author: McMURRAY, Presiding Judge.

text:
    A98A1987.
    ORIENTAL FARMERS FOOD CORPORATION v. AGENCY SERVICES, INC.
    (514 SE2d 80)
   McMURRAY, Presiding Judge.

Plaintiff Oriental Farmers Food Corporation entered into a premium finance agreement with defendant Agency Services, Inc. for the purpose of financing premiums for an insurance policy which included workers’ compensation coverage for a one-year period beginning December 1, 1995. The premium finance agreement provided for a down payment and nine monthly installment payments beginning December 15, 1995 and ending August 15, 1996. Plaintiff made timely payments through June 1996, but was late paying the last two installments. Acting under authority of a power of attorney contained in the premium finance agreement which allowed defendant to cancel the insurance upon nonpayment of the installment payments, defendant gave notice to the insurer of cancellation of the workers’ compensation coverage. The workers’ compensation coverage was canceled on August 7, 1996. After plaintiff brought its account to a current status, defendant’s request that the cancellation be rescinded was rejected by the workers’ compensation insurer.

On September 18, 1996, plaintiff’s employee partially severed three fingers while operating a meat slicer. Plaintiff’s request for workers’ compensation coverage was denied on the grounds of the cancellation of the insurance coverage.

Subsequently, plaintiff filed this action alleging various breaches of the premium finance agreement and interference with plaintiff’s contract with the workers’ compensation insurer in that defendant wrongfully canceled that contract.

The case was submitted to the superior court on opposing motions for summary judgment. Plaintiff appeals from the grant of summary judgment in favor of defendant and from the denial of its motion for summary judgment. Held:

1. We affirm. An insurance premium finance company’s exercise of a retained power of attorney to cancel a policy in the event of default requires a ten-day notice of intent to cancel, during which the insured may correct the default. If the default is not corrected within the ten-day notice period, the premium finance company may then give notice of cancellation. In order to constitute an effective cancellation, the notice of cancellation must be mailed by at least first class mail to the last address of record of the insured and the premium finance company must receive such receipt or other evidence of mailing as prescribed or accepted by the United States Postal Service. OCGA § 33-22-13. The Supreme Court provided in Moore v. Scottsdale Ins. Co., 264 Ga. 808, 809 (450 SE2d 198), that a receipt must bear the address of the insured in order to constitute a form of proof of mailing within the meaning of OCGA § 33-22-13 (c), regardless of whether it is acceptable to the United State Postal Service.

In the case sub judice, plaintiff made all scheduled payments until a payment due July 15, 1996, was not paid as scheduled. Defendant, via the affidavit of its president, provides evidence that, on July 23,1996, a notice of intent to cancel the insurance on August 5,1996, was sent to plaintiff. No payment was received from plaintiff, and on August 6, 1996, defendant mailed a notice of cancellation to plaintiff. The cancellation date was August 7, 1996. As proof of the mailing of the notice of cancellation, the affidavit of defendant’s president referenced and attached a copy of a bulk mailing document bearing official stamps of the post office and showing the mailing to plaintiff on August 6, 1996, along with plaintiff’s address.

Plaintiff maintains that the bulk mailing document attached to the affidavit of defendant’s president did not provide the proof of mailing required by OCGA § 33-22-13 (c) in that it was not properly authenticated and was hearsay. See OCGA § 9-11-56 (e). Plaintiff argues that defendant was required to produce a certification or affidavit from a postal employee verifying the accuracy of the receipt. However, there is nothing in OCGA § 33-22-13 (c) requiring proof of the accuracy of the receipt, and defendant has complied with that provision by providing the receipt which it did obtain in connection with the mailing. In other words, no hearsay was involved in the matter to be proven by defendant, that the bulk mailing document was the receipt received from the post office in connection with the mailing to plaintiff. The required evidence was provided by the statements in the affidavit of defendant’s president which also authenticated the bulk mailing document so as to permit its consideration by the superior court.

2. Thereafter, on August 14, 1996, defendant received plaintiff’s tardy July installment which was applied to plaintiff’s account and mailed to the insurer the reinstatement request which was denied. The installment payment scheduled for August 15, 1996, was not paid at that time and, on August 21,1996, a second notice of intent to cancel on September 3,1996, was sent to plaintiff. Plaintiff then paid the final installment payment on August 27, 1996, that is, within the ten-day period following the second notice of intent to cancel.

Plaintiff maintains that defendant waived its right to insist on a forfeiture of the policy, by sending a subsequent notice of intent to cancel and demanding further payment of premiums after the policy was canceled. This contention is supported by citation to State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4 (305 SE2d 801), a case in which continued premium payments following cancellation were induced by representations that the payments would cause the policy to remain in effect. Id. at 6 (1). However, following the cancellation of insurance coverage in the case sub judice, the correspondence from defendant to plaintiff contained clear statements that any subsequent payments by plaintiff or actions seeking reinstatement of the policy on its behalf by defendant would not guarantee that the policy would either remain in force or be reinstated. Defendant attributes the second notice of intent to cancel to uncertainty concerning whether the request for reinstatement of the policy would be granted by the insurer. Defendant made no representation to plaintiff following the cancellation of the policy which would cause a reasonable person to believe that the policy was still viable, thereby constituting a waiver. See Ga. Ins. Co. v. White, 190 Ga. App. 208 (378 SE2d 523).

Decided March 17,1999.

Evans & Bell, Mark G. Evans, Jay B. Bell, for appellant.

Dermer, Brown, Rogers & O’Neill, Stephen E Dermer, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0090.
    SMITH v. THE STATE.
    (514 SE2d 710)
   Johnson, Chief Judge.

A jury found Jerry Smith guilty of homicide by vehicle in the second degree and passing in a no-passing zone. Smith appeals from the judgment of conviction entered upon the jury’s verdict. He contends the trial court erred in failing to grant his motion for directed verdict of acquittal because the evidence was insufficient to allow a rational trier of fact to find him guilty beyond a reasonable doubt.

1. Where, as in this case, sufficiency of the evidence is challenged by a motion for directed verdict of acquittal, the proper test is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines the sufficiency of the evidence, and may not weigh the evidence or determine the credibility of witnesses. See Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993).

There were contradictions in the evidence presented to the jury, including conflicts in the testimony of the only two survivors of the collision, Smith and a passenger in the other vehicle. This Court must view the evidence in a light most favorable to support the jury’s verdict. When so viewed, the evidence at trial shows Smith had driven tractor-trailer type tracks for 24 years. During the eight years preceding the collision at issue, he had driven the route along which the collision occurred about four thousand times. The collision occurred in the early morning hours. It was dark and the weather was clear. Smith was hauling a load weighing approximately 77,000 pounds. The collision occurred on a two-lane highway in a heavily wooded area. The road was straight. The speed limit was 55 mph.

As Smith was driving along the highway, he observed a car ahead in the distance. As he approached the car, he noticed that its brake lights flickered on and off. The car moved into a left-turn lane and then, without signaling, abruptly changed lanes, pulling back into Smith’s lane of travel. At the time, the truck was about 100 feet behind the car. The car proceeded down the highway, changing speeds somewhat erratically. Smith concluded that the occupants of the car were looking for a road, testifying that he fell back because his truck was fully loaded and he did not want to get too close to the car.

The car crested a hill, and Smith momentarily lost sight of it. As Smith’s truck crested the hill, he saw the car about 300 feet ahead with its brake lights on. By Smith’s estimate, the car was moving between five and ten mph and displayed no turn signal.

Immediately prior to the collision, Smith’s truck was traveling between 30 and 35 mph. Smith decided to pass the car because, in his opinion, it was the safest thing to do considering the type of load he was hauling. He believed an effort to stop would cause the load to move forward and might cause his truck to jackknife. Smith believed he had time to think and to react. As he started to pass the car, and by his estimate was about 15 to 20 feet from it, Smith saw the blink of a turn signal. The car made a turn to the left, and Smith slammed on his brakes. The right front of Smith’s tractor struck the left side of the car. The driver of the car was killed.

Smith testified that at the time of the collision, he was not aware that there was an intersecting road on the left side of the highway. The side road was a narrow dirt road, and Smith’s view of it was obstructed by trees. Although there was a double yellow centerline on the highway at the point of impact, Smith testified he did not see it because he was watching the victim’s car and checking for oncoming traffic.

At the scene of the collision, Smith gave a handwritten statement to the investigating officer. This statement was inconsistent with his trial testimony in several important respects. For example, it did not mention that Smith lost sight of the car as it crested a hill moments before the collision. He stated that when he saw the car begin to stop, he did not know what it might do. He stated he decided to enter the left lane because there was no other vehicle in the area, and he did not want to cause a rear-end collision. He stated that as he started to go around the car, the driver gave a left turn signal and the car began its left turn just as the turn signal started to blink. He stated that the car was in the left lane before he could do anything.

