author: McMurray, Presiding Judge.

text:
    A98A0823.
    DANIELS v. THE STATE.
    (509 SE2d 368)
   McMurray, Presiding Judge.

Defendant Daniels brings this out-of-time appeal from his conviction of theft by receiving stolen property (OCGA § 16-8-7) and misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24 (a)). Held:

1. Defendant was apprehended when police officers on routine patrol stopped a stolen vehicle driven by him due to a failure to dim headlights for oncoming traffic. There were a number of passengers in the vehicle operated by defendant, and at trial defendant sought to discredit the officers’ testimony that he was the driver. In this connection, defendant asked Charles Collins, one of the officers who had since left the police force, “[a]nd now let me ask you this, Mr. Collins, and certainly I mean no disrespect, but did you acquire a history of making bad arrests while you were on the police force?” The prosecuting attorney indicated he was objecting “unless he has a good faith basis for this question.” Defense counsel stated “[y]our Honor, this is cross-examination and I can certainly ask —” before the trial court announced that the prosecuting attorney’s objection was sustained. After this ruling defense counsel stated: “Well, I can’t ask that question . . .” and the prosecuting attorney responded: “Not without a good faith basis.” Thereafter, after a brief bench conference on another subject, redirect examination of the witness commenced.

In his first enumeration of error, defendant maintains that his cross-examination of the former police officer, Collins, was improperly limited by the trial court’s sustaining the prosecutor’s “good faith basis” objection. However, the issue argued by defendant was not preserved for appellate review by appropriate objection at trial. “ ‘ “In order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions. (Cits.)” ’ ” (Emphasis supplied.) Bradford v. State, 182 Ga. App. 337, 338 (5) (355 SE2d 735). See also Willett v. State, 223 Ga. App. 866, 874 (4) (479 SE2d 132); Favors v. State, 166 Ga. App. 764 (1) (305 SE2d 475). While defendant maintains that the alleged error was preserved by defense counsel’s comments as quoted above, we do not agree since these remarks fail to state the grounds for any objection.

Furthermore, although defendant is entitled to a thorough and sifting cross-examination of a witness, the scope of such cross-examination is within the sound discretion of the trial court who may curtail inquiries which are not relevant or material. The trial court may curtail inquiries which are unduly repetitive or harassing and may exercise reasonable judgment in determining when a subject is exhausted. Such restrictions lie within the discretion of the trial court and will not be disturbed on appeal unless manifestly abused. Duckworth v. State, 223 Ga. App. 250, 252 (1) (477 SE2d 336). Here, defense counsel was allowed to delve in great detail into the circumstances related to the stop of the stolen vehicle, particularly with regard to Charles Collins’ ability or lack thereof to observe who was driving. The record fails to show a manifest abuse of discretion.

Decided November 16, 1998.

2. In his remaining enumeration of error, defendant maintains that he was deprived of a speedy trial under the United States Constitution, the Georgia Constitution, and OCGA § 17-7-170. This enumeration is predicated on the denial of a motion for discharge and acquittal predicated solely upon OCGA § 17-7-170 and the failure to bring defendant to trial within appropriate intervals of time following purported demands for trial pursuant to the statute.

The first purported demand for trial relied upon by defendant was filed pro se on April 1, 1994, a time at which defendant was represented by counsel and which was prior to the handing down of the indictment of defendant. Either of these factors is sufficient to obviate the pro se demand for speedy trial.

A criminal defendant no longer has the right to represent himself and also be represented by an attorney. At the time the pro se demand for trial was filed, there was a pending request on the part of defendant’s attorney to withdraw. Nonetheless, the attorney continued to represent defendant, and the withdrawal was not granted until a date subsequent to the filing of the pro se demand. As defendant was represented by counsel when he filed the pro se demand for trial that demand “was of no legal effect whatsoever.” Goodwin v. State, 202 Ga. App. 655, 656 (415 SE2d 472).

Furthermore, the protection afforded by OCGA § 17-7-170 attaches with the formal indictment or accusation. State v. Hicks, 183 Ga. App. 715, 717 (359 SE2d 712). A demand for speedy trial filed before the indictment is returned is a nullity. Grier v. State, 198 Ga. App. 840, 841 (403 SE2d 857).

The remaining purported demand for speedy trial upon which defendant relies was filed on August 31, 1994, and sought a copy of indictment and a list of witnesses and requested that defendant “be tried by a jury and waives nothing.” The text of such a demand for trial by jury has been held to not act as a speedy trial demand pursuant to OCGA § 17-7-170. Boyd v. State, 200 Ga. App. 591 (2) (409 SE2d 44).

Finally, defendant’s arguments predicated on the United States and Georgia Constitutions are raised for the first time on appeal and were not preserved for appellate review by being argued in the first instance before the trial court. Issues raised for the first time on appeal will not be considered by this Court.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Davis Cohen, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A98A1363, A98A1939.
    BROWN v. NORTH AMERICAN SPECIALTY INSURANCE COMPANY; and vice versa.
    (508 SE2d 741)
   Andrews, Chief Judge.

Grant Brown was killed and the aircraft he was piloting was destroyed when he ran out of fuel and crashed while attempting to land in low visibility weather conditions at the Fulton County Airport on November 27, 1994. North American Specialty Insurance Company, which insured the aircraft against accidental damage, refused to pay for the loss of the aircraft. North American contended that the insurance policy excluded coverage because Brown was not licensed and qualified to pilot the aircraft in the weather conditions prevailing during the flight. The trial court agreed, granted summary judgment in favor of North American, and the representative of Brown’s estate appeals in Case No. A98A1363. As set forth below, we find factual issues remain on the coverage issue and reverse the grant of summary judgment in favor of North American.

In related Case No. A98A1939, North American appeals from the trial court’s denial of its post-judgment motion seeking the award of attorney fees and costs under OCGA § 9-15-14. We find no error and affirm the trial court’s refusal to award attorney fees and costs.

Case No. A98A1363

1. North American based its refusal to pay on language in the policy which it contends excludes coverage for damage to the aircraft under the facts of this case. The Pilot Requirements Endorsement to the policy states in part: “This policy is not in effect while the aircraft is in flight or in motion unless the pilot of the aircraft meets all the requirements specified [herein] and in Section 4 of the Policy Provisions. . . .” The relevant provisions of Section 4, denominated “Pilot Requirements,” provide as follows: “This section determines who may operate the aircraft. ... By accepting the policy, you have agreed that the policy is in effect only if (1) the person operating the aircraft meets the ‘Pilot Requirements’ outlined in this section and in [the Pilot Requirements Endorsement].” Section 4 of the policy further provides under “Pilot Requirements” that: “The pilot must be licensed and qualified under Federal, State and local laws and regulations for all segments of the flight involved.”

Brown had a valid private pilot certificate issued by the Federal Aviation Administration (FAA), which licensed him to operate the twin-engine aircraft involved in the crash. However, Brown’s certificate contained a limitation stating that, as to multi-engine aircraft, he was rated for visual flight rules (VFR) only. VFR refers to FAA regulations governing flight by visual references outside the aircraft under certain minimum weather conditions, visibility requirements, and other rules. FAA Visual Flight Rules, 14 CFR § 91.151 et seq. (1994). It is undisputed that, at the time of the crash, Brown was flying in weather conditions and visibility which were below the minimums for use of VFR and which required the use of instrument flight rules (IFR). IFR refers to FAA regulations governing flight without sufficient visual references outside the aircraft because of weather conditions that permit less flight visibility than the minimum requirements for VFR. FAA Instrument Flight Rules, 14 CFR § 91.167 et seq. (1994). An instrument rating included on an FAA certificate to operate an aircraft indicates that the pilot has undergone additional training that qualifies the pilot to operate the aircraft in IFR weather conditions by reference to instruments inside the aircraft. FAA Requirement for Certificates, Ratings, and Authorizations, 14 CFR § 61.3 (e); Instrument Rating Requirements, 14 CFR § 61.65 (1994). Although Brown’s pilot certificate indicated an instrument rating for single-engine aircraft, it contained a “VFR ONLY” limitation for operation of multi-engine aircraft, so his certificate did not include an instrument rating for the type of aircraft he was flying at the time of the crash.

Brown’s flight originated at the Pennridge Airport in Pennsylvania, and his planned destination was the Covington Airport near Atlanta. In filing his flight plan, Brown estimated the flight would take about three and a half hours and that he had four and a half hours of fuel on board. According to FAA and National Transportation Safety Board (NTSB) records, Brown received two pre-flight weather briefings. Although the briefings indicated there were IFR and VFR weather conditions along Brown’s intended flight path and IFR conditions in the Atlanta area, the second briefing, given about 45 minutes before take-off, included a forecast that the weather was expected to improve to VFR conditions at Brown’s destination in the Atlanta area. The forecaster warned Brown, however, that he was skeptical of the forecast for improved conditions at his destination. An amended weather forecast for the Atlanta area was issued at 12:38 p.m. about 20 minutes before Brown took off, which forecasted IFR weather conditions throughout the Atlanta area for the remainder of the afternoon and early evening. There is no evidence that Brown requested or received the amended forecast prior to taking off.

