author: Blackburn, Chief Judge.

text:
    A00A2243.
    McINTOSH v. THE STATE.
    (545 SE2d 61)
   Blackburn, Chief Judge.

Following the grant of his motion for new trial after his original conviction, Joseph A. McIntosh now appeals his conviction for rape on retrial, contending that the evidence was insufficient to support his conviction. McIntosh also contends that the trial court erred by (1) limiting his cross-examination of the victim, (2) denying his motion for a mistrial after the State injected his character into evidence, (3) denying his motion for a mistrial after the State repeatedly elicited the term rape notwithstanding the court’s having granted McIntosh’s motion to preclude the use of the term, and (4) charging the jury on the issue of consent and force. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [McIntosh] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State See Jackson v. Virginia.

So viewed, the evidence shows that on December 3,1996, the victim arrived at Yang's Country Club with Cindy Lariscy. While the victim was seated at the bar, McIntosh approached her and made small talk with her. After repeated requests, she agreed to dance with McIntosh, and the two danced for five to ten minutes. When the victim returned to her seat, Lariscy informed the victim that her fiancé, Ken Henline, had been there, had seen her and McIntosh dancing, and left. Upon hearing this, the victim immediately left the bar, carrying a red cigarette case, and went to her car.

As the victim was putting her keys in the car, McIntosh grabbed her from behind and said, “where in the hell do you think you’re going.” As McIntosh started pulling the victim toward the woods behind Tong’s, she tried to dig her heels into the ground to stop him. Although the victim did not feel threatened at first because she did not think that McIntosh was going to harm her, she became concerned when McIntosh began pulling her down at the bank of a hill and she lost her shoes. McIntosh then penetrated the victim’s vagina with his penis.

After McIntosh left, the victim went back into the bar and told Lariscy and another person that McIntosh had raped her. She was hysterical and had scratches on her face. The victim then went to Henline’s home and told him that she had been raped. Henline called the police. The victim then accompanied the police to Tong’s, where the police recovered a pair of women’s shoes, a red cigarette case, a man’s shoe, a man’s wallet, and a man’s shirt. The wallet contained McIntosh’s driver’s license. After leaving the crime scene, the police took the victim to the hospital for a rape examination. McIntosh’s semen was found on her underwear.

That same evening, McIntosh was seen at another bar without a shirt and wearing only one shoe. He appeared to be intoxicated. The bar owner did not serve McIntosh because of his appearance, and McIntosh went home. The police went to McIntosh’s home and noticed he had scratches on his face. McIntosh told police that he had not been with a female.

1. McIntosh argues the evidence was insufficient to support his rape conviction because he and the victim had consensual sexual intercourse and there is no “credible, reliable and competent evidence” suggesting otherwise. “[T]he credibility of witnesses and the weight given their testimony are questions for the trier of fact.” Salters v. State. Although McIntosh does not deem the victim’s testimony that the intercourse was not consensual credible, the jury did. Moreover, from the scratches, lost clothing, and the victim’s testimony, the jury could reasonably infer that the intercourse was nonconsensual.

2. McIntosh argues that the trial court erred by limiting his cross-examination of the victim. “An abuse of discretion standard applies when reviewing a trial court’s ruling on general evidentiary matters.” Agony v. State.

The victim testified on direct examination that, during the time that the rape occurred, she had been taking Xanax for her nerves, a sleeping pill, and Zoloft, an antidepressant. She took these medications at night and had not taken them on the day of the rape. On cross-examination, the victim testified that she took these medications because someone very close to her had died on April 1, 1996. When McIntosh asked who had died, the State began to object, and the trial court responded, ££[t]hat doesn’t really seem relevant to me. Sustained.”

The court later allowed McIntosh to examine the victim outside the presence of the jury in order to perfect the record. The victim testified that her husband had died in April 1996. They had been separated but were on the verge of reconciliation at the time. She did not see a psychiatrist or begin taking medication until July 1996. Also in July 1996, the victim married Donald Edenfield, but filed for divorce sometime before October 1996 because Edenfield went to prison two weeks after they were married. The victim began dating Henline in October 1996.

McIntosh contends that he should have been permitted to present this proffered testimony to the jury in order to impeach the victim on her statement that she was taking medication because someone close to her had died as she did not begin taking the medication until July, which was when she married Edenfield. McIntosh asserts that the Rape Shield Statute does not protect the victim in this instance because her explanation was “specious” and, therefore, subject to challenge. We disagree.

“ £A witness may not be impeached by contradictory statements previously made by [her] as to immaterial matters not relevant to [her] testimony and to the case.’ ” Burritt v. Media Marketing Svcs. The trial court did not abuse its discretion by determining that an inquiry into the facts regarding why the victim began taking certain medications was not relevant to the case. Indeed, it is apparent that the true purpose of eliciting such testimony was to show the jury that the victim had been involved with three men within a seven-month period. Such an inquiry is prohibited under the Rape Shield Statute, which provides that

[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

OCGA § 24-2-3 (a).

McIntosh also argues that the trial court erred by denying his motion to have the victim demonstrate the way she danced with him. After McIntosh requested that the victim demonstrate how the two danced, the trial court stated, “[n]o, I’ll allow you to ask her questions. But I won’t insist on a demonstration.” McIntosh waived this issue on appeal by failing to object to the trial court’s ruling. See Robbins v. State.

3. McIntosh argues that the trial court erred by not declaring a mistrial because the State, on three occasions, elicited testimony that there was a prior trial in the case. “We review for manifest abuse of discretion a trial court’s denial of a motion for a mistrial. We will reverse the trial court’s ruling only if a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Crumpton v. State.

After the first trial of this case, a jury found McIntosh guilty of rape. The trial court later granted McIntosh’s motion for a new trial based on a jury instruction on lesser included offenses.

During the second trial, Karen Blalock, the owner of the bar that McIntosh went to after leaving Yong’s, testified that McIntosh “had been drinking, but I wouldn’t say [he was] drunk.” The State then asked, “[d]id you say in the prior trial that his speech was slurred when you talked to him?” McIntosh objected. The court cautioned the State to be more careful. Later, when questioning Blalock on another matter, the State asked, “[d]o you remember me asking back when we tried this the last time?” McIntosh objected, and the court again cautioned the State. Later in the trial, after the State asked McIntosh’s sister whether she remembered testifying on another occasion, McIntosh’s sister responded, “fw]as that the previous trial?”

Diane Gay, who gave similar transaction testimony about another sexual assault by McIntosh, stated that McIntosh had entered into a plea bargain in that case. The court gave a lengthy curative instruction to the jury, informing them that Gay had no basis to make such a statement. The court also stated that a jury decided that case and, therefore, McIntosh could not have entered into a plea bargain. Rather, McIntosh “maintained his innocence throughout that trial and ... a jury was unable to decide.”

We find no manifest abuse of discretion in the trial court’s denial of McIntosh’s motions for a mistrial based on the foregoing references to his prior trials because, even when considered cumulatively, such references did not render the trial unfair. See Crumpton v. State, supra.

4. McIntosh argues that the trial court erred by denying his motion for a mistrial based on the State’s reference to and elicitation of the term “rape” during the trial given that the defense was consent. McIntosh did not preserve this issue for appellate review because he did not request a mistrial or a curative instruction.

McIntosh filed a pre-trial motion in limine requesting that the State refrain from using the term rape because the defense was consent, which the trial court granted. See Arnold v. State (“Reference to an incident as rape states a conclusion usually to be determined by the jury”). At trial, the State asked the victim whether she was wearing her bra and shirt while she was “being raped.” Defense counsel objected and stated, “I’d like to renew the motion.” The State later asked the victim, “[d]id you identify the person that has been charged with this offense that I can’t mention?” Defense counsel objected and stated, “I’d like to make a motion, Your Honor.” The State later asked another witness whether the victim pointed out “the area in which she had been raped.” Defense counsel objected and stated, “I’ve got a motion. . . . We filed that motion four or five days ago.”

McIntosh had the burden of requesting the mistrial at the time he objected to the State’s use of the word “rape.” Because McIntosh failed to do so, this enumeration of error is deemed waived. See Dye v. State

In Marks v. State, the Court found no error resulting from references to the term “rape” in light of the trial court’s instruction to the jury “that the question of whether or not any rape occurred would be a question for their determination at the appropriate time.” McIntosh also waived the issue by failing to request such a curative instruction. See Espinoza v. State.

5. McIntosh argues that the trial court erred by charging the jury as follows:

When the victim is physically or mentally unable to give consent to the act, as for example when she is intoxicated, drugged, or mentally incompetent such that she is unable mentally to give consent to the act, the requirement of force is found in constructive force.

Decided January 23, 2001.

Quillian, Lonson & Edwards, Michael L. Edwards, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

McIntosh contends that giving this instruction was error because there was no evidence that the victim was incompetent or that her intoxication rose to a level of complete loss of will. We disagree.

