author: Andrews, Presiding Judge.

text:
    A01A2521.
    STURM, RUGER & COMPANY, INC. et al. v. CITY OF ATLANTA.
    (560 SE2d 525)
   Andrews, Presiding Judge.

This case is before us on appeal from the trial court’s denial of appellants’ motion to dismiss in full the City of Atlanta’s (City’s) suit against 17 defendants that manufacture, distribute, sell, and promote the use of firearms. Because the State has preempted the field of gun regulation and also because this suit is barred by OCGA § 16-11-184, the trial court erred in not granting appellants’ motion to dismiss all claims.

Procedural History

On February 4, 1999, the City filed a complaint alleging that it had suffered harm and incurred significant expenses because the defendants, fourteen gun manufacturers and three trade associations (gun manufacturers), had manufactured, distributed, marketed, promoted, and sold firearms which were defective, unreasonably dangerous, and negligently designed. The complaint alleged, for example, that the firearms were unreasonably dangerous because they could be fired by unauthorized users, including children, criminals, and mentally unstable persons, because they were not distributed with adequate warnings as to the risks or instructions for proper storage, and because they failed to adequately warn all foreseeable users, including unintended users, that an undetectable round of ammunition could be housed in the firing chamber, thus allowing the gun to be fired even when the magazine had been removed.

The City alleged three counts against the manufacturers: defective and negligent design, failure to include safety devices, and failure to warn. The complaint also alleged negligence against the trade associations for failing to discourage unauthorized use, failing to develop and implement safety features, and failing to issue adequate warnings. The City claimed it was damaged because it had been forced to pay out large sums of money to provide police and emergency services, police pension benefits and related expenditures, as well as losing substantial tax revenues because of lost productivity. Neither the complaint nor the subsequently filed amended complaint contained any references to a specific victim of defects in a specific firearm, a specific type of safety device which should have been installed, or a specific instance of an inadequate failure to warn.

Five days after the complaint was filed, the General Assembly passed House Bill 189, amending OCGA § 16-11-184. The original version of OCGA § 16-11-184, in existence at the time the City filed its complaint, provided:

(a) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, state-wide concern, (b) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, pur- chase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components, (c) A county or municipal corporation may regulate the transport, carrying, or possession of firearms by employees of the local unit of government in the course of their employment with that local unit of government, (d) Nothing contained in this Code section shall prohibit municipalities or counties, by ordinance, resolution, or other enactment, from requiring the ownership of guns by heads of households within the political subdivision, (e) Nothing contained in this Code section shall prohibit municipalities or counties, by ordinance, resolution, or other enactment, from reasonably limiting or prohibiting the discharge of firearms within the boundaries of the municipal corporation.

Code 1981, § 16-11-184, enacted by Ga. L. 1995, p. 139, § 2.

This Code section was amended as follows:

16-11-184. Regulatory authority of political subdivisions; limitations, (a) (1) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, state-wide concern. (2) The General Assembly further declares that the lawful design, marketing, manufacture, or sale of firearms or ammunition to the public is not unreasonably dangerous activity and does not constitute a nuisance per se. (b) (1) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components. (2) The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association, or dealer by or on behalf of any governmental unit created by or pursuant to an Act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, or injunctive relief resulting from or relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public shall be reserved exclusively to the state. This paragraph shall riot prohibit a political subdivision or local government authority from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision or local government authority.

Ga. L. 1999, pp. 2-3, §1.

Section 2 of the Act, not codified by the General Assembly, provides that “The General Assembly intends that paragraph (2) of subsection (a) of Code Section 16-11-184 as enacted by this Act shall embrace the rule of law in Division 1 of Rhodes v. R. G. Industries, Inc., 173 Ga. App. 51 [(325 SE2d 465)] (1984).” Ga. L. 1999, p. 3, § 2.

Section 3, also not codified by the General Assembly, provides that “This Act shall apply to any action pending on or brought on or after the date this Act becomes effective.” Ga. L. 1999, p. 3, § 3.

After the gun manufacturers moved to dismiss, claiming the suit was barred under both the original and amended OCGA § 16-11-184, the City filed its first amended complaint, adding claims of nuisance, fraud, fraudulent concealment, unjust enrichment, negligent marketing and distribution, and civil conspiracy. Five days later, the gun manufacturers filed a renewal and restatement of their motion to dismiss to include the amended complaint. The City responded, claiming that amended Code section 16-11-184 could not be applied retroactively so as to bar its suit.

The court held a hearing on the motion to dismiss at which the gun manufacturers argued that both the complaint and amended complaint should be dismissed for the reasons previously stated. The court granted the motion to dismiss the claims of strict liability, but refused to dismiss the claims of negligence. Although the arguments at the hearing, the restated motion to dismiss, the reply brief filed by the gun manufacturers, as well as the proposed order submitted by the gun manufacturers, all clearly stated that the arguments applied to all claims in both the complaint and the amended complaint, the trial court nevertheless refused to consider dismissing the claims in the City’s amended complaint, stating that these claims were “not addressed in Movants’ Motions to Dismiss.”

The court also refused to consider Count 4 of the complaint, the claim of negligence against the trade associations, stating that the claim was inapplicable to movants (Smith & Wesson and Beretta) and directed only to the trade association defendants. The trial court held this despite having heard and acknowledged the statement made by counsel for the trade associations at the hearing that the trade associations adopted the position of the gun manufacturers in its entirety and had nothing to add.

The gun manufacturers requested a certificate of immediate review under OCGA § 5-6-34 (b); but, the trial court refused to certify that the partial denial of the motion to dismiss was of such importance to the case that immediate review should be had by this Court. The gun manufacturers then filed a declaratory judgment action, request for injunction, and petitions for writs of mandamus and prohibition against the trial court judge in the Superior Court of Fulton County. The Fulton County Superior Court denied all claims for relief, and the issues were appealed to the Supreme Court of Georgia.

The Supreme Court affirmed the superior court, holding that these were issues which must be determined through the statutory appeal process. Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 432 (543 SE2d 16) (2001). Shortly after the Supreme Court issued this opinion, the legislature amended OCGA § 5-6-34 (a) to permit a direct appeal of “[a]ny ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-184.” OCGA § 5-6-34 (a) (5.1). This appeal followed.

“A trial court should grant a motion to dismiss only when, assuming the allegations in the complaint are true, the plaintiff would not be entitled to any relief under the facts as stated and the defendant demonstrates that the plaintiff could not introduce evidence that would justify granting the relief sought. Our review is de novo.” (Footnotes omitted.) Moore v. BellSouth Mobility, 243 Ga. App. 674, 675 (534 SE2d 133) (2000).

Here, the gun manufacturers argued below and on appeal that Georgia law, under both the original OCGA § 16-11-184 and amended OCGA § 16-11-184, does not permit this suit. The State of Georgia, in an amicus brief, contends that state law preempts the City’s suit. The City’s response on appeal is that OCGA § 16-11-184, as amended, cannot be applied retroactively to bar this suit.

State Preemption

The State’s amicus brief argues that this suit is barred because the State has preempted the field of gun regulation. The State contends that under Georgia’s Constitution and laws, it alone has the power to regulate the manufacture, sale, distribution, and promotion of firearms and this lawsuit is an attempt by the City to usurp the governmental power and authority of Georgia’s General Assembly. We agree.

The doctrine of state preemption is based on the concept that statutes of the state legislature control over county [or city] ordinances. Generally preemption is based on legislative intent. Under federal law, for example, Congress may express an intent to preempt state law by expressly defining the area of preemption, extensively regulating an area so that preemption may be inferred, or enacting a law that directly conflicts with state law. Similarly, state law may preempt local law expressly, by implication, or by conflict.

(Footnotes omitted.) Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 273-274 (1) (507 SE2d 460) (1998).

Art. I, Sec. I, Par. VIII of the Georgia Constitution of 1983 provides: “The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.” The General Assembly has exercised this power given by the constitution to create a regulatory scheme for the distribution and use of firearms. Rhodes v. R. G. Indus., supra at 52.

In this case, preemption can be inferred from the comprehensive nature of the statutes regulating firearms in Georgia, among which are the Georgia Firearms and Weapons Act, codified at OCGA § 16-11-125, and OCGA §§ 16-11-126 through 16-11-134, the Brady Handgun Violence Protection Act, codified at OCGA §§ 16-11-170 through 16-11-184, and also OCGA §§ 43-16-1 through 43-16-12 which regulate the licensing of firearms dealers.

More importantly, the State has also expressly preempted the field of firearms regulation in OCGA § 16-11-184, which, even before its amendment in 1999, provided “that the regulation of firearms is properly an issue of general, state-wide concern.” And,

(b) (1) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components.

