was not affected by the suspension. The purpose of the sanction was a remedial one, i.e., that of preventing a student who had confessed to a violent crime from returning to school in the event he was released from jail. This was a necessary step taken by the school administration in order to provide for the safety and welfare of its students. Moreover, the principal’s recommendation that a further hearing be held to determine whether the suspension should be extended supports this conclusion. Further, the ten-day suspension bore a rational relation to this nonpunitive purpose and was not excessive in achieving that purpose. Thus, Clark’s suspension from school does not rise to the level of “punishment” for purposes of the double jeopardy clause. Accordingly, the trial court did not err in denying Clark’s plea of former jeopardy.

Judgment affirmed.

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

       While a plea of guilty generally waives all defenses or objections on appeal, a claim of constitutional double jeopardy survives an unconditional guilty plea. Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) (1994) (citing Blackledge v. Perry, 417 U. S. 21, 30 (94 SC 2098, 40 LE2d 628) (1974)).


author: Blackburn, Judge.

text:
    A96A0212.
    PEMBERTON v. THE STATE.
    (469 SE2d 233)
   Blackburn, Judge.

Aaron Scott Pemberton appeals his conviction of armed robbery. On appeal, Pemberton contends the trial court erred in failing to grant his motion to suppress and his motion for mistrial.

1. By his motion to suppress, Pemberton sought to exclude the pellet/BB gun used in the robbery from evidence. Pemberton argued that his confession, which led to the discovery of the pellet/BB gun, was involuntary. The trial court denied Pemberton’s motion finding that his confession was voluntary within the meaning of OCGA § 24-3-50.

At the hearing on Pemberton’s motion to suppress, Detective Hill testified that he advised Pemberton of his Miranda rights and Pemberton signed a waiver of rights form. Thereafter, Pemberton “mentioned the possibility of an attorney,” to which Detective Hill responded that “if that’s what he wanted to do, we would in no means impede that.” Detective Hill testified that a moment of silence followed the mention of an attorney and then Pemberton freely and voluntarily gave his confession. Detective Hill testified that he did not make any promises to Pemberton except that he could inform the district attorney that Pemberton cooperated.

Pemberton’s version of his interrogation differs from Detective Hill’s. Pemberton testified that after he signed the waiver of rights form, he asked to speak to an attorney. He further testified that upon his request for an attorney the detective threatened to tell the district attorney that he did not cooperate. Pemberton testified that the detective told him that if he did cooperate, he would try to get him probation with the district attorney. Pemberton testified that he gave his statement because of the detective’s promise regarding the district attorney.

In the trial court’s order denying Pemberton’s motion to suppress, the court specifically found that Detective Hill did not threaten Pemberton into cooperating after Pemberton mentioned the possibility of a lawyer. The trial court further found that “[e]ven if the accused made an unequivocal request for counsel (which he apparently did not) the police may continue talking with him if the accused initiates further communication.” Based on the conflicting evidence before us, we cannot say that the trial court’s findings were clearly erroneous. “Unless clearly erroneous, a trial court’s findings on factual determinations and credibility relating to admissibility of a confession will be upheld on appeal.” Autry v. State, 210 Ga. App. 150, 151 (435 SE2d 512) (1993). See also Bright v. State, 265 Ga. 265, 280 (5) (c) (455 SE2d 37) (1995) (if accused initiates further conversation with police he may be questioned without counsel present). Therefore, the trial court did not err in denying Pemberton’s motion to suppress.

2. In Pemberton’s second enumeration of error he contends the trial court erred by failing to grant his motion for mistrial after his character was improperly introduced during trial by a State’s witness.

During the trial, the prosecutor asked Detective Hill what he did after he confirmed a tipster’s information regarding who had committed the robbery. Detective Hill testified that the information led him to suspect Pemberton so he checked for Pemberton’s address on the computer and found out that Pemberton was in custody in the Clayton County Jail. Pemberton’s counsel moved for a mistrial. The trial court denied the motion but instructed the jury that the statement was irrelevant to the trial and that they were not to consider it during their deliberations. The trial court further instructed that they were to draw no inferences from the statement and that the defendant was presumed to have good character. No juror responded to the trial court’s question regarding their ability to disregard the statement.

Decided January 26, 1996

Reconsideration denied February 20, 1996

W. Donald Patten, Jr., for appellant.

Robert E. Keller, District Attorney, Per B. Normark, Assistant District Attorney, for appellee.

“Where prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Punctuation omitted.) Bess v. State, 207 Ga. App. 295, 296 (427 SE2d 813) (1993).

Pemberton argues that our decision in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396) (1978), authorizes a reversal in the present case. However, “[i]n Sabel v. State, 250 Ga. 640, 643-644 (5) (300 SE2d 663) (1983), overruled on other grounds Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), the Supreme Court held that Boyd did not establish a per se rule, and that the decision of whether such statements are so prejudicial as to warrant mistrial are [still] within the trial court’s discretion.” Roos v. State, 208 Ga. App. 506, 508 (430 SE2d 870) (1993).

In light of the overwhelming evidence against Pemberton and the trial court’s curative instructions, we cannot say that the improper evidence affected the jury’s verdict or Pemberton’s right to a fair trial. See Bess v. State, supra. Therefore, we find that the trial court did not abuse its discretion by failing to grant Pemberton’s motion for mistrial.