McIntosh presented evidence that the victim consumed three or four beers before arriving at Tong’s and three or four mixed drinks while at Tong’s. Thus, the jury could conclude that the victim was intoxicated. In addition, because the State presented evidence of actual force, any error resulting from this charge was harmless.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

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

        Salters v. State, 244 Ga. App. 219, 220 (1) (535 SE2d 278) (2000).

        Agony v. State, 226 Ga. App. 330, 332 (3) (486 SE2d 625) (1997).

        Burritt v. Media Marketing Svcs., 242 Ga. App. 92, 93 (527 SE2d 890) (2000).

        Robbins v. State, 243 Ga. App. 21, 24-25 (5) (532 SE2d 127) (2000).

        Crumpton v. State, 244 Ga. App. 57, 59 (534 SE2d 809) (2000).

        Arnold v. State, 166 Ga. App. 313, 317 (304 SE2d 118) (1983).

        Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986).

        Marks v. State, 237 Ga. 277 (2) (227 SE2d 334) (1976).

        Espinoza v. State, 244 Ga. App. 96 (1) (534 SE2d 824) (2000).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2481.
    NAVARRO v. THE STATE.
    (545 SE2d 53)
   Phipps, Judge.

Carlos Navarro pled guilty to burglary and was sentenced in accordance with a joint recommendation from the defense and the prosecution. He now challenges the validity of his plea, contending that the trial court committed reversible error by failing to advise him of his constitutional right to remain silent and not to incriminate himself. We affirm because we find adequate evidence in the record that Navarro was advised of all of his relevant rights.

When a defendant challenges the validity of his guilty plea, the State bears the burden of showing that the plea was entered intelligently and voluntarily, with an understanding of the nature of the charges against him and the consequences of the plea. The State may meet its burden in two ways:

(1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) filling] a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

In Boykin v. Alabama, the United States Supreme Court specifically enumerated the constitutional rights to a jury trial, to confrontation of one’s accusers, and against self-incrimination as rights which may not be presumed from a silent record to have been waived. Uniform Superior Court Rule 33.8 (B) requires a trial judge, before accepting a guilty plea, to inform the defendant that by pleading guilty he waives these and certain other rights.

However, this court has held that “ £[s]o long as the substantive requirements of Boykin concerning the defendant’s guilty plea are met, there is no procedural requirement that the trial judge personally make all the inquiries established by (Uniform Superior Court Rules) 33.7 through 33.9. [Cit.]’ ” Moreover:

“ ‘when the hearing record affirmatively reflects that a defendant has consulted with trial counsel regarding his guilty plea, and on appeal an ineffective assistance of counsel claim is not timely asserted in regard to the plea, it may be presumed (subject to rebuttal) that counsel has adequately advised (the) client regarding the meaning and effect of the subsequently offered plea. And such consultation constitutes an additional factor which may be considered in determining plea validity.’ ”

The court elicited from Navarro that he was represented by counsel, that his counsel had gone over the case with him and had given him an opportunity to talk about the case, that his counsel had explained his rights and responsibilities to him, that his counsel had done everything that Navarro thought he should have done, and that Navarro was completely satisfied with his counsel’s services.

Navarro also responded that he had no question about his rights or responsibilities, that he was entering his plea freely and voluntarily, and that no promises, force, or threats had been used to induce him to plead guilty. On appeal, Navarro has neither raised a claim of ineffective assistance of counsel nor alleged that his attorney failed to advise him of any of his rights.

Decided January 23, 2001.

Ronald L. Beckstrom, John D. Holt, for appellant.

Moreover, the record shows that the court advised Navarro that he had the right to a trial by jury, that his attorney could bring in witnesses to testify for him, that his attorney could question witnesses who testified against him, and that he was protected by a presumption of innocence that would last until it was overcome by proof beyond a reasonable doubt. Navarro stated that he understood those rights. On this record, we find that the substantive requirements of Boykin concerning defendant’s guilty plea were met. We find sufficient evidence that Navarro was advised of his rights, including his right not to be compelled to incriminate himself.

Navarro relies upon Vanvelsor v. State and Parks v. State. We find that each case is distinguishable. The advice the court gave to Navarro was far more extensive than that given in Vanvelsor, and there was no indication in Vanvelsor that the defendant’s attorney had discussed her constitutional rights with her.

Likewise, in Parks, there was no evidence that the defendant had been advised of the constitutional rights he was waiving. The record showed only that the defendant, who was absent when the plea was entered, had signed a power of attorney authorizing his lawyer to enter a plea of not guilty, guilty, or nolo contendere.

Because we find this record sufficient to show that Navarro was adequately informed of all his relevant constitutional rights and that his plea of guilty was intelligently and voluntarily entered, we affirm the judgment of conviction against him. However, we strongly urge trial judges to explicitly inform defendants, on the record, of each right which would be waived by pleading guilty, as listed in Rule 33.8 of the Uniform Superior Court Rules.* “This reasonable practice will enhance the efficiency and integrity of our criminal justice system.”

Judgment affirmed.

Johnson, P. J, and Smith, P. J, concur.

J. David Miller, District Attorney, Melanie J. Brogden, Bradfield M. Shealy, Robert D. Jewell, Assistant District Attorneys, for appellee.

        McFadden v. State, 243 Ga. App. 896, 898 (1) (534 SE2d 566) (2000); Parks v. State, 223 Ga. App. 694, 695 (479 SE2d 3) (1996).

       (Citation omitted.) McFadden, supra.

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

       Id. at 242-243; see also Parks, supra.

       Supra.

        Graham v. State, 236 Ga. App. 673, 678 (4) (b) (512 SE2d 921) (1999) (quoting Brown v. State, 216 Ga. App. 312, 313-314 (1) (454 SE2d 596) (1995)).

       Id.; Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990); but see Johnson v. State, 227 Ga. App. 390 (1) (489 SE2d 138) (1997) (no presumption where court misinformed defendant about the maximum sentence and erroneously indicated that it had discretion in sentencing him); Watt v. State, 204 Ga. App. 839 (1) (420 SE2d 769) (1992) (no presumption where record silent regarding advice given by counsel and appellant challenged effectiveness of his counsel).

       162 Ga. App. 467 (291 SE2d 772) (1982).

       Supra.

       See Scurry, supra; McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986).

        Scurry, supra at 167.

       Id.


author: Miller, Judge.

text:
    A00A2515.
    CLAIRE v. THE STATE.
    (544 SE2d 537)
   Miller, Judge.

After a stipulated bench trial, Kevin Ray Claire was convicted of trafficking methamphetamine. He appeals, enumerating the denial of his motion to suppress.

This court’s responsibility in reviewing a trial court’s ruling on a motion to suppress is to assure there was a substantial basis for the decision, and the evidence is construed to uphold the findings and judgment of the trial court.

Claire argues that the search warrant was not supported by probable cause. The affidavit in support of the search warrant contained the following information:

The affiant who is a sworn and certified law enforcement officer, was contacted by [Special Agent] Simmons, who was contacted by a reliable source that wishes to remain confidential. This source is believed to be reliable because within the past month this source has provided information that has led to the seizure of controlled substances and arrest of individuals. Within the past seventy-two hours, this source has been on the above described premises and has observed a quantity of off white chunky substance. This off white chunky substance was represented as methamphetamine to the source by Kevin Claire. The source is familiar with methamphetamine in its various stages of usage, preparation for storage and distribution. The affiant did ride by the location and the source did point it out. . . . Based on information from the source and background information obtained by the affiant, Mr. Claire keeps a handgun on or near his person.

When determining the existence of probable cause for the issuance of a search warrant, a court applies the “totality of the circumstances” analysis enunciated in Illinois v. Gates. The sufficiency of an affidavit should be reviewed “to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” The magistrate’s task is to determine whether, given all the circumstances presented in the affidavit, including the veracity and basis of knowledge of the informant, there is a fair probability that evidence or contraband will be found in a particular place. And the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.

Claire argues that the affidavit did not provide enough information to establish the reliability of the informant’s information.

The type of information which should be furnished to the magistrate to enable the magistrate to determine the informant’s reliability is: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished.

And it is not necessary for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis.

Here, the affidavit is sufficient to establish the confidential informant’s reliability. The informant (1) stated that he saw the substance at Claire’s home within the past 72 hours, (2) stated that Claire told him that the substance was methamphetamine, (3) had provided information in the past month that led to the seizure of controlled substances and the arrest of individuals, (4) rode with officers to Claire’s home and pointed it out, and (5) gave more detail by alerting officers that Claire carried a handgun. Therefore, the information provided by the confidential informant satisfied the guidelines set out in Mitchell v. State.

In support of his assertion that the search warrant was invalid, Claire cites State v. Teague and State v. Bryant, but both cases are distinguishable. In Teague, the informant had never previously furnished information to law enforcement officials. And in Bryant, the affidavit contained no factual information regarding the informant’s veracity or basis of knowledge.

Decided January 23, 2001.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

Claire also argues that the affiant did not corroborate the reliability of the informant’s information but relied on the Fayette County police for this corroboration, and that the information the informant had provided in the past was based on Fayette County’s records and not Clayton County’s. But “[observations by fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”

Since the affidavit was adequate, the trial court correctly denied Claire’s motion to suppress.