Despite lacking an instrument rating for the twin-engine aircraft he was piloting, Brown filed and received clearance for an IFR flight plan. Brown took off at about 1:00 p.m. in VFR weather conditions, but two minutes into his flight he reported that he had encountered IFR weather conditions. The record supports the conclusion that Brown encountered both IFR and VFR weather conditions along his flight path toward the Atlanta area. At 4:36 p.m., as he was approaching the Atlanta area in weather conditions he reported as “occasional broken,” Brown requested and received additional weather information from the Atlanta Air Route Traffic Control Center. FAA records of this communication indicate that Brown was made aware at this point that IFR weather conditions still prevailed in the Atlanta area at airports near his Covington Airport destination and at the Athens Airport east of Atlanta. The Traffic Control Center informed Brown that aircraft had made successful approaches into the nearby Fulton County Airport, but that the last six to eight aircraft had been unsuccessful in attempting to land at the nearby Peachtree DeKalb Airport. No weather information was available for the uncontrolled Covington Airport. The affidavit of a certified meteorologist filed in support of North American’s motion for summary judgment shows that, during the course of Brown’s flight, various other airports in the southeast were reporting VFR weather conditions including Knoxville and Tri-Cities in eastern Tennessee, Wilmington in coastal North Carolina, and Myrtle Beach and Charleston in coastal South Carolina.

Brown told the Traffic Control Center that he would make one attempt to land at the Covington Airport and, if he was not successful, he would divert to the Fulton County Airport. Shortly thereafter, Atlanta Approach Control issued Brown missed approach instructions for the Covington Airport and the weather for Fulton County. After Brown missed his approach and was unable to land at the Covington Airport in IFR weather conditions, he was issued directions to the Fulton County Airport. While inbound to the Fulton County Airport, Brown declared a fuel emergency advising that he had about 15 to 20 minutes of fuel remaining. Thereafter, Brown missed two approaches to the Fulton County Airport, reporting that he was unable to see the runway. At about 6:00 p.m., Brown ran out of fuel and crashed while attempting another approach at the Fulton County Airport in IFR weather conditions.

(a) Brown’s estate claims that the trial court erred in concluding that no insurance coverage existed because, under the provisions of OCGA § 33-24-30, North American was prohibited from excluding or denying coverage on the basis that Brown violated civil air regulations. Subsection (a) of § 33-24-30 provides that: “No policy of insurance issued or delivered in this state covering any loss, expense, or liability arising out of the ownership, maintenance, or use of an aircraft shall exclude or deny coverage because the aircraft is operated in violation of civil air regulations pursuant to federal, state, or local laws or ordinances.” However, subsection (b) of this Code section further provides in part that: “This Code section does not prohibit the use of specific exclusions or conditions in any such policy which relate[ ] to . . . [c]ertification of a pilot in a stated category by the Federal Aviation Administration.”

The policy exclusion at issue, which provides that the pilot of the insured aircraft must be “licensed and qualified under Federal . . . laws and regulations for all segments of the flight involved,” relates to FAA certification and rating of the pilot to operate the insured aircraft. FAA Requirement for Certificates, Ratings, and Authorizations, 14 CFR § 61.3 (1994). Under FAA regulations, ratings like those at issue (instrument rating or VFR only rating) are considered a part of the pilot certificate which sets forth special conditions, privileges, or limitations on the pilot’s operation of the aircraft. FAA General Definitions, 14 CFR § 1.1 (1994). Accordingly, the exclusion at issue was valid under the provisions of OCGA § 33-24-30 (b). Farmers & Merchants Bank v. Ranger Ins. Co., 125 Ga. App. 166, 167 (186 SE2d 579) (1971).

(b) Although the exclusion was valid under § 33-24-30, we conclude under the facts of this case that the trial court erred by declaring as a matter of law that no coverage existed.

The exclusion relied upon by North American provides that the insurance policy is not in effect while the aircraft is in flight or in motion unless the requirement is satisfied that the pilot of the aircraft is licensed and qualified under federal, state, and local laws and regulations for all segments of the flight involved. Although Brown had an FAA pilot certificate to operate the insured aircraft, the certificate did not have an instrument rating which would have licensed and qualified him under FAA regulations to operate the insured aircraft in IFR weather conditions. Nevertheless, the record shows that Brown flew the aircraft in IFR weather conditions for which he was not FAA licensed or qualified during portions of his flight, including the final portion of the flight into the Atlanta area during which he crashed and the aircraft was destroyed. North American claims that, since Brown was not licensed and qualified under FAA regulations to operate the aircraft during all segments of the flight in which he encountered IFR weather conditions, there was no coverage for the loss incurred when the aircraft crashed.

We first consider the nature of the increased risk to which the exclusion applied in this case. The record shows that, prior to flying into IFR weather conditions in the Atlanta area, Brown flew in VFR and IFR weather conditions at various times earlier in the flight. North American apparently claims that the language of the policy excluded coverage if Brown operated the aircraft in IFR weather conditions during any segment of the flight, even if no accident occurred during those earlier IFR operations. There is no evidence of an increased risk during the portions of the flight in which Brown operated the insured aircraft in VFR weather conditions for which he was licensed and qualified under FAA regulations. An increased risk occurred while Brown operated the aircraft in IFR weather conditions. Considering the variable nature of the risk in this case, we conclude as a matter of policy that the exclusion did not apply to nullify coverage for Brown’s entire flight simply because Brown operated the aircraft in IFR weather conditions during earlier portions of the flight in which no loss occurred. Ga. Farm &c. Ins. Co. v. Brown, 260 Ga. 160, 161 (390 SE2d 586) (1990). Rather the coverage was only temporarily suspended during the earlier IFR segments of the flight and revived during VFR segments. “ ‘[A] contract of insurance may be only temporarily suspended by the violation of a stipulation in the contract similar to that now before us, and may thereafter be revived, and that if no loss was caused or can be attributed to the violation of one of these conditions, the company is not relieved from liability.’ ” Id. at 161, quoting Home Ins. Co. v. Johnson, 181 Ga. 139, 144 (182 SE 41) (1935); 5 Appleman, Insurance Law & Practice, §§ 2941, 2942, 2944 (1970). Accordingly, the fact that Brown operated the aircraft in and out of IFR weather conditions without incident as he approached the Atlanta area does not control our consideration of how the exclusion applied to the crash in IFR weather conditions in the Atlanta area — conditions Brown’s estate claims were unexpected.

Next, we consider the application of the policy exclusion to the facts of this case. Under the facts presented, we conclude the exclusion is unclear and requires construction as it applies to Brown’s decision to operate the aircraft in the IFR weather conditions prevailing in the Atlanta area where he crashed attempting to land. “Three well known rules used in the construction of insurance contracts apply. Any ambiguities in the contract are strictly construed against the insurer as drafter of the document, Hulsey v. Interstate Life &c. Co., 207 Ga. 167 (60 SE2d 353) (1950); any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed, Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438 (287 SE2d 226) (1981); and insurance contracts are to be read in accordance with the reasonable expectations of the insured where possible, Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291 (265 SE2d 102) (1980).” Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983).

The exclusion in Section 4 of the policy required that the pilot be “licensed and qualified under Federal, State and local laws and regulations for all segments of the flight involved.” Section 4 of the policy under which the exclusion appears makes clear that “[t]his section determines who may operate the aircraft. . . .” The policy does not explicitly address the requirement that the pilot be licensed and qualified for the flight under the applicable law, but a reasonable construction of that requirement is that it was intended to limit operation of the insured aircraft to those persons doing so in compliance with the applicable FAA regulations governing pilot certification, rating and operation of the aircraft.

Under FAA regulations in 14 CFR Part 61, governing pilot certificate and rating, Brown did not have a certificate with an instrument rating to operate the insured aircraft in the IFR weather conditions prevailing at the time of the crash. Nevertheless, FAA regulations in 14 CFR Part 91, setting forth general rules for operating aircraft, provide that “[i]n an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.” 14 CFR § 91.3 (b) (1994). Part 91 also contains the rules governing the operation of an aircraft in VFR and IFR weather conditions. Based on the language of the policy and the applicable federal regulations referenced by the policy, we conclude that Brown could have reasonably expected that the aircraft would remain insured while he operated it in IFR weather conditions while attempting to land, if he did so only to the extent required to meet an in-flight emergency which could not have been reasonably avoided by compliance with other FAA regulations. This conclusion recognizes the reasonable expectations of the VFR pilot that insurance coverage be maintained when unexpected IFR weather conditions are confronted, and “the common-sense conclusion that neither the insurer nor the VFR pilot should expect coverage to apply where the aviation mandates are disobeyed by acts known by all VFR pilots and aviation insurers to increase the risk of loss.” Michael G. McQuillen, The Deception About the Inception Rule: Coverage for VFR Pilots in IFR Conditions, 60 J. Air L. & Com. 179, 220 (1994).

For example, a jury could conclude that, based on pre-flight weather briefings, Brown reasonably expected he would encounter VFR weather conditions upon his arrival in the Atlanta area where he planned to land; that he unexpectedly encountered IFR weather conditions in the Atlanta area; that he had no reasonable alternative but to attempt to land at an Atlanta area airport in IFR weather conditions, and that, considering all the relevant facts and FAA regulations, this constituted an unavoidable in-flight emergency which allowed Brown to operate the aircraft in IFR weather conditions without an instrument rating. A jury could also conclude to the contrary that, considering the relevant facts and FAA regulations, there was no unavoidable in-flight emergency. For example, a jury could conclude that it was not reasonable for Brown to expect VFR conditions in the Atlanta area; that he could have reasonably obtained updated weather forecasts before or during the flight showing continuing IFR weather conditions in the Atlanta area, and that, upon learning of IFR weather conditions in the Atlanta area during the flight, he could have reasonably avoided those conditions by diverting from his flight plan and landing at an airport where VFR weather conditions prevailed. Because factual issues remain on the present record, the question of insurance coverage is for a jury to decide.

