author: Mikell, Judge.

text:
    A01A0880, A01A0881.
    CRAFT v. THE STATE (two cases).
    (558 SE2d 18)
   Mikell, Judge.

After a bench trial, Dr. Robert Bruce Craft was convicted of 102 counts of sexual exploitation of a minor and 15 counts of child molestation. On appeal, Craft urges that we reverse either his convictions or, in the alternative, the denial of his amended motion for a new trial, arguing the following: (1) the verdicts on Counts 1 through 45 of the Richmond County indictment and Counts 1 through 70 of the Columbia County indictment are contrary to the evidence; (2) the photographic and videotaped evidence was not properly authenticated and its admission violated his constitutional rights; (3) the verdict is contrary to the evidence because the state failed to prove that the testimony or photographs of F. R., a minor child, violated OCGA § 16-6-4 in Counts 34, 35, 37 through 40, 42, and 71 through 73 of the Columbia County indictment or that the photographs of D. S., a minor child, violated OCGA § 16-6-4 in Counts 14 through 18 of the Columbia County indictment; (4) the trial court erred in denying his motion to suppress all of the evidence; (5) the trial court erred when it denied his motion to examine and test evidence; and (6) the trial court failed to make the required findings of fact in regard to its denial of his motion for an appeal bond. For the reasons stated below, we affirm in part and reverse in part.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.”

So viewed, the evidence shows that in June 1996, Federal Bureau of Investigation Special Agent Keith Owens was contacted by the FBI’s Charlotte division to determine whether Craft, who had had photographs developed at Fort Gordon, was a real person. Owens testified that he was given copies of 37 photos of a small boy lying on a sofa, most of which showed the boy cutting or stabbing at his erect penis with what appeared to be a knife. There was an adult in one of the photos with the small child. Owens learned that Craft, a child psychologist, was the adult in the photograph.

On September 20, 1996, Owens visited Craft’s co-worker, Dr. John McCormack, and showed him several of the pictures. When asked if there could be a reason that such photos had been taken, McCormack said that he did not know of any, but hoped that there was an explanation. With McCormack’s assistance, Owens decided when to approach Craft at his office to interview him. Owens met with Craft in Craft’s office in Richmond County on October 1, 1996, and informed Craft that he needed to talk with him about some possible violations of laws governing sexual abuse. Owens also told Craft that he was not under arrest, would not be arrested at the conclusion of the interview regardless of what he said, and that he could ask Owens to leave at any time.

Owens showed Craft one of the pictures he had received from Charlotte. Craft identified the minor child in the photograph as C. G. and admitted that he had taken the photo in his office. Owens noticed a distinctive sofa and pillow in Craft’s office that had appeared in most of the 37 photographs. When Owens showed Craft the remaining pictures of C. G., Craft explained that “he took the pictures because he was amused and he was trying to understand why C. G. was doing what he was doing.” Craft said that he had become very involved with photography over the previous five years, always had his camera nearby, and regularly took pictures of his child patients. Owens testified:

He said that he had never taken nude or sexual pictures of other children except when occasionally a child would be hamming, as he called it, during a picture and pull his pants down. He denied ever having these children pose for the photographs and he denied that he’d ever touched them sexually or had them touch him sexually. He said that these were the most explicit photographs he’d ever taken of children. He advised that the original slides of these photographs of C. G. playing with the knife were at his home and any other photographs that he’d taken of children exposing their genitals and buttocks were at his home. He said he didn’t take these pictures for any training purposes or for any professional study. He said he didn’t want these photos to get out and they never did, and this was in reaction to — I asked him about if he’d put them on the Internet or shared them with friends, that type of thing. He said he — they never got out. He never wanted them to get out and they never did. He described the spontaneous photographs of children exposing themselves as cute and stated he found it intriguing what these children do. . . . He said he never did get any sexual gratification from these photographs. He said that he had never masturbated while looking at these pictures. I asked him why would he take these pictures of other people’s children with the genitals exposed and not share those with the family of these other children. He became a little bit defensive and stated two or three times that he could probably make a clinical argument for taking the pictures. He said — he admitted that a part of him said maybe he shouldn’t do it and he knew they were inappropriate. He also mentioned that his colleagues would never understand. In the case of C. G., Dr. Craft described his interest in taking the pictures as morbid fascination with what C. G. was doing with the knife.

After the interview, Owens discussed the case with an Assistant United States Attorney, and they decided to investigate further. Consequently, they obtained search warrants over the weekend so that Craft would not have time to destroy the pictures. All of the warrants instructed the agents to search for:

Any and all photographs or visual depictions of any kind, including computer generated matter of minors engaged in sexually explicit conduct; books; magazines; periodicals; films; videotapes; or other matter which contained any visual depiction of a minor engaged in sexually explicit conduct; receipts; canceled checks; money orders; and order forms which are evident of interstate transportation or mailings of film, books, magazines, periodical [sic], videotapes, or other matter which contains any visual depiction of a minor engaged in sexually explicit conduct; any records of treatment pertaining to C. G.; any undeveloped film which may contain visual depictions of a minor engaged in sexually explicit conduct; the toy knife depicted in photographs of C. G. reflected in attachment B; any diaries or writings describing any sexually explicit conduct by or with a minor.

Owens executed search warrants on Craft’s two offices, both in Richmond County, on October 4, 1996. No evidence was taken from his office at the Veterans Administration hospital. At the office where Owens interviewed Craft, the agents seized message notes pertaining to C. G. but could not locate C. G.’s file. They also seized the toy knife and took photographs of that office.

Special Agent Harold Harrison, who executed the search warrant on Craft’s residence in Columbia County on that same day, testified that his search team confiscated twenty-seven boxes of evidence, the bulk of which was taken from two rooms, a computer room and a room containing a sofa and a projection screen. The boxes were taken to a secure room at the FBI office in Augusta and were turned over to Owens the next morning. There were approximately 37,000 photographs and slides in the boxes. Owens looked at every photograph and slide. Agent Harrison informed Owens that the team saw, but did not seize, several videotapes from Craft’s house because they had seized so many photographs.

On October 21, Owens interviewed Jamie and Judy Rumbaugh, whose six children were patients of Craft’s and with whom C. G. lived while initially under Craft’s care. Owens showed the Rumbaughs approximately 350 photographs and slides of their children nude or partially nude. The Rumbaughs told Owens that Craft often had both his still camera and videocamera at his office. Consequently, Owens added the information about the videocamera to the original affidavit for the search warrant and obtained another search warrant to seize the videotapes.

The second warrant authorized a search for “any and all homemade videotapes which may reasonably contain visual depictions of minors engaging in sexually explicit conduct; [and] any and all commercially made videotapes which contain visual depictions of minors engaged in sexually explicit conduct.” The videotapes were seized from Craft’s home on October 24, 1996.

After cataloging the evidence he thought was incriminating, Owens obtained a subpoena to find out the identities of some of the children in the photographs. Pursuant thereto, Craft gave Owens their names, addresses, and telephone numbers. Owens contacted the Department of Family & Children Services (the “Department”) and learned that it had referred 18 children to Craft. When he asked the Department for assistance with interviewing the children, he was referred to Investigator John Durden from the Georgia Bureau of Investigation.

Owens showed the pictures to Durden on March 5, 1998. After Durden discussed the case with the district attorney and a decision was made to prosecute the case at the state level, the GBI took possession of the photographs. Durden obtained arrest warrants from both Columbia and Richmond Counties and search warrants for Craft’s office and residence. He arrested Craft and searched Craft’s residence on March 9, 1998, while another officer searched Craft’s office.

Craft was indicted in Richmond County on forty-five counts of sexual exploitation of a minor in violation of OCGA § 16-12-100 (b) (5) and one count of child molestation against F. R. He was convicted of each count of sexual exploitation, and the state withdrew the molestation charge. In Columbia County, Craft was indicted on thirty-one counts of sexual exploitation of a minor, in violation of OCGA § 16-12-100 (b) (5), twenty-four counts of sexual exploitation of a minor, in violation of OCGA § 16-12-100 (b) (7), three counts of sexual exploitation of a minor, in violation of OCGA § 16-12-100 (b) (8), and fifteen counts of child molestation. He was convicted of each count, with the exception of one OCGA § 16-12-100 (b) (5) count. Craft agreed to waive the issue of venue with regard to the Columbia County indictment and to try both cases in Richmond County.

1. In his first enumeration of error, Craft argues that the verdict is contrary to the evidence because the state did not prove that the photographs attached as exhibits to Counts 1 through 45 of the Richmond County indictment and as exhibits to Counts 1 through 70 of the Columbia County indictment violated OCGA § 16-12-100 or § 16-6-4. When the sufficiency of the evidence is challenged, we use the test established in Jackson v. Virginia to determine whether the evidence was sufficient for any rational trier of fact to find the defendant guilty of the crimes charged.