The passenger in the car testified that he and the driver were lost and were looking for a place to turn around. They slowed when they thought they were nearing their turn. When they saw the side road, the driver slowed and gave his signal as he began to turn. Neither the driver nor the passenger was aware that a truck was behind them.

2. OCGA § 40-6-393 (b) is the homicide by vehicle in the second degree statute. A person commits this offense when he violates one or more of the provisions of Title 40 of the Official Code of Georgia where such violation is the cause of the death. As the crime of homicide by vehicle is accomplished without criminal intent, the statutory violation results from “a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1; Conyers v. State, 260 Ga. 506, 509 (6) (d) (397 SE2d 423) (1990).

In this case, the indictment alleges that Smith committed vehicular homicide by violating OCGA § 40-6-46, passing in a no-passing zone, thereby causing a death. OCGA § 40-6-46 is a traffic safety statute. This Court has held the violation of such a traffic safety statute regulating the use of highways does not constitute criminal negligence unless such violation is intentional, wilful, or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is committed under circumstances from which probable death or injury to others might be reasonably anticipated. See Abernathy v. State, 191 Ga. App. 350, 351 (2) (381 SE2d 537) (1989).

When read together, OCGA §§ 40-6-46 (c) and 40-6-40 (a) (2) provide that there is no violation of the no-passing zone statute when an obstruction exists making it necessary to drive to the left of the center of the highway, provided that any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard. See OCGA § 40-6-40 (a) (2).

It is well established that a motor vehicle may be such an obstruction when it is operated on a public road in a manner which could not be generally or reasonably anticipated, taking into account all of the circumstances and conditions present at the time and place, and thereby hinders or impedes the proper travel on the road. See Smith v. Lott, 246 Ga. 366, 367 (271 SE2d 463) (1980).

Whether Smith was confronted by an emergency situation and whether the deceased’s automobile posed an obstruction in the roadway which would authorize Smith to cross the double yellow center-line into the left lane were questions for the jury to resolve. Smith, supra; Caffey v. State, 210 Ga. App. 395, 397 (2) (436 SE2d 102) (1993); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (1) (409 SE2d 524) (1991). Our review of the transcript in a light most favorable to the jury’s verdict reveals sufficient evidence from which any rational trier of fact could have found Smith guilty of homicide by vehicle and violation of the no-passing statute beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided March 17,1999.

Davis, Zipperman, Kirschenbaum & Lotito, Seth D. Kirschenbaum, Paul A. Griffin, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A99A0164.
    PATTERSON v. THE STATE.
    (514 SE2d 873)
   Johnson, Chief Judge.

Lee Allen Patterson was found guilty of two counts of aggravated sodomy and one count of child molestation. The victims were his girlfriend’s five-year-old and ten-year-old daughters. He appeals from the convictions entered on the jury’s verdict and the denial of his motion for new trial.

1. Patterson claims the trial court erred in allowing the state to introduce evidence of the victims’ prior consistent statements. Specifically, he argues that the child hearsay statute allows a statement made by a child to be admissible, but it does not allow more than one such statement to be introduced. See OCGA § 24-3:16.

In his brief, Patterson claims that his objections to the evidence can be found at pages 118, 204 and 308 of the trial transcript. None of the objections made on those pages was based on the argument asserted in this enumeration. By failing to object at trial on the ground asserted on appeal, Patterson has waived the issue. See Glover v. State, 230 Ga. App. 795, 797 (1) (498 SE2d 300) (1998); Gentry; v. State, 215 Ga. App. 270, 271 (2) (450 SE2d 304) (1994). We point out, however, that our courts have consistently allowed the introduction of more than one statement per case under the child hearsay statute. See, e.g., Pirkle v. State, 234 Ga. App. 23 (1) (506 SE2d 186) (1998); Smith v. State, 228 Ga. App. 144, 146-147 (3) (491 SE2d 194) (1997); Kapua v. State, 228 Ga. App. 193, 194 (1) (491 SE2d 387) (1997).

2. Patterson contends the trial court erred in excluding testimony indicating that A. P. had falsely accused another man, “Sean,” of molesting her in the past. Patterson sought to introduce evidence purportedly showing that A. P. initially said that Sean had anal and vaginal intercourse with her, but subsequently told a detective that Sean had only rubbed her leg against his penis as she sat on his lap. Patterson also sought to introduce medical evidence showing that an examination of A. P. shortly after the alleged molestation by Sean was normal with no evidence of genital or anal damage or tearing.

Before admitting evidence that the victim previously made a false allegation about sexual misconduct by another, the trial court must first determine that it is reasonably probable the prior claim was, in fact, false. Smith v. State, 259 Ga. 135,137 (1) (377 SE2d 158) (1989). A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” (Punctuation omitted.) Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312) (1992).

A hearing was conducted outside the presence of the jury regarding the previous allegation. A detective testified that A. P. told her that Sean made her rub her leg against his crotch as she sat on his lap. A. P. told the detective that Sean’s penis became erect during the incident and she could feel it through his clothing. A. P.’s mother testified that she remembered the child telling her “something about [Sean] just rubbing her or something,” but did not recall the child saying Sean had intercourse with her. The only evidence Patterson proffered to show that A. P. had accused Sean of having intercourse with her was from a Department of Family & Children Services caseworker. The caseworker had difficulty remembering the case, even after using documents to refresh her memory. She testified that she did not recall talking with A. P. about any allegations concerning Sean, but that she believed, based on her notes, that A. P.’s mother told her that Sean had intercourse with A. P. At the hearing’s conclusion, the trial court stated that if Patterson could show that the child alleged Sean had intercourse with her, the evidence of false allegations would be admissible. The trial court concluded that “[s]o far” Patterson had shown only that the caseworker “may have had a conversation with the child’s mother where the mother may have said that [Sean had intercourse with the child]. And that’s not enough.” We agree.

The caseworker’s equivocal testimony as to what the mother may have said does not establish a reasonable probability that the child’s allegation that Sean rubbed her leg against his penis is false. The testimony has very limited value since the caseworker did not recall much about the allegation. Nor does the fact that there was no physical evidence of penetration require a finding that A. P.’s prior allegation was false. See generally Eason v. State, 215 Ga. App. 614, 615 (1) (451 SE2d 820) (1994). The trial court did not abuse its discretion in determining that there was no probability that the victim falsely accused Sean of sexual misconduct in the past. See Kelley v. State, 233 Ga. App. 244, 251 (5) (503 SE2d 881) (1998); Gilmer v. State, 234 Ga. App. 309, 310-311 (2) (506 SE2d 452) (1998).

3. Patterson claims the trial court abused its discretion in allowing the state to play a videotaped interview of A. P. because it did not have the requisite indicia of reliability. Specifically, he complains that the tape was unreliable because the child had been coached, the statement was made more than a month after the first interview, and the statement contained more allegations than her earlier interview.

The record shows that A. P. was interviewed a second time after she saw Patterson’s face on a news broadcast and told her foster parent that she had “other things” she wanted to say. In the second interview, the child gave more details about the offenses being investigated. A child psychologist testified that a child is often reluctant to give many details about abuse until she feels safe and will typically only tell a little bit at first, then add details later.

Patterson’s claim that A. P. was coached is not supported by any reference to the record. Indeed, a DFACS caseworker testified that the child was not coached and that the child explained that she had been nervous at the first interview and had not thought of everything; some things came to mind afterward. The trial court specifically found that the child did not appear to have been coached. The trial court also found, among other things, that the child was the same age when the second interview was given, the child initiated the second interview to make additional disclosures, the child was talkative, and there was no evidence of threats or promises. The trial court did not abuse its discretion in admitting the evidence. See Thompson v. State, 233 Ga. App. 364, 366 (2) (504 SE2d 234) (1998). Any alleged inconsistencies in the child’s statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility. Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998).

4. Patterson contends the trial court abused its discretion in denying his motion for continuance. He complains that his trial attorneys had less than two and one-half months to prepare for trial and, because they had other cases pending, had insufficient opportunity to investigate the case and prove A. P. previously made false allegations.

The grant or denial of a motion for continuance is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. Mere shortness of time for preparation does not in itself show a denial of the rights of the accused. He must also show harmful error.

(Citations and punctuation omitted.) Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992). We point out that

[t]here is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require.

(Citations and punctuation omitted.) Watkins v. State, 191 Ga. App. 87, 88-89 (1) (381 SE2d 45) (1989). We note that the Supreme Court has held a two-week preparation period for a malice murder and armed robbery trial is not inadequate as a matter of law. Roland v. State, 266 Ga. 545, 546 (3) (468 SE2d 378) (1996). Nor is ten days to prepare for an armed robbery case, or one month for a kidnapping with bodily harm charge inadequate as a matter of law, as this Court has previously held. Harris v. State, 202 Ga. App. 618 (1) (414 SE2d 919) (1992); Green v. State, 193 Ga. App. 894, 896-897 (3) (389 SE2d 358) (1989).