Case No. A98A1939

2. The trial court denied North American’s post-judgment motion seeking the award of attorney fees and expenses pursuant to OCGA § 9-15-14 (a) and (b) for frivolous litigation. “A decision under subsection (a) must be sustained if any evidence supports the trial court’s decision, and a decision under subsection (b) must be sustained unless the trial court has abused its discretion.” Harkleroad & Hermanee, P.C. v. Stringer, 220 Ga. App. 906, 907 (3) (472 SE2d 308) (1996). Under these standards, we find no error in the denial of the motion.

Judgment affirmed in Case No. A98A1939. Judgment reversed in Case No. A98A1363.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 3, 1998

Reconsideration denied November 17, 1998

Andre, Blaustein & Green, Edmund J. Novotny, Jr., Charles R. Bridgers, for appellant.

Smith, Howard & Ajax, Donald R. Andersen, Matthew L. Hilt, for appellee.

       We recognize the possibility under other circumstances of showing that a loss incurred during VFR flight was caused in whole or in part by the increased risk of a noninstrumentrated pilot flying in IFR weather conditions. For example, a pilot not rated for instrument flight could become disoriented or lose control of the aircraft in IFR weather conditions and thereafter fly into and crash in VFR conditions.

       By contrast, a similar exclusion applied to the lack of an FAA-required pilot certificate or medical certificate would apply for the entire flight, because the increased risk would exist for the entire flight during which the pilot operated the insured aircraft without any proper certification. Atlanta Air Fleet v. Ins. Co. of North America, 130 Ga. App. 15, 16 (202 SE2d 192) (1973); Grigsby v. Houston Fire &c. Ins. Co., 113 Ga. App. 572, 574 (148 SE2d 925) (1966).

       Of course, evidence of acts in violation of FAA regulations which increased the risk of loss during a flight are relevant to the issue of insurance coverage only to the extent that they caused or contributed to the actual loss at issue. Brown, 260 Ga. at 161.

       We decline, as urged by the insured, to adopt the so-called “inception rule” under which Brown’s entire flight would be characterized as VFR because he took off in VFR weather conditions and flew in those conditions for a few minutes at the inception of the flight. See McQuillen, supra, for a discussion of cases in other jurisdictions applying the “inception rule” and variations thereof.


text:
    A98A1543.
    ANDERSON v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA.
    (508 SE2d 726)
   Andrews, Chief Judge.

Southern Guaranty Insurance Company of Georgia filed a petition for a declaratory judgment seeking a ruling from the trial court as to its duty to insure and defend its insured, Betty Anderson, under a homeowner’s insurance policy. Anderson demanded insurance coverage and a defense under the policy after she was sued for damages by Heddie Ruth Vaughn and her husband, Gary Vaughn, who alleged in their complaint that Anderson injured Heddie Vaughn by the commission of various intentional torts. In granting summary judgment in favor of Southern Guaranty, the trial court declared that no coverage or duty to defend existed because the insurance policy excluded coverage for bodily injury expected or intended by Anderson. Anderson appeals from the grant of summary judgment to Southern Guaranty.

In the action against Anderson, the complaint alleged that Anderson entered the school bus Heddie Vaughn was driving, which was occupied by school children at the time, and began shouting obscenities at Vaughn. Vaughn alleged that Anderson struck her repeatedly with a cane, then grabbed her by the foot and dragged her off the bus onto the ground, where Anderson resumed the attack by striking and kicking her. As a result of the attack, Vaughn alleges that she sustained torn knee ligaments, a gash on her ear, and multiple contusions. In three of the five counts set forth in the complaint, Vaughn alleged that, by this conduct, Anderson committed: (1) assault and battery by striking her with a cane and kicking her; (2) false imprisonment by detaining her on the bus, preventing her from driving away, and dragging her off the bus; and (3) intentional infliction of emotional distress. The fourth count sought the imposition of punitive damages, and the fifth count was a loss of consortium claim by Gary Vaughn.

It is undisputed that Anderson denied the allegations made in the Vaughns’ action, and that Anderson claimed any injuries sustained by Vaughn in the incident were accidental and not expected or intended. Anderson asserted that Southern Guaranty was required under the insurance policy to provide her with coverage and to defend her on the allegations in the complaint. It is also undisputed that criminal charges were filed against Anderson as a result of the incident with Vaughn and that Anderson was convicted in a jury trial of aggravated assault on Vaughn with a cane, simple battery by kicking Vaughn, and seven counts of reckless conduct for endangering the safety of school children. The convictions were affirmed on appeal in Anderson v. State, 228 Ga. App. 453 (491 SE2d 893) (1997). During the criminal trial, Anderson testified in her own defense that she did not strike or kick Vaughn; that she grabbed Vaughn’s foot only to protect herself from being kicked by Vaughn, and that Vaughn tripped or fell out of the bus. Id. at 454. It is clear that, in filing the petition for declaratory judgment, Southern Guaranty was aware of Anderson’s contentions that she did not expect or intend to injure Vaughn and that any injuries sustained by Vaughn were accidental.

In its summary judgment motion, Southern Guaranty showed that the insurance policy at issue provided personal liability coverage as follows: “If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will: 1. pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. . . .” Under the policy, an “occurrence” is defined as “an accident . . . which results, during the policy period, in: . . . bodily injury. . . .” “Bodily injury” is defined as “bodily harm, sickness or disease. . . .” The policy also contains an exclusion which provides that personal liability and medical payments coverage does not apply to bodily injury “which is expected or intended by the insured.”

Applying these policy provisions, we first conclude that Southern Guaranty had no duty to provide coverage for or to defend against the allegation in the Vaughns’ complaint that Anderson injured the Vaughns by intentional infliction of emotional distress. The insurance policy provides for coverage and a defense against “bodily injury” not mental or emotional injury. Because the policy defines “bodily injury” as “bodily harm, sickness or disease,” the purely mental harm alleged in the count of the complaint for intentional infliction of emotional distress is not covered by the policy. Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 12-13 (476 SE2d 797) (1996).

The provisions of the policy also clearly provide that Southern Guaranty had a duty to provide coverage and a defense against accidental occurrences in which any resulting bodily injury was not expected or intended by Anderson. In the remaining allegations of the complaint, the Vaughns’ complaint alleged intentional conduct by Anderson which was not an accident and which resulted in bodily injury to Vaughn clearly expected or intended by Anderson. Accordingly, Southern Guaranty contends there was no coverage under the policy, and it had no duty to provide a defense to the suit.

We find no ambiguity in the provisions of the policy limiting coverage to accidental occurrences not expected or intended by Anderson. Continental Cas. Co. v. Parker, 161 Ga. App. 614, 615-616 (288 SE2d 776) (1982). It follows that, if the intentional acts by Anderson alleged in the Vaughns’ complaint are the true , facts, the damages resulting from these intentional acts would clearly have been expected or intended by Anderson, and Southern Guaranty would have no duty to provide liability coverage or a defense. Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565 (490 SE2d 374) (1997); Bates, 223 Ga. App. at 14-15; Hain v. Allstate Ins. Co., 221 Ga. App. 486-487 (471 SE2d 521) (1996). However, Anderson denied that the facts alleged in the complaint are the true facts. To the contrary, in demanding coverage and a defense from Southern Guaranty, Anderson made general assertions, of which Southern Guaranty was aware, that the true facts showed the injury to Vaughn was accidental and not expected or intended.

Just because the Vaughns alleged facts in their complaint that would result in any damages awarded being excluded from coverage does not, as a matter of law, relieve Southern Guaranty of its separate duty to defend the suit. Considered in light of Anderson’s claim that the true facts would place the Vaughns’ claim within the policy coverage, we conclude that the insurance contract is ambiguous as to Southern Guaranty’s duty to defend. See Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287, 292 (127 SE2d 53) (1962). “With respect to an exception to the duty to defend, this burden is not carried [by the insurer] merely by proving that the allegations of the complaint allege facts excluding the claim from the policy.” Id. at 294. Not only are exclusions invoked by the insurer strictly construed against the insurer as the drafter of the document, but insurance contracts are to be construed in accordance with the reasonable expectations of the insured. Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983); Loftin, 106 Ga. App. at 294. “In considering the policy as a whole, [Anderson] might well conclude that [Southern Guaranty] would defend any suit arising from an accidental injury in truth covered by the policy despite the manner in which the injured party presented [the] claim.” Id. at 295.

Given Anderson’s claim that the complaint against her falsely indicated noncoverage and that the true facts would place the claim within the policy coverage, the issue with respect to the duty to defend is whether the true facts showing coverage were known or ascertainable to Southern Guaranty. Penn-America, 268 Ga. at 565. “If the true facts are known or ascertainable to the insurer at the outset, then the insurer is obligated to defend the suit, just as if the complaint against the insured falsely alleged coverage.” Id. at 565. Under these circumstances, Southern Guaranty had a duty to conduct a reasonable investigation into Anderson’s contentions, and if the investigation revealed facts arguably placing the claim within the policy coverage, then Southern Guaranty would have a duty to defend. Colonial Oil Indus, v. Underwriters Subscribing to Policy Numbers &c., 268 Ga. 561, 562 (491 SE2d 337) (1997).