Judgment affirmed.

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

        Tomlinson v. State, 242 Ga. App. 117, 118 (527 SE2d 626) (2000).

       462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983); Galvan v. State, 240 Ga. App. 608 (524 SE2d 297) (1999).

       (Citation and punctuation omitted.) Illinois, supra, 462 U. S. at 238-239 (III).

       Id. at 238 (III); Bellamy v. State, 243 Ga. App. 575, 578 (1) (b) (530 SE2d 243) (2000).

        Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986).

       (Citation omitted.) Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999).

       Id.

       Supra, 239 Ga. App. at 736; see Clark v. State, 235 Ga. App. 569, 570-571 (1) (510 SE2d 319) (1998).

       192 Ga. App. 839 (386 SE2d 718) (1989).

       210 Ga. App. 319 (436 SE2d 57) (1993).

        Teague, supra, 192 Ga. App. at 839-840.

        Bryant, supra, 210 Ga. App. at 320.

       The affiant, who was an agent with the Clayton County Drug Task Force, received the information from an agent with the Fayette County Drug Task Force.

       (Citations and punctuation omitted.) Deal v. State, 199 Ga. App. 184, 185 (1) (404 SE2d 343) (1991); accord Mitchell v. State, 239 Ga. 456, 458 (2) (238 SE2d 100) (1977).


text:
    A00A2564.
    ATLANTA HOSPITALITY WORKERS, INC. et al. v. CITY OF ATLANTA.
    (545 SE2d 49)
   Miller, Judge.

Various owners of restaurants and bars holding liquor licenses from the City of Atlanta refused to pay a liquor excise tax deficiency assessed by the Atlanta City Department of Finance. Instead of paying the deficiency and then seeking a refund as provided in OCGA § 48-5-380, the owners filed a declaratory judgment action against the City, requesting under the auspices of 42 USC § 1983: (1) an injunction to prevent the collection of the deficiency, (2) a declaratory judgment that the deficiency notice was itself a new, illegal excise tax imposed by an unauthorized body, and (3) related damages and attorney fees. Citing Nat. Private Truck Council v. Oklahoma Tax Comm.,* the trial court dismissed the action, holding that 42 USC § 1983 did not authorize declaratory and injunctive relief in state tax cases where an adequate legal remedy exists.

Appealing this order, the owners enumerate two errors. First, they argue that the deficiency assessment was not a legitimate tax properly levied by the appropriate agency of government. Second, they contend that the City’s procedures for challenging the deficiency did not comply with the applicable statutes. We disagree and affirm.

1. The deficiency notice was not the imposition or creation of a new tax; it was merely an effort to collect the existing tax. Under OCGA § 3-4-130, the governing authority of a city may impose, levy, and collect an excise tax upon the sale of distilled spirits by the drink, which tax shall not exceed three percent of the charge to the public for the beverages. The City’s legislative body enacted Section 10-184 of the Atlanta City Ordinances, which imposes and levies a three percent tax on the sale of distilled spirits by the drink. Section 10-188 obliges each licensee to file a monthly excise tax return, and Sections 10-189 through 10-192 authorize the mayor or his designee to collect this tax.

When the City suspected that the owners here were underpaying their taxes, the mayor’s designee (the Department of Finance) determined the amount of wholesale liquor purchased by the owners and, using a model, calculated that each owner had understated its retail sales by a certain amount. Estimating what the retail sales actually were for each owner, the designee calculated the amount of tax underpayment by each owner and assessed a deficiency accordingly.

The designee’s method for calculating the deficiency did not impose a new excise tax. Rather, it was nothing more than an exercise of its authority under OCGA § 3-4-130 and the related Atlanta ordinances to levy and collect the authorized three percent excise tax in an amount the owners dispute. Section 10-189 (a) of the Atlanta City Ordinances specifically contemplated such a collection action by the designee:

Recomputation of tax. If the mayor or the mayor’s designee is not satisfied with the return of the tax levied under this subdivision or the amount of the tax levied under this subdivision required to be paid to the city by any person, the mayor may compute and determine the amount required to be paid upon the basis of any information within the mayor’s possession or that may come into the mayor’s possession.

To collect the newly calculated amount, Section 10-189 (f) authorized the sending of a tax deficiency notice. The owners’ attempt to characterize the deficiency notice as a new excise tax is without merit.

Decided January 23, 2001

O. Jackson Cook, Steven M. Youngelson, Cary S. Wiggins, for appellants.

Lemuel H. Ward, for appellee.

2. In their second enumeration, the owners contend that the court erroneously concluded that the City’s procedures for challenging the deficiency determinations comply with OCGA §§ 3-4-130 et seq. and 48-5-380.

The owners’ argument misconstrues the law. No Atlanta ordinance purports to set forth the procedure for challenging deficiency determinations. Rather, this procedure is statutory and provides that the taxpayer must first pay the tax and then file a claim for a refund from the governing authority of the City. If the governing authority denies that claim, the taxpayer may then file an action in court to seek the refund. In that action, the taxpayer may argue that the tax was erroneously or illegally assessed and collected, which would include a claim (as asserted here) that a taxing authority assessed and collected taxes in violation of federal or state law. As per the statutory language, this procedure applies to any tax paid by the taxpayer and is not restricted to ad valorem or other types of taxes. This statute provides an adequate remedy at law to contest a tax assessment or deficiency notice.

Consequently, the owners’ two enumerations of error are without merit.

Judgment affirmed.

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

       515 U. S. 582, 589 (115 SC 2351, 132 LE2d 509) (1995).

       The City’s legislative powers are vested in the council. Sykes v. City of Atlanta, 235 Ga. App. 345, 346 (3) (509 SE2d 395) (1998).

       The owners complain that the deficiency notice stated that no appeal was available other than the presentation of any matters in extenuation or mitigation of the assessment. The only copy of the deficiency notice in the record contains no such assertion. And since a party is charged with knowledge of the law and may not rely on such statements, a city is not estopped from requiring the correct appellate procedure. OCGA § 45-6-5; Sykes, supra, 235 Ga. App. at 347 (3).

       OCGA § 48-5-380 (b) (taxpayer who has voluntarily or involuntarily paid an allegedly erroneous or illegal tax or license fee collected by a county or municipality may file a claim for a refund from the governing authority). Compare Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645, 647 (458 SE2d 632) (1995) (mere dissatisfaction with amount of assessment or valuation does not make out a claim for refund as an erroneous or illegal ad valorem real property tax).

       OCGA § 48-5-380 (c).

        Nat. Health Network v. Fulton County, 270 Ga. 724, 727 (2) (514 SE2d 422) (1999); see OCGA § 48-5-380 (a).

       See OCGA § 48-5-380 (b).

        Rockdale County v. Finishline Indus., 238 Ga. App. 467, 469 (2) (518 SE2d 720) (1999); see Dillard v. Denson, 243 Ga. App. 458, 460 (533 SE2d 101) (2000).


text:
    A00A2575.
    REED v. THE STATE.
    (545 SE2d 48)
   Miller, Judge.

Kenneth Mack Reed was found guilty of two counts of armed robbery, one count of aggravated assault, and one count of possession of a firearm during the commission of a crime. In three related enumerations of error, Reed complains that the trial court intimidated him into not testifying at his Jackson-Denno hearing to determine the voluntariness of his statement to police.

At the hearing, the colloquy between the court and counsel was as follows:

[REED’S COUNSEL]: He understands, I believe, that if he takes the stand it’s for this hearing only and that his testimony would be strictly limited to whether the statement was freely and voluntarily given.
THE COURT: That’s not the law.
THE COURT: Harris versus New York, if he takes the stand he’s subject to impeachment. If he makes some statement contrary to the ones he’s previously made before he could be impeached. I’m just telling you that’s not the law.
[REED’S COUNSEL]: . . . He’s not denying the statement, it was made, but he would be trying to explain the circumstances surrounding it.
THE COURT: That’s up to you and your client, whether or not he’s impeached is another matter, but he is subject to impeachment if he takes the stand and makes some statement that differs from what statements he’s previously made in the past. Even if Miranda is violated that does not give one a license to lie. . . . I’m just warning you this testimony in a hearing like this is not necessarily limited to that hearing, it can be used for other purposes.

The court continued to explain that trial counsel could not misstate the law and that Reed had a right to testify and that “so long as he testifies truthfully he should have nothing to worry about.” At the end of the discussion, Reed’s counsel informed the court that Reed did not wish to testify at the hearing. Reiterating that it was not trying to discourage Reed’s testimony, the court then queried Reed whether he wished to testify, whether he understood that he had a right to testify, and whether he understood that he still had a right to testify before a jury. Reed responded that he did not wish to testify and that he understood his rights.

Decided January 23, 2001.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

The court may have misunderstood trial counsel’s initial statement that “[Reed’s] testimony would be strictly limited to whether [his] statement [to police] was freely and voluntarily given.” Nevertheless, the court’s explanation that Reed’s testimony at the hearing could be used for impeachment purposes at trial is a correct statement of the law. In Brown v. State this court held that where the defendant testified at trial contrary to his testimony at his JacksonDenno hearing, the statements made at the hearing could be used to impeach him. Even though Miranda rights have not been observed, statements “excluded from evidence in the prosecution’s case-in-chief become admissible for the purpose of impeachment only when the accused takes the stand and testifies differently.”