The indictments alleged violations of several sections of OCGA § 16-12-100, which provide, in relevant part:

(b) (5) It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor engaged in any sexually explicit conduct!;] . . . [(b)] (7) It is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor engaged in any sexually explicit conduct!; (b)] (8) It is unlawful for any person knowingly to possess or control any material which depicts a minor engaged in any sexually explicit conduct.

OCGA § 16-12-100 (a) (4) defines “sexually explicit conduct,” in relevant part, as actual or simulated “(C) Masturbation; (D) [l]ewd exhibition of the genitals or pubic area of any person; (H) [d]efecation or urination for the purpose of sexual stimulation of the viewer.”

Craft first argues that the state failed to prove that the photographs depicted a minor engaged in the “lewd exhibition of genitals.” Because “lewd exhibition of genitals” has not been defined in Georgia, Craft contends that the trial court should have examined the six factors set forth in United States v. Dost to determine whether the photographs were lewd. We disagree. Dost interprets California law and thus is not controlling authority. Though the term has not been defined in Georgia, in Unden v. State, we held, “[u]nless an act is found not to be lewd as a matter of law, whether such act is lewd under the attendant circumstances usually ‘is best left to a jury for determination.’ ” In this case, there was a bench trial. When the trial court sits as the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.”

(a) Richmond County indictment. The Richmond County indictment charges 45 violations of OCGA § 16-12-100 (b) (5). In each count, with the exception of 23 and 24, Craft is charged specifically with creating “a photograph, depicting a minor child engaged in sexually explicit conduct, to wit: a lewd exhibition of genitals.” We affirm Counts 1 through 22, 30 through 35, 40, and 41. However, we reverse the convictions on Counts 23 through 29, 36 through 39, and 42 through 45 because the evidence is insufficient to support these convictions.

The exhibits attached to Counts 1 through 22 were among the 37 photographs that Owens initially showed Craft during their interview. As Craft informed Owens, these photographs depicted C. G. as he played with his penis or with his penis and a rubber knife. The exhibits attached to Counts 30 through 35 display a different minor, who has lowered his pants to show his penis. In the exhibits attached to Counts 40 and 41, a minor female child is shown nude and in the process of taking off her clothes. Owens testified that the couch and a pillow in the photographs were in Craft’s office when he interviewed him. We find that there is evidence sufficient to support Craft’s convictions on these counts.

In Counts 23 and 24, the indictment charges Craft with creating a photograph depicting a minor child engaged in masturbation with a toy knife. In both photographs, the child’s penis is not shown. In the first picture, he is pointing the knife at his penis through his shorts, and in the other photo, he appears to be cutting at his penis with the knife. We find the evidence insufficient to support the convictions on these counts as there is no evidence that the child was simulating or actually engaging in masturbation.

The exhibits attached to Counts 25 through 29, 36 through 39, and 42 through 45 are photographs of minor children who are wearing short pants and sitting down with their legs open. Due to the angle of the photograph, each child’s genitals are partially or completely observable. However, the child is either innocently playing with something or just sitting, not engaging in the lewd exhibition of his or her genitals. The photographs evidence conduct by the defendant that was despicable and perverted, i.e., surreptitiously photographing the genitals of children. However, the conduct is not within the precise language of the statute, and the evidence is hence insufficient on those counts.

(b) Columbia County indictment. Craft was convicted of violating OCGA § 16-12-100 (b) (5) in Counts 1 through 13, 19 through 33, 41, and 67; OCGA § 16-12-100 (b) (7) in Counts 43 through 63 and 68 through 70; OCGA § 16-12-100 (b) (8) in Counts 64 through 66; and OCGA § 16-6-4 in Counts 14 through 18, 34, 35, 37 through 40, and 42. We affirm Craft’s convictions on Counts 33; 44 through 46, 53, and 68; and 14 through 18, 34, 35, 37 through 40, and 42. We reverse his convictions on Counts 1 through 13, 19 through 32, 41, and 67; 43, 47 through 52, 54 through 63, 69, and 70; and 64 through 66.

In all but two of the counts charging violations of OCGA § 16-12-100 (b) (5), Craft was indicted for creating a visual medium that depicted a minor child engaged in sexually explicit conduct, specifically “lewd exhibition of genitals.” We reverse Craft’s convictions on Counts 1 through 12, 19 through 32, 41 and 67, finding that as a matter of law, the photographs and videotape (Count 67) did not depict minors engaged in any sexually explicit conduct. Count 13 charges that Craft created a photograph of a child masturbating. The photograph depicts a minor child sitting with his legs open with his hands on either side of his underwear. The evidence is insufficient to support this conviction.

We affirm the conviction as to Count 33. In the exhibit attached to Count 33, F. R., the only child to testify at the trial, is sitting on a toilet. When asked what he was doing in the picture, F. R. said that he was using the restroom. As utilized in OCGA § 16-12-100, sexually explicit conduct includes “[djefecation or urination for the purpose of sexual stimulation of the viewer.” Viewing the evidence in the light most favorable to the trial court’s verdict, any rational trier of fact could have found the evidence sufficient to support this conviction.

As stated earlier, OCGA § 16-12-100 (b) (7) provides that “[i]t is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor engaged in any sexually explicit conduct.” The sexually explicit conduct referenced in Counts 43, 47 through 63, and 68 through 70 is “lewd exhibition of genitals.” The exhibits attached to Counts 43 and 54 depict sleeping minor children, whose genitals are partially exposed. We reverse Craft’s conviction on these counts. The exhibits attached to Counts 47 through 52 and 55 through 63 depict children playing outside in a woody area in various stages of nudity. Owens testified that these photographs were marked “Smokey Mountains.” Because the photographs display children before or after swimming, there is no evidence to support the trial court’s finding that their nudity constituted a lewd exhibition of their genitals. Likewise, there is no evidence to support the trial court’s finding that the photographs referenced in Counts 69 and 70 of a partially nude minor child as he climbed a wall depicted a lewd exhibition of the genitals. Thus, Craft’s convictions for these counts are also reversed.

As to Count 53, however, the evidence shows a minor child with his underpants pulled down, pointing to his penis. A rational trier of fact could infer that the child was lewdly exhibiting his genitals, and hence the evidence was sufficient to support that count.

The exhibits serving as the basis for Counts 44 through 46 depict minor boys who are urinating from a back and side angle. In the videotape that served as the basis for Count 68, the minor child is urinating outside and, once he notices the camera, continues to urinate and smiles directly into the camera. Urinating is defined as a type of sexually explicit conduct. “Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.” Thus, the trier of fact could have inferred that Craft created these photographs for his own sexual gratification. Accordingly, we find the evidence sufficient to sustain a guilty verdict on these counts.

In Counts 64 through 66, Craft was charged with violations of OCGA § 16-12-100 (b) (8), which makes it unlawful to knowingly possess or control material depicting a minor engaged in any sexually explicit conduct. Investigator Durden testified that he seized the photographs attached to Counts 64 through 66 during his search of the Craft residence. These photographs depict a young boy who is sitting with his legs open and wearing swimming trunks. His genitals are partially exposed, apparently by accident, through the leg of his shorts. A rational trier of fact could not infer that the photographs depict a minor intentionally engaged in the lewd exhibition of his genitals. Therefore, we reverse Craft’s convictions on these counts.

In Counts 14 through 18, 34, 35, 37 through 40, and 42, Craft is charged with violating OCGA § 16-6-4 (a), which provides, “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” In Counts 14 through 18, 34, 35, 37 through 40, the indecent or immoral act with which Craft is charged is photographing children while they were nude, for the purpose of satisfying his sexual desires. In Count 42, Craft is charged with committing the indecent act of photographing a child while the child was pulling down his pants and exposing and slapping his buttocks for the camera, for the purpose of satisfying Craft’s sexual desires.

As stated earlier, intent can be inferred.

A reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground.

Also, in child molestation cases, evidence of other similar offenses against children is admissible to show the lustful disposition of the defendant. In this case, hundreds of photographs of nude or partially nude children or their genitalia were admitted into evidence. From this evidence, the trier of fact could infer that Craft took the photographs for the purpose of satisfying his sexual desires. Thus, we affirm the convictions on these counts.

2. In his second enumeration of error, Craft argues that the trial court erred by admitting all of the photographic and videotaped evidence because it was not properly authenticated under OCGA § 24-4-48. We disagree.

“The admission of evidence lies within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion.” OCGA § 24-4-48, which addresses the admissibility of photographs and videotapes, provides, in relevant part, “For purposes of this Code section, ‘unavailability of a witness’ includes situations in which the authenticating witness [i]s exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the authentication.” Thus, under OCGA § 24-4-48, Craft is deemed unavailable as an authenticating witness because he cannot be compelled to testify due to his constitutional right against self-incrimination. However, the statute also provides that even though the authenticating witness is unavailable, subject to any other valid objection, photographs and videotapes are admissible when the court determines, based on competent evidence presented to it, that the items tend to show reliably the fact or facts for which they are offered.