In denying the motion for continuance, the trial court explained that Patterson was being represented by two criminal defense attorneys, one of whom was a former district attorney with twenty years of trial experience. The trial court added that the attorneys were both skillful and would always be busy and have other cases pending. The trial court pointed out that discovery had been provided to Patterson’s counsel and that if, on the eve of trial, someone was sick or could not be located or the attorneys were still trying other cases, the case would be continued.

Furthermore, Patterson has not demonstrated how he was harmed by the denial of his motion for continuance. Although he says he could have proven A. P.’s prior allegations were false, he has not shown how he could have done so. We find no abuse of discretion.

5. Patterson contends the trial court erred in charging the jury on aggravated sodomy when there was no evidence of force. See OCGA § 16-6-2. The element of force was proved by evidence of the victims’ ages. See Luke v. State, 222 Ga. App. 203, 206 (1) (474 SE2d 49) (1996). There was no error.

Decided March 17,1999

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.

       At the same time, the trial court ruled that Patterson would be permitted to introduce evidence of previous false allegations made against two other men, if he could produce probative evidence showing that the child specifically alleged intercourse and there was evidence that intercourse did not occur.


text:
    A99A0555.
    GEORGIA MOUNTAINS COMMUNITY SERVICE BOARD v. CARTER.
    (514 SE2d 86)
   Johnson, Chief Judge.

Virginia Carter was terminated from her employment with the Georgia Mountains Community Service Board pursuant to an approved reduction in force plan. Carter appealed her dismissal to the State Personnel Board. The administrative law judge upheld the dismissal, finding that the reduction in force plan was not initiated to circumvent the State Personnel Board’s rules on dismissal and that the approved, correct calculation of Carter’s retention credits supported the Community Service Board’s decision to eliminate her position. The State Personnel Board affirmed the ALJ’s decision without modification. Carter appealed the decision to the superior court, where the administrative decision affirming Carter’s dismissal was reversed. We granted the Community Service Board’s application for discretionary appeal to determine whether the superior court applied the proper standard of appellate review and whether the superior court substituted its own judgment for that of the State Personnel Board with respect to the weight of the evidence and the credibility of the witnesses.

Viewed in a light most favorable to the Community Service Board, the prevailing party before the State Personnel Board, and with every presumption in favor of the State Personnel Board’s decision indulged, Dept. of Corrections v. Shaw, 217 Ga. App. 33 (456 SE2d 628)(1995), the evidence reveals that Carter, a 13-year state employee, was dismissed from her position as Director of Developmental Disabilities Training pursuant to a reduction in force plan. A “reduction in force” plan seeks to reduce the number of employees of a state merit system-governed employer due to a loss of funding. State Personnel Board Rule 478-1-.19.101. The employees to be separated are determined by a weighing of retention credits of competing employees. State Personnel Board Rule 478-1-. 19.600. Retention credits are derived from prior performance evaluation ratings and length of service. State Personnel Board Rule 478-1-.19.601.

Carter does not challenge the Community Service Board’s right to dismiss her pursuant to the reduction in force plan, but appeals her dismissal based on the Community Service Board’s alleged violation of Rule 478-1-.19.101 of the State Personnel Board rules, which prohibits a reduction in force plan from being used to circumvent the rules on dismissal. Specifically, Carter alleges that she scored the lowest of the four directors subject to termination under the reduction in force plan because her supervisor did not fairly evaluate her in the two annual reviews prior to the implementation of the reduction in force plan. Carter claims that but for her supervisor’s deliberate inaccuracy in completing her performance appraisals, she would not have been eligible to be dismissed under the reduction in force plan.

In her 1995 performance appraisal, Carter received a rating of 3.0 out of a possible 5.0. This rating included the notation “[t]he difference in the score on the rating, as opposed to the prior rating, is the result of a new rater. It should not be seen as a decline in Ms. Carter’s performance.” Carter did not contest this rating because her new supervisor told her that everyone under his supervision would receive a 3.0 to establish a baseline for future performance evaluations. According to Carter, she later learned other employees had received higher ratings more commensurate with their previous ratings. Carter’s previous two ratings under a different supervisor, which did not count for retention credits under the reduction in force plan, were 4.4 and 4.5.

In her 1996 performance appraisal, Carter received a rating of “Did Not Meet Expectations,” which is equivalent to a rating of “0.” After her 1996 appraisal, Carter sought review of the evaluation. According to State Personnel Board rules, if an employee believes that a “Did Not Meet Expectations” rating is arbitrary, capricious or not reflective of the employee’s overall performance, the employee may seek review of the rating by a designated officer of the Community Service Board. State Personnel Board Rule 478-1-. 13.304.3. Carter sought this review, but did not prevail in her grievance. State Personnel Board Rule 478-1-.13.305.5 mandates that “[t]he decision of the designated [reviewing] official shall be final, and the issues dealing with the performance management system shall not be grievable nor appealable to the [State Personnel] Board.”

1. The Community Service Board contends the superior court abused its discretion in reversing the State Personnel Board’s award because there was sufficient evidence to support the Community Service Board’s termination of Carter under the reduction in force plan. We agree and find that the superior court reversed the State Personnel Board’s award using an incorrect legal standard.

Under OCGA § 45-20-9 (m), judicial review of the State Personnel Board’s action is narrowly curtailed. The superior court’s review is confined to the record, and the superior court “shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact.” OCGA § 45-20-9 (m). The evidence must be construed in a light most favorable to the prevailing party, here, the Community Service Board, and the State Personnel Board’s decision must be affirmed if there is any evidence to support it. See Dept. of Corrections v. Glisson, 235 Ga. App. 51, 52 (508 SE2d 714) (1998).

In its reversal of the State Personnel Board, the superior court acknowledged the “any evidence” standard, but failed to apply it. Instead, the court held that the Community Service Board failed to present any evidence to rebut Carter’s allegations that her supervisor deliberately circumvented the rules on dismissal by knowingly and falsely manipulating her retention credits. The superior court found the facts in Carter’s affidavit uncontroverted and, on that basis, reversed the State Personnel Board’s decision.

First, pursuant to State Personnel Board Rule 478-1-.13.305.5, the superior court did not have any authority to review Carter’s performance evaluations or consider her arguments regarding her performance evaluations. The superior court’s duty on appeal was to determine whether there was any evidence to support the State Personnel Board’s decision that (1) the reduction in force plan was valid and not initiated to circumvent the State Personnel Board’s rules on dismissal and (2) a correct calculation of Carter’s retention credits supported the Community Service Board’s finding that she was the correct employee to be dismissed based on the reduction in force plan. Contrary to Carter’s assertion, the superior court was not authorized to look beyond Carter’s earned retention credits and determine whether the awarded retention credits were proper. Any evidence offered by Carter regarding her allegations of supervisor manipulation of her evaluations was untimely and immaterial. The time to review how the retention credits are obtained is mandated by the State Personnel Board rules. Once the review is either waived or unsuccessful, it is final and cannot be appealed. State Personnel Board Rules 478-1-19.304 et seq. and 478-1-.19.305 et seq.

There is no dispute in this case that the actual reduction in force plan was valid. There is no dispute that Carter was the Community Service Board employee subject to the reduction in force plan with the lowest number of retention credits. Moreover, Carter concedes that performance appraisals cannot be appealed to the State Personnel Board. Thus, the superior court erred in reversing the State Personnel Board’s decision.

Decided March 17,1999.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, James P. Robertson, Jr., for appellant.

Sandra L. Michaels, for appellee.

Even if, as Carter asserts, the sole issue on appeal was whether the Community Service Board used the reduction in force plan to circumvent the rules on dismissal, her appeal must also fail. It is uncontroverted that Carter appealed her second appraisal rating, and her appeal failed. Inherent in that action is the fact that her appraisal rating was proper and not inaccurately low. As for her first appraisal rating, any evidence in the record that she was treated differently from other employees is pure hearsay.

Viewed in a light most favorable to the Community Service Board and with every presumption in favor of the State Personnel Board’s decision indulged, we find that the record contains some evidence supporting the State Personnel Board’s decision. The fact that Carter’s “Did Not Meet Expectations” rating was upheld is sufficient evidence that her supervisor did not unfairly or deliberately inaccurately evaluate her. “Neither the superior court nor this court is authorized to reverse an award because in its opinion the prevailing party did not carry the burden of proving a fact necessary to sustain its position if such fact is nevertheless supported by some competent evidence.” (Citations and punctuation omitted.) Shaw, supra at 34 (1).

Having examined the record, we find that Carter’s termination was supported by some evidence and that the State Personnel Board did not abuse its discretion. Glisson, supra; Shaw, supra. Accordingly, the trial court erred in reversing the decision of the State Personnel Board.

2. Based on our decision in Division 1, the Community Service Board’s remaining enumerations of error are rendered moot.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A99A0647.
    REHEIS v. DREXEL CHEMICAL COMPANY.
    (514 SE2d 867)
   Johnson, Chief Judge.