Contrary to Reed’s assertions, we hold that the court’s statements did not discourage Reed from testifying nor threaten him with perjury charges. Therefore, Reed’s enumerations are without merit.

Judgment affirmed.

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

       The court subsequently found that Reed’s statement to police was voluntary, which finding Reed does not enumerate as error.

       226 Ga. App. 140 (486 SE2d 370) (1997).

       Id. at 141-142.

       Id. at 141, citing Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971) and others.


text:
    A01A0161.
    CROY v. THE STATE.
    (545 SE2d 80)
   Phipps, Judge.

Bobby Croy was convicted of two counts of aggravated child molestation based on evidence showing that he made A. H. place his mouth on Croy’s penis and on the penis of A. H.’s younger brother, L. C. In this appeal of his convictions, Croy charges the trial court with error in permitting A. H. to identify him at trial and in admitting and excluding certain evidence. We find no error and affirm.

A. H., who was approximately five years old at the time of the molestations and seven years old at the time of trial, was the first witness to testify. He was asked by the prosecutor whether he saw Croy in court. After A. H. responded “no,” the prosecutor asked him to “look in the courtroom and see if you can see him.” A. H. again responded in the negative. When the prosecutor then asked A. H. to “[s]tand up” and “take a good look and see if you see Bobby Croy today,” defense counsel objected. The trial court overruled the objection, and A. H. proceeded to identify Croy.

A. H.’s mother was the next witness to take the stand. She married Croy’s son after divorcing A. H.’s father. She testified that after the divorce, A. H. was visiting her at a time when he was about six years old. While his mother was changing L. C.’s diapers, A. H. suddenly blurted out that “they had made him suck Bobby[’s] and [L. C.’s] penis.” After A. H.’s mother asked him to repeat the statement, he said that “Bobby” “made him . . . [s]uck Bobby’s penis and [L. C.’s].”

A. H.’s mother thereupon telephoned the child’s father. A. H.’s father testified that A. H. then made the same disclosures to him and explained that this had occurred while Croy was changing L. C.’s diapers while the two children had been left alone with Croy.

One of A. H.’s classmates testified that A. H. had told him that “this man makes him suck his little brother’s private parts and his private parts.”

A. H. was interviewed by a Department of Family & Children Services investigator in the presence of the guidance counselor at A. H.’s school. The investigator testified that he conducted the interview in accordance with standard interview techniques by asking A. H. general questions about his living situation and the identity of his relatives. He also asked A. H. to identify his private parts and to distinguish between “good touch” and “bad touch.” The investigator then asked A. H. if he had ever been touched. A. H. initially said “no,” but when asked about his brother, he said he had been made to “suck his younger brother’s weiner.” When the investigator asked A. H. who made him do it, A. H. identified Croy. A. H. additionally explained that he and his brother had been left alone with Croy at the time. A. H. provided a physical description of Croy’s penis, informed the investigator that he did not enjoy what Croy made him do, and stated that it had left a very bad taste in his mouth. Without being asked, A. H. also attempted to illustrate what had occurred. The investigator and guidance counselor described A. H. as polite and relaxed and said that A. H. had been very willing to engage in discussion and answer questions. Additionally, they testified that he appeared to have a good understanding of the subjects about which he was being questioned.

A. H. was interviewed by a police officer in the presence of another DFACS worker, and an audiotape of that interview was played at trial.

1. Croy first complains that he was identified by A. H. at trial through an unduly suggestive in-court identification procedure.

In Hayslip v. State, we recognized that where the witness is laboring under some impairment due to age or infirmity, circumstances may necessitate use of identification procedures not permissible with other witnesses. The witness in Hayslip was a woman who was both elderly and myopic. She was unable to identify the defendant from the witness stand, so the trial court allowed her to leave the stand and view the defendant at close range. We found no error.

Here, the witness was a child. Croy objected when the prosecutor asked the child to stand up after he twice testified that he could not see Croy in the courtroom. Croy asserts that there was no need for A. H. to stand because the child’s view of him from the witness stand was unobstructed. The State disputes this assertion. Because the transcript provides no resolution of this disputed issue, Croy has not carried his burden of affirmatively showing error by the record.

2. Croy charges the trial court with error in finding sufficient indicia of reliability surrounding A. H.’s out-of-court statements to the State’s witnesses so as to warrant admission of their testimony under the Child Hearsay Statute.

Considering the atmosphere and circumstances under which A. H. made the statements, the spontaneity of a number of the statements, the absence of any threats, promise of benefits, or coaching, the consistency of the statements with one another, and the child’s provision of certain details which could be found corroborative, the trial court was authorized to find that sufficient indicia of reliability warranted admission of the statements in evidence.

Further, if defense counsel has the opportunity to cross-examine the witness making the out-of-court statements, those statements are admissible. Here, [A. H.] took the stand and was subjected to cross-examination by [Cray's] counsel. Therefore, the statements were properly admitted.

3. Croy charges the court with error in refusing to allow him to elicit testimony from A. H.’s mother showing that her stepfather had improperly touched her when she was ten years old and had walked into the bathroom while she was taking a bath when she was fifteen.

Although Croy had no evidence that the mother’s stepfather had molested A. H., he sought to show the stepfather’s improper conduct toward A. H.’s mother for two reasons: the stepfather had access to A. H., and the child used the term “papa” in referring to both his mother’s stepfather and to Croy and, thus, may have been confusing the two when he accused Croy of molestation.

When interviewed by the DFACS investigator, A. H. initially identified his “papa” as the perpetrator of the crimes. The DFACS investigator knew that A. H. referred to both Croy and A. H.’s mother’s stepfather as “papa,” so he tried to determine which of the two A. H. was accusing. The investigator testified that A. H. ultimately identified Croy as the molester and related that the molestation occurred while A. H.’s mother and Croy’s son had left A. H. and his brother alone with Croy. On direct examination, A. H. testified that he was sure Croy had committed the acts of molestation and that he was not confusing him with anyone else. The matter was not broached on cross-examination. Under these circumstances, we cannot say that the trial court abused its discretion ip finding that evidence concerning improper acts by A. H.’s mother’s stepfather toward the mother was not sufficiently probative to warrant its admission in evidence.

4. Croy challenges the admissibility of certain testimony from A. H.’s father, the DFACS investigator who interviewed A. H., the school guidance counselor, and the police officer. Because there was no objection to any of this testimony at trial, the issues Croy now seeks to raise have not been preserved for appellate review. Moreover, Croy’s primary complaint is that the State’s witnesses were allowed to improperly bolster A. H.’s credibility. We find no merit in this complaint, as none of the witnesses expressed an opinion or belief that the child was telling the truth or was a credible person.

5. Citing Strickland v. State, Croy contends that the trial court erred in excluding evidence that A. H. had told one of his babysitters that he used to sleep with his father and uncle.

The babysitter, however, testified that A. H. never accused either man of improper conduct. Strickland concerns the admission of evidence of prior false accusations by a rape victim. Because A. H.’s statement to the babysitter does not rise to the level of an accusation, Strickland is inapposite.

6. Finally, Croy contends that the trial court erred in charging the jury that if Croy made A. H. commit sodomy on his infant brother, Croy would be a party to the crime. We find no error in the charge.

Decided January 23, 2001.

Anthony S. Carter, Douglas R. Daum, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

       154 Ga. App. 835 (2) (270 SE2d 61) (1980).

       See, e.g., Hollis v. State, 201 Ga. App. 224, 225 (1) (411 SE2d 48) (1991).

       OCGA § 24-3-16.

       See generally Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       (Footnote omitted.) Herrington v. State, 241 Ga. App. 326, 329 (1) (527 SE2d 33) (1999).

       Cf. Proper v. State, 208 Ga. App. 471 (1) (431 SE2d 133) (1993), disapproved on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (1) (a) (479 SE2d 125) (1996).

       See, e.g., Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992).

       See generally Roberson v. State, 241 Ga. App. 226, 227 (1) (526 SE2d 428) (1999); Buice v. State, 239 Ga. App. 52, 54 (2) (520 SE2d 258) (1999).

       205 Ga. App. 473 (422 SE2d 312) (1992).

       See OCGA § 16-2-20 (a), (b) (1), (2), (4).


author: Johnson, Presiding Judge.

text:
    A00A1832.
    HOBBS v. WESTERN SURETY COMPANY.
    (544 SE2d 729)
   Johnson, Presiding Judge.

Richard Hobbs was appointed to be the administrator of Coleen Joy Nunnally’s estate. Hobbs applied to the Western Surety Company for an administrator’s bond. In the application, Hobbs agreed to indemnify the company for any liability it incurred as surety. Western Surety agreed to post an $80,000 bond to ensure that Hobbs carried out his duties as administrator.