Through Owens’, Harrison’s, and Durden’s testimony, the state introduced hundreds of exhibits. In each instance, the officers testified that they seized the evidence from one of Craft’s offices or his home and were able to verify that the exhibits depicted Craft’s office or home. Moreover, Craft admitted to Owens that he regularly took pictures of his child patients.

As the trier of fact, the trial judge is állowed to infer other related or connected facts from the direct evidence that it finds are reasonable and justified in the light of its experience. Accordingly, we find that the trial court’s decision to admit the evidence based upon its inference from the officers’ testimony that Craft took the photographs and videotapes was not an abuse of its discretion.

3. In his third enumeration of error, Craft argues that the verdict is contrary to the evidence because the testimony and photographs of F. R. are insufficient to prove that Craft violated OCGA § 16-6-4 in Counts 34, 35, 37 through 40, 42, and 71 through 73 of the Columbia County indictment and that the photographs of D. S. are insufficient to prove that Craft violated OCGA § 16-6-4 in Counts 14 through 18 of the Columbia County indictment. As we have affirmed Counts 14 through 18, 34, 35, 37 through 40, and 42 in Division 1 of this opinion, we need not address these counts again here. As to Counts 71 through 73, we affirm.

In Count 71, Craft is charged with knowingly committing the indecent act of showing to F. R. a videotape portraying men and women engaged in sexual activity for the purpose of arousing Craft’s or F. R.’s sexual desires. F. R. testified that he and Craft regularly watched videos at Craft’s house and that on one occasion, they watched a video of adults engaging in sexual activity. As discussed earlier in Division 1 (b), whether Craft had the requisite intent is a question of fact for jury determination, and the trier of fact’s finding will not be set aside unless it is clearly erroneous. The evidence was sufficient to support the trial judge’s finding that on Count 71, Craft was guilty of violating OCGA § 16-6-4.

Craft is charged with fondling F. R.’s penis while bathing F. R. in the shower in Count 72 of the Columbia County indictment. F. R. testified that Craft was always with him in the bathroom when he took baths. Craft would wash F. R. with his hands, instead of a washcloth. When F. R. was asked what parts of his body Craft would wash, F. R. replied, “mainly my penis and my buttocks and probably my back.” Any rational trier of fact could have found the evidence sufficient to support Craft’s conviction on Count 72.

In Count 73, Craft is charged with committing the indecent act of asking F. R. to masturbate for him while in Craft’s home. F. R. testified that Craft videotaped or took pictures of him while F. R. showed him what he did to masturbate. When cross-examined about whether Craft asked him to masturbate, F. R. testified that he was sure that Craft asked to watch F. R. masturbate after F. R. described how he did it. Accordingly, the evidence was sufficient to convict Craft on Count 73.

4. Next, Craft enumerates as error the trial court’s denial of his motion to suppress all of the videotaped, photographic, and other evidence, arguing that all three searches of his home and both searches of his offices were not justified by probable cause. On appeal from a trial court’s ruling on a motion to suppress, if “the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review.”

Craft argues, citing no authority, that the first search warrants were not supported by probable cause because Owens should have done further independent investigation before seeking the warrants. Owens initially applied for search warrants to search Craft’s two offices and his home on October 4, 1996. In his application for the warrants, Owens explained how he first came into possession of the 37 photographs. He also averred that Craft admitted that he had taken those photographs as well as photographs of other children exposing their genitals. Further, Craft stated that he kept the photographs and slides of the children at his home and that he had documented at least one child’s behavior in his treatment files. Owens stated that he believed that Craft kept photographs of children at his home and two offices. Owens attached pictures to the affidavit and listed the items to be seized during the search. The magistrate issued the warrants and thousands of photographs and slides were seized.

“A search warrant must be supported by probable cause, or reasonable grounds, to believe that evidence of a crime will be found in a particular place.” Our duty in reviewing the magistrate’s decision to issue a search warrant is to determine if the magistrate had a substantial basis for concluding that probable cause existed and to give substantial deference to the magistrate’s finding. Here, the magistrate had a substantial basis for concluding that probable cause existed. Accordingly, the trial court’s denial of Craft’s motion to suppress the evidence gathered as a result of the first searches was proper.

On October 23, 1996, Owens sought a second warrant to search Craft’s home for all homemade or commercially made videotapes depicting minors engaged in sexually explicit conduct. The supporting affidavit recited the same facts as the previous affidavit. In addition, it stated that Owens interviewed the parents of minor children who appeared nude or partially nude in several of the photographs and/or slides that had been seized and learned from them that Craft had also made videotapes of their children on many occasions. Craft argues that because the videotapes could have been seized pursuant to the first search warrant, there was no new probable cause to justify a second search. We disagree and find that the additional information provided in the supporting affidavit for the second search warrant provided a substantial basis for the magistrate to conclude that probable cause existed.

Finally, Craft contends that the third search of his home and second search of his office, both of which occurred on March 9, 1998, were not justified by probable cause because the evidence relied upon to obtain warrants for those searches was stale. In order to determine if the information relied upon in obtaining a search warrant is stale, we must “view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.”

GBI Investigator Durden provided the supporting affidavits for the searches in question. In his affidavits, Durden averred that on March 5, 1998, Owens showed him 500 to 700 pictures and told him that Craft admitted to taking photographs of children at his office, residence, and on camping trips. Owens also told him that one of Craft’s neighbors saw him photographing a neighborhood child after the search warrants on his residence had been executed. For this reason, Owens told Durden that he believed that Craft continued to photograph children in his office in a sexually explicit manner and that Craft continued to treat some of the children depicted in the photographs and videotapes that had already been seized. Based on his training and experience as a child abuse specialist and on his interviews of child molesters and pedophiles, Durden averred that pedophiles and other individuals who prey upon children for their own sexual gratification rarely destroy the material that they collect. Further, Durden believed that items seized during a search would help the investigators to determine Craft’s previous and current victims. After reviewing the totality of the circumstances, we find that the magistrate had sufficient evidence to conclude that there was a reasonable probability that the items to be seized remained in existence.

5. In his fifth enumeration of error, Craft argues that the trial court’s denial of his motion to examine and test evidence violated his Fifth, Sixth, and Fourteenth Amendment rights as well as analogous provisions of the Georgia Constitution. We disagree. Citing no authority in support of his argument, Craft contends that his inability to review all of the photographs with his counsel prevented him from presenting a defense. Consequently, he maintains that the trial court saw only a very small number of the seized photographs and videotapes.

“Our appellate courts have repeatedly affirmed that a trial court is vested with latitude to handle within its sound discretion pre-trial matters . . . [such as] motions for discovery.” Craft was represented by counsel in this matter, whose effectiveness he has not challenged, and who were authorized to act on his behalf. There is no allegation that Craft’s counsel were not allowed to inspect all of the evidence, just that Craft was not with them when they inspected it. Craft does not have the right to represent himself and simultaneously be represented by counsel.

Craft argues that his constitutional rights were violated because the court could not place the evidence in the proper perspective since it saw only the photographs the state chose to offer into evidence. The court is not constrained to view as a whole evidence pertaining to the sexual portrayals of children. Thus, this enumeration lacks merit.

. 6. In Craft’s seventh enumeration of error, he argues that the trial court erred by failing to make the required findings of fact in connection with his appeal bond. We disagree.

Decided November 9, 2001

Reconsideration denied December 10,2001

William C. Davison, Christopher J. McFadden, for appellant.

“Granting or refusing to grant bail in non-capital felony cases after indictment and conviction is a matter within the sound discretion of the trial court; this Court will not control that discretion unless it has been flagrantly abused.”

In exercising its discretion, the trial court must answer four questions: (1) whether there is a substantial risk the defendant will flee; (2) whether there is a substantial risk the defendant will pose a danger to others in the community; (3) whether there is a substantial risk the defendant will intimidate witnesses or otherwise interfere with the administration of justice; and (4) whether it appears the appeal is frivolous or taken only for the purpose of delay.

In this case, the trial judge stated in an earlier bond proceeding that “I am of the opinion that the Defendant poses a danger to the community.” After hearing counsel’s argument on the motion for an appeal bond, the trial judge referenced the court’s earlier denial of Craft’s request for bond and stated that the only thing that had changed was the plethora of evidence against Craft that the court had considered during the trial. The trial court ruled that even after considering the four factors, it was not appropriate to grant an appeal bond. An affirmative answer to any one of the four questions will support the denial of the bond. Because the trial judge incorporated in the second bond proceeding his earlier finding that Craft posed a threat to the community, we affirm the trial court’s denial of Craft’s appeal bond.

7. As to Craft’s sixth enumerated error, we addressed the issues raised therein in Divisions 2, 4, and 5 of this opinion.

Judgment affirmed in part and reversed in part.