The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject. Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a); Franklin County, supra at 275 (2). That the City has filed a lawsuit rather than passing an ordinance does not make this any less a usurpation of State power. The City may not do indirectly that which it cannot do directly. As the State points out, power may be exercised as much by a jury’s application of law in a civil suit as by statute. “The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.” (Punctuation omitted.) BMW of North America v. Gore, 517 U. S. 559, 572 (II), n. 17 (116 SC 1589, 134 LE2d 809) (1996). “The obligation to pay compensation can be ... a potent method of governing conduct and controlling policy.” San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 247 (79 SC 773, 3 LE2d 775) (1959).

Through this lawsuit, the City seeks to punish conduct which the State, through its regulatory and statutory scheme, expressly allows and licenses. Because the State has reserved to itself the right to prescribe the manner in which firearms may be regulated, the City may not attempt to usurp that power, whether by litigation or regulation, and the trial court erred in not dismissing the City’s complaint and amended complaint against all defendants.

Amended OCGA § 16-11-184

The State and the gun manufacturers argue that the City’s claims are also prohibited under amended Code section 16-11-184. We agree.

As previously noted, this Code section was amended in 1999 to add the following subsections:

(a) (2) The General Assembly further declares that the lawful design, marketing, manufacture, or sale of firearms or ammunition to the public is not unreasonably dangerous activity and does not constitute a nuisance per se.
(b) (2) The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association, or dealer by or on behalf of any governmental unit created by or pursuant to an Act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, or injunctive relief resulting from or relating to the lawful design, manufacture,. marketing, or sale of firearms or ammunition to the public shall be reserved exclusively to the state. This paragraph shall not prohibit a political subdivision or local government authority from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision or local government authority.

In addition, Ga. L. 1999, p. 3, § 3, not codified by the legislature, provides that the 1999 amendment is applicable to any actions pending on or brought on or after February 9, 1999.

The City argues that in spite of the clearly expressed legislative intent, this Court may not apply the statute to bar the suit because it would deprive the City of constitutional and vested rights. We agree that the retroactive or retrospective application of a statute is unconstitutional if it affects the vested rights of citizens, State Hwy. Dept. &c. v. Bass, 197 Ga. 356, 362 (1) (29 SE2d 161) (1944), but we find no authority to support the City’s contention that it has a vested right to pursue this lawsuit. In Bass, the Supreme Court of Georgia held that it had “definitely settled the law to be that our constitution forbids the passage of only those retroactive, or rather retrospective, laws which injuriously affect the vested rights of citizens.” (Punctuation omitted; emphasis in original.) Id.

Municipal corporations are not citizens. “Municipal corporations are creations of the law. The legislature may modify or limit the corporate power or amend the charter, or withdraw it altogether, provided only that in doing so it does not conflict with any constitutional provision.” (Punctuation omitted.) Pierce v. Powell, 188 Ga. 481, 484 (3) (4 SE2d 192) (1939). As creations of the State, powers of home rule cities may be constitutionally and retrospectively limited by the General Assembly. OCGA § 36-35-3; City of Trenton v. New Jersey, 262 U. S. 182 (43 SC 534, 67 LE 937) (1923). See also OCGA § 36-35-6 (a): “The power granted to municipal corporations . . . shall not be construed to extend to the following matters or to any other matters which the General Assembly by general law has preempted or may hereafter preempt. . . .”

DeKalb County v. State of Ga., 270 Ga. 776 (512 SE2d 284) (1999), cited by the City is not persuasive on this issue. In that case, the County appealed claiming that the retrospective application of OCGA § 48-8-67 was unconstitutional. The Supreme Court rejected this argument, but did find that once the County met statutory requirements and implemented the HOST tax, it had a substantive right to those tax proceeds. Id. at 778. The holding was that the statute was procedural in nature and did not impair substantive rights. Id. at 779. The question of whether a county has the same vested rights as a citizen when applying a statute retroactively was not before the court, nor was it discussed. Moreover, unlike DeKalb County, the City’s suit in this case “is, in reality, an application of power which has been primarily entrusted to the state, and which the state may reclaim at its discretion.” City of Philadelphia v. Beretta U.S.A., Corp., 126 FSupp.2d 882, 892 (I) (C) (2) (a) (E.D. Pa. 2000).

The City argues that the statute only precludes suit for the “lawful” manufacture of firearms and therefore permits the City’s suit because it alleges unlawful conduct. But, the legislature made only one exception to the prohibition in OCGA § 16-11-184 (b) (2) and that was for breach of contract and warranty actions. The legislature made no exclusion for suits alleging “unlawful” conduct.

It is a well-established canon of statutory construction that the inclusion of one implies the exclusion of others. Ga. Ports Auth. v. Harris, 243 Ga. App. 508, 518 (533 SE2d 404) (2000) (Andrews, P. J., dissenting). By expressly authorizing local governments to bring actions against firearms manufacturers and dealers for breach of contract or warranty as to firearms purchased by the local government, the legislature impliedly preempted all other causes of action. See City of Atlanta v. S.W.A.N. Consulting &c., 274 Ga. 277, 279 (553 SE2d 594) (2001). In any event, the City has not pointed to any instance of unlawful conduct by either the gun manufacturers or the trade associations.

The City also argues that Section 3 cannot be applied retroactively because the only case pending at the time was that of the City and this would make it a local or special law in violation of Art. Ill, Sec. VI, Par. IV (a) of the Georgia Constitution. But, whether there is only one case pending at the time is not the test. The test is whether the law operates uniformly throughout the State upon the entire class of subjects with which it deals. C & S Nat. Bank v. Mann, 234 Ga. 884 (218 SE2d 593) (1975); City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759 (213 SE2d 596) (1975). There is no claim that the statute in question does not operate uniformly on all governmental units that come within the scope of its provisions.

Finally, the City argues that retroactive application of the statute would result in legislative usurpation of the judiciary. It contends that because the case was already pending, the General Assembly’s reference to the Rhodes case in the statute violates the separation of powers. The City points to no authority in support of this argument and we find none. In any event, the provision referred to merely provides that “[t]he General Assembly intends that paragraph (2) of subsection (a) of Code Section 16-11-184 as enacted by this Act shall embrace the rule of law in Division 1 of Rhodes v. R. G. Industries, Inc., [supra],” and we do not see any impermissible directive to the courts in this provision.

We note that courts in other states faced with similar suits and similar statutes have made these same determinations. See, e.g., City of Philadelphia v. Beretta, supra at 890 (statute as amended clearly prohibits home rule municipalities from suing gun manufacturers for the production and distribution of firearms), aff’d, 277 F3d 415 (3rd Cir. 2002) (public nuisance claim dismissed because defendants lacked the requisite control over the interference with a public right and negligence claims dismissed because they were too remote); Morial v. Smith & Wesson Corp., 785 S2d 1 (La. 2001) (City’s lawsuit constituted an indirect attempt to regulate the lawful manufacture of firearms and statute prohibiting this type of suit could properly be applied retroactively to bar City’s suit).

In addition, although some suits have survived a motion to dismiss, courts in other states have dismissed similar suits without relying on a statutory prohibition. See, e.g., Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 FSupp.2d 245 (D. N.J. 2000) (dismissed for lack of standing and failure to show proximate cause), aff’d, 273 F3d 536 (3rd Cir. 2001) (only argued public nuisance claim on appeal and court held that no New Jersey court had ever allowed a public nuisance claim to proceed against a lawful manufacturer of a lawful product); Ganim v. Smith & Wesson Corp., 258 Conn. 313 (780 A2d 98) (2001) (City did not have standing because it could not make a colorable claim of direct injury); Penelas v. Arms Technology, 778 S2d 1042 (Fla. App. 2001) (dismissed on many grounds, among which were standing, preemption, and costs of. providing municipal services were not recoverable); Cincinnati v. Beretta U.S.A. Corp., 91 Ohio St.3d 1411 (740 NE2d 1111) (2001) (City made only broad assertions without alleging a direct injury caused by a specific model from a specific manufacturer and nuisance claim failed because an activity that is authorized by law cannot be a public nuisance or an absolute nuisance); City of Chicago v. Beretta U.S.A. Corp., No. 98 CH 15596 (Ill. Cir. Ct. September 15, 2000) (order granting motion to dismiss).

Accordingly, for the reasons stated above, the City’s complaint and amended complaint should have been dismissed in their entirety. No claims survive because of the legislature’s clear directive that municipalities may not attempt to regulate the gun industry in any way except in the limited manner prescribed in OCGA § 16-11-184 (b) (2), (c), (d), and (e).

Judgment reversed.

Eldridge and Miller, JJ, concur.

Decided February 13, 2002.

King & Spalding, William R. Bassett, Jr., Jenifer N. Stephens, Richard A. Schneider, Rogers & Hardin, Tony G. Powers, Cofer, Beauchamp & Butler, Frank R. Seigel, Smith, Gambrell & Russell, David M. Brown, Jones, Day, Reavis & Pogue, David J. Bailey, Budd, Lamer, Gross, Rosenbaum, Greenberg & Sade, Timothy A. Bumann, Dennis, Corry, Porter & Gray, R. Clay Porter, Alisa W. Terry, Drew, Eckl & Farnham, James M. Poe, for appellants.