“[W]hen the complaint on its face shows no coverage, but the insured notifies the insurer of factual contentions that would place the claim within the policy coverage[,]. . . the insurer has an obligation to give due consideration to its insured’s factual contentions and to base its decision [as to whether to provide a defense] on ‘true facts.’ The requirement that an insurer base its decision on true facts will necessitate that the insurer conduct a reasonable investigation into its insured’s contentions. To relieve an insurer of any duty to investigate its insured’s contentions would allow the allegations of a third-party to determine the insured’s rights under its contract. Placing a duty of investigation on insurers in these limited circumstances is not an unreasonable burden, especially in light of the availability of the ‘procedurally safe course’ of providing a defense under a reservation of rights and filing a declaratory judgment action to determine its obligations. An insurer who fails to investigate its insured’s contentions and refuses a defense will be liable for a breach of the duty to defend if a reasonable investigation at the time would have established the potential for coverage.” (Footnotes omitted.) Colonial Oil, 268 Ga. at 562 (2).

Southern Guaranty filed the present petition for declaratory judgment to pursue a reasonable investigation into Anderson’s contention that the true facts obligated it to provide coverage and a defense. In doing so, Southern Guaranty deposed Anderson to question her regarding her contention that the true facts showed Vaughn’s injuries were accidental and that she did not expect or intend bodily injury to Vaughn. Anderson, however, repeatedly refused to answer questions as to what happened during the incident with Vaughn. On the advice of her attorney, Anderson refused to answer these questions citing her Fifth Amendment privilege against self-incrimination. Anderson did give general testimony that any injuries suffered by Vaughn were accidental and that she did not expect or intend bodily injury to Vaughn.

In citing her privilege against self-incrimination, Anderson contended that, even though she had been found guilty on the criminal charges arising out of the incident at issue, a real danger of self-incrimination still existed because of the possibility that her pending motion for a new trial in the criminal case could have been granted by the trial court. Under these circumstances, we conclude that a danger of self-incrimination sufficient to support assertion of the privilege still existed. Stallings v. State, 136 Ga. 131 (70 SE 1015) (1911); Duvall v. State, 259 Ga. 801, 802 (387 SE2d 880) (1990). Moreover, Anderson’s election to testify in the prior criminal trial did not waive her rights under the Fifth Amendment in the present action. Mallin v. Mallin, 227 Ga. 833, 836 (183 SE2d 377) (1971).

Southern Guaranty contends that Anderson’s refusal to answer these questions placed her in violation of provisions in the insurance contract. The insurance policy provides that, after a claimed accident, the insured has a duty “to secure and give evidence.” The policy also provides that “the entire policy will be void if, whether before or after a loss, an insured has . . . intentionally concealed or misrepresented any material fact or circumstance.” Southern Guaranty claims that Anderson violated these provisions by refusing to answer questions material to its investigation into whether it was obligated to provide coverage and a defense.

In response, Anderson contends that to conclude she violated the insurance contract by refusing to answer questions regarding Vaughn’s claim would unfairly penalize her for exercising her Fifth Amendment privilege. She contends she was unfairly forced to confront the dilemma of either refusing to answer questions in violation of the insurance contract, or answering the questions and forfeiting her Fifth Amendment rights.

The Fifth Amendment, which may be invoked in civil as well as criminal actions, “shields against compelled self-incrimination, not legitimate inquiry, in the truth-seeking process.” (Citation and punctuation omitted.) Arson v. Nat. Surety Corp., 254 Ga. 248, 249 (327 SE2d 732) (1985); Page v. Page, 235 Ga. 131, 132 (218 SE2d 859) (1975). The general rule is that there is no unconstitutional infringement of the Fifth Amendment privilege by forcing an individual to risk disadvantage in a civil case by refusing to provide material facts for fear of self-incrimination in a pending criminal case. Baxter v. Palmigiano, 425 U. S. 308, 317-318 (96 SC 1551, 47 LE2d 810) (1976); United States v. White, 589 F2d 1283, 1286-1287 (5th Cir. 1979). However, an exception to the general rule has been recognized in cases where an individual who is a defendant in pending civil and criminal cases is forced to choose between forfeiting the privilege against self-incrimination or losing the civil case by automatic summary judgment. Pervis v. State Farm &c. Co., 901 F2d 944, 947 (11th Cir. 1990). The exception does not apply if assertion of the privilege merely results in loss of the defendant’s most effective defense rather than an adverse summary judgment. Id.; White, 589 F2d at 1287.

Although Southern Guaranty instituted the present declaratory judgment action naming Anderson as a defendant, it did so to investigate the contentions made by Anderson when she claimed any bodily injury to Vaughn was accidental and demanded that Southern Guaranty provide insurance coverage and a defense to the Vaughns’ suit. Under these circumstances, the dilemma of which Anderson complains was of her own making. Anderson cannot wield her Fifth Amendment privilege as a shield and a sword by demanding coverage and a defense under the insurance contract, while at the same time refusing to answer questions material to determining Southern Guaranty’s duties under the contract. See Pervis, 901 F2d at 947. In the present declaratory judgment action, Anderson is not in the position of the usual defendant involuntarily brought into a civil case, then forced to confront the dilemma of surrendering the privilege against self-incrimination or suffering an adverse judgment. See id.; White, 589 F2d at 1286-1287. Rather, Anderson’s demands for insurance coverage and a defense of the suit place her in a position more akin to that of a plaintiff who creates her own dilemma by bringing a civil action to enforce a contract, and who then refuses to provide information material to the defendant’s defense by asserting the Fifth Amendment privilege. Id.; Pervis, 901 F2d at 947; see Savannah Surety Assoc. v. Master, 240 Ga. 438, 439 (241 SE2d 192) (1978).

The above facts and law support the conclusion that the Fifth Amendment privilege against self-incrimination did not excuse Anderson from complying with her obligations under the insurance contract. Although Anderson was entitled to invoke her Fifth Amendment privilege in refusing to answer questions regarding what happened between her and Vaughn, Southern Guaranty claims that the result was a breach of the insurance contract which voided coverage by Anderson’s failure to give material information required to be provided under the terms of the contract. Page, 235 Ga. at 136; Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 744 (334 SE2d 155) (1985).

Based on the above facts, without more, we would agree with Southern Guaranty that there would have been a material breach of the contract voiding coverage. Anderson was not compelled to incriminate herself, nor is there a basis for concluding that a grant of summary judgment against Anderson on these facts would constitute an undue penalty for invoking the -privilege against self-incrimination. Accordingly, the Fifth Amendment would not prohibit the grant of summary judgment against Anderson.

However, there are additional facts in this case demonstrating that summary judgment against Anderson was not appropriate. At the time Anderson refused to answer questions based on her Fifth Amendment privilege, she offered to fully answer the questions after the pending criminal proceedings and the danger of self-incrimination had terminated. “Willfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate.” (Citation and punctuation omitted.) Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 588 (2) (445 SE2d 569) (1994). Given Anderson’s offer to fully cooperate and answer the questions after the termination of the criminal proceedings against her, we find no basis to conclude that Anderson’s refusal to cooperate was wilful or fraudulent. Id. Furthermore, Southern Guaranty has made no showing on the present record that any delay in obtaining information from Anderson had a materially adverse impact on its ability to protect its rights as to the claim. Id. Since the criminal proceedings against Anderson, including her appeal of the conviction, have terminated, Southern Guaranty will be entitled upon the return of the remittitur in the present case to complete its investigation by questioning Anderson without a Fifth Amendment limitation.]

As the record presently stands, with the evidence viewed in favor of Anderson as the respondent on summary judgment, we find a factual issue exists as to whether any bodily injury to Vaughn was expected or intended by Anderson. Parker, 161 Ga. App. at 616-617. Accordingly, the trial court erred in granting summary judgment in favor of Southern Guaranty to the extent it declared that Southern Guaranty had no duty to provide coverage or a defense to the claims against Anderson based on bodily injury to Vaughn. As previously stated, the trial court properly granted summary judgment to Southern Guaranty to the extent it declared Southern Guaranty had no duty to provide coverage or a defense to claims against Anderson based on intentional infliction of emotional distress.

Judgment affirmed in part and reversed in part.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 2, 1998

Reconsideration denied November 17, 1998

Word & Simmons, Gerald P. Word, for appellant.

Johnson, Dangle & Parmer, Robert F. Dangle, for appellee.

       Since a criminal conviction cannot be taken as evidence in a civil action to establish the truth of the facts on which the conviction was rendered, the fact that Anderson was convicted on criminal charges arising out of the incident with Vaughn is not evidence in the present case to establish that Anderson expected or intended bodily injury to Vaughn. Continental Cas. Co. v. Parker, 161 Ga. App. 614, 617 (288 SE2d 776) (1982).

       In setting forth the facts upon which the various counts were based, the complaint at one point alleges that Anderson “maliciously, negligently, and intentionally” struck Vaughn with the cane. Despite the use of the word “negligently” in setting forth the facts adopted in the counts of the complaint, there is no reasonable basis for construing the complaint as setting forth a claim based on negligent conduct. The complaint clearly seeks damages caused by intentional torts.


author: Smith, Judge.

text:
    A98A0945.
    BREWER v. SCHACHT et al.
    (509 SE2d 378)
   Smith, Judge.