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

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       Seventy-five of the 102 counts pertained to violations of OCGA § 16-12-100 (b) (5), twenty-four to violations of OCGA § 16-12-100 (b) (7), and three to violations of OCGA § 16-12-100 (b) (8).

       OCGA § 16-6-4.

       (Citations and punctuation omitted.) Jones v. State, 234 Ga. App. 571 (1) (507 SE2d 804) (1998).

       All but two of these exhibits are photographs of C. G. at various angles exposing his erect penis and a toy knife. In the two where his penis is not clearly exposed, he is jabbing at his pubic area with the toy knife. Exhibits 1 through 1W were incorporated by reference into Counts 1 through 24 of the Richmond County indictment.

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

       636 FSupp. 828 (S.D. Cal. 1986).

       The Dost factors are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id. at 832.

       218 Ga. App. 463 (462 SE2d 408) (1995) (appellant asserted as error the trial court’s failure to charge the jury on the Dost factors and we stated that we were not deciding “whether a Dost factor charge is either appropriate or indispensable in sexual exploitation cases arising from an averred violation of Georgia law”). Id. at 466 (5).

       Id. at 464 (2).

       (Citations and punctuation omitted.) Turner v. State, 233 Ga. App. 413 (504 SE2d 229) (1998).

       OCGA § 16-12-100 (a) (4) (H).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Citations and punctuation omitted.) Ney v. State, 227 Ga. App. 496, 497 (1) (489 SE2d 509) (1997).

       Counts 71 through 73 of the Columbia County indictment also allege violations of OCGA § 16-6-4, but Craft’s first enumeration of error does not contest those counts.

        Ney, supra.

       (Citations and punctuation omitted.) Id. at 497-498 (1).

        Baker v. State, 241 Ga. App. 666, 669 (2) (527 SE2d 266) (1999).

       (Citation omitted.) Williams v. State, 272 Ga. 828, 829 (3) (537 SE2d 39) (2000).

       OCGA § 24-4-48 (a) (1).

       OCGA § 24-4-48 (b).

       See generally McGarity v. State, 212 Ga. App. 17, 20 (3) (440 SE2d 695) (1994).

        Ney, supra at 498 (1).

       (Citation omitted.) State v. Mallard, 246 Ga. App. 357 (541 SE2d 46) (2000).

       (Footnote omitted.) State v. Staley, 249 Ga. App. 207, 209 (548 SE2d 26) (2001).

        State v. Henderson, 271 Ga. 264, 269 (4) (517 SE2d 61) (1999).

       (Punctuation and footnote omitted.) Carruthers v. State, 272 Ga. 306, 313 (5) (528 SE2d 217) (2000).

       (Citations and punctuation omitted.) State v. Tuzman, 145 Ga. App. 481, 483 (2) (243 SE2d 675) (1978).

        Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986).

        New York v. Ferber, 458 U. S. 747, 764 (II) (C) (102 SC 3348, 73 LE2d 1113) (1982); but see Miller v. California, 413 U. S. 15, 24 (II) (93 SC 2607, 37 LE2d 419) (1973) (state statutes regulating adult pornography must be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value).

       (Citation omitted.) Williams v. State, 228 Ga. App. 289, 290 (2) (491 SE2d 500) (1997).

       (Footnote omitted.) Abernathy v. State, 245 Ga. App. 857-858 (539 SE2d 203) (2000).

       Id.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1879.
    HARRIS v. THE STATE.
    (557 SE2d 452)
   Ruffin, Judge.

A jury found Ricky Harris guilty of two counts of aggravated battery and one count each of aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. Harris appeals, asserting, among other arguments, that he is entitled to a new trial because he received ineffective assistance of counsel. We agree and accordingly reverse and remand the case for a new trial.

Harris’ convictions stemmed from an ongoing dispute he had with the victim, Stanley Hughley, that ultimately resulted in a shooting. Harris apparently believed that Hughley was having a secretive relationship with Harris’ girlfriend. On the day of the shooting, Harris telephoned Hughley’s wife at work and told her about the relationship. According to Hughley, Harris also called him at home, threatening him and telling him that he wanted to meet at a nearby ballpark. Harris disputed Hughley’s description of the phone call, claiming that Hughley made the threats.

After Hughley and Harris ended their phone conversation, Hughley picked up his cousin, Edward Alexander, because they were to go fishing. On the way to the bait shop, however, Hughley and Alexander stopped by the ballpark to look for Harris. Harris was there with his brother, Tyrone White, waiting for Hughley. When Hughley saw Harris standing on the far side of the ballpark, he parked his truck, exited it, and walked in Harris’ direction. It appears that Hughley and Harris approached each other in the park, but there was evidence depicting two different versions of what occurred next.

According to Hughley and Alexander, Alexander remained on the periphery while Hughley and Harris met in the middle of the ball field. When they were about ten feet apart, Harris pulled a gun from his pocket, shot once into the ground, and fired a second time, hitting Hughley in the side. In contrast, Harris and White testified that all four individuals walked to the center of the field and that, as they approached each other, Alexander pulled a gun. White claimed that he, too, had a gun that day and stated that when he saw Alexander’s gun, he pulled his pistol from his pocket and fired into the ground. White testified that he and Alexander then exchanged shots and that Hughley was hit in the crossfire. Both Harris and White testified that Harris did not have a gun. The jury apparently believed Hughley and Alexander’s version and found Harris guilty of the charged offenses arising from the shooting.

1. To support its charge of possession of a firearm by a convicted felon, the State presented evidence showing that, in 1993, Harris was convicted of felony possession of cocaine with intent to distribute. Harris asserts that proof of the conviction improperly placed his character in evidence. He further contends that trial counsel was ineffective because she failed to move that the trial court bifurcate the trial of the possession of a firearm by a convicted felon charge and the other charges in accordance with Head v. State. We agree.

For Harris to prevail on his ineffective assistance claim, he “must show (1) that his attorneys representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.”

The evidence presented at the hearing on Harris’ motion for new trial shows that trial counsel’s representation concerning evidence of the prior felony conviction fell below an objective standard of reasonableness. At the hearing, trial counsel testified:

I can’t at this time looking at the file think of any reason not to [move for bifurcation]. It would be . . . standard practice to do that to keep character out. There was no . . . reason that the State could have got that in legitimately as part of this case; that was apparently a drug case, had nothing to do with this. And so I have no reason for doing that.

Counsel further testified that the State usually moves for bifurcation and that, if it does not, “the defense makes the motion.”

As trial counsel pointed out, when the State introduced evidence of Harris’ prior felony conviction, it clearly placed his character in evidence. Harris’ prior drug-related felony conviction was totally irrelevant to all the charges for which he was being tried in this case, except the charge for possession of a firearm by a convicted felon. Introduction of the evidence unnecessarily showed Harris’ “bad character and propensity to commit a crime.” It is clear that, under Head, absent a compelling reason to do otherwise, trial counsel should have moved the trial court to bifurcate the trial so that the jury could consider whether Harris committed the other offenses before hearing proof of the firearm possession offense and without the taint of bad character evidence.

That is not the end of our inquiry, however, because we still must determine whether Harris was harmed by counsel’s deficient performance. Several factors lead us to conclude that he was. First, although the prior felony conviction evidence was admissible to prove the firearm possession offense, the jury was never told that it should limit its consideration of the evidence to that offense. Thus, the jurors likely felt free to consider the evidence for whatever purpose they saw fit, including improperly judging Harris’ character and credibility. Indeed, in charging the jurors on witness credibility, the trial court instructed them that they could

consider [witness] credibility insofar as it may legitimately appear from the trial of the case. . . . [I]f you find a conflict [in the evidence] you should settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this then you should believe that witness or those witnesses you think best entitled to belief. You must determine what testimony you will believe and which ones you do not believe, if there are some you do not believe.

Considering this charge, along with the absence of a limiting instruction, it is reasonable to suspect that the jurors, faced with two conflicting versions of the shooting, chose to believe the account of the victim rather than the convicted felon.

In addition, although Hughley’s account of the shooting was corroborated by his cousin, the evidence of Harris’ guilt was not overwhelming. Again, Harris denied he had a gun, and his brother, White, testified that he was the one who fired in Hughley’s direction. Thus, the case essentially boiled down to a question of credibility between two adversaries who were admittedly engaged in an ongoing feud and whose conflicting stories were essentially corroborated only by the close allies that joined them at the confrontation.

Decided December 10, 2001.

Sullivan & Sturdivant, Harold A. Sturdivant, Ryan M. Reid, for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

Finally, contrary to the State’s argument, the evidence of Harris’ prior felony conviction was more than just a passing reference. Though the prosecutor spent little time during the trial introducing the evidence, the certified copy of the conviction was the sole exhibit to go out with the jurors during their deliberations. Thus, the exhibit had a captive audience of jurors who were constantly reminded, as they were considering Harris’ guilt, that, as a convicted felon, he was a person of bad character with a propensity to commit crimes.