Judgment affirmed.

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


text:
    A95A1844.
    MOREY et al. v. BROWN MILLING COMPANY.
    (469 SE2d 387)
   Andrews, Judge.

Larry Morey and J & L Farms appeal the trial court’s granting of Brown Milling Company’s motion for directed verdict in a jury trial on Brown’s claim for money owed on a promissory note. Morey and J & L Farms claim on appeal that there were issues of fact concerning the balance due on the note, their defenses of failure of consideration, equitable estoppel, and the Georgia Seed Law, and their counterclaims for damages for breach of contract and implied warranties. We affirm the judgment of the trial court.

The standard of review for the granting of a motion for directed verdict is whether there is no conflict in the evidence on any material issue and the evidence with all reasonable deductions construed in favor of the non-moving party demands a certain verdict. OCGA § 9-11-50; Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (416 SE2d 807) (1992). Accordingly, viewed in the light most favorable to Morey and J & L Farms, the evidence at trial showed that Larry Morey, after farming on his own for several years, went to work for J & L Farms, a company owned by his wife and formed for the purpose of farming land in Mitchell County, Georgia. While Morey managed J & L Farms, he owned no assets and was not a director or officer of the corporation.

Brown Milling sold agricultural supplies and chemicals and Morey had done business with them for several years. After problems with disease to the Flo-Runner peanuts planted in the 1990 crop year, Morey decided to plant some of the land in Southern Runner peanuts, which are more disease-resistant than Flo-Runners. Mr. Brown had told Morey the Southern Runner peanut seed was germinating at 88 percent. Morey bought the Southern Runner seed from Brown Milling. Some of the Southern Runner seed Morey purchased was certified and some was uncertified. After planting, Morey realized the Southern Runner seed was not producing a good stand, and he complained to Brown and to Damascus Peanut Company, the supplier of the seed. Damascus offered to refund J & L Farms the cost of the Southern Runner seed. Morey declined the offer and said he would side plant with more seed and see what happened. After the peanut crop was harvested, Morey claimed that the Southern Runner peanuts did not produce as good a yield as the Flo-Runners.

J & L Farms operated by securing a loan each year from Southwest Georgia Farm Credit. Before the loan application could be approved, Farm Credit sent out debt verification forms to its applicants’ creditors in order to determine their financial condition. Brown Milling received a debt verification for J & L Farms and returned it to Farm Credit, showing an account balance of over $87,000. This account consisted of charges for farming supplies other than just the peanut seed and associated items. Because of this account balance with Brown Milling, Farm Credit notified J & L Farms that it could not loan it the operating money for the next year.

Morey discussed the problem with Mr. Brown and Brown told Morey that he would notify Farm Credit the debt was satisfied if Morey would sign a promissory note for the amount due on account. Although Brown Milling charged 18 percent interest on overdue accounts, Brown told Morey he would only charge 10 percent interest on the note. Morey agreed and signed the note for J & L Farms and individually.

Brown notified Farm Credit that J & L Farms’ account was satisfied and Farm Credit loaned J & L Farms operating money for the 1993 crop year. But, Morey decided not to farm that year and J & L Farms repaid the money to Farm Credit, rented out its farmland and discontinued farming operations. Neither Morey nor J & L Farms paid any money to Brown Milling, and in February 1994, Brown Milling filed suit on the promissory note.

1. Morey contends there was a jury issue as to his defense of failure of consideration for his obligating himself personally on the promissory note. Morey asserts that, at the time he signed the note, he owed no money to Brown Milling. Further, the note did not create any additional obligation, nor did it result in more credit extended to J & L Farms. But, J & L Farms received a reduced interest rate on the money owed to Brown Milling and also an indefinite extension of time before the amount became due. Furthermore, whether Morey signed the note as co-maker or accommodation party, there is no requirement that any additional benefit inure to him. Where two parties execute a note as co-makers, one of the co-makers is not allowed to plead failure of consideration because he did not receive the money named on the face of the note. If either of them received the money, both are bound. Feltman v. Nat. Bank of Ga., 146 Ga. App. 434, 436 (246 SE2d 447) (1978). Likewise, an accommodation party cannot legally assert lack of consideration, since the value the accommodation party receives is the consideration for which the accommodation party bargained. Scott v. Citizens Bank of Americus, 188 Ga. App. 618, 619 (373 SE2d 633) (1988).

2. Morey also asserts there was a jury issue on his defense of duress. Morey claims Brown took unjust advantage of him and forced him to sign the note when he was in a state of economic distress. This does not, however, constitute legal duress. See Tidwell v. Critz, 248 Ga. 201, 203 (282 SE2d 104) (1981) (“ ‘duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.’ [Cit.]”). There is no evidence of duress apparent in the record. Indeed, the loan from Farm Credit was returned shortly after J & L Farms obtained it, Morey having decided to lease out the farmland instead of farming it himself.

3. Next, Morey contends the trial court erred in directing a verdict on his defense of equitable estoppel. This defense seems to be based on Brown Milling’s representation to Farm Credit that J & L Farms had a zero balance with Brown Milling. Morey claims the consideration for the note was Brown’s promise to make this false representation to Farm Credit. Therefore, the consideration was illegal and Brown Milling was equitably estopped from collecting on the note.