Moraitakis, Kushel & Pearson, Nicholas C. Moraitakis, Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Greenberg Traurig, Ernest L. Greer, Susan P. Langford, William H. McLean TV, for appellee.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Alfred L. Evans, Jr., Assistant Attorney General, amici curiae.

       Two of the justices “reluctantly concur[red]” in the holding that the defendants were not entitled to the relief sought in these collateral actions; but, the justices wrote to make clear that this determination did not reach the ultimate issue of whether state law precluded the suit and they believed it did. Smith & Wesson Corp., supra at 435 (Fletcher, P. J., concurring). The concurring opinion also stated that, considering the unambiguous language in OCGA § 16-11-184, which gives the General Assembly the sole power to regulate the right of the people to keep and bear arms, they disagreed with the trial court’s refusal to certify the order for immediate review. Id. at 435-436.

       Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

       This language appears in the enrolled original version of this Code section in the office of the Secretary of State. “Whenever there is a discrepancy between an act of the legislature as it appears in the printed acts of that body and as it appears in the enrolled act on file in the office of the Secretary of State, the enrolled act signed by the officers of the legislature and approved by the Governor controls.” Hooper v. Harvey, 62 Ga. App. 224, 226 (8 SE2d 456) (1940). Accord Bass v. Doughty, 5 Ga. App. 458, 459 (63 SE 516) (1909).

         See White v. Smith & Wesson, 97 FSupp.2d 816 (N.D. Ohio 2000) (motion to dismiss denied); Boston v. Smith & Wesson Corp., Case No. 1999-02590, 2000 Mass. Super. LEXIS 352 (July 13, 2000) (motion to dismiss granted on claims of negligent distribution and marketing and denied on all other claims); Sills v. Smith & Wesson Corp., Case No. 99C-09-283-FSS, 2000 Del. Super. LEXIS 444 (January 12, 2001) (motion to dismiss granted as to negligent marketing and distribution and unjust enrichment claims — denied as to all other claims).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0542.
    TATE v. THE STATE.
    (560 SE2d 303)
   Johnson, Presiding Judge.

A jury found James Tate guilty of burglary. In three enumerations of error, Tate complains of (1) the admission of hearsay in two instances, (2) insufficient proof of ownership of the items stolen, and (3) the jury instructions on intent to steal. Because we find no error, we affirm Tate’s conviction.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that police responded to a call of “glass breaking, a possible prowler on the scene.” A witness at the scene indicated to officers that Tate was crouched between parked cars. The officers looked between the cars and then saw Tate run and jump a fence. He was carrying a cardboard box and a wooden handle. In court, an officer identified Tate as the man running down the alley with the box and wooden handle. In addition, the witness identified Tate as the man she observed holding an axe seconds before she heard the sound of broken glass. Officers recovered the cardboard box and wooden handle where they observed Tate disappear into some bushes and reappear on the sidewalk empty-handed. The owner of the store with a broken window identified clothes in the cardboard box as those stolen from her store.

1. Tate’s first enumeration of error contends the trial court twice erred in admitting hearsay. In each instance, over Tate’s hearsay objection, a police officer was permitted to testify that the eyewitness positively identified Tate as the male she saw break the store window. Tate raises two complaints about this testimony: (1) that it is hearsay, and (2) that it is beyond the scope of the witness’ testimony to the extent that it refers to her seeing Tate break the glass.

First of all, the trial court properly permitted the testimony over Tate’s hearsay objection. Testimony of a pre-trial identification of an accused is admissible as long as the declarant testifies at trial and is available for cross-examination. Since the witness in the present case testified at trial and was available for cross-examination, the trial court did not err in admitting evidence of her positive pre-trial identification of Tate as the man she saw with the axe.

As for Tate’s argument that the officers’ testimony exceeded the witness’ testimony, Tate has waived this argument because no contemporaneous objection was made on this ground. “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.” Because Tate failed to specifically object to the testimony on the ground that it exceeded the scope of the eyewitness’ testimony, he may not raise that objection for the first time on appeal.

2. Tate asserts there is insufficient proof that the clothes found in the bushes where Tate disappeared were the same clothes stolen from the store with the broken window. We disagree. The evidence shows that Tate was caught fleeing the scene with a box of clothes and a wooden handle, moments after the store’s glass window was broken. Moreover, the store owner accepted the items recovered by the police and returned them to her store, authorizing the conclusion that these items were stolen from her store. The evidence was sufficient for a jury to conclude that the clothing in the cardboard box was stolen from the store with the broken window and that Tate stole the clothing. Tate’s reliance on Caldwell v. State is misplaced because in Caldwell the stolen bicycle was not recovered, and the victim testified that the bicycle which the defendant possessed at the time of his arrest was not hers.

3. Tate’s final enumeration of error complains of the jury instruction authorizing an inference of the intent to steal where evidence shows an unlawful entry into a building where valuable goods are stored inside and no other motive is apparent. Tate argues this jury charge is burden-shifting. A similar argument was recently rejected by the Supreme Court of Georgia in Thomas v. State, where the defendant claimed the court’s charge on recent possession of stolen goods improperly allowed the jury to infer that he committed murder. The jury charge given is a correct statement of the law and does not absolve the state from its burden of proof. We find no error.

Decided February 13, 2002

Jennifer R. Kiser, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        White v. State, 273 Ga. 787, 789 (2) (546 SE2d 514) (2001).

       (Citations and punctuation omitted.) Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995).

        Chester v. State, 144 Ga. App. 717-718 (242 SE2d 356) (1978).

         See Abernathy v. State, 214 Ga. App. 364, 365 (1) (448 SE2d 30) (1994); Shaw v. State, 211 Ga. App. 647, 648-649 (440 SE2d 245) (1994).

       183 Ga. App. 110 (357 SE2d 845) (1987).

       274 Ga. 156, 163-164 (9) (549 SE2d 359) (2001).

        Miller v. State, 208 Ga. App. 547-548 (1) (430 SE2d 873) (1993); Moon v. State, 208 Ga. App. 540, 542 (2) (431 SE2d 128) (1993).


author: Eldridge, Judge.

text:
    A02A0811.
    TRAMMELL v. THE STATE.
    (560 SE2d 312)
   Eldridge, Judge.

A Floyd County jury found Kenneth Lee Trammell guilty of child molestation for acts he committed against his minor daughter. Trammell was sentenced as a recidivist for a prior commission of sodomy against a child victim, as well as for three other felony offenses. He appeals, challenging the sufficiency of the evidence and alleging error in the admission of a similar transaction and the denial of a motion for mistrial based upon the introduction of improper character evidence. Upon review of the errors as enumerated, we affirm Trammell’s conviction.

1. Any challenge to the sufficiency of the evidence supporting a jury’s verdict of guilty must be viewed to uphold the verdict. Since a jury found Trammell guilty, this Court looks only to see if there is a factual basis from which a rational trier of fact could conclude beyond a reasonable doubt that a guilty verdict was warranted. We do not judge the credibility of the witnesses. We do not revisit conflicts in the evidence. And we will not simply substitute our opinion for that of the jury. So long as there is some competent evidence to support each element of the offense(s) as charged, the jury’s verdict will be upheld. In that regard, “[t]he testimony of a single witness is generally sufficient to establish a fact.”

Here, Trammell was charged with fondling the breasts of his minor daughter. The evidence, viewed to uphold the jury’s finding that Trammell did such act, showed that during the Easter holidays, when Trammell’s daughter was 12 years old, he delivered an Easter basket to her. Apparently, the t-shirt that the victim was wearing at the time had been stretched out of shape, and Trammell told her that she needed to change it because “you might show something that you don’t need to be showing.” At that point, Trammell reached inside the victim’s shirt and rubbed her breasts. The incident was witnessed by the victim’s grandmother. The grandmother asked Trammell about his actions and was told, “if anybody was going to me — mess with [the victim], he felt like it should be him because he was his — her father.” The grandmother told the victim’s mother what had occurred, and the victim’s mother contacted the police. The evidence at trial showed that the victim told a consistent version of the incident to her mother, to the police, to a professional child counselor at Harbor House, and to the district attorney’s office. Further evidence showed that, prior to the incident in question, Trammell had made several sexually suggestive overtures to the victim: Trammell told his daughter that “if you ever wanted to know what a man’s privates looked like that he’d show [her]”; Trammell showed his daughter a condom and explained its use; also, Trammell described to his daughter in detail his sexual activities with his girlfriend, including his use of a dildo and his participation in a “threesome.” We find this evidence sufficient to demonstrate the essential elements of the offense as charged and, thus, support the jury’s verdict.

Before this Court, Trammell contends the evidence was insufficient because the victim recanted her accusation eight months after the incident and, during trial, she testified that her grandmother had told her what to say. The victim testified that she repeated her charge against Trammell so many times because she “thought we could get in trouble” if she changed her story. In addition, Trammell took the stand and denied' the victim’s original accusation, claiming that the victim’s grandmother forced the victim to accuse him of child molestation in retaliation for an earlier accusation he had made against her to the police.