While Hobbs was administrator, a nightclub that was part of Nunnally’s estate incurred substantial tax liabilities that went unpaid. And Hobbs failed to turn over to Nunnally’s son, Michael Hanks, the estate’s personal property as required by a probate court order.

The federal government sued Western Surety to recover on the bond, asserting that the nightclub had outstanding tax liabilities of $85,947. Western Surety then filed third-party complaints against both Hobbs and Hanks in order to litigate in one action the tax claim, Hanks’ potential personal property claim and Western Surety’s possible indemnification claim against Hobbs. Hanks then asserted a claim against Western Surety for the value of the personal property that he had not yet received.

Western Surety eventually settled both the tax claim and Hanks’ claim for a total of $50,000. Western Surety paid $35,000 to the federal government to settle the tax claim. And it paid $15,000 to Hanks as the value of the estate’s personal property that Hobbs had failed to give him.

Western Surety then filed a motion for summary judgment against Hobbs on its claim to recover the $50,000 that it had paid as surety on the bond. The probate court granted summary judgment to Western Surety in the amount of $50,000. Hobbs appeals from that ruling, asserting that the court erred in granting summary judgment because there are genuine issues of material fact as to whether Western Surety acted in good faith in paying on the bond.

Decided January 12, 2001

Reconsideration denied January 24, 2001

Bush, Crowley, Leverett & Leggett, Charles M. Leverett, for appellant.

Jones, Cork & Miller, Sherry M. Hall, Thomas W. Joyce, for appellee.

The crux of Hobbs’ argument is that his own affidavit, filed in response to the summary judgment motion, creates genuine issues of material fact by providing that only $9,000 was owed in taxes and that the personal property claim by Hanks had already been settled. Contrary to Hobbs’ argument, in the absence of substantiating facts, his affidavit is self-serving and conclusory and is therefore insufficient to create an issue for trial.

Moreover, even if we assume for the sake of argument that there are issues of fact as to how much tax was owed and whether Hobbs had settled the personal property dispute with Hanks, Hobbs still has not shown any evidence that Western Surety acted in bad faith. Western Surety has presented uncontradicted evidence that it fully investigated the tax and personal property claims, that it negotiated with the federal government and with Hanks and that Hobbs did not provide it with any evidence in defense of the claims against him. Hobbs has identified no evidence in the record that Western Surety, in investigating, negotiating and settling the claims as allowed by the surety agreement, acted in bad faith. Because Hobbs has failed to rebut Western Surety’s evidence of good faith, the probate court did not err in granting summary judgment to Western Surety.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

       See Foster v. Ramsey, 245 Ga. App. 118, 119 (1) (536 SE2d 550) (2000).

       See Benton Express v. Royal Ins. Co. &c., 217 Ga. App. 331, 333-334 (3) (457 SE2d 566) (1995) (insurance company entitled to summary judgment on claims that it settled cases in bad faith based on its unrebutted evidence of good faith).


author: JOHNSON, Presiding Judge.

text:
    A00A1964.
    JOHNSON v. THE STATE.
    (544 SE2d 496)
   JOHNSON, Presiding Judge.

A Houston County jury convicted Edward Charles Johnson of two counts of selling cocaine. On appeal, he claims the trial court erred in (1) instructing the jury on similar transactions, (2) admitting similar transaction evidence, (3) admitting hearsay, (4) inhibiting his cross-examination of a state’s witness, (5) allowing his character to be placed in issue, and (6) failing to require the state to abide by the discovery rules. For reasons which follow, we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on December 19, 1995, after a game of cards, Johnson sold an undercover officer two $20 “rocks” of cocaine. Johnson added a third rock to the sale after the officer complained about the size of the first two. On December 20, 1995, during another game of cards, the undercover officer purchased three rocks of cocaine from Johnson.

The state introduced three prior transactions. In 1990, Johnson pled guilty to one count of selling cocaine. In 1992, Johnson was convicted following guilty pleas to two charges of cocaine possession.

1. Johnson claims the trial court’s similar transactions charge requires the jury to consider a prior act in its deliberations if Johnson is shown to be the person who committed that prior act. Johnson mischaracterizes the charge, which directed the jury to determine whether the defendant was the same person to whom the prior transaction pertained before considering it for any other purpose. The trial court gave additional limiting instructions, including:

The law provides that evidence of other offenses of this defendant that are similar in terms of common design, scheme, plan, course of conduct, motive, location and time or place or other factors to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind, for instance, or for example, knowledge or intent of the defendant in the crime charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.

We find no error in the trial court’s charges on similar transactions.

2. Johnson claims that the trial court failed to conduct a proper hearing to determine whether the state established that the similar transaction evidence was properly admissible. He also claims that the similar transaction evidence was not sufficiently similar or connected to the facts of the crime charged to be presented to the jury. In order to introduce prior similar transactions:

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(a) Johnson complains that the trial court failed to properly rule on the admissibility of similar transaction evidence. The trial court held a pre-trial hearing pursuant to Uniform Superior Court Rule 31.3 (B) to consider the similar transaction evidence. The trial court indicated that it would admit evidence of those transactions where Johnson’s identity could be confirmed by an officer’s testimony, but expressed concern regarding the admission of certain police reports. The trial court postponed ruling so that it could deliberate further on the matter. The trial court later allowed evidence of the possession transactions and the sale transaction to come before the jury. Although it ruled on admission of the similar transaction evidence at different times, the court ruled on admission before the presentation of the applicable evidence. The trial court did not err in the manner in which it considered and ruled upon the admission of the similar transaction evidence.

(b) Johnson argues that the incidents leading to his 1992 possession convictions were not sufficiently similar or connected to the crimes charged to be properly admissible. In connection with the possession convictions, a police officer testified that, in the first incident, he saw bags of cocaine in Johnson’s immediate vicinity and, in the second incident, that he found 18 pieces of “crack” cocaine, packaged in individual containers, in a car in which Johnson was a passenger. The state also introduced certified copies of Johnson’s negotiated pleas to possession of cocaine in connection with these transactions.

The 1992 convictions were for possession of cocaine, and the current charges also involve cocaine.

Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

In the two incidents leading to negotiated pleas of possession of cocaine, the drugs had been separated and bagged in separate containers. The state produced evidence that the packaging was indicative of someone who was selling cocaine. A prior incident leading to a negotiated plea of possession of cocaine, in which the defendant was in possession of a number of plastic bags containing cocaine, has been found to be properly admissible as a similar transaction in a trial for the distribution of cocaine in order to show defendant’s course of conduct and scheme or plan to distribute cocaine. The incidents leading to Johnson’s 1992 convictions for cocaine possession were sufficiently similar to the current charges that proof of the former tended to prove the latter, and the trial court did not err in allowing the evidence of the prior possession transactions.

3. The officer who witnessed the transaction leading to Johnson’s 1990 conviction for selling cocaine died before the trial. The state introduced four police reports which were authored by the deceased officer, along with a certified copy of Johnson’s 1990 conviction.

The police reports were entered into the record, but not for submission to the jury. Although the reports indicate four cocaine sales by Johnson to the deceased, the state elicited testimony only with respect to the report reflecting a June 2, 1989 transaction. The state introduced the hearsay evidence by questioning a police sergeant about the contents of the report:

Prosecutor: With respect to State’s Number 10, and which is the transaction we talked about from June 2nd, 1989, does it indicate that [the deceased officer] purchased cocaine from an individual, without reading from it?
Sergeant: Yes.
Prosecutor: And what is the name of the individual that it says he bought the cocaine from?
Sergeant: Edward Johnson.
Prosecutor: And what type of cocaine does it say he bought?
Sergeant: Crack cocaine.
Prosecutor: For how much money?
Sergeant: Approximately $20, or $20.

Johnson claims that the testimony regarding the prior sales transaction was inadmissible hearsay. The state argues that the statements were admissible either under the necessity exception to the hearsay rule or as business records.

A police report may be admitted into evidence as a business record if a proper foundation has been laid, although such reports are generally not admissible if they include hearsay statements, opinions, or conclusions. To be admissible, the state must show the writing “was made in the regular course of any business and that it was the regular course of business to make the . . . record at the time of the act... or within a reasonable time thereafter.”

A police sergeant testified that the reports were “copies of the typewritten reports submitted by an officer of the police department,” and that he retrieved them from the police files. However, he gave no testimony regarding the preparation and keeping of the reports. The state failed to lay the foundation required to admit the hearsay under the business records exception.

The state argues that the hearsay was nevertheless admissible under the necessity exception. The rules of evidence allow “the admission of hearsay evidence in specified cases from necessity so long as (1) the declarant is unavailable, and (2) there is a circumstantial guarantee of trustworthiness inherent in the statement.”* Our Supreme Court has recently added a third requirement: “the proponent of the evidence must show that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered.”

The first element is satisfied because the declarant was deceased. It appears from the pre-trial hearing that the deceased officer was the only law enforcement officer who witnessed the transaction, and so his statements are uniquely probative. We must then consider whether the statements contain sufficient indicia of trustworthiness to be admissible.