We find this argument to be without merit. For Morey and J & L Farms to assert the defense of equitable estoppel, they must show injury and lack of knowledge of the truth as to the facts in question. Cobb County Rural Elec. Membership Corp. v. Bd. of Lights &c. of Marietta, 211 Ca. 535 (2) (87 SE2d 80) (1955); Ga. Real Estate Comm. v. Syfan, 192 Ga. App. 3 (383 SE2d 605) (1989). Further, the party asserting the estoppel must be free from any fraud involved in the transaction. Collins v. Grafton, Inc., 263 Ga. 441, 443 (435 SE2d 37) (1993). Accordingly, Morey and J & L Farms cannot assert the defense of equitable estoppel to their obligation on the note and the trial court did not err in directing a verdict for Brown Milling on this issue.

4. The trial court also found that there was no evidence to go to the jury as to the balance due on the note. Neither Morey nor J & L Farms disputed the authenticity of the note. Therefore, Brown Milling had a prima facie right to recover the face value due on the note. OCGA § 11-3-307 (2); Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243) (1990). The burden then shifts to defendants to produce evidence showing a different amount owed and thereby creating a jury issue. Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (388 SE2d 43) (1989). But, at trial, defendants did not introduce evidence creating a dispute over the amount owed or authorizing a jury to come up with a different figure from the one testified to by Brown. Defendants’ counsel questioned Brown as to certain of his figures and how he arrived at them, but submitted no evidence as to any other amount. On appeal, defendants still do not state why or by what amount the figure awarded was incorrect. In addition, Morey and J & L Farms do not contend that any of the amount due under the note was for Southern Runner seed, certified or uncertified. Brown’s uncontroverted evidence was that the note was reduced over $19,000 for reimbursement of the cost of the seed. Accordingly, since defendants submitted no evidence as to an amount owed, the trial court did not err in directing a verdict on this issue.

5. Next, Morey and J & L Farms claim that the note should not be enforced because it was a contract contrary to public policy. They contend that Brown’s sale of uncertified seed constituted a violation of the Georgia Seed Law. This is not true and mischaracterizes the Code sections to which they cite. OCGA § 2-11-23 (a) (6) prohibits the representation of seed as certified unless the seed is produced in accordance with certain procedures. Further, we find no evidence in the record to create a jury issue as to whether the uncertified seed was not properly labeled. Indeed, Morey testified that he assumed the seed was certified. Further, Morey admitted that the invoices for seed sold to J & L Farms showed that each sale of certified seed was marked “CRT” and there was no such indication on the invoice for the uncertified seed. In addition, Morey testified that John Knowles, an officer of J & L Farms who helped in the farming, told him there was not the same tag on the uncertified Southern Runners as on the Flo-Runners. Morey told him to go ahead and plant them anyway. Accordingly, the trial court did not err in directing a verdict on Morey and J & L Farms’ defense that the contract was void as against public policy.

6. Morey and J & L Farms also claim that the trial court erred in directing a verdict for Brown Milling on their claim for damages and lost profits due to breach of contract and implied warranties. They base this claim on Morey’s contention that Brown told him that the Southern Runner seeds would germinate 88 percent.

The trial court correctly found that these claims must fail because Morey and J & L Farms are unable to show with any certainty either damages or lost profits. There is no dispute that J & L Farms was refunded the total purchase price for the Southern Runner seed, both certified and uncertified. Further, damages and lost profits due to any alleged deficiency in the seed were not shown with any reasonable certainty. Morey and J & L Farms contend their problems with the peanut crop stemmed from Brown Milling’s selling them uncertified seed without informing them. Morey claims the poor germination was due to the uncertified seed; however, while he compares the Flo-Runner yield with the Southern Runner yield, we do not find any comparison of the certified Southern Runners with the uncertified Southern Runners. The Flo-Runners and Southern Runners are different types of seed which perform differently under the same conditions. Further, they were planted at different times, some on irrigated land and some on non-irrigated land.

It is well settled that there can be no recovery on a claim for loss of expected profits except where such loss can be shown with reasonable certainty. Farmer’s Mut. Exchange of Baxley v. Dixon, 146 Ga. App. 663, 664 (247 SE2d 124) (1978). Further, in order to show damages or lost profits due to defective seed, Morey and J & L Farms must compare crops grown in the same soil, planted under identical weather conditions, planted at the same time, and fertilized and cultivated in the same manner. Farmer’s Mut., supra at 665. Morey and J & L Farms were unable to present this evidence at trial, and, consequently, the trial court did not err in directing a verdict on this issue.

Decided February 20, 1996.

Langley & Lee, C. Richard Langley, for appellants.

Norman J. Crowe, Jr., for appellee.

Judgment affirmed.

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


text:
    A95A2074.
    CARROLL v. ROCK.
    (469 SE2d 391)
   Johnson, Judge.