Under these circumstances, we cannot say with certainty what impact trial counsel’s performance had in this case. We can say, however, that there is a reasonable probability that, but for her failure to move for bifurcation, the results of the trial would have been different. Accordingly, Harris is entitled to a new trial.

2. In view of our holding in Division 1, we need not address Harris’ remaining enumerations of error.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       While cross-examining White, the prosecutor showed that, at a prior hearing, White initially denied having a gun, but then admitted having a gun.

       253 Ga. 429 (322 SE2d 228) (1984).

       (Punctuation omitted.) Harris v. State, 234 Ga. App. 126, 129 (3) (505 SE2d 49) (1998).

       (Punctuation omitted.) Head, supra at 430 (1) (quoting Panzavecchia v. Wainwright, 658 F2d 337, 341 (5th Cir. 1981)).

       See id. at 431-432 (3); see also Foote v. State, 188 Ga. App. 304, 305 (372 SE2d 843) (1988); compare Harris, supra (counsel and defendant agreed not to move for bifurcation as part of trial strategy).

       See Harris, supra; Foote, supra.

       See Head, supra at 431 (2) (finding that “[tjhere were no limitations imposed by the trial court as to the use to which the jury properly might put the evidence of prior convictions”); compare Prince v. State, 264 Ga. 867, 868-869 (3), (5) (452 SE2d 497) (1995) (finding that defendant was not harmed by counsel’s failure to move for bifurcation because the trial court instructed the jury on the limited purpose of the prior felony evidence); Foote, supra (same).

       See Head, supra at 431, n. 1.

       See id.; Barnett v. State, 215 Ga. App. 46, 47 (2) (449 SE2d 651) (1994) (finding that “the introduction of evidence of prior convictions without proper limiting instructions placed defendant’s character squarely in evidence, and may have influenced the jury to convict him based on his bad character and propensity to commit a crime”).

       See Head, supra; compare Foote, supra (overwhelming evidence of guilt); Graham v. State, 185 Ga. App. 617, 619 (2) (365 SE2d 482) (1988) (same).

       See Head, supra at 431 (2) (finding that introduction of prior felony evidence had “nothing to do with any element of [the other charges], except the forbidden (albeit perhaps the most illuminating) realm of character and propensity for violent crimes”); see also Barnett, supra.

       See Head, supra; Harris, supra; Barnett, supra.

       See Head, supra; Barnett, supra at 47-48.


text:
    A01A2017.
    WORTHY v. THE STATE.
    (557 SE2d 448)
   Ruffin, Judge.

Following a bench trial, the trial court found James Worthy guilty of driving with a suspended license. Worthy appeals, arguing that the trial court improperly admitted evidence. He also challenges the sufficiency of the evidence. For reasons that follow, we affirm.

1. Worthy argues that the trial court erroneously admitted into evidence a computerized printout of his driving record. Under OCGA § 24-3-17, a driving record is admissible “if the State (a) shows it is a certified copy of a Department of Public Safety record or (b) proves the driving record was obtained from a computer terminal lawfully connected to. the Georgia Crime Information [Center].”

The State did not produce a certified copy of Worthy’s driving record at trial. Instead, it called Phyllis Holloway, the solicitor-general’s office investigator who obtained the record, as a witness. According to Holloway, she retrieved Worthy’s record through a computer connected to the Georgia Crime Information Center (“GCIC”), which she was specifically trained, certified, and authorized to access. She then printed the information from her computer. Holloway identified the computerized printout at trial, and the trial court admitted it into evidence over Worthy’s foundational objection.

On appeal, Worthy contends the State failed to meet the foundational requirements of OCGA § 24-3-17 (b) because “there was no testimony that the computer [used by Holloway] was ‘lawfully’ connected to the [GCIC].” As an initial matter, Worthy failed to preserve this objection below. “Because ‘lack of foundation’ has no single defined meaning, an objection of ‘lack of foundation’ generally is of little or no use to a trial judge.” To properly make and preserve this objection, therefore, the party “must specify the foundational element he contends is lacking.” At trial, Worthy argued that the State had not laid “a proper legal foundation” for admission of his driving history. He never specified, however, that the missing foundational element was evidence of a “lawful” connection to the GCIC.

Furthermore, even if Worthy’s objection was adequate, we find no error in the driving record’s admission. The State offered evidence that Holloway, an investigator with the solicitor’s office, was trained and authorized to access the driving record and that she retrieved the information through a computer connected to the GCIC. Under these circumstances, there is, at the very least, circumstantial evidence that the connection was lawful. Thus, we cannot say that the trial court abused its discretion in admitting the record. And although Worthy challenged Holloway’s training and credibility, the trial court was charged with resolving credibility issues and clearly decided Worthy’s challenge against him.

The State presented sufficient evidence that Holloway’s connection to the GCIC was “lawful,” as required by OCGA § 24-3-17 (b). Accordingly, the trial court did not err in admitting Worthy’s driving record into evidence.

2. Worthy also argues that the trial court improperly permitted Holloway to testify about the contents of his driving record. He first claims that this testimony should have been excluded because the State did not lay the foundation necessary to admit the driving record into evidence. In Division 1, however, we rejected that argument. He further contends that the trial court should not have allowed Holloway to interpret the driving record because the State “failed to lay a foundation that [she] was qualified” to do so.

Worthy raised two foundational objections to Holloway’s testimony about his driving record. He challenged her qualifications to access the GCIC and argued that the State did not meet the requirements of OCGA § 24-3-17. But Worthy never questioned or objected to Holloway’s ability to interpret the driving history or provide information about the procedures used to create and update it. In fact, Worthy questioned Holloway regarding that record, apparently conceding her ability to interpret the document. “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it.”

3. Worthy argues that the State’s use of his driving record, as well as Holloway’s testimony about it, deprived him of his Sixth Amendment right to confrontation. Worthy has not pointed to any evidence that he raised an objection on this ground, and we have found none. As noted above, we “will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court.”

4. Finally, Worthy argues that the evidence was insufficient to support his conviction for driving with a suspended license. To establish this offense, “the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension.”

Viewed in the light most favorable to the verdict, the evidence showed that Worthy was driving on June 14, 2000, when a police officer stopped his car. The officer checked the status of Worthy’s driver’s license, learned that it had been suspended, and cited Worthy for driving with a suspended license.

Worthy’s driving record revealed that, on April 5, 2000, the State convicted him of driving under the influence and suspended his license. The driving record further showed that Worthy received notice of the suspension on April 5, 2000. Interpreting the driving record, Holloway confirmed that Worthy received notice on April 5, 2000, and testified that his license was not reinstated prior to the June 14, 2000 citation for driving with a suspended license. This evidence was sufficient to support Worthy’s conviction.

We recognize that Worthy’s driving record references a license reinstatement on April 7, 2000, two days after the DUI suspension. The record shows that Worthy’s license had been previously suspended for a failure to appear in court. On April 7, 2000, he managed to have his “failure to appear” suspension lifted. Nevertheless, Worthy’s April 5, 2000 DUI conviction resulted in a 12-month license suspension under OCGA § 40-5-63 (a) (1). Although that statute permitted him to apply for reinstatement after 120 days, Worthy could not seek reinstatement until the 120-day period expired.

Just two days after his DUI conviction, the State lifted Worthy’s suspension for failure to appear. That reinstatement did not nullify the DUI suspension, which, by statute, would last at least 120 days. “Administrative lapses notwithstanding, the fact that [Worthy] had [his] driver’s license [reinstated] did not give him permission to drive[ ] in contravention of [OCGA § 40-5-63 (a) (l)].” And, “[fignorance of the laws to this effect excuses no one.” Accordingly, the trial court was authorized to conclude that Worthy’s driving privileges had not been reinstated and that he drove on June 14, 2000, with a suspended license.

Decided December 10, 2001.

Terry Grandison, Lawanda J. QBannon, for appellant.

Joseph J. Drolet, Solicitor-General, Brian K. Ross, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

        Tolbert v. State, 227 Ga. App. 647, 648 (490 SE2d 183) (1997).

        Tolver v. State, 269 Ga. 530, 532 (2) (500 SE2d 563) (1998).

       Id.

       See Pless v. State, 247 Ga. App. 786, 787 (2) (545 SE2d 340) (2001) (quantum of evidence necessary to meet foundational requirements for admission of photograph “is a matter within the sound discretion of the trial court”).

       See Matheson v. State, 249 Ga. App. 200, 201 (1) (547 SE2d 774) (2001).

       See Jackson v. State, 228 Ga. App. 877, 878 (1) (492 SE2d 897) (1997); cf. Tolbert, supra at 647-648 (evidence that solicitor’s office employee “physically obtained a copy of [the defendant’s] driving history from the State Patrol office” did not meet foundational requirements); Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994) (prosecutor’s assertion, without evidence, that driving record was obtained from a computer lawfully connected to the GCIC did not establish an adequate foundation under OCGA § 24-3-17 (b)).

