text:
    A98A1560.
    In the Interest of J. B., a child.
    (507 SE2d 874)
   Smith, Judge.

This appeal arises out of the juvenile court’s order transferring J. B. to the superior court for prosecution. J. B. contends the State failed to meet its burden of showing that he was 15 years old at the time of the alleged offenses, that the court erroneously found him unamenable to treatment, and therefore that the evidence presented to the juvenile court was insufficient to warrant transfer. We conclude that the juvenile court did not abuse its discretion in ordering the transfer, and we affirm.

J. B. was arrested after being involved in a confrontation with other youths in the parking lot of Norcross High School. Evidence was presented at the transfer hearing that J. B. was a gang member and that, during this confrontation, he pulled a gun from his pants pocket, pointed it at a group of youths, cocked it, and screamed at them asking whether they wanted to die. A police officer responded to a call concerning the confrontation and arrested J. B. The officer testified that a minor arrested with J. B. stated that he heard a “click” as if J. B. had pulled the trigger, but that this minor knew the gun was not loaded. This officer also testified that J. B. told him that he pulled the gun but did not fire it and that if the gun had had bullets in it, he would have shot the youths, whom he believed to be rival gang members. After his arrest, J. B. was charged in juvenile court with being delinquent by committing acts which, had they been committed by an adult, would have been six counts of aggravated assault, one count of carrying a concealed weapon, and one count of carrying a weapon within a school safety zone. The State then successfully sought transfer of J. B. to superior court for prosecution under OCGA § 15-11-39.

1. J. B. contends the State failed to meet its burden of showing that he was 15 years old at the time of the offense, as required by OCGA § 15-11-39 (a) (4). See generally C. L. A. v. State of Ga., 137 Ga. App. 511, 512 (3) (224 SE2d 491) (1976) (burden of meeting requirements of transfer on State). We do not agree. Although no direct testimony of J. B.’s age at the time of the offense was presented, the delinquency petition recites that J. B.’s date of birth was February 1, 1983. Also, the juvenile court had before it when ordering transfer a court-ordered psychological evaluation reciting that J. B.’s date of birth was February 1, 1983. The acts in issue occurred February 11, 1998, making J. B. 15 years old on that date.

2. J. B. also argues that the trial court erroneously found that he is not amenable to treatment in the juvenile system without reflecting in its order the reasons for this finding. Although the transfer order does contain this finding without showing the factual basis for it, we conclude that reversal is not required.

To transfer an offense for prosecution from juvenile to superior court, a juvenile court must determine among other things that reasonable grounds exist to believe that the interests of both the child and the community require transfer. OCGA § 15-11-39 (a) (3) (C). Whether the child is amenable to treatment in the juvenile system is but one factor for the juvenile court to consider when making this determination. State v. M. M., 259 Ga. 637, 639 (2) (a) (386 SE2d 35) (1989). When the State seeks transfer based in part on a child’s non-amenability to treatment in the juvenile system, it must prove the child is not amenable to treatment. And “if the juvenile court relies in part on the child’s non-amenability to treatment in ordering the transfer, the transfer order . . . must reflect why the child is not amenable to treatment. [Cit.]” Id. at 639-640 (2) (b). But even a juvenile amenable to treatment may be transferred to superior court. If the State argues that the community’s interest outweighs any interest the juvenile may have in receiving treatment in the juvenile system, it need not prove non-amenability to treatment, and the transfer order need not reflect why the child is not amenable. “Instead, the order must balance the child’s interest in treatment in the juvenile system, including but not limited to his amenability to treatment, against the community’s interest in treating the child as an adult.” Id. at 640 (2) (c).