Harold F. Reheis, Director of the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”), filed this discretionary appeal from an order of the superior court. In its order, the superior court affirmed an administrative order finding that Drexel Chemical Company violated the Georgia Air Quality Act (the Act), OCGA § 12-9-1 et seq., but struck the $42,000 civil penalty imposed under OCGA § 12-9-23. Because we find the administrative law judge’s decision to impose the penalty is supported by the evidence, we reverse the superior court’s judgment as to that issue.

1. The EPD argues in its first enumeration of error that the superior court erred in striking the $42,000 civil penalty imposed by the ALJ because evidence exists which supports it.

Under the Administrative Procedure Act, review of an ALJ’s decision by a superior court is done without a jury and is confined to the evidence and testimony received by the ALJ. OCGA § 50-13-19 (g). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19 (h). The superior court’s review of evidentiary issues is limited to determining whether factual findings are supported by “any evidence.” Hall v. Ault, 240 Ga. 585, 586 (242 SE2d 101) (1978).

Reheis v. AZS Corp., 232 Ga. App. 852-853 (503 SE2d 36) (1998).

OCGA § 12-9-23 sets civil penalties for violations of the Act and establishes the procedure for seeking penalties and for determining when and how they should be imposed. OCGA § 12-9-23 (a) sets a maximum penalty of $25,000 per violation per day. OCGA § 12-9-23 (b) provides that

[w]henever the director has reason to believe that any person has violated any provision of this article or any rules or regulations promulgated pursuant to this article or any permit condition or has failed or refused to comply with any final order of the director, he may, upon written request, cause a hearing to be conducted before a hearing officer appointed by the Board of Natural Resources. Upon a finding that such person has violated any provisions of this article or any rule or regulation promulgated pursuant to this article or any permit condition, or has failed or refused to comply with any final order of the director, the hearing officer shall issue his initial decision imposing civil penalties as provided in subsection (a) of this Code section.

When rendering a decision under OCGA § 12-9-23 (b), the ALJ must consider all those factors which are relevant to the decision to impose a civil penalty, including but not limited to those listed in OCGA § 12-9-23 (c) (1) through (6). OCGA § 12-9-23 (c).

In this case, the superior court struck the civil penalty, finding there was no evidence in the record that Drexel had ever been adjudicated in violation of the Act in the past and, therefore, that there was no factual basis for imposing a civil penalty. Further, the superior court concluded there was no evidence showing a “rational analytical approach” in the ALJ’s calculation of the $42,000 penalty. Consequently, the superior court concluded that the ALJ’s assessment of a $42,000 penalty was “arbitrary and capricious.” We disagree.

The ALJ found that Drexel Chemical Company operated a pesticide facility in Cordele, Georgia. There, Drexel stored and formulated pesticides, including malathion, diazanon, dimethoate, parathion, methachlor, vernam, and a variety of other highly toxic chemicals that, if handled improperly, posed a significant threat to human health and the environment. Inhalation of dimethoate and vernam, for example, can cause nervous and muscular dysfunction, paralysis, respiratory failure, and death. Because chemicals like these pose such risks, facilities that are capable of causing or contributing to their airborne emission must obtain an air quality permit and operate in compliance with it. OCGA § 12-9-7.

In September 1990, the EPD issued Drexel an air quality permit with conditions for the construction and operation of a pesticide-mixing facility. From 1991 through 1995, the EPD inspected Drexel’s facility five times. Following each inspection, the EPD both orally and in writing warned Drexel that it was not complying with the conditions of its permit. During three of these visits, EPD inspectors observed “fugitive emissions” — chemicals escaping into the air. During two of these visits, inspectors discovered that a carbon filter bed used for mixing liquid chemicals was not being monitored properly. On January 5,1995, EPD inspectors discovered that Drexel had built and begun operating a new dry blending unit without first obtaining an air quality permit for it. Further, Drexel handled dimethoate improperly, allowing 26 drums of the substance to be stored without lids, exposing the air to toxic fugitive emissions. Drexel also transferred vernam into a storage tank without using proper emission controls. And, Drexel’s carbon bed was still not being properly monitored and maintained. Based upon these violations of the Air Quality Act and Drexel’s permit, the EPD issued Drexel a Notice of Violation on January 27, 1995. The EPD prepared a consent order which provided for an initial monetary settlement of $21,000. Drexel refused to sign it.

On August 1, 1995, the EPD inspected Drexel’s facility again. Upon arriving in Drexel’s parking lot, the inspectors smelled a chemical odor. Once inside the facility, they observed several chemical-handling practices which permitted fugitive emissions. Further, the carbon filter bed was still not being properly monitored. Consequently, on August 21, 1995, the EPD issued Drexel a second Notice of Violation. On October 3, 1995, the EPD inspected the facility again. Although the carbon filter bed was now being monitored weekly, vapors from the liquid-mixing facility were still escaping and could be detected by their odor from the parking lot. Therefore, the director filed a request with the Office of State Administrative Hearings to impose a $42,000 penalty upon Drexel.

Based on these factual findings, the ALJ concluded that Drexel was in violation of the Act, DNR Rules and Regulations, and the conditions of its permit in six different ways on at least three different days. Most significantly, Drexel violated OCGA § 12-9-7 (a), DNR Rules 391-3-1-.03 (1) (a) and -.03 (2) (a) and condition 10 of its permit by constructing and operating its dry blending unit before obtaining a permit. It violated OCGA § 12-9-7 (a) and conditions of its permit by storing and handling toxic chemicals without proper emission controls. It violated OCGA § 12-9-7 (a), DNR rules, and the conditions of its permit by failing to properly monitor the carbon filter bed on its liquid-mixing systems. The superior court found, and we agree, that evidence exists to support the ALJ’s findings as to the existence of these violations.

Because the ALJ found violations of the Act, DNR rules, and the conditions of Drexel’s permit, Drexel was liable for a civil penalty not to exceed $25,000 per day per violation. OCGA § 12-9-23 (a). When deciding whether to impose a civil penalty and, if so, in what dollar amount, the ALJ was required to take into account any factors it found relevant, including, but not limited to, those specified in the statute. OCGA § 12-9-23 (c). In this case, the ALJ specifically considered each of the factors set forth in OCGA § 12-9-23 (c) (1) through (6) and found that evidence adduced on four of these factors weighed in favor of imposing a penalty against Drexel. For example, the ALJ found that Drexel failed to take all feasible steps or procedures necessary or appropriate to comply or to correct the violation or failure. OCGA § 12-9-23 (c) (3). Further, Drexel had a history of failing to comply with “statutes, regulations, orders, or permits administered, adopted, or issued by the director.” OCGA § 12-9-23 (c) (4). These findings are supported by the record evidence and are sufficient to support the imposition of a civil penalty. Contrary to Drexel’s argument, there is nothing in OCGA § 12-9-23 (c) that required the ALJ to find that Drexel had previously been adjudicated in violation of the Act before a civil penalty could be imposed for the present violations. See OCGA § 12-9-23 (c).

Decided March 17,1999.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Isaac Byrd, Senior Assistant Attorney General,

Diane L. DeShazo, Assistant Attorney General, for appellant. Roberts, Rainwater & Ingram, David N. Rainwater, for appellee.

The ALJ’s decision to impose a $42,000 civil penalty was supported by the evidence that Drexel was in violation of the Act in six different ways and on at least three different days. Further, the penalty did not exceed that authorized by law. OCGA § 12-9-23 (a). In fact, we agree with the ALJ that the penalty imposed was “only a small percentage of the maximum authorized under law given the number of violations and the length of time” they were allowed to exist. For these reasons, the superior court erred in striking the $42,000 penalty because it was amply supported by the evidence. See Reheis v. AZS Corp., supra. Further, because the ALJ’s decision to impose a civil penalty was rationally based on the record evidence and the factors set out in OCGA § 12-9-23 (c), the decision was neither arbitrary nor capricious. See Sawyer v. Reheis, 213 Ga. App. 727, 729 (2) (445 SE2d 837) (1994). Because the superior court erred in substituting its judgment for that of the ALJ on the imposition of a civil penalty, we reverse.

2. Our reversal of . the superior court’s judgment renders it unnecessary for us to address the EPD’s remaining enumerations of error.

Judgment reversed.

McMurray, R J, and Ruffin, J., concur.


text:
    A99A0765.
    THOMPSON v. THE STATE.
    (514 SE2d 870)
   Johnson, Chief Judge.

Bruce Judge Thompson was tried by a jury and found guilty of burglary, possession of burglary tools and alteration of a license plate. He appeals from the judgment of conviction entered upon the jury’s verdict. We affirm.

1. Asserting that the verdict is contrary to the evidence, the verdict is strongly against the weight of the evidence, and the verdict is contrary to law and the principles of justice and equity, Thompson argues that the trial court erred in denying his motion for new trial. We disagree.