Cynthia Rock took two cats to Dr. Roy Carroll’s veterinary clinic to be neutered. Rock phoned the clinic the next day and was told that one of the cats, Tigger, escaped and had been missing for several hours. When Rock arrived at the clinic, she was told by Carroll’s staff that they had been looking for and would continue to search for Tigger, had called animal control, and would run an ad in the paper and post notices in an effort to locate the cat. A few weeks later, when Tigger had still not been found, Rock sued Dr. Carroll d/b/a The Animal Care Clinic for conversion or breach of bailment and emotional distress. She also sought punitive damages and attorney fees. A jury returned a verdict awarding Rock $150 compensatory damages, $650 attorney fees, $350 reimbursement for gas spent searching for the cat and $2,000 for mental anguish, pain and suffering. The trial court entered judgment on the jury verdict. We granted Carroll’s application for discretionary appeal.

1. We agree with Carroll that the trial court erred in instructing the jury on punitive and vindictive damages. “If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received, for vindictive or punitive damages are recoverable only when a defendant acts maliciously, wilfully, or with a wanton disregard of the rights of others.” (Citations and punctuation omitted.) Roseberry v. Brooks, 218 Ga. App. 202, 209-210 (4) (461 SE2d 262) (1995). Carroll’s veterinary technician testified that she watched as a kennel assistant tried to remove Tigger from a cage to administer an antibiotic. The cat scratched the assistant’s neck and arms and she dropped him. The technician tried to catch Tigger by throwing a towel over him, but he escaped by tearing through a piece of plastic and some wire mesh which covered a space between the wall and an air conditioning unit. The technician immediately ran outside to catch the cat, but he jumped past her and ran away.

Any instruction on punitive damages is inconsequential because no punitive damages were awarded. However, in awarding damages for “mental anguish, pain & suffering,” it appears that the jury may have awarded Rock vindictive damages. The trial court’s charge included an instruction authorizing the jury to award Rock damages if the injury was to her peace, happiness or feelings. In closing argument, plaintiff’s counsel asked that the jury compensate Rock for the lost cat, plus $3,000 for injury to Rock’s peace, happiness and feelings or, in the alternative, for punitive damages. The “peace, happiness or feelings” language comes directly from the vindictive damages statute. See OCGA § 51-12-6; Brunswick Gas &c. Co. v. Parrish, 179 Ga. App. 495 (347 SE2d 240) (1986). “Mental pain and suffering” and “mental anguish” claims for injuries unaccompanied by physical injury or pecuniary loss also fall within the ambit of that statute. See Sanders v. Brown, 178 Ga. App. 447, 450 (1) (343 SE2d 722) (1986). Thus, while the verdict form fails to specifically label the “mental anguish, pain & suffering” award as vindictive damages, it is very possible that the award was for vindictive damages.

“The caveat is clear and it is well established that if damages for mental pain and suffering sought under OCGA § 51-12-6 are not accompanied by physical or pecuniary loss, recovery is allowed only if the conduct complained of was malicious, wilful or wanton.” (Citations and punctuation omitted.) Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 80-81 (1) (387 SE2d 34) (1989); see Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (2) (B) (216 SE2d 776) (1975). Rock did not show any physical or pecuniary loss. Nor did she present any evidence that Carroll’s or his employees’ acts were malicious, wilful or wanton. We do not agree with her argument that Carroll’s acts of waiting four hours before telling her of the loss, misrepresenting to her how the cat escaped and the efforts undertaken to find it and the nonchalant manner in which she was informed of the loss constituted a wilful disregard of her rights or extremely outrageous conduct. We have held that the wilful misconduct, malice, fraud, wantonness or oppression necessary to justify a punitive damage award is not present where a defendant injures a plaintiff and simply fails to remedy the situation to the plaintiff’s satisfaction. Moon v. Ga. Power Co., 127 Ga. App. 524, 527-528 (2) (194 SE2d 348) (1972). The evidence presented in this case simply does not authorize a charge on vindictive damages and the trial court erred in giving such a charge to the jury. Because the jury’s award for “mental anguish, pain & suffering” was very likely a vindictive damages award, we cannot say that the charge was not prejudicial. Therefore, the judgment must be reversed. See generally Townsend v. Moore, 165 Ga. App. 606, 608 (2) (302 SE2d 398) (1983).

2. Carroll correctly asserts that the trial court erred in admitting testimony as to any emotional distress suffered by Rock. Recovery for negligent infliction of emotional distress is allowed only where there has been some impact on the plaintiff that results in a physical injury. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). It is undisputed that Rock suffered no physical injury as a result of Carroll’s acts; therefore, her negligent infliction of emotional distress claim fails.

Her intentional infliction of emotional distress claim also must fail. Where intentional infliction of emotional distress is alleged, the plaintiff need not show an impact, but must show that the defendant’s conduct was outrageous or egregious. See Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 224-225 (369 SE2d 541) (1988). “The tort of intentional infliction of emotional distress is recognized in this state, where the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff.” (Citation and punctuation omitted.) Gordon v. Frost, 193 Ga. App. 517, 521 (1) (388 SE2d 362) (1989). “The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.” (Citation, punctuation and emphasis omitted.) Moses, supra at 226. “There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” (Citation and punctuation omitted.) Id. at 225. The conduct complained of in this case simply does not rise to the level of outrageousness and egregiousness required to support recovery for intentional infliction of emotional distress. See Norfolk Southern R. Co. v. Spence, 210 Ga. App. 284, 285-286 (435 SE2d 680) (1993). The trial court abused its discretion in allowing testimony of Rock’s mental condition following Tigger’s disappearance. And inasmuch as the jury returned a verdict awarding Rock damages for mental anguish, pain and suffering, the admission of the testimony cannot be regarded as harmless. Therefore, the error requires reversal and a new trial. See generally Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187 (3) (450 SE2d 452) (1994); Thomason v. Harper, 162 Ga. App. 441, 449 (2) (289 SE2d 773) (1982).