As argued by J. B., the juvenile court recited in the transfer order that J. B. is not amenable to treatment without reflecting the basis for that finding. But despite this finding, our review of the record and the transfer order as a whole shows that the transfer was not based on a finding of non-amenability. During the transfer hearing, the court orally concluded that transfer was warranted. In making this oral ruling, the court questioned whether non-amenability was a ground for transfer and was told by the prosecutor as well as defense counsel that this factor was not a ground under OCGA § 15-11-39. The court then ordered transfer without mentioning amenability; the court commented on the severity of J. B.’s offenses, expressing concern about sending such a dangerous person into the juvenile system with other children. Finding J. B. to be “just too dangerous for” juvenile programs, the court ordered transfer. The juvenile court’s oral findings show that although non-amenability may or may not have been considered by the court, J. B. was transferred for other reasons.

Also, the transfer order itself reflects that non-amenability to treatment was not the basis for the juvenile court’s decision. Notwithstanding the statement that J. B. was not amenable to treatment, in the order the juvenile court recognized the possibility that J. B. might be amenable to treatment and weighed that factor against the interests of the community. After finding that J. B. could be dangerous to the juvenile system and posed “an extreme threat of violence to the community and the community’s school system,” the court stated that “the severity and heinous nature of these offenses and the [community’s] interest in trying this juvenile in Superior Court outweigh any possible amenability to treatment that may exist for the juvenile or the juvenile’s general interest in being adjudicated in the Juvenile Court system.” This conclusion comports with the requirement set out in M. M. that the juvenile court balance the child’s interests against those of the community. Because the court did not rely on non-amenability to treatment in ordering transfer and clearly reflected in its order the balancing analysis required by M. M., and because evidence was presented supporting the juvenile court’s finding of J. B.’s potential danger to other youths and the community at large — that he brandished a gun on school property, threatened six youths, and stated that he would have shot them if he had had ammunition — we cannot say that the juvenile court erred in ordering transfer.

Judgment affirmed.

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

Decided October 16, 1998.

David L. Whitman, for appellant.

Daniel J Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

       Although we quote portions of the juvenile court’s order in the opinion’s text, for the sake of clarity, we set out here in its entirety the relevant paragraph of the order showing the basis for the juvenile court’s decision: “[T]he interests of the juvenile and the community require that the juvenile be placed under legal restraint and the transfer be made. The Court specifically finds that the juvenile is not amenable to treatment in the juvenile system, that it would be harmful to the juvenile system and those in that system to be exposed to the juvenile, that the juvenile poses an extreme threat of violence to the community and the community’s school system, that the juveniles [sic] threats of violence and gang membership and activities would be harmful to the juvenile system, that the severity and heinous nature of these offenses and the communities [sic] interest in trying this juvenile in Superior Court outweigh any possible amenability to treatment that may exist for the juvenile or the juvenile’s general interest in being adjudicated in the Juvenile Court system.”

       We note that the prosecutor also stated without objection that J. B.’s date of birth was February 1,1983.

       The juvenile court also must determine that reasonable grounds exist to believe that the child committed the alleged delinquent act and that the child is not committable to an institution for the mentally retarded or mentally ill. OCGA § 15-11-39 (a) (3) (A), (B). The juvenile court made these findings, which were not appealed by J. B.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1897.
    In the Interest of S. B. B., a child.
    (507 SE2d 879)
   Johnson, Presiding Judge.

Sixteen-year-old S. B. B. was charged with armed robbery and aggravated assault. After a hearing, the juvenile court ordered the casé transferred to superior court pursuant to OCGA § 15-11-39. S. B. B. appeals, alleging the state failed to prove: (1) that he participated in the acts alleged; and (2) that he was not amenable to treatment in the juvenile system. For the following reasons, we affirm.

OCGA § 15-11-39 (a) (3) provides in relevant part that a juvenile court may transfer a case to an appropriate court if, in its discretion, it determines there are reasonable grounds to believe the child committed the delinquent acts alleged; the child is not committable to an institution for the mentally ill or retarded; and the interests of the child and the community require that the child be placed under legal restraint and the transfer be made.

1. Evidence that S. B. B. participated in the acts alleged. “The function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.” (Citation and punctuation omitted.) In the Interest of K. S. K., 216 Ga. App. 257, 258 (2) (454 SE2d 165) (1995).