Viewed most favorably to support the verdict, the evidence shows that while driving across an interstate overpass, a Rockdale County deputy sheriff heard the sound of an alarm coming from a convenience store located about 100 yards away. As the deputy approached, he saw a black car, later determined to be Thompson’s, parked by the front door of the store. The driver’s door of the car was open. The deputy noticed that there was a large hole in the glass of the store’s front door. Broken glass and cartons of cigarettes were scattered about the sidewalk and inside the store. As the deputy moved closer, he saw Thompson bent over between the store and his car. Thompson’s arms were extended toward some of the cigarette cartons, and he appeared to be trying to pick them up. Later, the deputy saw several slightly bleeding abrasions on Thompson’s forearm.

The deputy found a plastic bag containing two bricks near the brake pedal of Thompson’s car, a ripped, gray plastic bag lying on several cartons of cigarettes in the store, and a piece of bloody glass at the base of the broken door. A forensic serologist testified that the blood had been deposited by Thompson, as laboratory testing established that only one person in fifty billion could have deposited the blood on the glass found at the scene. Thompson’s latent fingerprint was also found on one of the cigarette cartons. The arresting officer also observed that two numbers of the license plate on Thompson’s car had been covered with duct tape. During a subsequent search of Thompson’s vehicle pursuant to a search warrant, officers found a ski mask, two pairs of gloves, gray plastic bags similar to the torn bag found inside the store, and a roll of duct tape similar to the tape on Thompson’s license plate. Under the circumstances of this case, the jury could conclude that the ski mask, gloves, plastic bags, and bricks were tools used in the commission of a crime as alleged in the indictment. Compare Kennon v. State, 232 Ga. App. 494, 496 (3) (502 SE2d 330) (1998); Manous v. State, 205 Ga. App. 804, 805 (1) (423 SE2d 721) (1992); see also Fuller v. State, 165 Ga. App. 55, 57 (2) (299 SE2d 397) (1983).

Having considered the transcript of evidence in a light most favorable to the jury’s verdict, we find ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Thompson was guilty of the offenses of burglary, possession of burglary tools, and alteration of a license plate, and the jury could conclude that the evidence excluded every reasonable possibility except that of Thompson’s guilt. See Etheridge v. State, 228 Ga. App. 788 (1) (492 SE2d 755) (1997); Manous v. State, supra at 805 (1).

2. Thompson contends the trial court erred in allowing witnesses who had not been listed on the state’s witness list to testify during the state’s rebuttal. We disagree.

Thompson elected to avail himself of the statutory rules of discovery. See OCGA § 17-16-2 (a). The state provided Thompson with various items of discovery, including a list of its witnesses. During trial, the state called three rebuttal witnesses who had not been included in any witness list provided to Thompson. Relying upon Allison v. State, 256 Ga. 851, 853 (8) (353 SE2d 805) (1987), Thompson contends that the trial court erred in allowing these witnesses to testify.

In Allison, the Supreme Court reversed the defendant’s child molestation conviction because the state called three expert witnesses in rebuttal whose names had not been provided to the defendant. The Supreme Court found that these witnesses “were an important part of the state’s main case, rather than true rebuttal witnesses.” Id. at 854. It also found that the state had anticipated the defendant’s testimony and, because of this, had engaged in “precisely the type of prosecutorial conduct that OCGA § 17-7-110 is designed to prohibit.” Id. The anticipation of the defendant’s testimony, however, was not the controlling factor in Allison. Rather, the case was reversed because the state purposefully withheld the identity of these important witnesses and thereby effectively deprived the defendant “of the opportunity to prepare a defense relative to their testimony.” Id. at 853 (8).

Rebuttal testimony should not be excluded merely because the state could have introduced it during its main case. Each case must be decided on its own merits. It is the importance of the evidence to the state’s main case and whether the withholding was intended or designed to deny the defendant an opportunity to prepare his defense in relation to that evidence which will determine if reversible error has occurred. See Allison, supra.

According to Thompson, he stopped at the store, discovered that the store’s audible alarm system had been activated, and saw cartons of cigarettes and other items lying outside the store. After asking if anyone was there and receiving no response, he decided to wait at the crime scene for the police to arrive. Within approximately two minutes, a deputy sheriff arrived and arrested him for breaking into the store. The state subsequently called three witnesses to rebut Thompson’s testimony regarding the amount of time it took the deputy to arrive at the crime scene. The testimony of the state’s three witnesses tended to establish that the deputy arrived within seconds after the alarm sounded. The jury could infer from this testimony that the police arrived so quickly that no one but Thompson could have committed the burglary, contrary to Thompson’s claim. This is classic rebuttal evidence.

Decided March 17,1999.

James S. Purvis, for appellant.

Richard R. Read, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.

In response to Thompson’s testimony at trial, the prosecutor stated for the record that he did not know the rebuttal witnesses existed until the day before they were called to testify, and that he decided to use them based only on his presumption that Thompson would testify. This case is distinguishable from Allison, supra. The record does not affirmatively establish that the state withheld the identity of witnesses important to the state’s main case in order to lull Thompson into testifying or to deny him the opportunity of preparing a defense relative to such testimony. As a general rule, a trial court has discretion whether to admit or exclude the testimony of rebuttal witnesses whose identities have not previously been revealed. See Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991); Gregg v. State, 216 Ga. App. 135, 136 (453 SE2d 499) (1995) (physical precedent only). Thompson has failed to show that the trial court abused its discretion by allowing these three witnesses to testify as rebuttal witnesses for the state. See Cook v. State, 199 Ga. App. 523, 524 (2) (405 SE2d 341) (1991).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A0766.
    WATKINS v. THE STATE.
    (514 SE2d 244)
   McMurray, Presiding Judge.

A jury found Richard A. Watkins guilty of public indecency. Watkins appeals from the order denying his motion for new trial. He argues that the evidence, particularly that adduced on the element of criminal intent, was insufficient to support his conviction. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that during the early evening of August 28, 1997, Watkins exposed his erect penis to Crystal Donaldson as he drove his car by her in a mall parking lot. Donaldson, who was employed at a mall store, testified that she noticed a late-model, gold colored car circling the parking lot as she walked from the store to her parked car. As she was returning to the store, she stopped to allow the car to pass in front of her on its way toward Wal-Mart. As the car went by, she observed the driver. Donaldson described the driver as a white male in his late 30s with dark hair, a mustache, and a red tank top. The driver’s erect penis was exposed. Donaldson saw the driver park in the Wal-Mart parking lot and go inside that store.

Donaldson immediately called the police. The responding officer found in the parking lot next to Wal-Mart a car matching the one Donaldson described. While another officer watched the car, the responding officer went inside the Wal-Mart and located a man matching Donaldson’s description of the driver. The man, who identified himself as Richard Watkins, denied exposing himself to Donaldson. However, he did admit to reading pornographic magazines as he sat in his car in the parking lot. Donaldson identified Watkins to the police and at trial as the man who exposed himself to her.

The State also introduced evidence of a similar transaction. On April 27, 1995, Denise Crowder and Shirley Kent observed a gold colored car circling the Texaco station where they had stopped to use a pay phone. Crowder testified that as she drove away, she and Kent observed the gold colored car following. Crowder slowed her car at the entrance to her subdivision, allowing her pursuer to pass. As she attempted to turn her car around, Crowder saw the driver of the gold colored car get out of his car and walk toward her. The man stopped in the middle of the street facing Kent and Crowder, exposed his penis, and appeared to dance. Crowder got the man’s tag number and reported the incident to police. The car was registered to Watkins. After both Crowder and Kent picked Watkins’ picture from a photographic lineup, he was arrested and charged with public indecency. He pled guilty to the charge in the similar transaction case.

“The crime of public indecency as defined in OCGA § 16-6-8 consists of the performance of certain proscribed acts in a public place. The acts include a lewd exposure of the sexual organs or a lewd appearance in a state of partial or complete nudity. OCGA § 16-6-8 (a).” Minor v. State, 232 Ga. App. 246 (501 SE2d 576) (1998). “The exposure must be intentional of course and not merely inadvertent or accidental.” Byous v. State, 121 Ga. App. 654, 655 (175 SE2d 106) (1970). Given the similar transaction evidence and the evidence that the exposure occurred while Watkins was driving, while his penis was erect, and after he had admittedly viewed pornographic magazines, the jury could reasonably infer that Watkins exposed himself to Donaldson intentionally. The evidence was sufficient to enable a rational trier of fact to find Watkins guilty of the offense of public indecency beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Minor v. State, 232 Ga. App. 246, supra.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.

Decided March 17,1999.

James S. Purvis, for appellant.

Richard R. Read, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A98A1978.
    METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. CRUMP et al.
    (513 SE2d 33)
   Smith, Judge.

We granted this application for interlocutory appeal to consider whether an individual who has recovered a judgment against a tortfeasor may garnish the tortfeasor’s unasserted and unassigned claim against his own insurance company for failure to settle within policy limits. Because we agree with appellant that the judgment creditor here had no standing to pursue this garnishment, we reverse.