3. The trial court’s denial of Carroll’s motion for summary judgment on the issue of vindictive damages is rendered moot by our holdings in Divisions 1 and 2 and by the court’s entry of judgment on the verdict. See Dept. of Transp. v. Brown, 218 Ga. App. 178, 179 (1) (460 SE2d 812) (1995).

4. The other enumerations raised in this appeal involve circumstances not likely to recur on retrial.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided February 20, 1996.

Worthington & Flournoy, Samuel W. Worthington III, David J. Grindle, for appellant.

Melvin E. Cooper, for appellee.


author: Beasley, Chief Judge.

text:
    A95A2114.
    ODUM v. THE STATE.
    (469 SE2d 394)
   Beasley, Chief Judge.

After a bench trial, Odum was convicted and sentenced on one count of driving after being declared a habitual violator and after having been notified that his driver’s license had been revoked, OCGA § 40-5-58 (c); one count of operating a motor vehicle without insurance, OCGA § 40-6-10 (b); and one count of operating a motor vehicle with an improperly transferred tag, OCGA § 40-2-5 (a) (4).

The sole question is whether the evidence was sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, supra at 319; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). Durden, a state highway patrol officer, testified that he and another officer had established a roadblock on Highway 117 to check licenses. When Odum pulled up to the roadblock he was alone in the car, had no driver’s license, and originally gave Durden a false name. After he was arrested for failure to carry a driver’s license and proof of insurance, he gave his true name and Durden learned he had been declared a habitual violator.

Odum testified that his son Wrese was originally driving the car, although he was too young to get a license. As they approached the highway from a dirt road near the roadblock, Wrese began to back up to return down the dirt road for more driving instruction. At this point an officer other than Durden pulled up and told them they had to go on to the roadblock. Wrese, nervous about the situation, did not want to drive there so Odum did. There was another occupant of the car, Odum’s nephew Mackey, but he was also unlicensed and did not know how to drive. Both Mackey and Wrese, who rode in the car to the roadblock, testified to the same effect.

Even if the court, as trier of fact, found the defense witnesses to be more credible than the officer, the evidence was sufficient to support the verdict. Jackson v. Virginia, supra. Odum admitted he drove the car when he knew he was not supposed to do so. He was not forced to drive; he stated that the officer merely told the occupants of the car they would have to go to the roadblock. All three defense witnesses testified Odum was not designated by the officer to drive.

Decided February 20, 1996.

Morris S. Robertson, for appellant.

Ralph M. Walke, District Attorney, Jeff J. Conner, Assistant District Attorney, for appellee.

Odum also argues the evidence establishes the defense of justification, OCGA § 16-3-20 (6), but it was not raised at trial and the evidence does not support it. He contends he was left with no choice but to drive the car himself, but his own actions led him to be one of three persons in a car, in which no one was legally entitled to drive. This is not the sort of emergency faced by the husband of the expectant wife suffering labor pains in Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991). Additionally, Tarvestad only stated that a jury charge on OCGA § 16-3-20 (6) would be warranted.

The evidence did not establish justification as a matter of law. Even if Odum is permitted to argue justification for the first time on appeal, see Furfano v. State, 212 Ga. App. 472, 473 (2) (442 SE2d 305) (1994), it would not aid him. “The trial judge is presumed to know the law ([cit.])[,]” Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988), and it would have to be concluded he rejected any implied justification defense when he pronounced guilt.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A95A2120.
    MITCHELL v. THE STATE.
    (469 SE2d 707)
   Ruffin, Judge.

Louis Mitchell was convicted of armed robbery and kidnapping in connection with the robbery and abduction of a woman from her home at gunpoint. He appeals from the judgment of conviction and sentence following the denial of his motion for new trial. In his sole enumeration of error, Mitchell contends he was denied effective assistance of counsel at trial because his attorney failed to move to sever his trial and failed to cross-examine certain witnesses regarding his alibi defense. Because both the alleged deficiencies involve trial strategy and tactics and Mitchell failed to show prejudice, we affirm the trial court’s judgment.

The evidence shows that two men approached the victim outside her home at approximately 10:00 p.m. One of the men, later identified as Tony Walker, held a pistol to the victim’s head and demanded that she remove her coat, jewelry and wallet. Walker then dragged her to a waiting car. Walker pushed the victim into the back seat with another passenger, and he sat in the front seat. The driver, later identified as Mitchell, then drove around the area for several minutes, during which time Walker continued to point his gun at the victim as the passenger fondled her. When the victim attempted to resist the passenger, Walker hit her with the gun. Eventually, the men pushed the victim out of the car. Later that evening, the victim gave the police a description of the car, the gunman, the driver and the passenger.