This litigation appears before us for the second time. In its first appearance in Professional Practices Comm. v. Brewer, 219 Ga. App. 730 (466 SE2d 651) (1995), we affirmed the trial court’s denial of defendants’ motion for summary judgment. We now affirm the trial court’s grant of defendants’ renewed summary judgment motion, for the reasons stated below.

A complete and detailed recitation of the facts giving rise to this litigation is given by the federal district court in Brewer v. Purvis, 816 FSupp. 1560 (M.D. Ga. 1993), aff’d, 44 F3d 1008 (11th Cir. 1995). The Professional Practices Commission (“PPC”) was created by the State of Georgia to investigate state-certified teachers and other “professional educators,” former OCGA § 20-2-792 (2), concerning certain violations of state law pertaining to educators or education, the commission’s ethics code, and state and local board rules, regulations, or standards. Former OCGA § 20-2-796. The PPC investigated an incident at Cedar Shoals High School in which a student’s grades allegedly were changed to enable him to play football. At that time, Brewer was a teacher and head football coach at the school. Brewer v. Purvis, supra at 1563. Appellee Good, an associate director of the PPC, wrote a report recommending that Brewer’s teaching certificate be suspended and appellee Schacht, executive director of the PPC, presented that report to the Clarke County School District in an open meeting. Id. at 1566-1567. This action by Brewer followed.

Brewer originally filed a state court complaint under 42 USC § 1983 against the Clarke County School District, its superintendent, the Georgia High School Association and its executive director, the PPC, Schacht, and Good. Professional Practices Comm. v. Brewer, supra at 731. The action was removed to the United States District Court for the Middle District of Georgia, which granted summary judgment on some issues and allowed some claims to continue in federal court. Brewer v. Purvis, supra at 1580. The district court also remanded to the state court Brewer’s claims against the PPC and against Schacht and Good in their official capacities only, on the basis of Eleventh Amendment immunity. Id. at 1571. The PPC, Schacht, and Good then moved for summary judgment in Clarke County Superior Court.

In Professional Practices Comm. v. Brewer, supra, this Court reversed in part and affirmed in part the trial court’s denial of summary judgment to the PPC, Schacht, and Good. While holding that the trial court improperly denied summary judgment on any claim asserted under 42 USC § 1983, we affirmed the denial of summary judgment on the remaining state law tort claims because appellees failed to raise the issue below. Id. at 732. On remand, appellees renewed their motion for summary judgment on the state law claims, and Brewer also moved for summary judgment. In two orders, the trial court denied Brewer’s motion and granted summary judgment to appellees.

1. In ruling on appellees’ motion for summary judgment, the trial court relied upon OCGA § 9-12-40 and the earlier rulings of the federal district court. In resolving this appeal, we must first consider the scope and effect of the district court’s earlier rulings and its remand of the state law claims. The district court relied upon Georgia’s Eleventh Amendment immunity to determine that it lacked subject matter jurisdiction over the claims against the PPC, Brewer v. Purvis, supra at 1569, and that Schacht and Good were also entitled to immunity in their official capacities. Id. at 1570. It therefore remanded those claims to the Clarke County Superior Court. Id. at 1571. The district court reserved ruling on the claims against Schacht and Good in their individual capacities and directed Brewer to submit an additional brief on the subject. Id. In a subsequent order, the district court granted summary judgment on this issue, noting that in its previous opinion it held “that Brewer had not been deprived of his property interests without due process of law in his teaching position and that he did not have a property interest in his coaching position.” The district court also noted that “[t]he only other potential property interest that the Plaintiff has is his teaching certificate. That interest, however, is the subject of Plaintiff’s claims against the PPC and Good and Schacht in their official capacities, which were remanded to the state court.”

In granting summary judgment, the trial court relied upon the findings of the district court, citing OCGA § 9-12-40: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Res judicata and collateral estoppel are related and similar, but separate, doctrines. “The former, also known as claim preclusion, requires a plaintiff to bring all his claims against a party (or its privies) arising out of a particular set of circumstances in one action; while the latter, sometimes called issue preclusion, prevents relitigation of an issue already litigated by the parties (or their privies). In other words, under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” (Citations and punctuation omitted.) Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P.C., 214 Ga. App. 193-194 (447 SE2d 101) (1994).

The trial court was correct in holding that collateral estoppel prevents issues decided in the federal action from being relitigated in this state action against Schacht and Good or their employer, the PPC. “Privies are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996). In Langton, we affirmed a grant of summary judgment to the Department of Corrections and several of its employees, relying upon the collateral estoppel effect of an earlier finding, involving Langton’s claim for unemployment benefits, that she had been terminated for cause: “Inasmuch as the defendants include the DOC and its privies, the trial court properly granted summary judgment.” Id. While a servant ordinarily is not in privity with a master, “a master has privity with his servant and can claim the benefit of an adjudication in favor of the servant^] [Cit.]” Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975). Also, Brewer has alleged that the PPC, Schacht, and Good were parties to a conspiracy against him, and “[c]o-conspirators are considered to be in privity.” McIver v. Jones, 209 Ga. App. 670, 672 (a) (434 SE2d 504) (1993). And claims against Schacht and Good in their official capacities are the equivalent of suits against the PPC, the governmental entity that employed them. Franklin v. Gwinnett County Pub. Schools, 200 Ga. App. 20, 26 (3) (407 SE2d 78) (1991). Accordingly, the district court’s determinations with regard to Brewer’s property interest claims in his coaching and teaching positions are binding upon Brewer in this litigation with Schacht, Good, and their master in privity, the PPC, and the trial court correctly gave collateral estoppel effect to the district court’s findings.

2. As the district court correctly observed, the remaining issue is Brewer’s property interest in his teaching certificate. “Both the Georgia and Federal Constitutions prohibit the state from depriving ‘any person of life, liberty, or property, without due process of law.’ ” (Footnote omitted.) Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218 (466 SE2d 588) (1996). “[0]nce the State issues a professional license, such as the teaching license at issue in this case, its continued possession may become essential to the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important property interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” (Citations and punctuation omitted.) Gee v. Professional Practices Comm., 268 Ga. 491, 493 (1) (491 SE2d 375) (1997).

In this case, as in Gee, the statutory scheme “more than satisfies the requirements of procedural due process.” Id. “In cases such as this, due process requires that some form of a hearing must be held before one is finally deprived of their property interest in a professional license.” Id. But Brewer’s teaching certificate was never revoked or even suspended. After the hearing required by procedural due process, the hearing tribunal of the PPC declined to impose the recommended suspension. Because the review process not only was available but redressed any procedural due process deprivation that Brewer may have suffered, he cannot maintain this claim. Dowling, supra at 219; see also Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 328 (2) (358 SE2d 855) (1987).

3. Brewer also contends that he may maintain a claim for deprivation of a state constitutional liberty interest on the basis of injury to his reputation. The rule governing such claims in the United States Court of Appeals for the Eleventh Circuit has been adopted by this Court: “Under federal law, a plaintiff can recover for a deprivation of reputational liberty upon proof of the following elements: (1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing. Buxton v. City of Plant City, Fla., 871 F2d 1037, 1042-43 (11th Cir. 1989). [Cit.]” (Punctuation omitted.) Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 710 (3) (487 SE2d 478) (1997). In Rogers, supra at 328 (2), this Court applied this rule to a liberty interest claim. As the trial court correctly observed, appellees here were not Brewer’s employers. Brewer contends that a reputational liberty claim is not confined to a statement made by a governmental employer in connection with a discharge, citing a single authority from another federal circuit that has not adopted the Eleventh Circuit rule. But the Eleventh Circuit has declined to expand the limits of its test for a reputational liberty claim into areas generally governed by state tort law. A recent decision makes clear that a false statement made by a government official with intent to drive a non-employee plaintiff out of business, even if it results in injury to reputation and employment prospects, “may well be a tort, but it is not a violation of the right to due process of law.” Cypress Ins. Co. v. Clark, 144 F3d 1435, 1438 (11th Cir. 1998). Because appellees were not Brewer’s employers, Brewer has failed to show the required elements of a reputational liberty claim.

4. (a) We next consider the trial court’s grant of summary judgment, based upon the statute of limitation, on Brewer’s defamation claims. To the extent that Brewer’s claims seek damages for injury to reputation, we agree with the trial court that such claims are barred by the applicable statute of limitation. Actions for injuries to the reputation must be brought “within one year after the right of action accrues.” OCGA § 9-3-33. Brewer’s complaint was not filed until February 7, 1991, more than one year after the PPC’s report was submitted in an open meeting on February 1, 1990.

Brewer argues that the cause of action did not arise until injury occurred. This contention was considered and rejected in Cunningham v. John J. Harte Assoc., 158 Ga. App. 774 (282 SE2d 219) (1981). “[Ajctions for injuries to the reputation, such as those asserted by the plaintiff in the instant case, must be brought within one year from the date of the alleged defamatory acts regardless of whether or not plaintiff had knowledge of the act or acts at the time of their occurrence.” (Citations and punctuation omitted.) Id. at 775. The trial court correctly granted summary judgment on Brewer’s defamation claims.

(b) To the extent that Brewer seeks damages for tortious interference with his employment contract, the one-year statute of limitation for defamation actions is inapplicable, even if the interference allegedly was accomplished through defamation. Lee v. Gore, 221 Ga. App. 632, 634-635 (472 SE2d 164) (1996). But this does not end our analysis. To state a claim for tortious interference with employment, Brewer must show “the existence of an employment relationship, interference by one who is a stranger to the relationship, and resulting damage to the employment relationship. In addition, it must be shown that the alleged intermeddler acted maliciously and without privilege.” (Citations omitted.) Id. at 634. Any claim for tortious interference with Brewer’s employment must fail because, as the trial court correctly found, appellees’ actions were privileged under OCGA § 51-5-7.