Appellee Joyce Crump brought an action for damages against James Smith arising out of an automobile collision. At the time of the collision, Smith held an insurance policy with appellant Metropolitan Property & Casualty Insurance Company with a liability limit of $25,000 per person. In a jury trial, Crump obtained a judgment against Smith in excess of $1,000,00o. Metropolitan tendered the liability limits of its policy, plus interest, into the registry of the court.

Crump then filed a garnishment action against Metropolitan in DeKalb State Court, seeking to garnish Smith’s potential claim against Metropolitan for failure to settle within policy limits in order to satisfy the remainder of her judgment. The record does not reveal any suit, claim, settlement, release, or assignment between Smith and Metropolitan; it is a potential claim only.

Metropolitan moved to dismiss the garnishment on the basis that Crump lacked standing to assert Smith’s inchoate claim, and Crump moved to strike the portion of Metropolitan’s answer asserting that defense. The trial court denied Metropolitan’s motion to dismiss and granted Crump’s motion to strike. We granted Metropolitan’s application for interlocutory review, and this appeal followed.

It is well established that a claimant in an automobile collision case has no “employment, contractual, or other relationship” with the other driver’s liability insurer, beyond any claim he or she may have under the terms of the policy itself. Superior Ins. Co. v. Dawkins, 229 Ga. App. 45, 50 (3) (494 SE2d 208) (1997). See also Nationwide Mut. Ins. Co. v. Turner, 135 Ga. App. 551 (218 SE2d 276) (1975) (third-party uninsured motorist may not maintain action against other motorist’s liability insurer for failure to settle within policy limits). Here, garnishment has been employed as an alternative means of asserting a claim against the insurer.

The use of garnishment in this manner is controlled adversely to Crump by this court’s decision in Francis v. Newton, 75 Ga. App. 341, 344 (1) (43 SE2d 282) (1947), a garnishment action based upon essentially identical facts. In Francis, as here, the injured party in an automobile collision obtained a judgment, then served a garnishment on an insurance company based on that insurer’s failure to settle the injured party’s claim within policy limits. This court held that an insured may make a claim against his insurer for negligence, fraud, or bad faith in failing to compromise a covered claim, but

it does not follow that a person injured by the insured and who is not a party to the insurance contract may complain of the negligence or bad faith of the insurer towards its policyholder in failing to adjust or compromise a claim against such policyholder, for the duty of the insurance company to use ordinary care and good faith in the handling of a claim against its insured arises out of the relationship between the insurer and the insured created by the contract or policy of insurance, and there is no fiduciary relationship or privity of contract existing between the insurer and a person injured by one of its policyholders. [Cit.]

Id. at 344. This decision recently was cited with approval in Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191 (489 SE2d 53) (1997), observing that Ross, a judgment creditor, had no right to assert the claims of Barber, the insured, for Barber’s insurance company’s bad faith failure to settle, “as Ross, who was not an insured and had received no assignment of Barber’s claim, had no standing to do so. See Francis v. Newton, [supra at] 344 (1).” Id. at 197, n. 2.

Moreover, this court also has held:

It is well-settled law in this State that the defendant in a tort action is not subject to garnishment until the tort claim is reduced to judgment. . . . [Although one may have the right to bring a tort action against another, the tort-feasor is not subject to garnishment at the instance of a creditor of the injured party. . . . Garnishees are required to answer as to indebtedness and as to assets or property in hand, not as to the torts they may have committed against the defendant in the suit. . . . The defendant in an action for a tort is not subject to garnishment [until] final judgment is recovered.

(Citations and punctuation omitted.) Brenau College v. Mincey, 82 Ga. App. 429, 431 (61 SE2d 301) (1950). And it is equally well established that a claim for bad faith refusal to settle within policy limits sounds in tort, not contract. McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1) (310 SE2d 513) (1984); Alexander Underwriters Gen. Agency v. Lovett, 182 Ga. App. 769, 772-773 (2) (357 SE2d 258) (1987).

Crump cites language from Jefferson Ins. Co. &c. v. Dunn, 224 Ga. App. 732, 739 (5) (a) (482 SE2d 383) (1997), rev’d, 269 Ga. 213 (496 SE2d 696) (1998), stating that a chose in action is subject to garnishment. While the opinion in Jefferson goes on to state that, in that case, a judgment creditor could treat a potential claim by the judgment debtor against its insurer as a chose in action, any conclusion that such a claim is subject to garnishment is obiter dicta as well as contrary to the authority cited above. Furthermore, Jefferson is distinguishable on its facts.

In Jefferson, the plaintiff judgment creditor brought a claim against his debtor’s insurance company, claiming conspiracy and fraudulent conveyance. He alleged that the debtor and its insurance company had conspired to enter into a fraudulent release of all claims, including any claim for bad faith failure to settle within policy limits, while the debtor was insolvent, and presented evidence supporting the existence of a conspiracy. 224 Ga. App. at 734-735. This court held that the release was a forbearance to bring a doubtful claim and constituted valuable consideration for purposes of a fraudulent conveyance. Id. at 739 (5) (a). In reversing, the Supreme Court held that a policy exclusion applied, so no valuable asset was fraudulently transferred. 269 Ga. at 215-216. In this case, in contrast, Crump has no direct claim against the insurer for fraudulent conveyance or conspiracy to defraud.

Any statement made in Jefferson regarding the susceptibility to garnishment of choses in action is purely dicta, as Jefferson did not involve a garnishment. “[Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.” (Citation and punctuation omitted.) Little v. Fleet Finance, 224 Ga. App. 498, 501 (1) (481 SE2d 552) (1997).

Decided February 22,1999

Reconsideration denied March 18,1999

Womble, Carlyle, Sandridge & Rice, Jonathan M. Engram, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Linda A. Klein, Stephen M. Ozcomert, for appellees.

For these reasons, Crump lacked standing to bring a garnishment claim against Metropolitan based upon an inchoate, potential claim in tort that had never been made, sued or assigned by the judgment debtor, Smith. Accordingly, the trial court erred in striking Metropolitan’s defense and denying Metropolitan’s motion to dismiss.

Judgment reversed.

Johnson, C. J., and Barnes, J., concur.

       That judgment was affirmed in Smith v. Crump, 223 Ga. App. 52 (476 SE2d 817) (1996).

       Metropolitan cites rulings from twenty-six states and four federal courts agreeing with Francis, but in the presence of this controlling Georgia authority, it is not necessary to recite those decisions.

       Crump asserts that Francis is inapplicable because it involves “demurrer practice.” But Francis is not an appeal of a demurrer, but on the grant of a nonsuit at the close of plaintiffs evidence, the equivalent of a directed verdict. See Bendle v. Ortho Mattress, 133 Ga. App. 575, 579 (211 SE2d 618) (1974).

       We note that the trial court’s assertion that provisions of the Workers’ Compensation Act may be applied to this case, by analogy, “spirit,” or otherwise, is without merit. This action does not fall within the purview of that Act. See OCGA § 34-9-1.


author: Eldridge, Judge.

text:
    A99A0520.
    LEON v. THE STATE.
    (513 SE2d 227)
   Eldridge, Judge.

Defendant Everado Leon challenges his May 1997 convictions for child molestation, enticing a child for indecent purposes, and simple battery. We affirm.

The facts of this case, viewed in favor of the verdict,* are as follows: On February 24, 1997, Leon’s stepdaughter, who was eleven years old at the time, told two friends at school that Leon had fondled and molested her on the previous Saturday, February 22,1997, while her mother was at work. She reported the same information to her school counselor, who encouraged her to tell her mother about the abuse. After the victim reported the abuse to her mother, the mother called the police from a neighbor’s house. A police officer arrived and questioned the victim. The officer was unable to communicate with Leon, who speaks Spanish, so he turned the case over to a detective and a formal investigation ensued.

The victim consistently described the same events to her friends, school counselor, mother, and neighbor, as well as to the police officers, other investigators, and prosecutors. She reported that, while she was at home alone with Leon on February 22, 1997, he told her to go into the bedroom that he shared with his wife, the victim’s mother. When the victim refused, he slapped her across the face and pulled her hair. She went into the bedroom and wrapped a blanket around her body. Leon lay down next to her and began to fondle her genitals; he told her that he had to check to make sure she had not been with any men. When she cried out and resisted, Leon slapped her again. He then dragged her by her arms and hair into the bathroom. Leon turned on the radio to a high volume. He pushed her against the wall and fondled her. He then lifted the victim up, put her on the edge of the sink, pulled down her underwear, spread her legs, and attempted to insert his penis into her vagina. She continued to resist, and he was unable to consummate the act. Leon then forced her to assist him in masturbating; he slapped her every time she took her hand away from his penis. After the act was complete, he apologized to her and told her not to tell anyone, as he had done nothing wrong.