We find, however, that Trammell’s specific challenge to the sufficiency of the evidence goes to the credibility of the witnesses and, thus, addresses the jury’s decision to reject the victim’s recantation in favor of evidence showing the victim’s original version of the incident; the victim’s consistent recounting of such incident to several different authority figures; and the grandmother’s testimony about witnessing the incident. It is the jury’s prerogative to choose what evidence to believe and what to reject. “Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness’ testimony.” After reviewing the trial transcript, we conclude that the evidence was sufficient to authorize a rational trier of fact to find Trammell guilty beyond a reasonable doubt of child molestation.

2. In 1990, a jury found Trammell guilty of sodomy in that he coerced his next-door neighbor’s son, a mentally retarded 14-year-old boy, to perform oral sex on him by giving the boy a doughnut; on the incident date, the boy was at Trammell’s home watching television, which he had done several times before. The trial court permitted evidence of such to go before the jury as a similar transaction demonstrating Trammell’s bent of mind and course of conduct. Thereafter, in addition to testimony from the victim, a certified copy of Trammell’s 1990 conviction was introduced into evidence during the State’s case-in-chief. Without objection and as per stipulation, the State informed the jury that Trammell was found not guilty of aggravated child molestation and guilty of child molestation. It was also stipulated to the jury that Trammell was sentenced by the trial court for such conviction, although the specific sentence was not put into evidence.

Trammell contends the trial court erred in admitting the similar transaction evidence because the prior transaction involved a male and sodomy, while the instant case involved a female and the fondling of the child’s breasts. Thus, Trammell contends, the prior act lacks the requisite similarity under the third prong of Williams v. State. We disagree.

“The 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.”

The reason for this rule rests not only in the legal difficulty encountered with a child victim, . . . but because a sexual offense committed against a young child requires a special lascivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation.

Decided February 13, 2002.

Teddy L. Henley, for appellant.

Fred R. Simpson, Acting District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Here, although the children were of different sexes, they were of a similar age and were very familiar with Trammell, whom they trusted, and Trammell had easy access to each, which access he misused in an opportunistic fashion. Accordingly, this evidence was admissible to demonstrate Trammell’s bent of mind and course of conduct toward such children.

3. We find no error in the trial court’s denial of Trammell’s motion for mistrial based on the inadvertent mention of the word “prison” during the playing of the tape of the victim’s outcry made at Harbor House. The prosecution acknowledged the mistake and stated on the record that only the word “prison” was heard. The defense did not disagree with this characterization. The trial court gave a thorough curative instruction, admonishing the jury to consider only what was included in the typed transcription of the tape that each juror had been given, a transcript from which any mention of “prison” had been redacted. Considering that the word “prison” was heard alone and out of context; that the jury is presumed to follow the instructions of the court; and that it was already known to the jury that Trammell had been convicted and sentenced for a prior sodomy offense, we do not find reversible error in denying Trammell’s motion for mistrial.

Judgment affirmed.

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

        Bacon v. State, 249 Ga. App. 347, 348-349 (1) (548 SE2d 78) (2001).

       OCGA § 24-4-8.

       (Citation and punctuation omitted.) Murray v. State, 271 Ga. 504, 505 (1) (521 SE2d 564) (1999).

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

       The defense specifically asked that the jury also be informed that a directed verdict of not guilty was entered as to a second count of child molestation against a separate victim, which was charged in the same indictment. Contrary to allegations contained in Trammell’s brief, no evidence of this second count of child molestation went before the jury.

       261 Ga. 640, 641-643 (2) (409 SE2d 649) (1991).

       (Citations and punctuation omitted.) Willett v. State, 223 Ga. App. 866, 872 (3) (a) (479 SE2d 132) (1996); accord Condra v. State, 238 Ga. App. 174, 176 (3) (518 SE2d 186) (1999).

       (Citations and punctuation omitted.) Swift v. State, 229 Ga. App. 772, 775 (2) (d) (495 SE2d 109) (1997).

        Tidwell v. State, 219 Ga. App. 233, 235 (2) (a) (464 SE2d 834) (1995).

        Holmes v. State, 273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001).

        Moore v. State, 207 Ga. App. 897, 899 (2) (429 SE2d 340) (1993). See also Roberts v. State, 212 Ga. App. 607, 608 (2) (443 SE2d 4) (1994) (reference to prison “did not tell the jury anything it did not already know about appellant”).

        Albarran v. State, 249 Ga. App. 331, 334 (4) (548 SE2d 440) (2001) (“It is axiomatic that harm as well as error must be shown to authorize a reversal by this court”) (punctuation and footnote omitted).


author: Phipps, Judge.

text:
    A02A0610.
    PABIAN OUTDOOR-AIKEN, INC. v. DOCKERY.
    (560 SE2d 280)
   Phipps, Judge.

Pauline Dockery sued Pabian Outdoor-Aiken, Inc. for declaratory judgment and ejectment. Dockery claims a lease agreement between her as lessor and Pabian as lessee is unenforceable, because a clause which gives Pabian the unilateral right of termination removes the required element of mutuality from the contract. Dockery also asserts that the payments due her under the lease are unconscionably low and that she would not have agreed to the lease but for Pabian’s fraud and misrepresentation. Among other things, Pabian argues that because it incurred substantial expenses in exercising its rights under the lease, the doctrine of promissory estoppel bars Dockery from denying the existence of a binding agreement. The trial court awarded summary judgment to Dockery, ruling that the lease is unenforceable for lack of mutuality and that any reliance by Pabian on a legally unenforceable agreement would not be reasonable. Finding material issues of fact on the question of whether Pabian’s reliance was reasonable, we reverse.

Dockery owns a motor lodge and surrounding acreage. During the summer of 1997, she was asked to rent a portion of the property to Pabian for the installation of billboard advertising signs. In August 1997, Dockery leased a portion of the premises to Pabian for construction of two outdoor advertising structures. The lease is for a term of ten years, renewable at Pabian’s option for an additional five years, and requires Pabian to pay Dockery $50 per structure per month for a total of $1,200 per year. The lease givés Pabian a right of termination upon 30 days notice if “in [Pabian’s] opinion the location becomes economically or otherwise undesirable.” If such conditions exist temporarily, Pabian may at its option reduce the rental payment to $5.

It is axiomatic in the law of contracts that there must be a consideration moving the parties thereto. . . . Among the considerations recognized by law as sufficient to support a contract is that of mutual promises, or, as it is sometimes termed, a promise for a promise. ... A promise, however, is not a good consideration for a promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement. [Cits.] And in case[s] of mutual promises, where the promise of one party is relied on as a consideration for the other, the promises must be concurrent and obligatory upon each at the same time, in order to render either binding. [Cits.]

In Morrow v. Southern Express Co., a railroad agreed to transport dairy products for a shipper at a given rate, but the shipper did not undertake or bind himself to make any shipments. The Supreme Court found the agreement unenforceable for lack of mutuality. In line with Morrow, the Court in Nat. Surety Co. v. City of Atlanta held that a contract for the continuing purchase of goods which gave the purchaser the right at any time to suspend deliveries was not binding.

In Milledgeville Water Co. v. Edwards, however, the Court held that a contract in which a water company agreed to sell water to a consumer at a reduced rate, the consumer having agreed on his part to lay his own pipe and fixtures and to allow the company to tap his pipe for the purpose of supplying other customers with water, was not void for lack of mutuality, even though the consumer was under no obligation to buy the water for any given length of time. The Court arrived at this conclusion because the consideration for the agreement consisted of more than mutual promises, in that the customer made valuable infrastructure improvements benefitting the water company. Similarly, Tift v. McCaskill, relied on by Pabian, held that a lease contract did not lack mutuality because of a termination for convenience clause benefitting the lessee, because the lease was executed to carry out an earlier contract supported by other monetary consideration provided by the lessee.

Bargained-for consideration for the agreement in this case consisted of Pabian’s promise to pay Dockery a monthly sum for the period of the lease and Dockery’s promise to allow Pabian to install and maintain billboards on her property for the same period. Under the cases previously cited, the termination provision deprives the agreement of mutuality only to the extent that Pabian’s consideration was its illusory promise to remain in the lease and pay rent.

Under Georgia law, promissory estoppel is a doctrine wherein consideration is supplied by the reliance of the promisee on the promise of another.

Under the Georgia action for promissory estoppel, the essential elements are that: (1) the defendant made a certain promise or promises; (2) the defendant should have reasonably expected the plaintiff to rely on such promise or promises; (3) plaintiff did, in fact, rely on such promise or promises to his detriment; and (4) an injustice can be avoided only by the enforcement of the promise, because the plaintiff surrendered, forgoes, or rendered a valuable right. [Cits.]

The doctrine of promissory estoppel “basically substitutes action or forbearance (i.e., reliance) by the promisee for the consideration which would otherwise be lacking.” But “[p]romissory estoppel cannot be applied unless the promisee reasonably relied on the promise. [Cit.]”