Although the state argued to the trial court that the statements of the deceased officer should be admitted under both the necessity and business records exceptions to the hearsay rule, the trial court allowed the hearsay into evidence as a business record only. The trial court made no findings regarding a circumstantial guarantee of trustworthiness.

There is no testimony that speaks directly to the circumstances under which the declarant prepared these statements, and we cannot say that the statements were made in a context which the courts have traditionally found to be inherently reliable. The veracity of the deceased officer’s statements is arguably supported by Johnson’s guilty plea to a sale of cocaine on June 2, 1989. The reliability of hearsay evidence, however, must be derived from a finding of inherent trustworthiness rather than other evidence produced at trial. The state did not establish the admissibility of the hearsay evidence under the necessity exception.

The trial court erred when it allowed the state to present hearsay evidence of the June 2, 1989 cocaine sale to the jury. Nevertheless, because the sale was one of three prior transactions, and the other two transactions were properly admitted into evidence, we find that it is highly probable that the error did not contribute to the judgment of conviction, and a reversal is not required.

4. Johnson claims that the trial court improperly limited his cross-examination of the undercover officer who testified to purchasing cocaine from Johnson because counsel was not allowed to thoroughly cross-examine the officer with the officer’s police report. The trial court ruled that defense counsel was in danger of introducing the police report into evidence and that, if he did so, he would lose the right to open and close final argument. “[The] right to make final argument to the jury is an important one, and harm is presumed when that right is erroneously denied.”

A witness may be confronted with inconsistencies between testimony and what is written in a report without offering the prior statement into evidence. Here, Johnson did not lose his right to make the final closing argument. The trial court allowed defense counsel to refer to the report, but warned defense counsel not to go on a “fishing expedition” for inconsistencies or to quote from the report directly. We find no improper restrictions in Johnson’s cross-examination of the undercover officer.

5. Johnson claims the state twice improperly put his character into issue. First, the prosecutor asked the undercover officer, “Was Edward Johnson selling drugs?” Defense counsel objected before the witness answered on the grounds that the question concerned a general propensity and did not address the two incidents with which Johnson was charged, and the trial court sustained the objection. The witness did not answer the question. No curative instructions were asked or given. Second, the prosecutor asked an investigator about his role in handling evidence, including preparation of photographic lineups. The prosecutor asked, “Whose responsibility was it to show [the undercover officer] those pictures, yours or someone else’s?” In the course of his answer, the investigator said, “I pulled out the pictures of several of the people that I knew to be selling cocaine in that area.” Defense counsel objected. The trial court sustained the objection and instructed the jury to ignore the response.

Johnson was not unfairly prejudiced by the foregoing. In the first exchange, the trial court sustained the objection and the question was not answered. In the second, the trial court addressed the possible prejudice by instructing the jury to disregard the investigator’s comments, which in any case were made only in passing in his response to a legitimate question. The trial court acted to limit improper prejudice to Johnson, and we find no error.

6. Johnson accuses the state of failing to abide by the discovery rules. The state gave approximately 50 pages of discovery material to the defense after the trial had begun. Also, the state did not identify two of its witnesses before trial, and a third witness was added to the state’s witness list before trial, but after the initial witness list was given to the defense. The state is obligated to provide the defense with timely notification of evidence and witnesses. Upon a showing of failure by the state to abide by the discovery rules, the trial court may order further discovery or inspection, the interview of witnesses, a continuance, or other order as it deems just under the circumstances. But a remedy including the prohibition of otherwise admissible evidence was unavailable unless Johnson could show either bad faith on the part of the state or material prejudice.

The two previously unlisted witnesses testified regarding the chain of custody of the cocaine. The third witness testified regarding the electronic listening device worn by the undercover officer. The trial court allowed Johnson’s counsel to interview the third witness before he testified. Johnson did not ask for a pre-testimony interview of the two chain of custody witnesses, though the trial court had shown that it was willing to address Johnson’s concerns, if asked. The two chain of custody witnesses testified to administrative matters. Defense counsel was familiar with one of the witnesses and did not question the other. Johnson cannot show that he was materially prejudiced by any failure of the state to abide by the discovery rules. There is no showing of bad faith on the part of the state. And the trial court showed it was willing to exercise its discretion to remedy any harm. Accordingly, any failure by the state to comply with the discovery rules does not require a reversal; ~-

Decided January 11, 2001

Reconsideration denied January 24, 2001

Davis & Felton, Eugene Felton, Jr., for appellant.

Kelly R. Burke, District Attorney, Amy L. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       Johnson also claims that the trial court failed to instruct the jury that any prior act must be similar enough to the crime charged so that proof of the prior act tends to prove the latter crime. The trial court is not required to give such a charge sua sponte. Johnson’s reliance on Chisholm v. State, 231 Ga. App. 835, 838-839 (2) (500 SE2d 14) (1998), is misplaced, as Chisholm was overruled by Murphy v. State, 270 Ga. 72 (508 SE2d 399) (1998).

       See Hatcher v. State, 224 Ga. App. 747, 752 (482 SE2d 443) (1997).

       (Citation omitted.) Harris v. State, 222 Ga. App. 83, 84 (1) (473 SE2d 245) (1996).

       (Citations, punctuation and emphasis omitted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991).

        Collins v. State, 205 Ga. App. 341, 343-344 (2) (422 SE2d 56) (1992).

       Johnson was indicted on five separate counts of selling cocaine, but he was convicted on a negotiated guilty plea to the first count only, a sale of cocaine on June 2, 1989.

        Johnson v. State, 168 Ga. App. 271, 272 (1) (308 SE2d 681) (1983).

       OCGA § 24-3-14.

       Compare Reed v. Heffernan, 171 Ga. App. 83, 84 (1) (a) (318 SE2d 700) (1984).

       See Curtis v. State, 190 Ga. App. 173, 175 (2) (378 SE2d 516) (1989).

       (Punctuation omitted.) Fetty v. State, 268 Ga. 365, 367 (4) (489 SE2d 813) (1997).

        Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998).

        McKibbons v. State, 226 Ga. App. 452, 454 (2) (486 SE2d 679) (1997).

         Rolader v. State, 202 Ga. App. 134, 140 (1) (413 SE2d 752) (1991).

        Parrott v. State, 206 Ga. App. 829, 835 (5) (c) (427 SE2d 276) (1992).

       (Citations omitted.) Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994).

        Duckworth v. State, 268 Ga. 566, 569 (1) (492 SE2d 201) (1997).

       See Burton v. State, 263 Ga. 725, 726-727 (2) (438 SE2d 83) (1994).

       OCGA § 17-16-4.

       OCGA § 17-16-6.

       Id.


author: Ellington, Judge.

text:
    A00A2489.
    WANG v. MOORE et al.
    (544 SE2d 486)
   Ellington, Judge.

James K. L. Wang, a former associate professor of physics at Gordon College, sued his supervisors, Dewitt Moore and Andrea Hardin, in their individual capacities for wrongful termination. Hardin and Moore moved for summary judgment on sovereign immunity and other grounds. The superior court granted the motion, and Wang appeals. Wang contends Hardin and Moore are not entitled to immunity for their allegedly intentional and malicious act of firing him. Finding no error, we affirm.

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. OCGA § 9-11-56 (c). 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.

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record reveals that Wang was a nontenured faculty member of Gordon College and an employee of the Board of Regents of the University System of Georgia. Moore, as the Division Chair, was Wang’s immediate supervisor. Among his many duties, Moore was responsible for evaluating faculty for termination. Moore was directly responsible to Hardin, the Vice President for Academic Affairs and Dean of the Faculty at Gordon College. Hardin, as the chief academic officer for the college and designated representative of the president, administers college policies, discharges those duties which the president may assign to her, and hires, fires, and disciplines faculty members at Gordon College.

In July 1999, Wang told Moore in a brief conversation that he might need to take off the first week or two of school to move his wife from Florida to Georgia. On August 9 and 11, 1999, Wang wrote Moore and requested in writing permission to be absent from August 16-20, 1999 — the entire first week of classes during which time Wang was responsible for eight lectures and four labs. After consulting with Hardin, Moore informed Wang both verbally and in writing that his request was denied and that missing the first week of class would be both a neglect of his duties and insubordination. Wang insisted that he be granted leave. Moore advised Wang, verbally and in a second memo, that his decision was unchanged and that Wang should revise his plans. Wang did not try to change his plans. Despite Moore’s warnings, Wang was absent the first week of classes.

On August 23, 1999, Wang, Hardin, and Moore met to discuss Wang’s unauthorized absence. Wang did not apologize, but insisted that his actions were necessary. Moore recalled Wang saying: “I did what I had to do. You have to do what you have to do.” Hardin offered Wang the opportunity to resign, which Wang rebuffed, explaining: “I wouldn’t jump. I wouldn’t ask how high. I just wouldn’t do everything she told me to do.” Hardin fired Wang that day and notified him in writing that he had five days to appeal the decision to the president of the college. Wang did not timely pursue his administrative remedies, but instead filed his complaint on November 8, 1999. Wang did not file his ante litem notice before he filed suit, as required by OCGA § 50-21-26 (a) (3). Rather, he filed it on December 28, 1999. Finally, although Wang’s administrative appeal was untimely, the Board of Regents reviewed it and affirmed it on February 9, 2000.