Three days later, a policeman spotted a car that matched the victim’s description containing Mitchell, Walker and a third man. Once again, Mitchell was driving the car, and Walker was in the front passenger seat. The police questioned the men, removed them from the car and retrieved a handgun from under the front seat which, according to the victim, resembled the gun Walker used during the robbery. Mitchell and Walker were then arrested. The victim identified them in a photographic lineup and at trial. They were jointly indicted and tried for armed robbery, kidnapping and aggravated assault. Both men were convicted of the first two offenses and acquitted of aggravated assault.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] Here, [Mitchell] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.] ‘To establish ineffective assistance of counsel, (a defendant) must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. (Cits.)’ The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. [Cit.]” Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).

Mitchell first contends his trial counsel failed to move to sever his case and that as a result, there was a possibility that the jury considered all the evidence collectively as to both defendants, unfairly prejudicing his ability to obtain a trial based solely on the evidence presented against him. Without citing to the record, Mitchell also contends that certain testimony regarding Walker’s prior involvement in drug activity may have been unjustly attributed to him even though there was no evidence that he was ever previously involved in any criminal activity.

“The decision whether to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. [Cit.]” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Furthermore, Mitchell has not demonstrated that severance would have been granted even had a motion been filed. Such decisions are within the discretion of the trial court, and a defendant must “ ‘do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.’ . . . [Cit.]” Johnson v. State, 208 Ga. App. 747, 749 (2) (431 SE2d 737) (1993). Mitchell “has complained, but has not shown by the record, that the joint trial has created confusion of the evidence and law applicable to each defendant . . . and that the defendants’ defenses were antagonistic.” Id. Moreover, although the trial court failed to instruct the jury to restrict its consideration of evidence admitted solely against Walker to him alone, in light of the overwhelming evidence of Mitchell’s guilt as a party to the crimes of which he was convicted, it is highly unlikely that evidence regarding Walker’s prior drug involvement affected the verdict. Therefore, we find that Mitchell failed to establish the requisite prejudice to his defense to support his claim of ineffective assistance of counsel based on his attorney’s failure to file a motion to sever.

Mitchell also contends his trial counsel failed to cross-examine certain witnesses which could have corroborated his testimony and supported his alibi defense. He testified at trial that on the evening of the robbery and kidnapping, he was at home playing cards with Walker and other friends and that at the approximate time of the robbery, he was in his bedroom with a female friend. Walker testified that he was drinking at his home and never left the house that evening. In his appellate brief, Mitchell alleges that counsel failed to question witnesses to demonstrate that he left the main area of the house for several hours and went to his room at the time of the robbery and abduction.

“Decisions on how to conduct cross-examination are matters of trial strategy within the exclusive province of trial counsel after consultation with his client. [Cit.]” Williams v. State, 211 Ga. App. 393, 397 (2) (h) (439 SE2d 11) (1993). In addition, by failing to proffer the witnesses’ expected testimony at the hearing on his motion for new trial, Mitchell did not establish how counsel’s failure to cross-examine them affected the outcome of his case. “[T]he failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant. [Cit.] Because [Mitchell] failed, at the hearing on his motion for new trial, to make any proffer of the . . . witnesses’ testimony, it is ‘impossible for [him] to show there is a reasonable probability the results of the proceedings would have been different. (Cit.) . . . (I)t cannot possibly be said . . . that . . . the . . . witnesses would have testified favorably to [Mitchell].’ [Cits.]” Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991).

Decided February 20, 1996.

Ingrid D. Bedgood, for appellant.

Lewis R. Slaton, District Attorney, Suzanne W. Ockleberry, Carl P. Greenberg, Assistant District Attorneys, for appellee.

The foregoing demonstrates that Mitchell failed to establish that his trial counsel’s performance fell below reasonable standards of professional conduct or that his defense was prejudiced by that performance. Thus, we find no error in the trial court’s denial of Mitchell’s motion for new trial.

Judgment affirmed.

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


text:
    A95A2218.
    HOWARD v. THE STATE. CROMARTIE v. THE STATE.
    A95A2219.
    (469 SE2d 396)
   Ruffin, Judge.

Gregory B. Howard and his co-defendant, Roderick Cromartie, were both convicted of rape. Both appeal the judgment of conviction, and Cromartie appeals the denial of his motion for new trial. We affirm.

The evidence at trial revealed the following. Sophia Harper planned to visit Howard in Macon and invited the victim to accompany her. The women intended to return to their Atlanta homes later that evening. After they arrived in Macon, the women made plans to go out with Howard, his roommate and co-defendant Cromartie, and Ken Taylor, who wanted to first shower and change at his home. While they waited for Taylor, Cromartie suggested they play a board game called “sip and strip,” which required the players to remove clothing or drink alcohol with the roll of the dice. Harper agreed to play but refused to drink because she was driving. The victim testified that she only agreed to watch. Both Howard and Cromartie consumed alcohol during the game.

After Taylor returned, the victim remained with Howard and Cromartie while Harper and Taylor went to a club. The victim testified that while she waited for Harper’s return, Howard began to kiss her and then he picked her up and carried her into a bedroom where he forced her to perform oral sex on him while Cromartie simultaneously raped her. The victim testified that Howard then raped her, left for a while, returned and raped her again. The victim feigned illness and was taken to the bathroom, where she remained until Harper’s return. After Harper entered the apartment, she saw Howard walking from a bedroom zipping his pants. When Harper entered the bathroom, the victim was on the floor in a fetal position. Harper retrieved the victim’s clothing, helped her dress, and the victim tearfully stated she had been raped. Howard then offered the victim money and asked her not to say anything. After further discussion, the women left and called the police. Eventually, the victim and Harper gave written statements to the police.