Pabian’s claim is that Dockery is estopped from challenging the enforceability of the leasehold agreement because it spent considerable time and money in acquiring governmental approval for the signs and incurred in excess of $10,000 in expenses in erecting the signs. In ruling that any reliance by Pabian on a legally unenforceable agreement would be unreasonable as a matter of law, the trial court relied on Fidelity &c. Co. of Maryland. The court’s reliance on Fidelity was misplaced.

In Fidelity, a bonding company gave assurances to a general contractor that a subcontractor was bondable. The general contractor relied on these assurances by instructing the subcontractor to begin work before the bonds were issued, and the subcontractor later refused to execute the bonds provided by the bonding company. We held that “[e]ven if the general contractor relied upon the assurance by the bonding company that the proposed subcontractor was bond-able by it, the bonding company did not promise to be bound even if its customer, the contemplated principal, refused to execute the bond.” We fiirther observed that even if such a promise had been made, there could have been no reasonable reliance on it because its enforceability was “fraught with legal impediments.” This observation should not, however, be interpreted to mean that failure of the parties to enter into a binding agreement, in and of itself, precludes a claim of promissory estoppel. That notion is inconsistent with the purpose of the doctrine (to enforce promises where there is no binding agreement), and it was soundly rejected in DPLM, Ltd. v. J. H. Harvey Co., wherein it was also recognized that “ ‘[pjromissory estoppel claims are extremely fact specific and are not susceptible to application of general rules.’ [Cit.]”

Decided January 31, 2002

Reconsideration denied February 14, 2002.

Lambert & Roffman, M. Joseph Reitman, Jr., for appellant.

Brown & Rountree, George H. Rountree, for appellee.

Whether Pabian reasonably relied on leasehold promises by Dockery is a question for the jury under the totality of the facts. Therefore, the trial court erred in granting Dockery’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

        Morrow v. Southern Express Co., 101 Ga. 810, 811-812 (28 SE 998) (1897).

       Id.

       151 Ga. 123 (106 SE 179) (1921).

       121 Ga. 555 (49 SE 621) (1904).

       171 Ga. 289 (155 SE 192) (1930).

       See also Satterfield v. Satterfield, 236 Ga. 155, 156 (3) (223 SE2d 136) (1976) (although agreement would have lacked mutuality because of a provision allowing one of the parties to terminate it at any time, agreement became enforceable after the beneficiary of the termination provision completed her performance of the agreement without terminating it).

        Folks, Inc. v. Dobbs, 181 Ga. App. 311, 314 (2) (352 SE2d 212) (1986).

        Simpson Consulting v. Barclays Bank, 227 Ga. App. 648, 656-657 (5) (490 SE2d 184) (1997), citing OCGA § 13-3-44 (a) and cases.

        Fidelity &c. Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986).

       Id. at 580 (1).

       Id.

       (Footnote omitted.) Id.

       Id.

       241 Ga. App. 219, 220 (1) (526 SE2d 409) (1999).

       Id.


author: Pope, Presiding Judge.

text:
    A01A1639, A01A1640.
    In the Interest of J. P. et al., children (two cases).
    (560 SE2d 318)
   Pope, Presiding Judge.

The mother of J. P. and R. M. appeals the juvenile court’s order of deprivation as to the two children. She also appeals the subsequent order granting a motion for nonreunification as to J. P. filed by the Department of Family & Children Services and a motion for nonreunification as to R. M. filed by the child’s guardian ad litem. We affirm.

Case No. A01A1639

In the mother’s appeal from the trial court’s order of deprivation, we review the evidence from the juvenile court hearings in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived. In the Interest of B. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999).

The evidence at the deprivation hearing showed that DFACS began an investigation of this family on or about August 22, 2000, after receiving a referral from the Federal Bureau of Investigation concerning videotapes involving children. An FBI agent testified that Canadian authorities had recovered a videotape showing the children’s adoptive father spanking young children and relayed information about the tape to the FBI. The FBI obtained a search warrant for the family home, and agents seized over 200 videotapes and eight-millimeter tapes, numerous e-mail messages related to the spanking videos, four to five wooden paddles and a pair of handcuffs. A printed copy of one of the e-mail messages requesting a spanking videotape was found in a dresser drawer that was used by both parents.

The children’s father admitted to police that he produced videos that showed him spanking children and exchanged them with other parents. He admitted to investigators that he became sexually aroused watching children get spanked, but could not become aroused when watching his own children being spanked. Therefore, he exchanged videos with other parents.

Two tapes were shown at the deprivation hearing, and the FBI agent identified the participants. One of the scenes in the videos showed the mother spanking J. P. Others showed the father spanking his own biological children as well as J. P., at times removing articles of clothing to do so and at times quoting scripture or stating that the spankings were God’s will. The agent testified that many of the spanking scenes appeared scripted, with the adults appearing to manufacture a reason to spank the children. And if the children moved out of camera range during filming, they were instructed to move back in front of the camera.

During one scene, the mother ordered J. P. to stand in a certain position, and when J. P. moved, she repositioned the child in front of the camera. The mother’s voice is also heard in the background of another scene. The FBI agent also described a scene in which J. P. and another child were acting out sexually.

There was also evidence that the mother had been present when the father met with a man from Alabama, with whom the father exchanged spanking videos. She later told a DFACS caseworker that the man may have been involved with the videotapes.

One of the father’s co-workers testified at the deprivation hearing about an earlier incident in January 2000 when what he described as a “disturbing” video and a package containing female underwear were discovered in the father’s desk at work. The father’s employer confronted the parents about his discovery and advised the father to get counseling. He also directed the father to close the mailbox to which the package containing the underwear had been sent. The tape was later turned over to a postal inspector and law enforcement.

A sexual assault nurse examiner testified that she had examined J. P. and discovered some scarring on her hymen, which she asked a doctor to confirm. The nurse could not state how or when the scarring occurred. She also stated that J. P. exhibited no signs of embarrassment when she asked the child to remove her clothing, which the nurse found to be unlike most children. J. P. told the nurse during the examination that she had been undressed and spanked.

The DFACS caseworker assigned to the case testified that he viewed the videotapes and was able to identify the father, the mother and several of the children on the tapes because he had conducted prior investigations concerning the family. Upon seeing the tapes, the caseworker sought emergency custody of all five children in the home, including J. P. and R. M. When he met with the mother, she denied knowing about the videotapes or knowing that she had ever been videotaped spanking the children. But the mother later admitted to police that she was aware of the earlier incident at the father’s employer and that her husband had sought counseling.

The children’s maternal grandmother testified that she and her husband could provide J. P. and R. M. a home with them in Arizona. In fact, R. M. had lived with them until the child was five or six years old and had also spent the previous summer with them. The grandmother stated that she had been unaware of any problems until the mother called her two weeks before the hearing. She acknowledged that the children would probably need intensive emotional therapy and that she and her husband were prepared to do whatever they needed to help the children.

At the close of the evidence, the children’s guardian ad litem recommended that they be placed in DFACS’s temporary custody. The juvenile court subsequently entered a finding of deprivation and ordered that the children be placed in DFACS’s custody. The juvenile court later amended this order, granting the maternal grandparents’ motion to intervene and placing R. M. in their temporary custody.

Under Georgia law, a deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). And Georgia courts have held that this definition does not require a finding of parental fault: “This definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Punctuation and footnote omitted.) In the Interest of C. C., 249 Ga. App. 101, 103 (547 SE2d 738) (2001). Therefore, deprivation is established by proof of parental unfitness arising from “either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Citation and punctuation omitted.) In the Interest of W.P.H., 249 Ga. App. 890, 891 (1) (549 SE2d 513) (2001).

In determining that the children were deprived, the juvenile court found that the father’s actions as to J. P. in particular were inappropriate, that the spankings and videotaping involved emotional and mental abuse of the children, including J. R, and that the mother was aware of and/or participated in these actions. Based upon our review of the record, we find that there was clear and convincing evidence to support the trial court’s findings in support of the order concluding that the children were deprived.

Case No. A01A1640

On the mother’s appeal from the order approving the plans for nonreunification, we “neither weight ] the evidence nor determine! ] the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met. [Cit.]” In the Interest of R. U., 239 Ga. App. 573, 577 (1) (521 SE2d 610) (1999). Thus, we must determine if there was sufficient clear and convincing evidence to support the juvenile court’s determination that reunification services should not be provided. Id.; OCGA § 15-11-58 (h).

The parties stipulated that the transcript from the deprivation hearing would serve as original evidence at the hearing on the motions for nonreunification. In addition, a clinical psychologist was qualified as an expert in the field of child psychology. Although the psychologist did not personally examine J. P. or R. M., he reviewed the allegations and history of the case and interviewed one of the father’s biological children who was also seen being spanked on the videotapes. He opined that the conduct inflicted upon the children involved was “severely abusive” and “egregious,” constituting physical, mental and emotional neglect. He found the parents’ conduct to be both physically and emotionally abusive in nature.