       (Punctuation omitted.) Williams v. State, 248 Ga. App. 316, 320 (2) (546 SE2d 74) (2001).

       (Punctuation omitted.) Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993).

       See id.

       (Punctuation omitted.) Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996).

       See Matheson, supra at 200.

       See Eppinger v. State, 236 Ga. App. 426 (512 SE2d 320) (1999); see also Buckley v. State, 246 Ga. App. 342, 343 (540 SE2d 292) (2000) (driving history admissible to show fact of suspension if State meets foundational requirements under OCGA § 24-3-17).

       See OCGA §§ 40-5-63 (a) (1); 40-5-65; Payne v. State, 209 Ga. App. 780, 781-782 (1) (434 SE2d 543) (1993) (physical precedent only).

       See OCGA § 40-5-63 (a) (1).

       (Punctuation omitted.) Payne, supra at 782 (1); see also Grisson v. State, 237 Ga. App. 559, 560 (1) (515 SE2d 857) (1999) (quoting Payne).

       (Punctuation omitted.) Grisson, supra at 561 (1); see also Payne, supra (“It may be said that appellant did not intend to violate the law, and did not know that he was doing so. The reply is that OCGA § 1-3-6 declares that ‘Laws after promulgation are obligatory upon all inhabitants of this state, and ignorance of the law excuses no one.’ ”) (punctuation omitted).


author: Phipps, Judge.

text:
    A01A1339.
    BROWN v. BELINFANTE et al.
    (557 SE2d 399)
   Phipps, Judge.

Gail Brown sued Louis S. Belinfante, D.D.S. and Atlanta Orthofacial Surgicenter, LLC after Belinfante performed several elective cosmetic procedures on her: a rhytidectomy (facelift), a genioplasty (chin augmentation), a four-lid blepharoplasty (eyelid revision), and a dermabrasion (facial laser resurfacing). Belinfante is not a physician. He is licensed to practice dentistry in Georgia and was employed by the Surgicenter. Brown claims that after the cosmetic procedures, she could not close her eyes completely, developed chronic bilateral eye infections, and required remedial corrective surgery. She also claims that the surgery on her chin caused a speech impediment and facial asymmetry. Among other things, Brown alleged that Belinfante’s performance of the cosmetic procedures constituted negligence per se because he exceeded the scope of the practice of dentistry, violating OCGA § 43-11-1 et seq. (referred to by the parties and the trial court as the “Dental Practice Act”) and Rule 150-8-.01 (h) promulgated thereunder by the Georgia Board of Dentistry (Board).

Belinfante denied practicing outside the scope of dentistry. In his deposition, he stated, “I’m an oral and maxillofacial surgeon who is a dentist, and our specialty performs those kinds of operations.” The trial court granted the defendants partial summary judgment on the negligence per se claim, relying on Cardio TVP Surgical Assoc. v. Gillis to conclude that “the question of whether or not Defendant Dr. Belinfante was practicing within the scope of the Georgia Dental Practice Act is not an issue to be determined by the jury sitting as the trier of fact.” Brown appeals that ruling.

We find that Belinfante’s acts did not give rise to a negligence per se claim based upon the Board rule. But in performing the elective cosmetic procedures, he violated OCGA § 43-11-17 by exceeding the statutory limits of the scope of dentistry. Thus, we conclude that Belinfante committed negligence per se, and we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

1. Brown claims that Belinfante committed negligence per se because he violated the Dental Practice Act by performing cosmetic procedures that were not authorized by OCGA § 43-11-17. In full, OCGA § 43-11-17 provides:

(a) Except as expressly provided in this chapter, any person who performs any of the following procedures, operations, or services shall be regarded as practicing dentistry within the meaning of this chapter: (1) Operates or performs part of any dental operation of any kind upon the human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated structures, or associated contiguous masticatory structures for the treatment of diseases or lesions of such structures; (2) Extracts teeth or attempts to correct a malposition thereof; (3) Fills or crowns a human tooth or teeth; (4) Does any dental operation whatsoever on the human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated structures, or associated contiguous masticatory structures; (5) Examines any human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated structures, or associated contiguous masticatory structures or takes an impression thereof for the purpose of diagnosing, treating, or operating upon the same; (6) Makes, repairs, adjusts, or relines appliances usable on teeth or as teeth unless such appliances, repairs, adjustment, or relines are ordered by and returned to a licensed dentist; (7) Undertakes to do or perform any physical evaluation of a patient in his or her office or in a hospital, clinic, or other medical or dental facility prior to, incident to, and appropriate to the performance of any dental services or oral or maxillofacial surgery; (8) Diagnoses dental radiographs or makes radiographs except for use by a licensed dentist or a licensed physician; or (9) By any means whatsoever makes it known, implies, or holds out to the public in any fashion that such person will do any of the operations, procedures, or services set forth in this subsection, (b) Proof of any one or all of the acts mentioned in this Code section shall constitute primafacie evidence of the practice of dentistry.

Belinfante maintains that the Dental Practice Act does not prohibit his conduct. He also argues that the trial court correctly relied on Cardio TVP because it is improper for a jury to decide whether dentists may perform the cosmetic procedures involved here. Belinfante claims that the question is one for the Board.

Cardio TVP does not always deprive the courts of the authority to determine whether the violation of a statute defining an exception to the general prohibition against practicing medicine without a license constitutes negligence per se. In Cardio TVP, our Supreme Court considered the question of whether the Physician’s Assistant Act (PAA) allowed a physician’s assistant to harvest a vein from the patient’s leg for use in coronary artery bypass surgery. The General Assembly enacted the PAA “to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [physician’s] assistants where such delegation is consistent with the patient’s health and welfare.” Because the comprehensive statutory scheme created by the legislature placed an all-inclusive role upon the Composite State Board of Medical Examiners, the Court ruled that such question was a matter strictly for that medical board.

But neither the Composite State Board of Medical Examiners nor the Georgia Board of Dentistry plays an all-inclusive role in the practice of dentistry. Although the General Assembly charged the Georgia Board of Dentistry with duties “relative to the protection of the public health and the control and regulation of the practice of dentistry,” the Board is without authority to expand the scope of the practice of dentistry beyond its statutory limits. Because the significant question of where the practice of dentistry ends and the practice of medicine commences has been determined by the legislature, this issue is one of statutory interpretation.

When interpreting a statute, we ascertain and effect the legislative intent. We give all words, other than terms of art associated with a particular area of expertise, their ordinary and everyday meaning. We neither limit nor extend the operation of the language by resorting to subtle and forced constructions. Further, it is a fundamental principle of statutory construction that the enumeration of certain things in a statute implies the exclusion of others.

OCGA § 43-11-17 does not expressly list any of the cosmetic procedures that Belinfante performed, and we must regard the omission as deliberate. Only paragraphs (1) and (4) of subsection (a) even arguably could be interpreted as including the procedures. But subsection (a) (1) requires that the “dental operation” be related to the “treatment of diseases or lesions,” and it is undisputed that the cosmetic procedures here were elective and treated no diseases and no lesions. We next focus on subsection (a) (4) and consider whether the legislature, by using the phrase “dental operation ... on the human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated structures, or associated contiguous masticatory structures,” intended to include within the practice of dentistry elective facelifts, chin augmentations, eyelid revisions, and facial laser treatments. First, the Georgia Legislature limited the types of procedures encompassed by that subsection to those “dental” in nature. Dorland’s Illustrated Medical Dictionary (28th ed.) defines “dental” as “pertaining to a tooth or teeth.” Second, only the term “associated structures” needs further interpretation, as it is readily apparent that the other terms do not encompass the facial components at issue here. And a longstanding rule of construction provides “that a general term following specific terms is confined to the same kind or category of thing.” The human body parts specifically enumerated in OCGA § 43-11-17 (a) (4) pertain to the teeth, further demonstrating that the legislature intended to so limit the practice of dentistry.

.The elective cosmetic procedures in this case were not expressly listed in OCGA § 43-11-17, were not dental in nature, and were not confined to “the human oral cavity, teeth, gingiva, alveolar process, maxilla, mandible or associated structures, or associated contiguous masticatory structures.” Without resorting to a strained construction of that Code section, we cannot conclude they were acts constituting the practice of dentistry. Furthermore, while opinions of the Attorney General are not binding on appellate courts, they can be considered persuasive authority. We note that an Attorney General’s opinion interpreting OCGA § 43-11-17 is in accord with our decision.

Belinfante argues that OCGA § 43-11-17 does not provide an exhaustive list of dental acts. He cites the definition of “dentistry” as provided in OCGA § 43-11-1 (5) and points out that it specifically references “maxillofacial area.” He argues that it is therefore broad enough to encompass the cosmetic procedures. But OCGA § 43-11-1 (5) was added by amendment in 1999, two years after Belinfante performed the cosmetic procedures involved here in March and May 1997. Therefore, this argument is unavailable to him.