The victim testified that a group of four or five boys she knew entered the convenience store where she worked as a cashier. As the boys browsed and used the microwave oven, the victim spoke to them, and they spoke back. As she walked toward the counter, one of the boys came behind her, grabbed her around the throat and pulled her to the ground. She was beaten and stomped, and her face and ear were severely cut with a sharp object. Cigarettes, lottery tickets and cash were taken from the store. S. B. B. initially denied having any knowledge of the offenses, then eventually stated that he was present in the store but that his friends committed the assault and robbery. The victim identified S. B. B. in a photographic array and in court as one of her assailants. The evidence amply supports the juvenile court’s finding that reasonable grounds exist to believe S. B. B. committed the delinquent acts charged. See generally In the Interest of K. L. L., 204 Ga. App. 320, 321 (2) (419 SE2d 312) (1992).

Decided October 16, 1998.

Pete, Pete & Associates, Anthony T. Pete, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

2. Amenability to treatment. The state did not seek a transfer based on non-amenability to treatment, and the juvenile court did not rely on that ground in ordering the transfer. Instead, based on the severity and viciousness of the offenses, the juvenile court found that the public interest in treating S. B. B. as an adult outweighed his interest in being treated as a juvenile. It is not necessary to prove the juvenile’s amenability to treatment in the juvenile system where the interest of the community mandates a transfer. In the Interest of C. D. B., 214 Ga. App. 655, 656 (2) (449 SE2d 1) (1994); see In the Interest of A. G., 265 Ga. 481 (458 SE2d 343) (1995). The juvenile court did not abuse its discretion in ordering the matter transferred to superior .court. In the Interest of A. F., 214 Ga. App. 440, 442 (2) (448 SE2d 11) (1994).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A98A1398.
    RODRIGUEZ et al. v. MIRANDA.
    (507 SE2d 789)
   Beasley, Judge.

Antonio Miranda, M.D., sued Martin Rodriguez, M.D., and Southern Medical Clinics, P.A. d/b/a Corporate Center Clinic (CCC), complaining of breach of an employment agreement and seeking to recover compensation allegedly owed under its clause four.

As of January 1, 1986, Dr. Miranda and CCC, by its president/ shareholder Dr. Rodriguez, entered into the agreement prepared by Dr. Rodriguez for Dr. Miranda’s employment by CCC as a physician. Compensation is set forth in clauses one and four. In clause one the parties established a base salary of $108,000 divided into 12 installments of $9,000 per month. In clause four the parties agreed that to the extent the gross income of CCC exceeded $525,000 for the calendar year, Dr. Miranda would receive 40 percent.

Clause two gave Dr. Miranda one calendar month of vacation with full salary, and clause four provided that any extra time taken off work for any reason would be deducted from his base salary. Clause five specified that he would not participate in the clause four income-sharing during any extra time off and that the percentage would be prorated according to the days he did not work.

Under clause six, the contract was valid for one year. But clause seven provided that the contract could be “declared null and void or canceled by either party at any time during the year without reason or previous notice, effective immediately.” The words “effective immediately” were inserted into the typewritten contract by an initialed handwritten notation.

At the beginning of 1987, the parties orally agreed to the written terms of the 1986 employment agreement for the calendar year 1987. Although (as found by the trial court) Dr. Miranda had fulfilled his employment duties and was not in breach of contract, Dr. Rodriguez, acting on behalf of CCC, terminated his employment as a CCC physician on July 31, 1987.

Later that year, Dr. Miranda filed an action seeking payment of 1986 and 1987 clause four “bonus” compensation. That complaint was dismissed without prejudice for want of prosecution, but Dr. Miranda filed again in 1991. Settlement was reached regarding the 1986 bonus.

The parties filed cross-motions for partial summary judgment on the issue of liability for the 1987 bonus. In 1992, the court granted plaintiff’s motion and denied defendants’. The court determined that it was the intention of the parties that the plaintiff receive prorated bonus compensation for 1987 for the time he was employed. Using the formula in General Gas Corp. v. Carn, the court ruled that the bonus would be calculated by multiplying 7/12 (the portion of the year plaintiff was employed by CCC) times 40 percent (the percentage bonus compensation agreed to by the parties) times the amount of gross income earned by CCC above $525,000 during the 1987 calendar year. Discovery was held open so the parties could determine the amount of gross income of CCC during the relevant time period.