The DFACS social services case manager for J. P.’s case testified that the department was recommending a nonreunification plan with regard to J. P. DFACS made this recommendation despite the fact that the mother was cooperating with the department in seeking a psychological evaluation and nurturing training due to the severity of the abuse involved. But DFACS was not planning at the time of the hearing to seek a termination of parental rights against the mother.

After being advised of her constitutional right against self-incrimination, the mother chose to testify in opposition to the plans of nonreunification. At the time of the hearing, the mother was seeking a divorce from the father and had been cooperating with law enforcement in their case against the father by producing additional evidence she discovered. She stated that she knew nothing about the videotaping, even though she is seen spanking J. P. in one of the scenes on the tapes and watching the father spank J. P. in another. She said that the tapes were made before her marriage to the father. She claimed she first learned that her husband was involved with child pornography at the time of his arrest.

She stated that she was aware of the tape found in her husband’s desk at work, but all she knew was that the tape showed children being spanked. She said that she was unaware of any sexual overtones, although she admitted that the father’s employer told her the tapes were not “decent.” She never viewed the tape or inquired whether her children were on it, although she assumed that J. P. was on the tape because the father had spanked her. The father told her that he had made the tape to protect himself from a charge of abuse because he had had problems with DFACS before.

Nevertheless, she was aware that her husband was seeking pastoral counseling as a result of the tape’s discovery and even attended one of the sessions. The mother admitted that her voice was heard in the background on one of the tapes in a scene where J. P. was massaging her genital area. She admitted that the paddles, e-mails and tapes were found in common areas in her home and that she was aware of at least some of the paddles. She also admitted that the tapes showed physical abuse of the children, that the children were emotionally abused and that one scene between the father and J. P. bordered on sexual molestation.

In addition, the parties consented to the admission of an affidavit by the father’s employer. The employer stated that he told the mother that he considered the father’s actions to be “a sick immoral perversion and that if she was not willing to help [the father] overcome this that she should take her children and leave.” He also informed the mother about the mailboxes the father was using to receive materials and instructed her to see that they were closed. He also told her that she should attend the counseling sessions with her husband and get the children counseling if necessary. He stated that there was no doubt in his mind that when the mother left his office, she was aware that the father “had been involved in sexual perversion with her children.”

The mother asserts that this evidence was insufficient to support the plans for nonreunification because the child psychology expert who testified did not interview the children involved, but rather relied upon conclusions reached by a nontestifying expert who had evaluated the children. She asserts that this rendered the expert’s testimony inadmissible hearsay.

But there is nothing in the record to indicate that the expert relied upon anyone else’s expert evaluations. Rather, he testified that he reviewed a history of the allegations in the case and the juvenile court’s prior order. He also reviewed the facts and history and treatment of the child on whom he had personally conducted a psychological evaluation. And although he relied in part upon documentary evidence prepared by others, under Georgia law, it is well settled that an expert may rely on hearsay as well as reports of others in formulating his opinions. See King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980). “The lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a [fact] question as to the weight which should be assigned the opinion.” (Citations and punctuation omitted.) In the Interest of D. S. R., 246 Ga. App. 426, 428 (3) (541 SE2d 61) (2000). Accordingly, there was no error in the trial court’s admission of the expert’s testimony, particularly in light of the mother’s failure to object thereto.

Under OCGA § 15-11-58 (h), in order to approve the recommendations of nonreunification, a juvenile court must determine “by clear and convincing evidence whether reasonable efforts to reunify a child with his or her family will be detrimental to the child and that reunification services, therefore, should not be provided. . . .” The statute establishes a presumption that reunification should not be provided where there is clear and convincing evidence that any of the grounds for the termination of parental rights exist. OCGA § 15-11-58 (h) (3). Such a presumption also exists if there is clear and convincing evidence that any of the circumstances set out in OCGA § 15-11-58 (a) (4) exist. OCGA § 15-11-58 (h) (4). Subsection (a) (4) addresses instances where the parent has subjected the child to aggravated circumstances, including, but not limited to, chronic abuse and sexual abuse.

Here, it was undisputed that J. R, as well as other children in the home, was submitted to repeated physical and emotional abuse. The mother herself admits that the children were subjected to such abuse in her home and that her husband’s actions with regard to J. P. bordered on sexual abuse. The child care professionals who interviewed the children and reviewed the family history and the tapes characterize this abuse as severe and egregious. The actions of the parents involved in making these videotapes are compounded by the fact that the father exchanged them with other adults for pornographic purposes.

Although the mother denies knowing about the videotaping or the exchange of pornography, she is seen on the tapes participating in the spankings and heard in the background while someone tapes her young child engaging in sexually suggestive behavior. In addition, the evidence showed that the father’s employer informed the mother of the sexually perverse nature of the videotape discovered in the father’s desk. He said that she unquestionably understood that the tapes involved improper actions with her own children. And even though she assumed that J. P. appeared on a tape that upset the father’s employer and necessitated pastoral counseling, she never viewed the tape nor made further inquiry of anyone other than the father as to the actions taken toward her children. Instead, she kept her children in the home with the father for eight months until his arrest for child pornography, subjecting them to more potential abuse in the interim.

Decided February 14, 2002.

Michael R. McCarthy, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Richard K. Murray, for appellees.

We find, therefore, that there was clear and convincing evidence that the mother was either aware of these matters involving her children or simply chose to ignore them. Either way, we find that the mother subjected her children to aggravated circumstances involving admittedly physical and emotional abuse, if not sexual abuse. And the fact that there was no direct evidence of abuse against R. M. does not compel a different conclusion in that child’s case. The evidence showed that the abuse involved J. R, as well as the father’s biological children, who all lived in the same home. This evidence was sufficient to show that reunification between R. M. and his mother would be detrimental. “Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature” is one factor a court may consider in determining whether a child is without proper parental care and control. OCGA § 15-11-94 (b) (4) (B) (iv). See generally In the Interest of J. M. S. M., 240 Ga. App. 294, 296 (523 SE2d 357) (1999); In the Interest of C. J. V., 236 Ga. App. 770, 775 (513 SE2d 513) (1999).

Therefore, a presumption against reunification existed and there was insufficient evidence to overcome that presumption. OCGA § 15-11-58 (a) (4) (A), (h) (4). Thus, the juvenile court could properly conclude that reunification would be detrimental to these children and properly granted the motions of DFACS and the guardian ad litem to pursue plans for nonreunification as to each child.

Judgments affirmed.

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


text:
    A01A2216.
    HALL v. BRUNO’S, INC.
    (560 SE2d 326)
   Pope, Presiding Judge.

James Hall slipped and fell while shopping at Bruno’s, Inc. d/b/a Foodmax and was injured. He brought suit and now appeals from entry of summary judgment against him.

Hall testified that he was shopping in the produce department at 5:00 or 6:00 p.m. on a Sunday afternoon accompanied by his fiancée, Dorothy Delgaudio. There were no employees in the area at the time. After about ten minutes in that department, and just after examining some tomatoes, Hall turned and walked toward Delgaudio, looking at her as he did. He was exercising caution at the time. Nevertheless, he slipped and fell backward striking his head and body on the floor. After he fell, he saw that he had slipped on grapes that looked old and dirty. Delgaudio heard and saw the fall. She saw the grapes after the fall and explained that they were old looking and dark and discolored. As he lay on the floor waiting for the ambulance to arrive, Hall heard a female employee named Isabel say several times, “Sunday is the only day we don’t have anybody to work in the produce department. Kids drop things on the floor all the time when they grab at something to eat.” Delgaudio remembers Isabel saying essentially the same thing. She also saw Isabel pick up the grapes and put them in a plastic bag. Another customer was in the area at the time of the fall.

Isabel Cowart was an office clerk/cashier at Foodmax on the day of the accident; she was responsible for customer service, handling money and providing assistance at cash registers as needed. She testified that while in the store office, she learned that someone needed help. She went to the produce department and saw Hall on the floor. She had not seen anyone cleaning up prior to the fall that day, but she claimed that an employee named Willie Goolsby had been there for that purpose. When asked whether she knew if there were any written inspection procedures for the store, she said no, except that she was aware of a procedure for the baking area of the store. She was also not aware of any written record of inspections for the produce area for that day. She prepared the store incident report.

An office manager named Katrina Meredith was the only manager on duty that day. Her title was Assistant Front End Manager. When asked whether the store had a written policy concerning inspection procedures for the produce department at the time, she said, “We have a thing where you’re supposed to walk the store once an hour to check for spills or things on the floor.” This was the manager’s responsibility. She did not know of any policy regarding the produce department specifically. No written record was prepared each time a particular area of the store was inspected. And, she had not personally cleaned the area within 30 minutes prior to the fall.