The portion of that Code section relevant here states: “The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty.” While the privileges provided in OCGA § 51-5-7 are ordinarily asserted in defense to a defamation claim, they may also be asserted as a defense to a claim for tortious interference with contractual relations. NationsBank v. SouthTrust Bank, 226 Ga. App. 888, 892 (1) (A) (1) (487 SE2d 701) (1997) (applying OCGA § 51-5-7 (3)).

As noted above, the PPC and its employees acting in their official capacity were authorized by statute to investigate alleged violations of law, rules, regulations, or standards by certified teachers. They also were authorized to present their report and recommendations to the Clarke County School District under former OCGA § 20-2-797 (a).

In order to overcome this privilege, Brewer must show actual malice in making the statements. Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 132 (2) (498 SE2d 537) (1998) (privilege under OCGA § 51-5-7 (3)). Although Brewer asserts that appellees did not act in good faith, he “has not pointed to specific evidence giving rise to a triable issue.” (Citation and punctuation omitted.) Fly v. Kroger Co., 209 Ga. App. 75, 78 (2) (432 SE2d 664) (1993) (good faith statement in performance of public duty under OCGA § 51-5-7 (1)). Unsupported inferences or conjecture regarding a defendant’s motivation do not suffice to show malice. Cohen v. Hartlage, 179 Ga. App. 847, 851-852 (348 SE2d 331) (1986) (libel). This is particularly true when the defendant testifies affirmatively that he did not know the plaintiff before conducting the investigation. Id. Both Schacht and Good testified that they had no personal or professional knowledge of or relationship with Brewer before the investigation began. Brewer therefore has failed to show the elements of a claim for tortious interference with contract.

5. Finally, Brewer complains that the trial court erred in entering its own order rather than merely reducing to writing a verbal ruling made at the motion hearing by a predecessor trial judge before his retirement. But that verbal ruling was never reduced to writing, and it is axiomatic that “what the judge orally declares is no judgment until the same has been reduced to writing and entered as such. [Cits.]” Tyree v. Jackson, 226 Ga. 690, 694 (2) (177 SE2d 160) (1970).

Decided November 17, 1998

Deedra M. Brewer, for appellant.

Thurbert E. Baker, Attorney General, Christopher A. McGrow, Assistant Attorney General, for appellees.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       A trial court has discretion to consider a second motion for summary judgment after having previously denied summary judgment. Etheridge v. Fried, 183 Ga. App. 842 (1) (360 SE2d 409) (1987).

       OCGA §§ 20-2-790 through 20-2-800 were repealed by Ga. L. 1998, p. 750, effective July 1, 1998.

       After a full evidentiary hearing, a hearing tribunal of the PPC declined to impose a suspension but instead recommended a public reprimand.

       In Rogers, the plaintiff asserted only state law claims seeking reinstatement and supplemental salary payments. Neither that opinion nor the case’s earlier appearance, Ga. Ports Auth. v. Rogers, 173 Ga. App. 538 (327 SE2d 511) (1985), indicates whether Rogers’s liberty interest was asserted on federal or state constitutional grounds.

       That ruling granted in part and denied in part appellees’ motion for summary judgment.


author: Johnson, Presiding Judge.

text:
    A98A1048.
    AT&T WIRELESS PCS, INC. et al. v. LEAFMORE FOREST CONDOMINIUM ASSOCIATION OF OWNERS et al.
    (509 SE2d 374)
   Johnson, Presiding Judge.

AT&T Wireless PCS, Inc. and Oak Grove Animal Clinic, P.C. appeal from the superior court’s grant of summary judgment to the Leafmore Forest Condominium Association of Owners and residents of the Leafmore Condominiums (collectively “Leafmore”), permanently enjoining AT&T from building a communication tower on the clinic’s property. For reasons which follow, we affirm the grant of summary judgment to Leafmore.

The property on which Oak Grove Animal Clinic is located was initially zoned to be used for residential purposes. The property owner applied to the DeKalb County Board of Commissioners to have the property rezoned from residential to commercial in order to locate the clinic on the property. After a public hearing, the Board of Commissioners approved the rezoning, but conditioned the commercial zoning on the property being used only as a veterinary clinic. The rezoning was also expressly conditioned on the clinic meeting certain noise, odor, and buffer-zone requirements so as to minimize the rezoning’s effects on the adjoining condominium community.

After the clinic was built, AT&T entered into an agreement with the clinic in which AT&T would be allowed to build and operate a 180-foot communication tower on the clinic property. AT&T applied to the DeKalb County Department of Public Works (the “department”) for a permit to build the tower and a facility to house the operating equipment. The department advised AT&T that the conditional rezoning requirements could be satisfied if the tower was classified as a flagpole with antenna equipment attached and if the equipment needed to operate the tower was located inside the clinic building rather than in a separate facility. The assistant director of the DeKalb County Planning Department wrote a letter to the department expressing its approval of this advice. AT&T then amended its application as advised, and the department granted the building permits.

When residents of Leafmore, whose property abuts the rear of the clinic property, learned that the tower was being constructed, they demanded that AT&T stop construction. AT&T did not comply with the demands, and Leafmore filed a declaratory action in superior court against AT&T and the clinic (hereinafter collectively “AT&T”), including a motion for a temporary restraining order and preliminary injunction. Leafmore alleged that the building permits were invalid and that the tower should not be built. The trial court denied the motions for temporary restraining order and preliminary injunction. The trial court later granted Leafmore’s motion for summary judgment and permanent injunction, holding that the department exceeded its authority in approving the building permits since it effectively changed the permitted use of the property without the required notice and approval by the DeKalb County Board of Commissioners. We granted AT&T’s application for discretionary appeal from the grant of summary judgment to Leafmore. For the reasons which follow, we affirm the judgment of the superior court.

1. AT&T contends the trial court erred in finding that Leafmore has standing to challenge the issuance of the building permits. We disagree.

To establish standing, Leafmore needed to show that it possessed a substantial interest that would be affected by the rezoning and that the rezoning would cause it special damage or injury not common to all property owners similarly situated. DeKalb County v. Wapensky, 253 Ga. 47, 48 (1) (315 SE2d 873) (1984). The term “similarly situated” refers to persons in the general community who may merely suffer inconvenience and excludes those persons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it. Macon-Bibb County &c. v. Vineville Neighborhood Assn., 218 Ga. App. 668, 669 (1) (462 SE2d 764) (1995). Although this case does not involve a rezoning decision as such, it does involve a zoning matter. Accordingly, we find the same legal principles applicable. See generally Preservation Alliance &c. v. Norfolk Southern Corp., 202 Ga. App. 116, 117 (413 SE2d 519) (1991).

The condominium owners have shown they have a substantial interest that would be affected by the building of the tower and that their damage differs from that suffered by the general community. Six of the owners submitted affidavits stating that they own units adjacent to and located within 40 to 100 feet of the clinic and 130 to 150 feet of the tower. The tower will be visible from their units and interfere with their enjoyment of their units and the common areas. The change in the use of the clinic property would affect their property.

As to special damage or injury, the owners produced evidence that the location of the tower on the adjacent lot might cause a decline in the value of their property. Although AT&T produced evidence to the contrary, the evidence in its totality establishes a substantial interest on the owners’ behalf. See Moore v. Maloney, 253 Ga. 504, 506 (1) (321 SE2d 335) (1984). We note that loss of economic value of land may be one manifestation of damages caused by rezoning and may be sufficient by itself to support standing, but evidence of a change in property value is not required as a prerequisite for the attainment of standing. Id. Where the parties who seek standing own property contiguous to the rezoned lot and have to live with any changes in the use of the property, such a requirement would be inappropriate. Id. at n. 1.

In Wapensky, supra at 49, the Supreme Court of Georgia stated that the adjoining property owners who will bear the brunt of the changed conditions resulting from the development of the site have a substantial interest in the county’s decision to permit the development. Here, the Leafmore residents would bear the brunt of the changed conditions. They were the express beneficiaries of the rezoning conditions which they seek to enforce. Besides limiting the use of the property to a veterinary clinic, the Board of Commissioners required the clinic to retain the wooded area behind it “as a buffer to the adjoining condos,” install lighting so as not to shine on adjoining residential properties, and meet certain sound- and odor-proofing criteria to protect the residents of the condominiums located to the rear of the clinic. Thus, the Commissioners clearly intended to minimize the clinic’s intrusion upon the adjoining condominium property. The Leafmore residents cannot be said to be merely “casting themselves in the role of ‘champions of the community.’ ” See id.

2. AT&T contends the trial court erred in granting Leafmore’s motion for summary judgment when Leafmore did not exhaust its administrative remedies before challenging the issuance of the building permits in superior court. AT&T argues that Leafmore should have appealed the decision to the board of appeals, but that it failed to do so.

Indeed, it is generally true that a party must exhaust administrative remedies before appealing to superior court. OCGA § 50-13-19 (a). However, the mere existence of an unexhausted administrative remedy does not, standing alone, afford a defendant an absolute defense to a legal action. City of Waycross v. Reid Rental Co., 186 Ga. App. 452, 454 (367 SE2d 305) (1988). For instance, exhaustion is not required where the defect urged goes to the power of the agency to issue the order. Id.