Wang does not contest that the decision to terminate his employment is governed by the Policy Manual of the Board of Regents, § 803.11 (Removal of Faculty Members), which provides that

[t]he President . . . may at any time remove any faculty member ... for cause. . . . Whenever the words “President” or “Administration” are used in these procedures, they shall be construed to include the designated representative of the president.

Further, § 803.9 (Tenure) provides that a nontenured faculty member may be terminated for neglect of duties, disruption of any teaching activity, or other unauthorized activity.

1. Wang contends that Hardin and Moore are not entitled to immunity and that the Georgia Tort Claims Act (“GTCA”) is inapplicable to his case because “there is no sovereign immunity for intentional wrongdoers acting with malice and intention to cause injury.” In support of this contention, Wang cites to an excerpt from the Georgia Constitution: “all officers and employees of the state . . . may be subject to suit ... [if] they act with actual malice or [with actual] intent to cause injury in the performance of their official functions.” Wang, however, neglects to note that this provision begins with the qualifying language “[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act.” Wang’s argument oversimplifies the applicable immunity analysis.

The GTCA provides the exclusive remedy for any tort committed by a state officer or employee acting within the scope of his or her official or employment duties. OCGA § 50-21-25 (a); Riddle v. Ashe, 269 Ga. 65, 66 (1) (495 SE2d 287) (1998). Therefore, in any case against a public employee, regardless of the nature of the tort alleged, we must first determine whether the GTCA applies to the cause of action. In this case, the GTCA applies because the cause of action arose after the statute’s effective date, Hardin and Moore are “state employees” as that term is defined in the GTCA, and Hardin and Moore were both acting within the scope of their employment duties when Hardin fired Wang. Consequently, we look to the GTCA to determine whether Hardin and Moore are entitled to immunity.

As we have held:

“A state officer or employee who commits a tort while acting within the scope of his or her duties or employment is not subject to lawsuit [or] liability therefor.” Moreover, “(a) person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission . . . , the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” OCGA § 50-21-25 (b).

Bd. of Regents &c. of Ga. v. Frost, 233 Ga. App. 692, 693-694 (1) (505 SE2d 236) (1998). Because Hardin and Moore were both acting within the scope of their duties when they fired Wang, they are both immune from suit for any cause of action arising out of the act of firing Wang. Id.

Further, because Wang could sue the Board of Regents only for damages allegedly arising out of the performance of Hardin’s and Moore’s duties, and because he did not name the Board of Regents as a party nor did he properly serve ante litem notice before suit was filed, as required under OCGA § 50-21-26 (a) (3), any suit against the Board of Regents was “procedurally foreclosed.” See Horton v. Whitaker, 238 Ga. App. 312, 313 (518 SE2d 712) (1999); Brooks v. Barry, 223 Ga. App. at 649 (1); Howard v. Miller, 222 Ga. App. 868, 871-872 (1) (b) (476 SE2d 636) (1996). Consequently, the superior court properly granted summary judgment in favor of Hardin and Moore.

Decided January 9, 2001

Reconsideration denied January 24, 2001

Shuman & Associates, Robert W. Shuman, Thomas R. Morgan, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Gray, Hedrick & Edenfield, Bruce M. Edenfield, Evan R. Mermelstein, for appellees.

2. Our holding in Division 1 makes it unnecessary to consider Wang’s remaining enumerations of error.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       Wang alleges six causes of action, all of which are based upon Hardin and Moore’s decision to terminate his employment: wrongful termination (Count 1), tortious interference with contract (Count 2), acting without authority by failing to follow administrative procedures (Count 3), civil conspiracy (Count 4), illegally taking his salary (Count 5), and failure to comport with procedural due process (Count 6).

       Hardin and Moore filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim or, in the alternative, for summary judgment. Because matters outside the pleadings were presented to and not excluded by the trial court in disposing of the motion to dismiss, the motion was converted into a motion for summary judgment. White House, Inc. v. Winkler, 202 Ga. App. 603, 605-606 (415 SE2d 185) (1992).

       The entire provision reads:
      Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.
      Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

       The statute became effective July 1, 1992, and applied retroactively to tort claims or causes of action which accrued on or after January 1, 1991. OCGA § 50-21-27 (a); Ga. L. 1992, p. 1883, § 1; Dept. of Transp. v. Bishop, 216 Ga. App. 57 (1) (453 SE2d 478) (1995). Wang was fired on August 23, 1999.

       Hardin and Moore are both faculty members employed by Gordon College, a unit of the Board of Regents of the University System of Georgia, a state agency. Thus, appellees fall within the definition of “state employee” found at OCGA § 50-21-22 (7). Wilson v. Bd. of Regents &c. of Ga., 262 Ga. 413, 414 (3) (419 SE2d 916) (1992).

       Wang concedes that his “dismissal was conducted within the walls of the Gordon College campus and during the administration of other duties of the [appellees] and under color of authority.” Moreover, Wang offered no competent evidence that Hardin and Moore acted in any capacity other than their official capacities. “Merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts under the Georgia Tort Claims Act.” (Citations and punctuation omitted.) Brooks v. Barry, 223 Ga. App. 648, 649 (1) (478 SE2d 616) (1996). And, simply alleging that Hardin and Moore acted intentionally and with malice is insufficient to take their actions outside the scope of their official duties as a matter of law. Rayburn v. Farnesi, 70 FSupp.2d 1334, 1341-1342 (III) (A) (N.D. Ga. 1999); see also Mattox v. Bailey, 221 Ga. App. 546 (1) (472 SE2d 130) (1996).


text:
    A00A2491.
    STEPHENS et al. v. GREENSBORO PROPERTIES, LTD., L.P. et al.
    (544 SE2d 464)
   Phipps, Judge.

Linda and Freddie Stephens lived with their 14-year-old son Martrieal in an apartment complex owned by Greensboro Properties, Ltd., L.P., and Greensboro Properties, Ltd., L.P., Phase II, (“Greensboro Properties”) and managed by Investors Management Company of Valdosta, Inc. (IMC). Stanley Scott also lived in the apartment complex, was employed there as maintenance man, and assumed certain other responsibilities.

Scott shot and killed Martrieal Stephens on the premises. As a result, the Stephenses brought this wrongful death action against Scott, Greensboro Properties, and IMC. The Stephenses seek to hold Greensboro Properties and IMC directly liable for Scott’s actions under various negligence theories, and they seek to impose vicarious liability under the doctrine of respondeat superior. The Stephenses appeal the trial court’s grant of summary judgment to Greensboro Properties and IMC. Because there is evidence to support the Stephenses’ claim against Greensboro Properties and IMC under one of the theories asserted, we reverse.

We review de novo a trial court’s grant of summary judgment. To establish an entitlement to summary judgment, 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. The burden on the moving party may be discharged by pointing out by reference to the record that there is an absence of evidence to support the non-moving party’s case. Here, the evidence shows the following.

Scott applied for residency in the apartment complex in July 1996. The complex was financed and operated as a low income housing development and, as such, was subject to various rules and regulations of the Farmers Home Administration (FmHA). When Scott applied to become a tenant, IMC’s policy was to disapprove any residency application filed by a person convicted of a felony within the prior five years. Approximately six months later, IMC extended its exclusionary policy to any convicted felon.

Although Scott truthfully stated on his residency application that he had not been convicted of any felony within the prohibited five-year period, an authorized check of his background disclosed a history of arrests and convictions of violent crimes from 1980 through 1989. Resident manager Pat Naramore testified that after conferring with property manager Debbie Peaster and giving Scott an opportunity to explain the circumstances surrounding his criminal record, she approved his residency application.

After becoming a resident, Scott was hired as the apartment complex’s maintenance man and paid based on the number of hours he spent doing maintenance work. He was on call 24 hours a day. At times, he responded to tenant requests by performing repair work in the middle of the night, even after he had been drinking.

Because Scott both lived in and worked for the apartment complex, tenants also complained to him about problems such as other tenants playing music too loudly or making other disturbing noises. With Naramore’s and Peaster’s knowledge and consent, Scott resolved these complaints. He testified that he was not paid for doing this, but did so out of a sense of appreciation for being provided with a job and place to live.

After a child in the apartment complex gave Scott drugs which were turned over to Naramore and then the police, Peaster encouraged Scott to “keep up the good work.” According to Scott, it later became known that he had “ratted” on some drug pushers residing in the apartments, and this led to threats against him. Unbeknownst to Naramore or Peaster, Scott started carrying a handgun for protection.

On a Saturday in July 1997, Scott performed no maintenance work at the apartments, but instead left the complex with friends and drank from morning until late afternoon. After returning home and taking a nap, he awoke that night. Although still intoxicated, Scott went to Darrell Miller’s apartment to ask Miller to give him a ride to the store so that he could purchase beer. The two were drinking buddies, and Scott intended to share the beer with Miller. Incidentally, Scott thought Miller was a drug dealer, and he testified that he was utilizing his friendship with Miller to gain information concerning his suspected drug activities.