After the victim reported the abuse and the investigators interviewed her, Leon and the victim’s mother were instructed to come to the Sheriff’s office. The investigators questioned Leon, a foreign national who speaks little English, with the assistance of a Spanish-speaking deputy sheriff He was given his Miranda rights in Spanish, and proceeded to give a statement to the investigators. In the statement, Leon admitted touching the victim’s genitalia and slapping her, but said that the victim had taken off her panties, had rubbed against him, and had touched his penis. Leon also admitted that he apologized to the victim later and “swore to her that I would never touch her again because I know it was wrong.” Following this statement, Leon was arrested and indicted. The trial court appointed counsel to represent Leon at trial.

A jury trial was conducted on May 1, 1997. The victim’s testimony against Leon was consistent with her pre-trial statements. Leon testified on his own behalf, during which testimony he denied all of the allegations and asserted that the victim, his wife, and police investigators had lied. The jury convicted Leon on all counts. On May 7, 1997, trial counsel filed a motion for new trial on general grounds. Leon secured the services of new counsel on June 11, 1997. This counsel filed amendments to the motion for new trial on August 22, 1997, and again on October 14, 1997. The trial court conducted an evidentiary hearing on the motion and amendments on October 17, 1997, but did not rule immediately on the motion.

Between October 1997 and January 1998, Leon’s brother paid for the victim to fly to California, where Leon’s family lived. On January 5, 1998, while the victim was staying with Leon’s relatives, she signed an affidavit in which she recanted the entirety of her trial testimony. On February 9, 1998, Leon’s counsel filed a third amendment to the motion for new trial or, in the alternative, an extraordinary motion for new trial based on the alleged discovery of new evidence. Defense counsel asserted that Leon was entitled to a new trial because the victim recanted her trial testimony and because the State allegedly knew or should have known that the victim was lying when she testified. The State moved to dismiss the third amendment to the motion for new trial to the extent that it was based upon the victim’s recantation or any alleged prosecutorial misconduct. The trial court conducted another evidentiary hearing on the motion on July 30, 1998, and allowed defense counsel to question the victim regarding her pre-trial statements and trial testimony, as well as the circumstances surrounding her recantation. Following such testimony, the trial court granted the State’s motion to dismiss, ruling that defense counsel had failed to present any evidence of prosecutorial misconduct. On August 26, 1998, the trial court issued a comprehensive, 17-page, written order denying Leon’s motion for new trial based upon the grounds presented in the original motion and the amendments. Leon appeals. Held'.

1. In his first enumeration, Leon asserts that his constitutional rights to a fair and impartial jury and individual voir dire of each juror were violated by the jury selection procedure utilized in the Superior Court of Whitfield County. See OCGA § 15-12-133. In his brief, defense counsel speculates that, because of alleged unspecified deficiencies in trial counsel’s voir dire of the jury pool,

there perhaps were jurors whose own child or a friend’s had been molested, those who found child molestation so distasteful that they could not be objective, or those who might be upset with the huge influx of Hispanic persons into Whitfield County . . . that a guilty verdict was one way to have one less Hispanic in the county.

However, defense counsel admits that there is no evidence in the record to support such speculation. Further, the record clearly shows that the trial court did not deny trial counsel the opportunity to voir dire the entire jury panel.

In the Superior Court of Whitfield County, juries are selected for several trials on the same day, even though some of the trials may not start until later in the week. Leon’s case was fourth on the trial calendar for the week of April 28, 1997, and the trial commenced on Thursday, May 1,1997. The procedure utilized by the trial court is as follows: panels of 12 jurors each are brought into the courtroom and juries are selected for the first case on the trial calendar of that week. Jurors who are not chosen for the first case are included in subsequent panels. Therefore, in Leon’s case, 11 of the 12 jurors on the panel challenged in this appeal had been questioned earlier in the day by the State and Leon’s trial counsel in other cases.

During voir dire, after the trial court and State had questioned the jury panelists, trial counsel told one jury panel that “everybody that’s on this panel except for one, Mr. Peeples, has been on my panels earlier. So, I’m not going to go over the same questions I went over with you earlier.” During the motion for new trial, trial counsel expounded on why he did not ask individual panel members the same questions that he had asked them earlier in the day while selecting a jury for another case.

[NJormally I have a litany of questions . . . that I ask to [the jurors], and I get the same [jurors] on the same panels again. I don’t need to ask those continuing questions again. . . . I’m not going to waste [the jury’s] time or my time or the judge’s time on that. My client doesn’t want to sit there and listen to the same questions either.

Accordingly, the record is clear that trial counsel — not the trial court — limited his voir dire of the jurors as a matter of trial strategy. See Reid v. State, 129 Ga. App. 657, 658 (1) (a) (200 SE2d 454) (1973) (the right to individual voir dire of jurors may be waived by failure to exercise it). There is no merit to this enumeration.

2. In his second enumeration, Leon claims that the trial court erred in overruling his objection to the State’s questioning of the witness and her mother regarding Leon’s physical abuse of the mother, as well as in allowing the State to label Leon as a “wife-beater” in closing arguments. Leon asserts that questions regarding whether he abused his wife elicited irrelevant character evidence and were prejudicial to the issues underlying his case.

(a) However, trial counsel initiated this line of testimony when he asked the victim, “Did you talk with your mother about Mr. Leon leaving the house?” When the victim replied that she had had such discussions with her mother, trial counsel asked if it was “just because you didn’t like the way he punished, or for any other reason?” (Emphasis supplied.) On cross-examination, the State followed up on this inquiry by asking the victim, “What were those reasons you discussed with your mom about leaving Mr. Leon?” The victim answered “He hit me a lot and he hit. . . .” When trial counsel objected, the trial court held that trial counsel had “brought up conduct within the household dynamics among the parties. . . . You have undertaken to establish that she had other motives” for trying to get Leon to leave the house. Pursuant to further questioning by the State, the victim stated that Leon hit her and her mother and that this caused the victim to be afraid of him.

During his direct examination, Leon admitted that he disciplined the victim by hitting her with a belt because she had friends that did not meet his approval. During the State’s cross-examination of Leon, the State asked, “Mr. Leon, do you beat your wife?” Leon responded, “Yeah I have hit her two or three times . . . just a little slap because she would go to the bar.” During his testimony, Leon repeatedly attempted to interject his theory of the case, i.e., his wife convinced the victim to make these allegations so that he would go to jail and she could be with other men. However, Leon later denied that he abused his wife. Trial counsel did not object to these inquiries or the resultant admissions.

During the hearing on Leon’s motion for new trial, trial counsel testified that he asked the victim about her reasons for wanting Leon to move out because the “main thrust of my defense was that the child had made [the molestation incident] up in order to get Mr. Leon out of the house.” Defense counsel did not question trial counsel during the hearing about why he did not object to the State’s cross-examination of Leon or why he did not move for a mistrial.

In rejecting this basis for a new trial, the trial court properly found that trial counsel had opened up the issue of the victim’s motivations regarding the molestation allegations and that Leon repeatedly interjected such motivations during his testimony. See Jordan v. State, 267 Ga. 442, 447 (4) (480 SE2d 18) (1997); Smith v. State, 258 Ga. 181, 182 (1) (366 SE2d 763) (1988). Further, after reviewing the entire record of this case, this Court finds that, even if the admission of Leon’s recent spousal abuse was error, it was harmless. See OCGA § 24-9-20 (b); White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

(b) As to Leon’s argument that such evidence was irrelevant and “wholly immaterial” because Leon was charged with child molestation, we note that Leon also was charged with battery for repeatedly slapping the victim when she would not cooperate. Evidence of Leon’s past abuse of the victim — and her mother, if otherwise admissible — is clearly relevant to the issues before the jury. See OCGA §§ 24-2-1; 24-2-2.

(c) As to the State’s reference to Leon as a “wife-beater” during closing argument, this Court finds that the use of such label does not constitute reversible error. Prosecutors are given wide latitude during argument in the use of illustrations and figurative speech when such rhetoric is based on reasonable inferences from the evidence presented at trial. Davis v. State, 178 Ga. App. 357, 359-360 (343 SE2d 140) (1986); see also OCGA § 17-8-75; Ortiz v. State, 222 Ga. App. 432 (474 SE2d 300) (1996); Green v. State, 209 Ga. App. 274, 275 (4) (433 SE2d 383) (1993). “Careful scrutiny of the transcript of the case sub judice, together with examination of relevant case law, indicates that the prosecutor’s remarks, while arguably offensive, do not rise to the level of reversible error.” (Emphasis in original.) Davis v. State, supra at 360. The remarks alluded to facts in evidence, i.e., the victim’s assertions of spousal abuse and Leon’s admission to such abuse.

3. Leon asserts that, during the second hearing on his motion for new trial, the trial court improperly denied defense counsel the opportunity to “fully develop whether the prosecutor knew or should have known prior to her testimony that the victim was lying in her trial testimony.” In support of his assertion of such prosecutorial misconduct, defense counsel presented the victim’s affidavit demonstrating her post-trial recantation. Additionally, defense counsel attempted to show the State’s alleged prior knowledge by questioning the victim during the second hearing.