In 1995, Miranda sought partial summary judgment in the amount of $48,891.51 plus prejudgment interest for bonus compensation owed for 1987 in accordance with the formula in the 1992 order and the amount of CCC’s gross income for the year as determined through discovery, $734,547.

In 1998, the court by order ruled that defendants are liable for the amount sought by plaintiff, that this amount constitutes liquidated damages, and that plaintiff is entitled to prejudgment interest beginning January 1, 1988 in an amount to be determined.

1. Defendants fault the court’s grant of Dr. Miranda’s motions for partial summary judgment on liability and damage issues, its denial of their motion for partial summary judgment on liability, and its construction of the employment agreement.

“There are three steps in contract construction: the trial court must first decide whether the contract language is unambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; and if an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]” An ambiguous contract is construed most strongly against its maker, but the cardinal rule of contract construction is to ascertain the intention of the parties.

Defendants argue that since CCC exercised its contractual right of declaring the employment contract null and void prior to termination of the calendar year, any promise to pay a bonus likewise became null and void. They further maintain that where, as here, a contract becomes null and void by its terms, a party cannot thereafter legally enforce an executory promise conditioned upon a future event. As authority in support of their arguments, defendants rely on the “general rule” that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligation.

This rule was first articulated in Lowe v. Royal Crown Cola Co., in which the parties had entered into an employment contract terminable at will. The employee was forced to tender his resignation several days before expiration of the first year of employment as a result of the employer’s dissatisfaction with job performance. Approximately two months later, he sought to exercise his rights under a stock option agreement.

This court applied the general rule and held that the company properly terminated plaintiff’s employment. The court next turned to plaintiff’s assertion that he had the right to exercise his option under a provision in the agreement which required the option to be exercised within three months of plaintiff’s termination of employment. But plaintiff did not have the right to exercise the option because of another provision stating that it could not be exercised unless and until the employee had remained in the continuous employ of the company for 12 months.

The court in Lowe thus determined that the executory obligation was unenforceable because it was conditioned on a prior event that failed to occur, not because the plaintiff’s at-will employment had been terminated. The trial court’s grant of the employers’ motions for summary judgment was affirmed.

In contrast, the employee was entitled to summary judgment in General Gas Corp. v. Carn, Cam’s employment contract expressly provided that the employee was to receive 15 percent of corporate net profits over and above $40,000 for the year 1959 and that he was to be paid this percentage either at the end of the year or at the time of termination of his services. This percentage was to be paid only on net profits earned during his term of employment. The evidence showed that the employee terminated his employment on April 1 and that net profits totaled $90,296.28 for the year. This Court held that the employee was entitled to one-fourth of 15 percent of $50,296.28, and to prejudgment interest beginning January 1 of the following year.

In King Industrial Realty v. Rich, the brokerage firm (King) compensated its agent Rich for his services by commissions on the sale or lease of property, as well as year-end bonuses. Rich’s relationship with King was governed by a set of documents which included an agency contract and bonus memorandum. Under the agency contract, commissions were not to end upon Rich’s death or termination but were subject to a percentage reduction. The bonus memorandum addressed King’s “year-end” bonus policy and provided that if, at the “end of the year,” the commissions the agent received were more than his pro rata share of the company’s operating expenses plus a management fee, he would be reimbursed according to a prescribed formula.

Rich was discharged under a provision in the agency contract authorizing termination for cause at any time upon seven days’ notice. The trial court ruled that Rich was entitled to bonuses after his termination because there was no indication in the bonus memorandum or any of the parties’ other agreements that payment of a bonus was predicated upon the agent being employed by the firm at the end of the year.