Goolsby submitted an affidavit in which he stated that he was the produce clerk at the time of the accident. He stated that

Foodmax routinely inspects its store floors to ensure that they are clean and dry and free of any debris. This cleaning and inspection process was in place and being implemented on [the day of the fall]. I had personally cleaned, swept and inspected the produce area of the store including the aisle where the grape bin was located, approximately five to six minutes prior to the time Mr. Hall reportedly fell. At the time of my inspection, I left the floor clean and dry and free of any debris.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Moreover, our Supreme Court has urged that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson, 268 Ga. at 748-749 (2) (b). “[Constructive knowledge may be inferred when there is evidence that. . . the owner lacked a reasonable inspection procedure. [Cit.]” Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 818 (507 SE2d 259) (1998).

Here, there is some evidence that Foodmax lacked a reasonable inspection procedure. Cowart testified that she was unaware of any written inspection procedure for the store or of any written record of actual inspections for that day. The assistant manager testified that the only inspection procedure provided that a manager was supposed to walk the store once an hour. But there is no testimony that a manager followed this procedure on the day of the accident, and there is no written record prepared each time the store is inspected. The alleged inspection procedure to which Goolsby testified only provides that Foodmax “routinely” inspected the floors. Once a week is a routine but would clearly be insufficient under the circumstances.

Decided February 14, 2002.

J. O’Quinn Lindsey, for appellant.

Martin, Snow, Grant & Napier, Lisa M. Edwards, for appellee.

Although former produce clerk Goolsby claimed to have inspected, cleaned and swept the floor of the produce department within five or six minutes before the fall, his testimony is contradicted by Hall’s testimony that he had been shopping in the produce department for about ten minutes before the fall and that no employees were around, and by the physical evidence — the grapes were old and dirty looking — raising the inference that they had been on the floor a long time. Also, although Goolsby (the produce clerk) and Cowart testified that Goolsby was at work on that day, the statements of Cowart offered by Hall and Delgaudio that on Sundays there was no one working in the produce department create a conflict on this point. Further, the alleged business record purporting to show that Goolsby worked that day is unauthenticated, unexplained and does not clearly show what Foodmax contends. The jury must assess the credibility of all parties to this appeal and resolve the issues of fact.

In order to prevail at summary judgment based on a lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that it was actually carried out at the time of the incident. Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998). Construed in favor of Hall, the evidence and reasonable inferences show that there was no adequate inspection procedure in place on that Sunday or that the procedure was not followed. This evidence is sufficient under Robinson v. Kroger Co. to create a jury issue. See Ingles Markets v. Martin, 236 Ga. App. 810, 811-813 (513 SE2d 536) (1999).

Judgment reversed.

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


author: Ellington, Judge.

text:
    A02A0212.
    BROWN v. THE STATE.
    (560 SE2d 316)
   Ellington, Judge.

Kim Lynn Brown appeals his conviction for driving while under the influence of alcohol, OCGA § 40-6-391 (a) (5). Finding no error, we affirm.

1. Brown contends the trial court erred in denying his motion to suppress the results of his breath alcohol tests, asserting that the officer who conducted the traffic stop lacked the requisite articulable suspicion to make the stop. On appeal, we view the trial court’s ruling on a motion to suppress in the light most favorable to uphold the trial court’s decision. Givens v. State, 218 Ga. App. 415, 417 (1) (461 SE2d 579) (1995). When the facts are not in conflict, “this [C]ourt’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision.” (Citations and punctuation omitted.) State v. Wright, 221 Ga. App. 202, 204 (1) (470 SE2d 916) (1996).

So viewed, the record in this case shows the following: at approximately 1:30 a.m. on April 8, 2001, a concerned citizen called 911 to report a suspected drunk driver. The caller told the dispatcher that the suspected drunk driver was driving a white Ford truck with tag number 962JDB. The caller reported that he was driving directly behind the suspected drunk driver while traveling westbound on Highway 92 and that both vehicles were approaching the intersection of Highway 5 and Highway 92. The dispatcher notified police units to be on the lookout for the truck and gave a specific description of the truck, the tag number, the direction the truck was traveling, and its location. Within two minutes, Officer Copeland of the Woodstock Police Department spotted the truck at the intersection of Highways 5 and 92. After the truck went through the intersection, Officer Copeland pulled in behind it, checked the tag number, and confirmed that it was the reported truck. The officer activated his emergency lights, but the truck did not pull over immediately. After about a quarter-mile, the officer turned on his siren and the truck pulled over.

In denying the motion to suppress, the trial court ruled that “the information received from dispatch provided sufficient articulable suspicion for the officer to stop the Defendant’s vehicle. Even though it was reported by a concerned citizen, the information was specific as to the exact vehicle, including tag number, and exact location.” The fact that the concerned citizen was not identified at the motions hearing does not change this conclusion.

A dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher’s report. Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory detention is valid, for patrolling officers are not required to question dispatchers about the source of the information. . . . [Further, c]orroboration only solidifies the existence of an articulable suspicion.

(Footnotes omitted.) Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999). See also McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997) (dispatcher’s call to look out for specified vehicle and officer’s observation of vehicle fitting the description give rise to an articulable suspicion and justify stop); State v. Wright, 221 Ga. App. at 205 (3) (concerned citizen’s call giving description and location of vehicle being driven erratically, followed by almost simultaneous observation of vehicle by police, gives articulable suspicion to justify a traffic stop); Givens v. State, 218 Ga. App. at 417 (1).

The evidence presented in this case supports the trial court’s determination that the officer had the requisite articulable suspicion to stop Brown’s truck. State v. Wright, 221 Ga. App. at 205 (3). Accordingly, the trial court did not err in denying Brown’s motion to suppress on this basis.

2. Brown contends the results of his breath tests should have been suppressed because the State allegedly failed to reasonably accommodate his request for an independent breath test. We disagree.

OCGA § 40-6-392 (a) (3) provides that a person who undergoes a chemical test at the request of a law enforcement officer is entitled to have a qualified person of his own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise the right to have an independent test. If the individual requests an independent test but is unable to obtain it, the results of the state-administered test cannot be used by the state as evidence against him unless the failure to obtain the test is justified. [In determining whether the failure was justified,] the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks the independent test. Factors to be considered include, but are not limited to, the following: (1) availability of funds to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facility, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

(Footnotes and emphasis omitted.) Joel v. State, 245 Ga. App. 750, 751-753 (538 SE2d 847) (2000).

Decided February 14, 2002.

Richard A. Jones, for appellant.

G. Channing Ruskell, Solicitor-General, Anthony B. Williams, Assistant Solicitor-General, for appellee.

In finding the State acted reasonably under the circumstances in this case, the trial court found that the officer read to Brown a document which gave specific information about medical facilities in the area that would conduct blood tests and the cost of services at these facilities. Brown chose to have his blood drawn at North Fulton Hospital, which was in a neighboring county and was not listed on the document. Even so, the officer agreed to take Brown to this hospital. The officer asked Brown about his ability to pay for the test. Brown stated that he had a personal check, but did not have a credit card or sufficient cash to pay for the test. The officer had the dispatcher contact North Fulton Hospital to determine whether it would accept a check, but the hospital responded that it did not accept checks. The defendant did not request to be taken to any other facility for the test, nor did he request the opportunity to make arrangements to pay for the test. The trial court also found that

[a]t all times in the video the Officer appeared accommodating and cooperative with the Defendant. There was no evidence that the Defendant was coerced or forced not to pursue his request for an independent test. There is no evidence to suggest that the officer would not have continued to accommodate any request made by the Defendant to obtain an independent test. To the contrary, there is evidence in the video testimony of the Defendant praising the officer for his help and cooperation.

The trial court concluded that the officer made reasonable efforts to accommodate Brown’s request for an independent blood test and that Brown’s failure to obtain the test was based on his inability to pay for the test.

The trial court’s factual findings are supported by the transcript of the motions hearing and the videotape of Brown’s custodial statements. We find that the trial court properly concluded the officer made reasonable efforts to accommodate Brown’s request for an independent test. Joel v. State, 245 Ga. App. at 752-753.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       The citizen testified at trial about his observations while following Brown’s track.


text:
    A02A0380.
    BELCHER v. BREMER.
    (560 SE2d 324)
   Phipps, Judge.

Betty Belcher sued Gary Bremer for breach of an alleged oral agreement to sell stock in a closely held corporation. The trial court granted summary judgment to Bremer on the ground that Belcher’s claim was barred by the statute of frauds. Belcher appeals, but we agree with the trial court and affirm.

Undisputed evidence presented by Bremer shows that Belcher and a partner owned all the stock of Clinical Arts Home Care Services, Inc. (Clinical). In 1983, Community Health Services, Inc. (Community) — whose chairman and majority stockholder was Bremer — purchased all the shares of Clinical. In exchange for her shares in Clinical, Belcher received a portion of Community’s outstanding stock. After the share exchange, Clinical continued to exist as a wholly owned subsidiary of Community until Community merged into Clinical in 1986. After the merger, Belcher owned a portion of the outstanding stock of Clinical.