Both appellants were represented at trial by the same counsel. Although the appellants’ mutual defense was that the victim consented to sex, the doctor who examined her shortly after the incident testified that the condition of her genitalia was consistent with forced sex.

During trial, the court held a hearing pursuant to Uniform Superior Court Rule 31.3 (B) to determine whether to admit the State’s evidence of a similar transaction Howard purportedly committed. After hearing the evidence, the court decided to admit the evidence, specifically finding that (1) the purpose of the evidence was to show intent or scheme; (2) the evidence was sufficient to establish that Howard committed the act; and (3) there was a sufficient connection between the similar transaction and the crime charged so that proof of the former tended to prove the latter.

1. Howard argues that the trial court erred by sanctioning the State’s discriminatory use of peremptory challenges.

The record shows that during jury selection, the State argued that the defendant used his peremptory challenges to discriminate on the basis of gender. After hearing argument, the court found that each side failed to show gender-neutral reasons for striking one juror and offered the parties the opportunity to move for a mistrial. Neither party did so. The court then seated the jury as chosen, including the jurors it found no gender-neutral reasons for selecting, and Howard did not object.

A party cannot acquiesce in a ruling and then complain of it on appeal. Watkins v. State, 206 Ga. App. 701 (4) (426 SE2d 238) (1992). Consequently, Howard waived this argument. McDonald v. State, 132 Ga. App. 506 (3) (208 SE2d 376) (1974).

2. Both Howard and Cromartie argue that the trial court erred in admitting similar transaction evidence because the prior rape used as the similar transaction did not result in a conviction and the incidents were not substantially similar. Cromartie also asserts that this similar transaction evidence involving only Howard prejudiced his defense despite limiting instructions to the jury.

The witness who provided the similar transaction evidence testified that Howard raped her in her barracks while she and Howard were stationed at Fort Bragg, North Carolina. The witness stated that Howard had been drinking, and the rape was never prosecuted.

Similar transaction evidence is admissible if, at a hearing pursuant to USCR 31.3 (B), the State affirmatively establishes (1) that the evidence is offered for an appropriate purpose; (2) that the accused committed the prior offense; and (3) there is a sufficient connection between the prior offense and the charged crime such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). “Evidence of similar crimes has been most liberally extended in cases concerning sex crimes.” Helton v. State, 217 Ga. App. 691, 692 (1) (b) (458 SE2d 872) (1995). Contrary to appellants’ argument, the prior offense need not result in a conviction. Coalter v. State, 183 Ga. App. 335 (2) (358 SE2d 894) (1987); Jones v. State, 159 Ga. App. 634 (1) (284 SE2d 651) (1981) (no error in admitting evidence of prior rape charge resulting in acquittal).

In this case, the similar transaction witness testified that she and Howard were stationed at the same army base, she met Howard on a previous occasion because he was dating her roommate, she delivered some rented movies to his room at her roommate’s request, and he entered her room four times on the evening he raped her. This is sufficient to establish that Howard committed the prior rape, for purposes of the Williams criteria.

Furthermore, the connection between the two offenses was sufficiently similar to satisfy Williams. The evidence showed that Howard had consumed alcohol prior to committing both offenses and offered alcohol to the victims. Neither victim was a complete stranger, having been introduced to Howard hours before the rapes. In both situations, Howard made sexual advances which were rebuffed, and then he overpowered, but did not strike the women. The trial court also noted similarities in the victims’ dress and the time of the rapes. The connecting thread pervading the two offenses is a corresponding course of conduct and intent or bent of mind which is sufficient to justify the admission of the similar transaction evidence. See, e.g., Cole v. State, 211 Ga. App. 236 (438 SE2d 694) (1993).

Turning to Cromartie’s assertion of prejudice, we find that he waived the issue by failing to move for severance despite his prior knowledge of the similar transaction evidence. Hooks v. State, 215 Ga. 869 (3) (114 SE2d 6) (1960). The record shows that trial counsel discussed this issue with Cromartie and urged him to retain separate counsel if he were concerned about being prejudiced by the evidence.

Moreover, the trial court thoroughly instructed the jury that this evidence applied only to Howard. Before its admission, the trial court twice advised the jury that it was only applicable to Howard and had “nothing to do with the case of the State vs. Mr. Cromartie.” Again, at the close óf trial, the court instructed the jury that the evidence pertained only to Howard. We find these instructions sufficient to prevent prejudice to Cromartie. See, e.g., Givens v. State, 184 Ga. App. 498 (1) (361 SE2d 830) (1987).

3. (a) Howard argues that the trial court permitted improper bolstering of the victim’s testimony by allowing the State to ask the investigating officer whether he observed any inconsistencies between the victim’s testimony and her statement on the night of the rape.

Howard’s argument is foreclosed by Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). That case “stands for the proposition that where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149 (2) (335 SE2d 869) (1985). The record shows that those circumstances were present in the instant case.