On appeal, King maintained that the language in the bonus memorandum reflected an intention to pay bonuses only to agents who were with it at year-end. Although we recognized some ambiguity in the terms of the memorandum, we concluded that Rich was entitled to the post-termination bonuses under the formula agréed to by the parties. We characterized the bonus as “simply additional commission . . . calculated based upon prior sales and leases . . . [which] . . . ha[d] already been earned by the time it [was] calculated.” After noting that the memorandum did not expressly provide for a forfeiture of the bonus if the agent was not with King at the time it was to be calculated, we held that such a forfeiture could not be implied because “ ‘[t]he settled public policy of this state is that forfeitures are not favored . . . and all ambiguities in a contract are to be resolved against their existence.’ [Cit.]”

This case is materially similar to and ultimately controlled by King. Lowe is distinguishable because the agreement here does not expressly require Dr. Miranda to remain in the employ of CCC in order to be entitled to the year-end bonus. Conversely, General Gas is distinguishable because the subject agreement does not by its express terms provide that Dr. Miranda remains entitled to the bonus even if his employment is terminated prior to year’s end. The agreement could be considered ambiguous on the question of whether Dr. Miranda is entitled to the bonus. As in King, the interpretation urged by defendants would result in a forfeiture of Dr. Miranda’s right to additional compensation for services previously rendered, although based on a financial contingency which has yet to occur (i.e., the establishment of CCC’s gross income exceeding $525,000 for the year). In other words, defendants propose a retroactive disentitlement to a share in the income already earned in part by Dr. Miranda’s labor. The indeterminability of the bonus due on July 31, 1987, does not eliminate the obligation to pay when the amount is ascertainable, i.e., just after December 31, 1987.

Applying the rule in King, any ambiguity is resolved against the existence of a forfeiture. Consequently, CCC’s termination of the employment agreement did not invalidate its future obligation to compensate Dr. Miranda for services rendered prior to his termination in accordance with the implicit formula.

2. It necessarily follows that Dr. Miranda is entitled to prorated compensation from CCC under clause four based on the portion of the year he worked, the percentage set by the parties, and the extent to which CCC’s 1987 gross income exceeded $525,000. This sum became fixed and certain by mathematical calculations which were or should have been in the possession or knowledge of CCC when 1987 ended. Consequently, the bonus claim qualifies as a liquidated demand, thereby entitling Dr. Miranda to prejudgment interest under OCGA § 7-4-15. As in Cam, supra, the trial court did not err in ruling that such interest began to run at the beginning of the year following which the bonus became due (i.e., January 1, 1988).

Decided September 28, 1998

Reconsideration denied October 19, 1998

Cashin, Morton & Mullins, Harry L. Cashin, Jr., David G. Michell, Fleming & Ray, James M. Sherman, for appellants.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Rowe & Lawler, William P. Rowe III, for appellee.

3. The court was not authorized to enter judgment against Dr. Rodriguez personally.

Although Dr. Rodriguez signed the parties’ agreement without denoting at or under the signature that he was signing in a representative capacity, the agreement plainly states at the outset that it is between CCC, “represented by Dr. Martin Rodriguez,” and Dr. Miranda. The substance of the writing shows clearly that Dr. Rodriguez signed in his representative capacity. The parties stipulated that Dr. Rodriguez is the president and shareholder of the defendant professional association.

4. Defendants’ final contention is that the court erred in granting Dr. Miranda’s motion for partial summary judgment in its 1998 order because it did not direct that Dr. Rodriguez’s deposition be unsealed until after the order had been entered. The court stated in the order appealed that it had reviewed the record. Under General Motors Corp. v. Walker, no reversible error appears in this regard.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.

       Although the principal defendant is the legal entity “Southern Medical Clinics, P.A.”, we refer to defendant as Corporate Center Clinic because the parties do.

       103 Ga. App. 542, 546 (2) (120 SE2d 156) (1961).

        Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996).

        Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 783-784 (1) (386 SE2d 537) (1989).