In 1988, Clinical sold all of its stock to Central Health Holding Company, Inc. (Holding). In 1989, Clinical merged into Holding. Following these transactions, Belcher received shares of stock in Holding. In 1996, HCA, Inc. purchased Holding.

Belcher alleges that in 1986 Bremer told her that he was negotiating a merger with HCA. Even though Clinical’s merger with Holding did not occur until 1989, Belcher claims that in 1986 she and Bremer entered into an oral agreement in which she would give Bremer three percent of her stock interest in Holding, and Bremer would give her three percent of the proceeds when Holding was sold or $20,000, whichever was greater. Belcher claims Bremer never honored their agreement.

Bremer moved for summary judgment, arguing, among other things, that the alleged oral agreement was barred by the statute of frauds set forth in former OCGA § 11-8-319. Belcher argued that exceptions contained in OCGA § 11-8-319 (b) removed the agreement from the statute of frauds. The trial court agreed with Bremer.

1. As an initial matter, we consider which version of the statute of frauds applies in this case. In 1986, the date of the alleged oral agreement, OCGA § 11-8-319 provided in relevant part:

A contract for the sale of securities is not enforceable by way of action or defense unless: (a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity or described securities at a defined or stated price; or (b) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment.

The statute was amended in 1992 to provide that a contract for the sale of securities must be in writing unless, among other exceptions,

(b) Delivery of a certificated security or transfer instruction has been accepted, or transfer of an uncertificated security has been registered and the transferee has failed to send written objection to the issuer within ten days after receipt of the initial transaction statement confirming the registration, or payment has been made. . . .

Effective July 1, 1998, the General Assembly repealed OCGA § 11-8-319 and enacted OCGA § 11-8-113, which provides:

A contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making.

In her brief, Belcher assumes, without discussion, that the 1992 version of OCGA § 11-8-319 applies. We agree with Bremer, however, that the earlier version which was in effect at the time of the alleged agreement applies. In general, we will not apply a statute retroactively unless the statute’s language imperatively requires it. Nothing in either the 1992 amendment to OCGA § 11-8-319 or the 1998 enactment of OCGA § 11-8-113 indicates that those statutes are to be applied retroactively. Moreover, both statutes substantively changed the law by first narrowing, and then eliminating, the circumstances under which an agreement to sell securities must be in writing. Legislation that affects substantive rights may operate prospectively only.

Belcher claims that two exceptions contained in the 1992 version of OCGA § 11-8-319 (b) remove the agreement from the statute of frauds. First, she contends she told Bremer to transfer her stock certificates in connection with the sale. Even if Belcher’s statement qualified as a transfer instruction within the meaning of the statute, the provision that an oral contract for the sale of securities is enforceable if a transfer instruction has been accepted is not found in the earlier version of OCGA § 11-8-319 (b) applicable in this case. The applicable version of the statute provides only that the contract is enforceable if delivery of the security has been accepted. There is no evidence that Belcher ever delivered a security to Bremer in connection with their alleged agreement.

Decided February 14, 2002.

Louis Levenson, for appellant.

Greenberg Traurig, Michael J. King, Joseph H. Akers, for appellee.

Second, Belcher argues that payment, was made for the transfer as provided in OCGA § 11-8-319 (b). She claims that Bremer’s promise to pay her the greater of three percent of the sales price of Holding or $20,000 constituted payment under OCGA § 11-8-319 (b). But the statute provides that an oral contract for the sale of a security is enforceable if payment has been made, not if a promise to pay has been made. Belcher has presented no evidence that Bremer ever paid her. Rather, she sued him precisely because he had not.

Because Belcher failed to show that any exception removes her alleged agreement with Bremer from the statute of frauds in former OCGA § 11-8-319, summary judgment was appropriate.

2. Alternatively, Belcher argues that OCGA § 11-8-319 does not apply because the alleged agreement involved stock in a closely held corporation, which is not a security within the meaning of the Commercial Code.

As Bremer points out, Belcher never raised this argument in the trial court. Therefore, we cannot consider it here. Even if we could consider the argument, we squarely rejected it in Thompson v. Kohl.

Judgment affirmed.

Andrews, P. J, andMikell, J., concur.

       Belcher also sued Bremer for fraud and conversion, but she does not appeal the trial court’s grant of summary judgment to Bremer on those counts.

       See Ga. L. 1992, p. 2626, § 3.

       See Kueffer Crane &c. Svc. v. Passarella, 247 Ga. App. 327, 328 (1) (543 SE2d 113) (2000).

        Marek Interior Systems v. White, 230 Ga. App. 518, 520 (1) (496 SE2d 749) (1998).

        Hargis v. Dept. of Natural Resources, 272 Ga. 617 (533 SE2d 712) (2000).

       See OCGA § 11-8-319 (b) (1986).

       The payment exception to the statute of frauds is contained in both the 1986 and the 1992 versions of the statute.

       See Godwin v. Westberry, 231 Ga. 492, 493-494 (202 SE2d 402) (1973) (decided under former Code Ann. § 109A-8-319).

       See Pfeiffer v. Dept. of Transp., 250 Ga. App. 643, 647 (3) (551 SE2d 58) (2001).

       216 Ga. App. 148, 150 (1) (453 SE2d 485) (1994).


text:
    A02A0777.
    YONCE v. THE STATE.
    (560 SE2d 329)
   Phipps, Judge.

Bennie Rae Yonce appeals his peeping Tom conviction. He challenges the sufficiency of the evidence, the trial court’s refusal to declare a mistrial, and the court’s polling of the jury. Finding no basis for reversal, we affirm.

The arresting officer testified that he was on foot patrol at an apartment complex at about 2:00 a.m. on June 10, 2000, when he observed Yonce attempting to peer into the windows of a fully illuminated apartment unit. The officer explained that the apartment had three windows, each with a set of shut blinds. According to the officer, Yonce crouched down and looked between one set of blinds and a window while rocking back and forth in an almost comic fashion and then crept to the next windows and did the same thing. Yonce’s defense was that he was at the apartment complex to aid a troubled young woman whom he had met at a restaurant and was not engaging in any peeping Tom activities. However, the female occupant of the apartment unit into which he had peered or attempted to peer testified that she was alarmed as a result of this incident and had never before seen Yonce.

1. Yonce contends that the trial court erred in refusing to declare a mistrial when the arresting officer made an impermissible comment on his post-arrest silence.

On cross-examination, defense counsel sought to elicit testimony from the officer showing that he had been unable to ascertain Yonce’s purpose in being at the apartment complex. The officer responded that he had taken Yonce back to the police station so that he could explain what he had been doing at the apartments, but Yonce had declined to make any statements. Defense counsel thereupon moved for a mistrial. The trial court refused to declare a mistrial but gave curative instructions to the jury. We find no abuse of discretion, particularly in view of the fact that the objectionable testimony was elicited by defense counsel in his examination of the witness. “ ‘Induced error cannot be complained of on appeal. (Cit.)’ [Cit.]”

2. Yonce challenges the sufficiency of the evidence to support the verdict because no one was able to testify that he could see through the apartment windows.

We cannot agree with Yonce’s characterization of the evidence, as the arresting officer testified that he saw Yonce “going to each and every window . . . , looking between the blinds and the window.” Yonce’s claim that the victim testified that she did not know whether Yonce could have seen through the blinds is not supported by the page of the transcript to which he refers. Moreover, it has been held that under the peeping Tom statute (OCGA § 16-11-61), “the State is not required to show that a person is actually spied upon, the gravamen of the offense being that the spying took place regardless of whether the attempt to invade the privacy of another was successful. [Cits.]” The evidence supports Yonce’s conviction.

Decided February 14, 2002.

Sexton & Morris, Lee Sexton, Joseph S. Key, for appellant.

William T. McBroom III, District Attorney, Thomas J. Ison, Jr., Damon L. Sanderson, Assistant District Attorneys, for appellee.

3. Yonce contends that when he requested that the individual jurors be polled on their guilty verdict, the trial court failed to properly poll them.

Yonce’s complaint is that the trial court merely asked the jurors whether the guilty verdict was their verdict in the jury room and whether it continued to be their verdict, without inquiring whether each juror had reached the verdict freely and voluntarily. We find no error, as “[t]he foregoing questions meet the minimum requirements of the defendant’s right to a poll of the jurors [,]” and, when asked by the trial court whether he was content with the poll of the jury, defense counsel responded affirmatively. A litigant cannot submit to or acquiesce in a ruling of the trial court and then complain on appeal.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       See generally Frazier v. State, 249 Ga. App. 463, 465 (4) (549 SE2d 133) (2001).

        Sams v. State, 239 Ga. App. 715, 717 (3) (521 SE2d 848) (1999).

        McBride v. State, 196 Ga. App. 398, 399 (1) (396 SE2d 78) (1990).

        Burnett v. State, 240 Ga. 681, 689 (11) (242 SE2d 79) (1978); see Hudson v. State, 237 Ga. 241 (3) (227 SE2d 257) (1976) (not error to refuse to ask each juror whether verdict was voluntarily agreed upon).

        Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).