(b) Cromartie argues that in asking this question with the knowledge that there were inconsistencies in the victim’s statements, the State engaged in prosecutorial misconduct.

It is elementary that the State may not knowingly use false testimony to obtain a conviction, even when the falsity relates solely to the credibility of a witness. Smith v. Zant, 250 Ga. 645 (3) (301 SE2d 32) (1983). In his brief, however, Cromartie mentions no specific false testimony or inconsistencies. He simply cites testimony at the motion for new trial in which the investigating officer admitted that at first the victim said nothing about Harper playing “sip and strip” and stripping to her undergarments. But the officer also testified that during subsequent conversations the victim provided that information and he was unsure whether to characterize the statement as inconsistent due to the victim’s shaken condition. This minor discrepancy, which was subsequently corrected, simply does not rise to the level of a false statement. Thus, we find no evidence that the State committed misconduct.

4. Howard argues that his counsel rendered ineffective assistance by failing to (1) inform the jury that the victim used a penny as her “sip and strip” game piece; (2) refute medical testimony indicating that the victim’s physical condition after the rape was not consistent with consensual sex; (3) move to strike statements by the similar transaction witness that Howard had failed lie detector tests; and (4) adequately investigate and prepare the case for trial. Cromartie appears to argue that trial counsel rendered ineffective assistance due to (1) inadequate preparation and (2) conflict of interest arising from the admission of the similar transaction evidence.

“When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted in the single enumeration.” (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). Because Howard raised only the second and fourth of these arguments in the context of his ineffective assistance claim in his motion for new trial, we decline to reach the arguments not presented to the trial court. See Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994).

The appellants bear the burden of establishing that their trial counsel’s performance was deficient and the deficiency prejudiced their defense to the extent that there was a reasonable probability the result of their trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277 (2) (a) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them. Rogers v. State, 195 Ga. App. 446 (2) (394 SE2d 116) (1990); Kelly v. United States, 820 F2d 1173, 1176 (11th Cir. 1987), cert. denied, 484 U. S. 966 (108 SC 458, 98 LE2d 398) (1987). See Hutson v. State, 216 Ga. App. 100 (10) (453 SE2d 130) (1995).

After a hearing in which defense counsel testified, the trial court determined that the assistance provided was not ineffective. Specifically, it found that the pretrial investigation, which included a review of the State’s file on two occasions as well as witness interviews, was adequate. The court also determined that the decision not to engage the services of a medical expert to counter the State’s expert’s testimony concerning the condition of the victim’s sexual organs was tactical in light of what counsel understood the testimony of a treating nurse would be at trial. The nurse testified on cross-examination that the condition of the victim’s sexual organs could be consistent with prolonged consensual sex. The trial court’s findings are not clearly erroneous and therefore must be upheld. Garrett v. State, 196 Ga. App. 872 (1) (397 SE2d 205) (1990). Because Howard failed to establish that his counsel’s performance was deficient, we need not address the remaining prong under Strickland. See Rogers, supra.

As to the conflict of interest issue, the record shows trial counsel informed Cromartie about the possible conflict prior to trial. In addition, the trial court questioned the defendants at length about the issue before jury selection. Cromartie stated to the court he was satisfied that trial counsel could represent both his and Howard’s interests. Under these circumstances, the rule requiring objection to counsel’s qualification to represent multiple criminal defendants prior to trial applies. Hudson v. State, 250 Ga. 479 (1) (299 SE2d 531) (1983). Accordingly, Cromartie waived this argument.

Decided February 20, 1996.

Bush, Crowley, Leverett & Leggett, Michelle L. Schieber, for appellant (case no. A95A2218).

Gregory B. Howard, pro se.

Clinton A. Wheeler, for appellant (case no. A95A2219).

Roderick Cromartie, pro se.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Laura D. Hogue, Assistant District Attorneys, for appellee.

We turn to Cromartie’s unsupported assertion that he received ineffective assistance because trial counsel provided pro bono representation. As discussed above, because Cromartie asserted more than one error in this enumeration, we decline to reach this issue. Toledo, supra.

5. Howard argues that the trial court erred in denying his motion for new trial because the jury’s impartiality may have been compromised when Harper was arrested following closing argument.

Where a communication with a jury is shown, the State bears the burden of rebutting the presumption of harm. Owens v. State, 251 Ga. 313 (9) (305 SE2d 102) (1983). No such presumption arose in this case, however, because there was no communication. The record shows that Harper, a witness who at trial recanted her written statement made just after the rape and testified favorably to Howard, was arrested for giving false statements to officers. The arrest occurred just after the jury began deliberations, when a police officer asked her to step outside the courtroom and served her with the arrest warrants. It is undisputed that she reacted very loudly. However, all the jurors were sequestered at the time and could not have observed the arrest. Absent any evidence that the jury witnessed or heard the commotion, Howard’s argument lacks merit.

Judgment affirmed.

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

       Howard was indicted on two counts of rape and one count of aggravated sodomy. Cromartie was indicted on one count of rape and one count of aggravated sodomy.

       Because Howard did not challenge the propriety of the State’s purpose in seeking the introduction of the similar transaction evidence, we need not analyze that element of the Williams criteria.