        E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 360 (3) (359 SE2d 148) (1987) (cited in Arby’s, Inc. v. Cooper, 265 Ga. 240, 242 (454 SE2d 488) (1995)); see Brunson v. C. B. A., Inc., 189 Ga. App. 621, 622 (1) (376 SE2d 706) (1988).

       132 Ga. App. 37, 40-41 (1) (207 SE2d 620) (1974).

       Supra.

       224 Ga. App. 629 (481 SE2d 861) (1997).

       Id. at 634 (5) (b).

       Id. at 634-635.

       Compare Arby’s, Inc. v. Cooper (bonus unenforceable because its amount based in part on a future exercise of discretion by the employer).

       See Tunison v. Tillman Ins. Agency, 184 Ga. App. 776, 778-779 (4) (362 SE2d 507) (1987) (amount claimed is a liquidated demand if it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in possession or knowledge of the party to be charged).

       This statute provides that all liquidated demands where the sum to be paid is fixed or certain bear interest from the time the party shall become liable and bound to pay them.

       Compare Cohen v. Capco Sportswear, 225 Ga. App. 211 (483 SE2d 634) (1997), and cit.

       244 Ga. 191 (259 SE2d 449) (1979).


author: Ruffin, Judge.

text:
    A98A0858.
    KITCHENS v. THE STATE.
    (508 SE2d 176)
   Ruffin, Judge.

James Aubrey Kitchens pled guilty to the offense of rape on September 25,1986 and was sentenced to twenty years, with ten to serve and the remainder on probation. On May 30, 1997, his probation officer filed a petition to revoke his probation because of, among other things, an alleged battery committed by Kitchens on or about April 18, 1997. The trial court revoked the remainder of Kitchens’ probation, finding that the alleged battery actually constituted attempted rape. We granted Kitchens’ application for discretionary review. Kitchens asserts that (1) he was deprived of his due process right to counsel at the probation revocation hearing and (2) the trial court erroneously revoked nine years of his probation based on the felony offense of attempted rape, which was not alleged in the petition. We reverse and remand.

1. Kitchens first contends that the trial court deprived him of his due process right to counsel at his probation revocation hearing.

At the outset, we note that a probationer has no Sixth Amendment right to counsel at a revocation proceeding because it “is not a stage of a criminal prosecution.” Vaughn v. Rutledge, 265 Ga. 773, 774 (1) (462 SE2d 132) (1995). “A probationer has only a more limited due process right to counsel under the Fourteenth Amendment,” and whether he is entitled to counsel must be determined on a case-by-case basis. (Punctuation omitted.) Id.

“Since a probationer has no inflexible right to appointed counsel under the due process clause of the Fourteenth Amendment, there is no absolute requirement that he be informed of that right. A probationer is entitled only to be informed of his right to request counsel.” (Punctuation omitted.) Id. at 774 (2). “The procedure to be applied in determining whether an indigent probationer is entitled to appointed counsel at a revocation hearing is set forth in Gagnon v. Scarpelli, 411 U. S. 778, 790-791 (93 SC 1756, 36 LE2d 656) (1973) as follows: ‘Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer . . . makes such a request based on a timely and color-able claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the; appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.’ (Emphasis supplied.)” Elkins v. State, 147 Ga. App. 837-838 (250 SE2d 535) (1978).

At the August 21, 1997 hearing, the prosecutor asked Kitchens whether he was represented by counsel, to which Kitchens responded, “Donna [Avans] was here,” referring to the public defender representing him on the underlying criminal charge of simple battery. The trial judge advised Kitchens that “[i]n a probation revocation you’re entitled to have a lawyer represent you, but you’re not entitled to a lawyer at public expense. If you want a lawyer, you’ll have to hire a lawyer. For that reason the public defender, Ms. Avans, doesn’t represent you on this probation revocation. . . . [T]he case has been continued a couple of times. ... Is there any reason you don’t have a lawyer today?” Kitchens responded “I can’t afford one, sir. A probation warrant, I’ve been locked up for four months now.” The trial judge asked Kitchens whether he wanted time to hire a lawyer, and Kitchens answered “I need to get a lawyer, I guess. Is there any way I can get out on bond where I can get a job and get me a lawyer?” The trial judge said “no” and asked Kitchens whether he had made any efforts to retain a lawyer since June 9, 1997, the date on which the hearing was originally scheduled. Kitchens responded “I talked to Ms. Donna.” The judge stated that he was “certain Ms. Avans would have told you that she doesn’t represent you for this offense” and found that Kitchens had not exercised due diligence in seeking to obtain an attorney at his own expense. In response to a question from the judge, Kitchens said that he did not admit committing the battery.