In this case, Leafmore challenged the department’s administrative action as an unlawful usurpation of the Board of Commissioners’ rezoning powers. Because Leafmore urged that the department was not authorized to effectively alter the conditional rezoning on the property, Leafmore was not required to exhaust administrative remedies before initiating a declaratory judgment action. See generally City of Waycross, supra; Vaughan v. Duke, 131 Ga. App. 198, 200 (205 SE2d 499) (1974); Toomey v. Norwood Realty Co., 211 Ga. 814, 818 (2) (89 SE2d 265) (1955). Leafmore’s failure to pursue other remedies was not fatal to its petition.

3. AT&T claims summary judgment was improperly granted to Leafmore because the department did not change the rezoning conditions and the construction constituted a permissible accessory use of the property.

The ordinance passed by the Board of Commissioners in approving the conditional rezoning of the property states that its use is limited to a veterinary clinic. It also imposes restrictions intended to minimize the impact of the rezoning on the residents of the adjoining condominiums, including lighting, noise, odor, and buffer-zone requirements. The conditions were imposed to protect the neighbors and lessen the effect of the zoning change. The conditions were an integral part of the rezoning and should have been considered by the department. In light of all the circumstances, the placement of a communication tower on the clinic property constituted a change in the conditional zoning restrictions.

AT&T argues that property zoned for commercial development, as was the clinic property, permits accessory uses, flagpoles and communication towers. AT&T also claims that the DeKalb County Director of Planning is authorized to grant minor variances and to approve alterations in rezoning conditions. In sum, it argues the department’s decision to issue the building permit was an exercise of its discretion in construing and applying its zoning ordinance. However, our review of the record reveals that most of the DeKalb County ordinance sections relied upon by AT&T are not included in the record on appeal, namely, those sections concerning permitted uses of commercial property, whether accessory uses, flagpoles and communication towers are permitted, and whether the planning department is authorized to approve alterations to rezoning conditions. This Court cannot take judicial notice of county ordinances; the ordinances must be alleged and proved. Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996); see Police Benevolent Assn. &c. v. Brown, 268 Ga. 26, 27 (2) (486 SE2d 28) (1997). Therefore, AT&T presents no grounds for reversal.

Decided November 17, 1998

Parker, Hudson, Rainer & Dobbs, J. Marbury Rainer, Jack C. Basham, Jr., McCullough & Sherrill, Kathryn M. Zickert, for appellants.

Susan M. Garrett, H. Ed Martin, Jr., for appellees.

The duty of this Court on appeal is to decide whether the record supports the initial decision of the administrative agency. Hanrahan v. City of Atlanta, 230 Ga. App. 67 (495 SE2d 324) (1997). Because the evidence of record does not support the administrative agency’s decision to issue the building permits, we affirm the judgment of the superior court, reversing the administrative decision.

4. AT&T contends the superior court erred in finding that it did not have a vested right in the building permits and that the permits could be revoked without impairing its constitutionally protected property rights. “The issuance of a building permit results in a vested right only when the permit has been legally obtained and is valid in every respect and has been validly issued. Where a permit is issued by a governing body in violation of an ordinance, even under a mistake of fact, it is void, and its holder does not acquire any rights,” even if substantial expenditures have been made in reliance on the void permit. (Citations and punctuation omitted.) Matheson v. DeKalb County, 257 Ga. 48, 49 (3) (354 SE2d 121) (1987); City of Hampton v. Briscoe, 207 Ga. App. 501, 503-504 (428 SE2d 411) (1993). In this case, the building permits were invalid and conferred upon their holder no legal rights. See id. at 504.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A1451.
    TAYLOR v. THE STATE.
    (509 SE2d 388)
   Ruffin, Judge.

A jury found Hollan C. Taylor guilty of possession of marijuana and possession of marijuana with the intent to distribute. The trial court sentenced Taylor to ten years for both offenses, to be served concurrently. However, the trial court later entered an order merging the offenses and dismissing the charge for possession of marijuana, the lesser included offense. Taylor appeals, asserting that there was insufficient evidence to support the jury’s verdict on the possession with intent to distribute charge and that the trial court erred in allowing her pre-arrest statement to be admitted into evidence. For reasons which follow, we affirm Taylor’s conviction of possession of marijuana with intent to distribute.

1. Taylor asserts that there was insufficient evidence to support her conviction of possession of marijuana with intent to distribute. This argument is without merit.

“ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the record shows that on September 26, 1996, Taylor entered a Mr. Zip convenience store around 5:30 p.m. to purchase lottery tickets. After leaving, she realized she had left her purse at the store. Taylor returned to Mr. Zip and asked Jimmy Jennings, a store clerk, whether he had seen her purse. He replied that he had not, and Taylor left her name and home telephone number and requested that he telephone her if he found her purse. Jennings subsequently found the purse and, after looking into it for identification, discovered that it belonged to Taylor and that it contained marijuana.

Jennings called his manager, who instructed him to call the sheriff’s department. Officer Doug Licklider arrived at the convenience store and, upon examination of the purse, found a “large baggy with eighteen individual baggies of a green leafy substance [he] believed to be marijuana.” He contacted his supervisor, who dispatched Detective Brad Palmer, a narcotics officer. Jennings told Detective Palmer that an African-American female with short hair and braces had left the purse. Detective Palmer retrieved a photograph from the purse, and Jennings positively identified Taylor. Upon Detective Palmer’s instruction, Jennings telephoned Taylor and asked that she return to the store to retrieve her purse.

At approximately 11:30 p.m., Taylor and her brother arrived at Mr. Zip. Detective Palmer and Agent Tommy Farmer, who were located outside the store’s parking lot, watched Taylor enter the store. Detective Palmer followed her into the store, saw her claim her purse from Jennings, and followed her out of the store. Upon exiting the store, Detective Palmer stopped Taylor to talk to her.

After identifying Taylor, Detective Palmer informed her that he was investigating the marijuana found in her purse. Palmer testified that Taylor “advised me that the marijuana was not hers, it was her boyfriend’s. She advised that she was holding it for him. Earlier during the evening her boyfriend and another guy had cut up approximately a half pound of marijuana in the back seat of her car.” Detective Palmer testified that the term “cut up” means “cut up for distribution. . . . [Y]ou have to cut it up and get the stems and seeds out of it, and then package it up for sale.” He placed Taylor under arrest after she made the statement and then conducted an inventory search of the car and found marijuana seeds and a small plastic bag with a hole cut out of it in the back seat.

As the State acknowledges, mere possession of marijuana alone is insufficient to support a conviction for possession with intent to distribute. Sams v. State, 197 Ga. App. 201, 202 (1) (397 SE2d 751) (1990). However, the evidence reveals that Taylor was carrying 18 bags of marijuana in her purse, an amount indicative of an intent to distribute. See, e.g., Palmer v. State, 210 Ga. App. 717-718 (437 SE2d 490) (1993) (defendant’s possession of nine rocks of crack cocaine was inconsistent with his claim he intended to smoke them all himself). Detective Palmer testified that the marijuana was wrapped in “dime bags,” with a street price of $10 a bag. Moreover, he testified that there were very few “seeds” and “stems” found in the bags, which suggests that the marijuana had been “cut up,” as Taylor stated to Detective Palmer, to make it a better product for sale on the street. See id. (the way rocks of cocaine were broken and sized suggested intent to distribute). Thus, viewed in a light most favorable to support the jury’s verdict, this evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Taylor was guilty of possession of marijuana with intent to distribute. See Jackson v. Virginia, supra.

2. Taylor also enumerates as error the admission of her incriminating, pre-arrest statement to Detective Palmer that she was holding the marijuana for her boyfriend and that the boyfriend and another individual had “cut up” approximately a half-pound of marijuana in the back seat of her car earlier that evening. Specifically, Taylor contends that Miranda warnings were required because she did not feel free to leave the scene, and because Detective Palmer’s questions were aimed at obtaining information to establish her guilt. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). We disagree.

“For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. . . . [W]e apply a ‘clearly erroneous’ standard of review. To determine whether [Taylor’s] statements were custodial, we apply an objective standard and determine whether a reasonable person in [her] situation would have believed [she] was physically deprived of [her] freedom of action in a significant way.” (Citations and punctuation omitted.) State v. Brannan, 222 Ga. App. 372, 374 (2) (474 SE2d 267) (1996); see also Shy v. State, 234 Ga. 816, 819 (218 SE2d 599) (1975). In addition, we note that “Miranda warnings are not required at the initial contact between a police officer and a possible criminal defendant.” (Punctuation omitted.) King v. State, 147 Ga. App. 163, 164 (1) (248 SE2d 294) (1978). Moreover, “[a] person is not in a state of custody merely because [she] is a prime suspect at the time [she] is interrogated by the police or their agent.” Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1998). Finally, “[e]ven if the police have probable cause to arrest at the time of the interview and secretly intend to charge the suspect at some future time, such facts are immaterial to a determination of whether the suspect was in custody at the time of the interview, except when and to what extent the police communicate their future intent to arrest during the course of the interview.” Id.