As Scott approached Miller’s apartment to ask for a ride, he had $400 in his hand. A number of people, including the decedent, were congregated in the parking lot. Scott testified that he knew the decedent and that they had sometimes engaged in a sport called slap boxing. When the decedent saw Scott approaching Miller’s apartment that night, he offered to slap box Scott for the money he was holding. Without responding, Scott pulled his handgun from his pocket and pointed it at the decedent. The gun discharged, killing him. Scott testified that he bore the decedent no animosity and that the gun had discharged accidentally.

No evidence was presented showing any similar incidents of violence at the apartment complex. The decedent’s parents were aware that Scott carried a gun. They did not report it to IMC, but the decedent’s mother testified that she warned him thát Scott was armed. About six months before the decedent was killed, other residents of the apartment complex talked to Naramore about Scott’s past criminal record and past reputation for violence in the community and told her that she needed to keep an eye on him. The decedent’s mother testified that she had seen Scott acting physically abusive toward boys living in the apartment complex. She also related that a week or two before her son was killed, he came home with serious neck and facial injuries. Through hearsay testimony concerning out-of-court statements made by a friend of the decedent’s, the Stephenses sought to show that Scott was the attacker.

1. The Stephenses charge Greensboro Properties and IMC with negligence, based on general principles relating to premises liability.

As to this theory,

[t]he general rule is that a landlord does not ensure a tenant’s safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” [Cits.] If a proprietor has “reason to anticipate a criminal act,” then the proprietor has “ ‘a duty to exercise ordinary care to guard against injury from dangerous characters.’ ” [Cit.] The basis of liability is a proprietor’s superior knowledge of the existence of a condition that may subject an invitee to an unreasonable risk of harm. [Cit.]

(a) Greensboro Properties and IMC assert that under cases such as Sturbridge Partners v. Walker and FPI Atlanta, L.P. v. Seaton, a tenant cannot hold a landlord liable for a third-party criminal attack unless a substantially similar incident of which the landlord was aware previously occurred on the premises. Because there is no evidence of any such incident here, Greensboro Properties and IMC argue that they are entitled to summary judgment. This argument is without merit.

Although the cited cases do impose a duty on a landlord to guard against crime when the landlord has reason to anticipate a criminal act from prior experience with substantially similar types of crime occurring on or near the premises, these cases should not be interpreted as requiring that a plaintiff must always show the existence of a prior similar incident to establish that a danger was foreseeable.

Evidence of a prior substantially similar act is one way to establish notice and foreseeability, and in most cases it will be the only possible way to do so. It is conceivable, however, that a danger could be so obvious that an issue for jury determination could exist regarding notice and/or foreseeability despite the absence of a prior similar incident on those premises.

Evidence has been presented showing that the management company allowed Scott to become both a resident and an employee of the apartment complex and that they authorized him to engage in security-related activities which might reasonably result in altercations with co-tenants, notwithstanding knowledge of his long history of convictions and arrests for numerous violent crimes. Under the circumstances, it is for a jury to decide whether an assault such as the one committed by Scott on his co-tenant Stephens was reasonably to be anticipated and whether IMC failed to exercise ordinary care in guarding against such an occurrence. There is evidence to support a recovery by the Stephenses under their theory of premises liability.

(b) There is no merit in Greensboro Properties’ and IMC’s arguments that they are entitled to summary judgment because the decedent, with equal or superior knowledge of the risk, failed to exercise ordinary care for his safety and that he assumed the risk of his injuries.

In support of their position, Greensboro Properties and IMC cite Rappenecker v. L.S.E., Inc. and Howell v. Three Rivers Security. Those cases are distinguishable. In both, it was undisputed that the plaintiffs voluntarily exposed themselves to the risk that individuals hostile toward them would do them harm. In this case, there is evidence from which the jury could find that the decedent approached Scott in the absence of any mutual hostility to solicit his participation in a sporting activity in which they had previously engaged. Whether the Stephenses’ 14-year-old son, by challenging Scott to the game of slap boxing, failed to exercise ordinary care for his own safety and assumed the risk of being shot is a question for the jury.

(c) The fact that the shooting occurred in a parking lot accessible to the general public does not bar the Stephenses’ recovery. Unquestionably, Scott and the decedent were on the premises of the apartment complex. There is abundant evidence that Scott would not have been there but for his residency in the complex.

2. We, however, find no basis for a recovery by the Stephenses based on theories that Greensboro Properties and IMC (a) are chargeable with negligence per se by reason of violation of FmHA regulations applicable to operation of the apartment complex, and (b) committed simple negligence by violating their own tenant selection policies.

(a) We have held that violation of a statute or ordinance which creates a duty requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks may be considered negligence per se. One of the regulations relied on by the Stephenses authorizes the landlord of a low income housing project to reject applicants who would pose a direct threat to the health and safety of other individuals, but imposes no duty on the landlord to do so. It follows that IMC could not have violated that regulation so as to be chargeable with negligence per se. Another regulation upon which the Stephenses rely does impose a duty upon the landlord requiring compliance with certain codes and regulations, but there is no evidence of noncompliance with any of these codes or regulations.

(b) Similarly, there is no evidence that IMC violated any of its own policies in allowing Scott to become a resident of the complex. IMC complied with its policies by having Scott complete a residency application and by conducting a check of his background. A determination was made that he was not barred from becoming a tenant, in that none of his felony convictions had occurred within the previous five-year period. The policy requiring rejection of an application by any convicted felon was not adopted until later.

3. We find no basis for a recovery by the Stephenses either under the theory of respondeat superior or under the theory of negligent hiring and retention.

The doctrine of respondeat superior is codified in [OCGA] § 51-2-2 which states: “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” The recognized legal corollary to this doctrine is that once an agent or employee departs or steps aside from his employment and undertakes an act purely personal in nature, the employer is not liable for that act. [Cit]

Likewise, we have held that the theory of negligent hiring and retention is “conceptually inapplicable when the tortious conduct was committed outside the scope of employment. [Cit.]” Unquestionably, when Scott brandished a weapon and pointed it at the decedent after being challenged to a game of slap boxing, he undertook acts personal in nature and stepped aside from any employment by the apartment complex.

Decided January 5, 2001

Reconsideration denied January 24, 2001.

David G. Kopp, Jesse Copelan, Jr., for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Matthew A. Moseley, for appellees.

For reasons given in Division 1, however, the trial court erred in awarding summary judgment to Greensboro Properties and IMG.

Judgment reversed.

Johnson, P. J., and Smith, P. J., concur.

        Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

       OCGA § 9-11-56 (c).

        Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

       Scott’s criminal record consists of an arrest for pointing a gun at another in 1980; an arrest for assault and simple battery with charges dismissed in 1981; an arrest for criminal trespass also in 1981; a conviction of aggravated assault in 1982; an arrest for rape with the grand jury’s return of a no bill of indictment again in 1982; arrests for simple battery, and for making terroristic acts and threats, with the prosecution being nolle prossed in 1983; two arrests for simple battery with dismissal of the charges in 1984; a conviction of aggravated assault in 1984; and a conviction of simple battery in 1989.

        Johnson v. Holiday Food Stores, 238 Ga. App. 822, 823 (1) (520 SE2d 502) (1999).

       267 Ga. 785 (482 SE2d 339) (1997).

       240 Ga. App. 880, 882 (1) (524 SE2d 524) (1999).

       See Wallace v. Boys Club of Albany, 211 Ga. App. 534, 536, n. 2 (439 SE2d 746) (1993).

       Id.

       236 Ga. App. 86, 87 (1) (510 SE2d 871) (1999).

       216 Ga. App. 890 (456 SE2d 278) (1995).

       See generally Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (3) (394 SE2d 345) (1990) (because a child may be unable to appreciate a danger and have equal knowledge of a hazard, defendant may be held to a higher standard of care); Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996) (except in plain, palpable, and undisputed cases where reasonable minds cannot differ, questions of contributory negligence and assumption of risk are for the jury).

       Cf. Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233 (1) (378 SE2d 857) (1989).

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

        Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983); see Brown v. AMF Bowling Centers, 236 Ga. App. 277 (1) (511 SE2d 619) (1999).

        Dester v. Dester, 240 Ga. App. 711, 715 (7) (523 SE2d 635) (1999).


author: Barnes, Judge.

text:
    A98A2237.
    CLEVELAND et al. v. ALBANY UROLOGY CLINIC, P.C. et al.
    (546 SE2d 527)
    Decided January 24, 2001.

      William S. Stone, Thomas C. Earnest, Kevin R. Dean, for appellants.

      Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, Donaldson, Bell & Pickett, George P. Donaldson III, Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, for appellees.
   Barnes, Judge.

In Albany Urology Clinic v. Cleveland, 272 Ga. 296 (528 SE2d 777) (2000), the Supreme Court reversed the judgment of this Court in Cleveland v. Albany Urology Clinic, 235 Ga. App. 838 (509 SE2d 664) (1998). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.