We hold as a matter of law that under Georgia’s statutory scheme in March and May 1997, elective facelifts, chin augmentations, eyelid revisions, and dermabrasions did not fall within OCGA § 43-11-17. Consequently, Belinfante violated that Code section by exceeding its scope.

Having determined that Belinfante violated OCGA § 43-11-17, we turn to whether such violation constituted negligence per se as to Brown. Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se.

In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained óf was the harm it was intended to guard against.

Further, for a violation of a statute to be negligence per se, the violation “must be capable of having a causal connection between it and the damage or injury inflicted upon the other person,” which refers not to the proximate cause element of the negligence action, but to the character of the legal duty involved.

The primary purposes of the Georgia Dental Act were to define and regulate the practice of dentistry. By specifying in OCGA § 43-11-17 which acts constitute the practice of dentistry, the statute limited the scope of the practice of dentistry. Such limitation protects the health and welfare of patients who submit themselves to the care of dentists, by guarding against injuries caused by inadequate care or by unauthorized individuals. Brown falls within that class of persons the statute was intended to protect, and the harm complained of was of the type the statute was intended to guard against. Finally, Belinfante’s violation of the statute is capable of causing Brown’s alleged injuries. Consequently, his violation of OCGA § 43-11-17 constituted negligence per se.

2. Brown next claims that Belinfante committed negligence per se because he violated Board Rule 150-8-.01 (h):

[t]he Board has the authority to refuse to grant a license to an applicant [ ] or to discipline a dentist or dental hygienist licensed in Georgia if that individual has engaged in unprofessional conduct. For the purpose of the implementation and enforcement of this rule, unprofessional conduct is defined to include, but not be limited to, . . . [a]ny departure from, or failure to conform to, the minimal standards of acceptable and prevailing dental practice.

Decided November 21, 2001

Reconsideration dismissed December 11,2001

Curtis A. Thurston, Jr., for appellant.

Smith, Gambrell & Russell, Matthew S. Coles, for appellees.

Fisher & Phillips, Robert C. Christenson, amicus curiae.

Brown asserts that Belinfante’s acts fall within the “nonprofessional conduct” that is subject to discipline under this rule. But that is a question for the Board, not the courts.

Although the rule serves to regulate the dental profession, it does not establish a standard of conduct, the violation of which creates civil liability against the dentist in favor of a patient. Belinfante’s performance of the cosmetic procedures on Brown did not give rise to a claim of negligence per se based upon this rule.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

       272 Ga. 404, 406 (1) (528 SE2d 785) (2000).

       OCGA § 9-11-56 (c).

        Gilbert v. Montlick & Assoc., 248 Ga. App. 535, 539 (7) (546 SE2d 895) (2001).

       Supra.

        Rockefeller v. Kaiser Foundation Health Plan &c., 251 Ga. App. 699, 702-703 (1) (554 SE2d 623) (2001). See OCGA § 43-34-26 (b).

       OCGA § 43-34-101 (b).

       OCGA § 43-11-7.

       See OCGA § 43-11-1 et seq.; Holcomb v. Johnston, 213 Ga. 249, 252 (98 SE2d 561) (1957) (“the practice of dentistry is affected with the public interest, and to insure protection of the public health and welfare the profession of dentistry is a logical subject for regulation by the legislature”).

        Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649, 653 (1) (481 SE2d 612) (1997).

       Id.

       Id.

        Siegrist v. Iwuagwa, 229 Ga. App. 508, 510 (1) (494 SE2d 180) (1997).

       Id.

        Witty v. McNeal Agency, 239 Ga. App. 554, 557 (2) (a) (521 SE2d 619) (1999).

       OCGA § 43-11-17 (a) (1), (4).

       See Siegrist, supra (applying principles of statutory construction to conclude that legislature intended to preclude chiropractors from treating patients with massages for a fee).

        Campbell v. Poythress, 216 Ga. App. 834, 835 (456 SE2d 110) (1995).

       1989 Op. Atty. Gen. 110. We further note in passing that the Attorney General’s Unofficial Opinion U96-3, addressing whether dentists can perform various types of plastic surgeries, including chin augmentation, eyelid revision, and dermabrasion, is also in accord with our decision.

       “Dentistry” means the evaluation, diagnosis, prevention, or treatment, or any combination thereof, whether using surgical or nonsurgical procedures, of diseases, disorders, or conditions, or any combination thereof, of the oral cavity, maxillofacial area, or the adjacent and associated structures, or any combination thereof, and their impact on the human body provided by a dentist, within the scope of his or her education, training, and experience, in accordance with the ethics of the profession and applicable law, including, but not limited to, the acts specified in Code Section 43-11-17.

       Ga. L. 1999, p. 234, § 1.

       See A Tow, Inc. v. Williams, 245 Ga. App. 661, 662, n. 1 (538 SE2d 542) (2000).

       Accord Spiro v. Highlands Gen. Hosp., 489 S2d 802 (Fla. App. 1986) (a licensed dentist may practice medical anesthesia only in connection with the practice of dentistry, as to practice medical anesthesia as a specialty would be to engage in the practice of medicine for which he did not hold a license and no amount of hospital training or education in anesthesiology would cure the legal disability of a licensed dentist to administer anesthetics).

       See Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985) (a nursing student who administered anesthesia to a patient and who was not under any physician’s supervision while doing so violated statute that provided that only certified registered nurse anesthetists could administer anesthesia and only while under the supervision of a physician).

        Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 152-153 (325 SE2d 819) (1984), aff’d, Worthy, supra, 254 Ga. 728.

       (Citations, punctuation and emphasis omitted.) Worthy, supra, 173 Ga. App. at 153.

       (Citation and punctuation omitted.) Id.

       See Rockefeller, supra; Worthy, supra, 254 Ga. at 730 (1).

       See generally Generali — U.S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 280 (2) (a), (b) (493 SE2d 731) (1997).


text:
    A01A2314.
    CALDWELL v. PARC CHATEAU APARTMENTS, LTD. et al.
    (557 SE2d 455)
   Ruffin, Judge.

Almeator Caldwell appeals the trial court’s decision granting summary judgment to Parc Chateau Section I Associates, L.P. (“Section I”). For reasons that follow, we affirm.

To prevail on summary judgment, the movant “must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law.” So viewed, the record shows that Caldwell sued Parc Chateau Apartments, Ltd. (“PCAL”) on January 12,1998, for damages allegedly sustained when she fell at the Parc Chateau Apartments on February 1, 1996. PCAL failed to answer Caldwell’s complaint, and the trial court entered a default judgment. PCAL subsequently moved to set aside the judgment, arguing that it had not been properly served and that it had never owned, managed, or “had any involvement at all” in the Parc Chateau Apartments. With the parties’ consent, the trial court set aside the default judgment and dismissed Caldwell’s claims against PCAL.

Caldwell eventually learned that Section I, a single asset partnership, owned the Parc Chateau Apartments, and, on October 1, 1998, she requested leave to add Section I as a defendant. The trial court granted Caldwell’s request on November 20, 1998. Nevertheless, Caldwell waited until March 17, 2000, to file her “Amendment to Complaint” adding Section I to the lawsuit. Section I moved to dismiss the amended complaint on statute of limitation grounds, asserting that it did not receive notice of the action until it was served on March 20, 2000, more than four years after Caldwell’s injury and well outside the two-year limitation period. Caldwell countered that the amended complaint was not time-barred because it related back to her original, timely filed complaint under OCGA § 9-11-15 (c). The trial court converted Section I’s motion into a motion for summary judgment and allowed the parties additional time to submit evidence. After reviewing that evidence, the trial court rejected Caldwell’s reliance on OCGA § 9-11-15 (c) and granted Section I summary judgment.

When a claimant adds a new party defendant after the statute of limitation expires, “the provisions of OCGA § 9-11-15 (c) apply to determine whether or not the addition of the party relates back to the commencement of the action and is considered timely.” Under OCGA § 9-11-15 (c), Caldwell’s amendment related back to the date of the original complaint only if, within the limitation period, Section I “(1). . . received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it].”

Section I had the burden on summary judgment to demonstrate that Caldwell failed to meet at least one of the relation-back requirements in OCGA § 9-11-15 (c). To this end, it submitted the affidavit of Marc Abrams, secretary and general counsel of Oxford Development Corporation (“Oxford”), Section I’s managing general partner during the relevant time period. Abrams testified by affidavit that Section I had no connection to or áffiliation with PCAL. He further stated that “Section I had no notice (actual, constructive or otherwise) of the original Complaint filed against PCAL on January 12, 1998,” and did not receive notice of the lawsuit until March 20, 2000, when Caldwell served Section I with the amended complaint.