(a) The victim unequivocally testified during the hearing that she never indicated to the police, prosecutors, or anyone else prior to trial that she was lying. In fact, the victim admitted that she had always reported the facts of the abuse prior to trial in a manner that was consistent with her trial testimony. Following the victim’s hearing testimony, the trial court questioned defense counsel regarding whether he had any other evidence of prosecutorial misconduct. Counsel responded that the victim’s mother was prepared to testify that she told police officers investigating the incident that she did not know who to believe — Leon or her daughter — and did not want Leon to be prosecuted. The trial court then correctly found that, “[b]ased upon the victim’s unhesitating and unqualified [hearing] testimony that she never told anyone that her report of child molestation to various people and her testimony at trial was false,” there was no evidence to support Leon’s speculation that the prosecution knew or should have known that the victim was “lying.” Accordingly, he properly refused to allow defense counsel to continue questioning witnesses based upon the possibility that such examination “may well lead to evidence” of prosecutorial misconduct. See Cato v. State, 195 Ga. App. 619 (1) (394 SE2d 413) (1990). There was no error.

(b) Further, we must reiterate that “[t]he law is settled that a post-trial declaration by a State’s witness that [her] former testimony was false is not a ground for a new trial.” (Citations and punctuation omitted.) Karvonen v. State, 205 Ga. App. 852 (1) (424 SE2d 47) (1992). See also Drake v. State, 248 Ga. 891, 894 (287 SE2d 180) (1982); Cato v. State, supra. In addition, to the extent that Leon’s motion could be framed as an extraordinary motion for new trial based upon newly discovered evidence, it is clear that the recantation of the victim would serve only to impeach her previous testimony. Accordingly, such recantation does not qualify as a basis for the grant of an extraordinary motion for new trial. See Dick v. State, 248 Ga. 898, 900-901 (287 SE2d 11) (1982) (enumerating the six requirements to support an extraordinary motion for new trial).

4. In his fourth enumeration, Leon asserts that the trial court erred in denying his claim of ineffective assistance of counsel. In its order denying the claim, the trial court expressly found that trial counsel did not render ineffective assistance. Leon presents several alleged bases for this enumeration on appeal.

There are two components to a claim for ineffective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance [, i.e., there was a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance]. Both components must be shown before we can find that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. . . . Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.

(Citations and punctuation omitted.) Karvonen v. State, supra at 852-853 (2). See also Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984).

Further,

“[a] trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) [(1996)]. The trial court’s findings in this case also were supported by the presumption that in the absence of contrary evidence, counsel’s actions are presumed strategic in nature. Adams v. State, 217 Ga. App. 532, 533 (2) (458 SE2d 171) [(1995)], citing Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188)

[(1992)]; Stanley v. Zant, 697 F2d 955 (llth Cir. 1983), cert. denied, 467 U. S. 1219 (104 SC 2667, 81 LE2d 372) (1984).

Milliken v. State, 230 Ga. App. 810, 813 (498 SE2d 127) (1998). See also Strickland v. Washington, supra; Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). The trial court’s findings here were not clearly erroneous.

(a) Pursuant to our decision in Division 1, supra, there was no basis for an objection as to the trial court’s alleged refusal to allow counsel to individually voir dire jurors. Therefore, trial counsel’s failure to object thereto did not constitute ineffective assistance.

Further, the trial court specifically found that trial counsel “conducted a reasonable amount of voir dire, and advisedly refrained from asking the same questions over to the same jurors, a strategy, which if he had done, would have been more likely to antagonize jurors than to elicit further helpful information.” There was no error.

(b) The record does not support defense counsel’s allegation that trial counsel made only a “feeble attempt” to suppress Leon’s written confession during a Jackson-Denno hearing. On the contrary, the record demonstrates that the trial counsel raised the voluntariness issue and that he extensively cross-examined the investigating officers as to the circumstances surrounding Leon’s written statement.

(c) Pursuant to our decision in Division 2, supra, trial counsel’s failure to move for a mistrial upon the admission of evidence and arguments about Leon’s physical abuse of his wife does not constitute ineffective assistance. As the trial court admitted such statements over the objection of trial counsel, his subsequent failure to move for a mistrial presumably was a matter of trial strategy. Further, defense counsel is unable to show that the outcome of the trial would have been different but for trial counsel’s failure to move for a mistrial, i.e., that the trial court would have granted the motion.

(d) Trial counsel’s selection as a member of the grand jury which eventually indicted Leon without the assistance or participation of trial counsel does not support a finding of ineffective assistance.

To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel “actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” . . . Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.

(Citations and punctuation omitted.) Sartin v. State, 223 Ga. App. 759-760 (479 SE2d 354) (1996).

As trial counsel explained during the hearing on the motion for new trial, when he was called for grand jury duty, he approached the county’s District Attorney and asked to be excused because of the potential for a conflict of interest in cases for which he might be assigned as defense counsel. It is clear from the record that counsel did not serve on the grand jury except in a single session which did not involve Leon and which did not occur until after Leon was indicted. Further, it is clear that counsel did not, in any way, participate in the consideration of the charges against Leon.

Accordingly, defense counsel has failed to demonstrate that trial counsel’s extremely limited and totally unrelated service on a grand jury presented an actual conflict of interest. However, even if these circumstances presented an actual conflict of interest, defense counsel has not shown how Leon was prejudiced thereby. See O’Melia v. State, 255 Ga. 476, 479 (4) (339 SE2d 586) (1986) (finding that defense counsel’s concurrent service as a county solicitor, while presenting an actual conflict, did not entitle the defendant to a new trial, as no prejudice was demonstrated).

(e) Leon’s remaining assertions of ineffective assistance either concerned issues of trial strategy or presented factual issues that were decided adversely to Leon in the trial court’s denial of his motion for new trial. Accordingly, as there is sufficient evidence in the record to support the trial court’s ruling, such ruling is not clearly erroneous. Milliken v. State, supra at 813. These allegations are without merit.

5. Finally, Leon claims that the trial court erred in sentencing him on both the child molestation and enticement charges, asserting that, under the circumstances of this case, the two charges merge as a matter of fact. However, the trial court specifically and properly found that the evidence demonstrated that the criminal acts as described in the indictment were separate and distinct, so that they did not merge.

Child molestation and enticement do not merge as a matter of law, since each has an element not necessary to prove the other (the actual commission of an immoral or indecent act for child molestation; asportation for enticement). Williams v. State, 156 Ga. App. 481 (1) (274 SE2d 826) (1980); see also Kirby v. State, 187 Ga. App. 88 (2) (369 SE2d 274) (1988). And they need not merge as a matter of fact, since they generally occur sequentially (i.e., the enticement offense is completed before the child molestation occurs), such that it is not necessary to prove one by using the same or less than all the facts used to prove the other. [Cits.]

Decided February 24,1999

Reconsideration denied March 18,1999

John A. Pickens, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Herbert M. Poston, Jr., Assistant District Attorneys, for appellee.

(Emphasis supplied.) Wells v. State, 222 Ga. App. 587, 588 (3) (474 SE2d 764) (1996). See also Wittschen v. State, 259 Ga. 448, 449 (383 SE2d 885) (1989).

Such is the situation in this case. Here, the enticement count alleged that Leon “did solicit [the victim] to a place, to wit: to his bedroom, for the purpose of indecent act and child molestation, in that said accused by telling her to go to his bedroom.” This count was proven by evidence that Leon ordered the victim to go to his bedroom and slapped her when she refused, as well as with evidence that Leon fondled the victim after she went into the bedroom. Therefore, proof of the enticement count was accomplished at trial without reliance on any additional evidence.

In contrast, the child molestation count charged Leon with “fondling [the victim’s] vagina and vaginal area, placing his penis into contact with her vagina and vaginal area, causing her to touch his penis, with intent to arouse and satisfy the sexual desires of said accused [.]” All of these acts occurred during Leon’s subsequent attempt at intercourse with the child after he dragged her into the bathroom and during his act in forcing the child to assist him in masturbating.

Accordingly, merger was not required because the prosecution did not have to prove the subsequent child molestation in the bathroom in order to prove the enticement count. Cf. Wells v. State, supra. There was no error.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       Under OCGA § 16-6-5 (a), “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”


author: Andrews, Judge.

text:
    A97A0362.
    DANIELS et al. v. JOHNSON.
    (514 SE2d 256)
    Decided March 18,1999.

      Robert M. Beauchamp, for appellants.

      Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.
   Andrews, Judge.

In Daniels v. Johnson, 270 Ga. 289 (509 SE2d 41) (1998), the Supreme Court reversed this Court’s judgment in Daniels v. Johnson, 226 Ga. App. 789 (487 SE2d 504) (1997). Therefore, our judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is reversed.

Judgment reversed.

Beasley, P. J, and Smith, J., concur.