Applying the standards outlined above, we conclude there was ample evidence to support the trial court’s finding that Taylor’s statement regarding the marijuana was non-custodial, voluntary, and admissible at trial. Officer Palmer, in plain clothes, approached Taylor in a public setting, as she was walking out of a convenience store; identified himself as an agent for the sheriff’s office; asked her name; and then asked whether she knew anything about the marijuana. He did not accuse Taylor of owning the marijuana, made no threats or promises, did not tell her she was under arrest, and did not suggest she was not free to leave. Taylor responded that she knew of the marijuana in her purse. “[W]here the defendant is not in custody — as in the instant case, and responds to an officer’s initial inquiry at an on-the-scene investigation that had not become accusatory, Miranda warnings [are] not required.” King, supra at 164 (1). Under these circumstances, we cannot say that the trial court’s decision that Miranda warnings were not required was clearly erroneous. A reasonable person in Taylor’s position would not have “believed [she] was physically deprived of [her] freedom of action in a significant way.” Brannan, supra at 374 (2).

Decided November 17, 1998.

Weems & House, Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Taylor also maintains that Detective Palmer’s questions were aimed at establishing her guilt. “[W]e believe that in the present case [Detective Palmer] was not interrogating [Taylor] for the purpose of obtaining evidence to establish [her] guilt of a crime. . . . [Rather], we believe the officer was seeking to determine the nature of the situation confronting him.” Shy, supra at 823.

Accordingly, Taylor’s incriminating statement was admissible at trial despite the absence oí Miranda warnings. See Shy, supra; King, supra.

Judgment affirmed.

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

       Taylor also asserts that her convictions for the two offenses constitute multiple punishments for the same crime. However, the trial court corrected this error by entering an order merging the offenses and dismissing her charge for the lesser offense. Thus, this enumeration is moot.


author: Eldridge, Judge.

text:
    A97A2111.
    SIMMONS v. COWETA COUNTY et al.
    (508 SE2d 732)
    Decided November 2, 1998
    Reconsideration denied November 18, 1998.

      Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., Scott M. Zahler, for appellant.

      Hawkins & Parnell, Kimberly H. Ridley, Debra E. Levorse, Debra L. Dewar, for appellees.
   Eldridge, Judge.

In Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998), the Supreme Court reversed that portion of this Court’s opinion in Simmons v. Coweta County, 229 Ga. App. 550 (494 SE2d 362) (1997) finding that Officer Holcomb, the work detail supervisor, was liable for Simmons’ injuries. Therefore, we vacate that portion of our earlier opinion, and adopt the opinion of the Supreme Court as our own.

Judgment affirmed in part and reversed in part.

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


author: Pope, Presiding Judge.

text:
    A98A1620.
    GENTRY v. THE STATE.
    (508 SE2d 671)
   Pope, Presiding Judge.

Terry Gentry was tried and convicted of eight counts of child molestation. Proceeding pro se, Gentry appeals, raising nine enumerations of error. For the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, Terry Gentry repeatedly molested his niece, who was ten years old at the time of trial, for several years. In 1995, Gentry began molesting the second victim, who was also his niece. Gentry was raising the second victim as his daughter and she lived in the house with him. When the first victim’s mother talked to her daughter about the molestation, the first victim confided that Gentry had repeatedly molested her for several years.

The case was reported to the Bartow County Sheriff’s Office and the victims were interviewed separately. Videotapes of the interviews of both children were played for the jury during the investigating officer’s testimony. Upon the jurors’ request during deliberations, the videotapes were replayed.

Both victims testified at trial. The first victim testified that Gentry had repeatedly molested her over several years. The second victim, who was 13 at the time of trial, read the statement she had given to investigators which described Gentry’s molestation of her. Nevertheless, before trial the second victim recanted the account in her statement, claiming that the molestation did not happen. A DFCS caseworker testified that after the second victim’s recantation, the victim later repeated twice her original account in which she said that she had been molested. At trial, the second victim claimed that her account of molestation was fabricated. Nonetheless, she admitted that she was afraid that if Gentry was convicted she would be taken away from his wife, her aunt, because she was not their biological daughter.

1. Gentry argues that reversible error arose because the state did not provide him with the videotape of the investigator’s interview with the first victim as required by OCGA § 17-16-4. Gentry also argues that error exists because the state failed to notify him of the existence of the first victim’s statement ten days before trial as required by OCGA § 17-16-7. At trial, defense counsel did not object to the introduction of the videotape or to the mention of the statement and these arguments were waived. “The absence of a timely objection waives defendant’s right to raise this issue on appeal.” (Citations and punctuation omitted.) Strawder v. State, 207 Ga. App. 365 (1) (427 SE2d 792) (1993). See also Parrish v. State, 194 Ga. App. 760 (1) (391 SE2d 797) (1989). Gentry’s arguments that his counsel was ineffective for not requesting a continuance are addressed in Division 4.

2. Gentry claims that the court erred by not ruling on his “Notice to Use the Victim’s Conduct,” in which he sought to introduce evidence regarding her allegations of child molestation against another perpetrator. He also claims the court erred in not holding an in camera hearing on that issue as he requested. These arguments are without merit. Before playing the videotape of the victim in which she discussed the allegations against the other perpetrator, the court heard various evidentiary arguments and the state conceded that the tape of the victim opened the door regarding these other allegations. Later the evidence was introduced without objection. Accordingly, it was unnecessary to have a formal ruling from the court on this issue and Gentry’s arguments are without merit.

3. Citing OCGA § 17-7-54, Gentry claims the court erred in denying his motion to dismiss the indictment and his motion for new trial. Gentry claims that the indictment did not sufficiently apprise him of the time or place of the charges against him.

In its first three counts, the indictment alleged that Gentry molested the second victim from January 1, 1995 until June 5, 1995. In five additional counts, the indictment charges that Gentry molested the first victim from January 1, 1991 until June 5, 1995. Clearly, the six-month time frame set forth in the first three counts sufficiently apprises Gentry of the date of the crimes charged. Murphy v. State, 195 Ga. App. 878 (1) (395 SE2d 76) (1990).

Similarly, the dates set forth in the indictment regarding the first victim were sufficiently specific. “Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.” (Citations and punctuation omitted.) Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989). See also Lane v. State, 223 Ga. App. 740, 743 (6) (479 SE2d 350) (1996); see generally Eberhardt v. State, 257 Ga. 420 (2) (359 SE2d 908) (1987).

The evidence in this case showed a pattern of sexual molestation which lasted over a period of years, beginning when the victim was a small child. Although Gentry initially filed notice of his intent to raise the defense of alibi, he failed to pursue this defense at trial. It does not appear that the failure to allege a more specific date for the offense materially affected his ability to present a defense. We find no error in the court’s failure to dismiss the indictments. See Snyder v. State, 201 Ga. App. 66, 67 (2) (410 SE2d 173) (1991) (when indictments alleged that the criminal acts occurred “on or before December 25, 1989,” and young victims testified at trial that acts happened within last four years, denial of defendant’s general demurrer was proper because he had notice of State’s intention to show a pattern of ongoing occurrence).

In the instant case, we find that “[t]he allegations of the indictment were also sufficient as to place. Unless the character of the place is an essential element of the offense, an indictment which charges the crime to have been committed in a particular county is sufficiently certain as to place.” (Citations and punctuation omitted.) Hutton v. State, 192 Ga. App. at 241.

The court’s denial of Gentry’s motion for new trial was also proper. To the extent that Gentry argues that the evidence was insufficient to convict, we disagree and conclude that a rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The other arguments raised in this enumeration are without merit.

4. Gentry claims that his retained trial counsel was ineffective. First, as in Division 1, Gentry argues that his counsel’s failure to move for a continuance when she was first allowed to see the videotape of the first victim’s statement on Friday before the trial began on Monday constituted ineffective assistance.

At the motion for new trial hearing, Gentry’s trial counsel testified that although she did not watch the videotape until the Friday before trial, she received a transcript of the videotaped statement months before the trial began. She recalled that three months before trial she communicated with Gentry regarding the statement. She testified that based on the transcript of the statement, there were no surprises in the videotape and that it followed right along with the transcript.

At the hearing on his motion for new trial, Gentry’s counsel testified that she spent many hours preparing Gentry to testify, but that he chose not to after the State rested. Gentry’s counsel said that the decision as to whether to testify was ultimately Gentry’s. The record indicates that the court advised Gentry of his right not to testify and that Gentry clearly opted not to testify and signed a form to that effect. In fact, Gentry’s counsel testified that although they considered an alibi defense based on Gentry’s medical incapacity, they abandoned this defense before trial.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Here, Gentry must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. at 70 (8). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); [cits.].” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Id. at 233-234 (1).

Decided October 23, 1998

Reconsideration denied November 18, 1998

Terry F. Gentry, pro se.

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

Gentry’s argument that his trial counsel was ineffective in failing to request a continuance because his counsel did not see the videotape until the Friday before the Monday trial is without merit. Though it was conflicting, evidence at the hearing on the motion for new trial showed that Gentry’s counsel received a transcript of the videotaped statement at least three months before the trial and simply watched the videotape to make sure that it was consistent with the transcription.

Similarly, Gentry’s arguments that his defense counsel was ineffective for failing to demand from the court a ruling on his notice to use the victim’s conduct is without merit for the reasons set forth in Division 2. Gentry’s remaining arguments regarding his counsel’s allegedly ineffective performance are also meritless.

5. Gentry argues that he was denied his Fifth and Sixth Amendment rights of due process and right to be informed of the nature and cause of the accusation. To the extent that these arguments differ from those raised in the divisions above, they lack merit.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       Though the State argues that a general demurrer, not a motion to dismiss the indictment would be the correct procedure, we address the merits of Gentry’s argument.