Abrams’ affidavit demonstrated that Caldwell could not satisfy OCGA § 9-11-15 (c) (1) because Section I learned about the lawsuit only after the statute of limitation expired. That affidavit shifted the burden to Caldwell “to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c).” Caldwell failed to meet this burden. Nothing in the record contradicts Abrams’ testimony about late notice or evidences any connection between PCAL and Section I that might have given Section I earlier notice of the suit. Indeed, when Caldwell deposed Abrams, he reiterated that neither Section I nor Oxford had any relationship with PCAL. According to Abrams, PCAL “is not one of [Oxford’s] entities, [and] has nothing to do with anybody up here.”

Decided December 12, 2001.

Greer, Klosik, Daugherty & Swank, Frank J. Klosik, Jr., Brian W. Johnson, for appellant.

Mabry & McClelland, Emory S. Mabry III, Benton, Preston &

Caldwell argues on appeal that because Oxford is a complex organization consisting of numerous corporate and partnership entities, “it is possible that any number of [these] entities could have or should have had knowledge or notice of [Caldwell’s] lawsuit.” This argument is based on supposition, not evidence, and cannot satisfy Caldwell’s burden. Caldwell has pointed to no evidence that Section I had notice of the lawsuit before the statute of limitation expired. And, despite her effort to draw some connection between PCAL and Section I, the record shows that PCAL was not related or tied in any way to Section I or Oxford, its managing partner.

Section I conclusively demonstrated that at least one requirement of OCGA § 9-11-15 (c) was not satisfied, precluding Caldwell’s reliance on the relation-back provisions. Accordingly, the trial court properly granted summary judgment to Section I.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Malcom, Robert M. Malcom, Montlick & Associates, Alan Y. Saltzman, for appellees.

        Fontaine v. Home Depot. 250 Ga. App. 123 (550 SE2d 691) (2001).

       See OCGA § 9-3-33.

        Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326-327 (436 SE2d 63) (1993).

       OCGA § 9-11-15 (c).

       See Swan v. Johnson, 219 Ga. App. 450, 451 (1) (465 SE2d 684) (1995).

       (Punctuation omitted.) Id. See also Khawaja v. Lane Co., 239 Ga. App. 93, 95 (2) (520 SE2d 1) (1999); Doyle, supra at 328.

       See, e.g., Fontaine, supra at 124-125 (service on originally named corporation provided sufficient notice of lawsuit to related corporation with same registered agent and same legal counsel).

       See Khawaja, supra at 95-96 (speculative testimony had no probative value in light of direct evidence to the contrary).

       See Swan, supra; Doyle, supra.

       See Stephens v. McDonald’s Corp., 245 Ga. App. 109, 110-111 (2) (536 SE2d 566) (2000); Khawaja, supra at 97.


author: Blackburn, Chief Judge.

text:
    A01A0898.
    THE STATE v. HEGGS.
    (558 SE2d 41)
   Blackburn, Chief Judge.

Under a single count indictment, Johnny Sim Heggs was tried for forcible rape but was found guilty of child molestation. As the result of trial error, this Court reversed Heggs’s conviction for child molestation. Heggs v. State. Thereafter, Heggs filed a plea in bar of double jeopardy, claiming that he could not be retried for rape. When the trial court granted his plea in bar, the State filed this appeal. Because we find that a new trial was not precluded by double jeopardy, we reverse.

The appellate standard of review of a grant of a plea in bar of double jeopardy is whether the trial court’s findings support its conclusion that the bar should be applied. State v. D’Auria. Here, we find that they do not. “The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where, at the initial trial, the prosecution failed to introduce sufficient evidence to sustain a conviction. Retrial generally is not prohibited where reversal is due to trial error rather than the sufficiency of the evidence.” (Footnote omitted.) Williams v. State. Without question, Heggs’s conviction was reversed due to trial error and not as the result of insufficient evidence. Heggs, supra at 356 (1), (3).

Heggs was tried for rape under a single count indictment. Nothing on the face of the indictment disclosed the age of the female victim. At trial, in his own defense, Heggs admitted that he and the victim engaged in intercourse but testified that the sexual activity was consensual. Reversible error occurred when the trial court sua sponte incorrectly charged the jury, over defense objection, on child molestation as a lesser included offense of the indicted offense of rape. Heggs, supra at 354-355. Because the indictment under which Heggs was being tried did not allege that the victim was under the age of 16, an essential element of the offense of child molestation, we held that “due process will not allow the conviction for child molestation to stand.” Id. at 356 (1). In reversing Heggs’s conviction, we explicitly rejected his challenge to the sufficiency of the evidence. Id. at 356 (3).

Notwithstanding his prior effort to gain a new trial, Heggs now contends that he cannot be retried for rape because his conviction for child molestation was tantamount to an acquittal on the offense of rape. Heggs claims that under OCGA § 16-1-8, his conviction for “an unindicted, non-lesser included charge of child molestation” necessarily forecloses a retrial on the greater offense.

OCGA § 16-1-8 (d), however, does not bar a subsequent prosecution when a conviction is set aside, “ ‘unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.’ ” Rowe v. State. But here, the jury improperly considered the offense of child molestation since as a matter of law and under the facts in the case, child molestation was not a lesser included offense of the rape charge as indicted. Instead, it was a separate crime and not a lesser included offense, notwithstanding the trial court’s erroneous and misleading instruction to the contrary. See id. at 495 (2). In light of this error, we cannot say that Heggs was impliedly acquitted of rape. See id.

Further prosecution is not barred “if subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict. [Cit.]” (Punctuation omitted.) Daniels v. State. While Heggs argues that his conviction on child molestation was tantamount to an acquittal for rape, even a conviction on a lesser included offense does not necessarily foreclose a retrial on the greater offense. Potts v. State In Potts, supra, the Supreme Court held that notwithstanding his conviction for kidnapping, Potts could be retried for kidnapping with bodily injury, the greater offense. Id. at 434 (5). In so deciding, the Supreme Court held that retrial on the greater offense was not barred unless two prerequisites were established: (1) an unambiguous conviction on the lesser included offense and (2) a full opportunity for the jury to consider the greater offense. Id. at 433-434. Here, these two requirements were not met.

Heggs’s reliance upon Ezzard v. State and Cross v. State and similar cases is misguided. In Ezzard v. State, the defendant was indicted for forging a deed and uttering the forged paper as true with fraudulent intent. A verdict was entered for “ ‘uttering and publishing said deed,’ ” id. at 30, hn. 1, conduct that was not criminal, resulting in a judgment of conviction “void on its face,” id. at 30, hn. 3, and that “in legal contemplation amounted to an acquittal of the offense charged in the indictment.” Id. at 31 (1). Similarly, in Cross v. State, supra at 153 (2), a void verdict was entered. Although tried under an indictment for larceny, Cross was convicted of conspiracy, which at the time had not as yet been codified as a crime. These cases stand for the legal principle that a conviction for a nonexistent crime is a nullity. See Douglas v. State (defendant was indicted for trafficking in cocaine but was convicted of “intent to traffick in cocaine,” a nonexistent offense).

Decided November 20, 2001

Reconsideration denied December 13,2001.

The rule applicable to this case is as follows: “[W]here the verdict is not absolutely void and the defendant moves for and is granted a new trial, a plea of former jeopardy will not lie. A defendant waives the right to plead former jeopardy when he secures a new trial through his own efforts.” Patterson v. State. Notwithstanding Heggs’s arguments to the contrary,

reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some way.

(Punctuation omitted.) Jones v. State And, when the judicial process is defective in some fundamental respect such as incorrect jury instructions, “the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” (Punctuation omitted.) Price v. State. Since the reversal of the child molestation conviction was predicated on trial error and was not due to a lack of evidence, the retrial of Heggs for the indicted offense of rape is not barred. The trial court erred in finding otherwise. See Weems v. State.

Judgment reversed.

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

Daniel J. Craig, District Attorney, Charles R. Sheppard, Kristina G. Connell, Assistant District Attorneys, for appellant.

Paul W. David, for appellee.

        Heggs v. State, 246 Ga. App. 354 (540 SE2d 643) (2000).

        State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996).

        Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997).

        Rowe v. State, 181 Ga. App. 492, 494 (2) (352 SE2d 813) (1987).

        Daniels v. State, 165 Ga. App. 397, 398 (1) (299 SE2d 746) (1983).

        Potts v. State, 258 Ga. 430 (369 SE2d 746) (1988).

        Ezzard v. State, 11 Ga. App. 30 (74 SE 551) (1912).

        Cross v. State, 124 Ga. App. 152, 153 (2) (183 SE2d 93) (1971).

        Douglas v. State, 206 Ga. App. 740, 742 (1) (426 SE2d 628) (1992).

        Patterson v. State, 162 Ga. App. 455, 456 (291 SE2d 567) (1982).

        Jones v. State, 272 Ga. 900, 905 (4) (537 SE2d 80) (2000).

        Price v. State, 187 Ga. App. 239, 240 (370 SE2d 6) (1988).

        Weems v. State, 268 Ga. 142, 143 (2) (485 SE2d 767) (1997).