Later in the proceedings, the trial court gave Kitchens the opportunity to ask his accuser questions, but strongly advised that “many times pro se defendants don’t know how to ask questions . . . [a]nd you need to understand . . . that everything that you say today is being recorded by the court reporter, and the State may use your questions of this witness against you at your future trial.” Thereafter, Kitchens declined to cross-examine any of the State’s witnesses or to offer any evidence on his own behalf.

The State’s claim that Kitchens was informed of his right to request counsel is disingenuous. The trial judge did not advise Kitchens of his right to request counsel; rather,, the judge’s statement that “[i]n a probation revocation you’re entitled to have a lawyer to represent you, but you’re not entitled to a lawyer at public expense” reveals that he was operating under the erroneous assumption that an accused is never entitled to State-appointed counsel in a revocation proceeding. See Elkins, supra; Harris v. State, 251 Ga. 517, 518 (307 SE2d 504) (1983); Kemp v. Spradlin, 250 Ga. 829, 830 (301 SE2d 874) (1983). The transcript of the hearing reveals that the court gave no consideration whatsoever as to whether Kitchens should be given such assistance.

The State correctly points out that a trial court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. “Unless [Kitchens’] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.” Vaughn, supra at 774-775 (3). However, the trial court must make the initial determination as to whether a probationer is entitled to counsel based upon the guidelines set forth in Gagnon. Id. at 774-775 (3). Because the trial court in that case failed to do so, we must remand this case to the trial court for such a determination. See Vaughn, supra; Elkins, supra; Harris, supra.

2. Kitchens next maintains that, because the revocation petition alleged only that he had committed the misdemeanor offense of battery, which would result in a maximum revocation of two years pursuant to OCGA § 42-8-34.1 (b), the trial court improperly revoked nine years of his probation on the ground that he committed attempted rape, a serious felony which was not alleged in the petition.

The revocation petition was filed on May 30, 1997, alleging that Kitchens “committed the subsequent offense of Battery on or about 4-18-97 in Jackson County, Ga.” A hearing was set for June 9, 1997; however, the trial judge continued it because of the absence of one of the State’s witnesses. On August 21,1997, almost three months after Kitchens was served with the petition, a probation revocation hearing was held. At that hearing, the State argued for the first time that the alleged battery actually constituted an attempted rape. The trial court found that Kitchens violated the terms and conditions of his probation by committing the offense of battery and attempted rape and revoked the remainder of his probation.

“Due process requires that a defendant be given written notice of the claimed violation of his probation prior to the revocation hearing.” Collins v. State, 151 Ga. App. 116, 117 (2) (258 SE2d 769) (1979) (citing Gagnon, supra). In addition, “[i]n order to revoke the probationary features of a sentence the defendant must have notice and opportunity to be heard, the notice being sufficient to inform him not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based. It may not be revoked where there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given.” Horton v. State, 122 Ga. App. 106 (1) (176 SE2d 287) (1970). See also Lester v. Foster, 207 Ga. 596, 598 (63 SE2d 402) (1951). Likewise, if a judgment is based upon an offense not charged in the petition for revocation, it must be reversed. Moore v. State, 165 Ga. App. 59 (299 SE2d 138) (1983).

Kitchens concedes that the trial court was authorized to find that he committed battery as alleged in the petition, and that the court was therefore authorized to revoke two years of his probation pursuant to OCGA § 42-8-34.1 (b). However, he contends that the trial court exceeded its statutory authority when it revoked nine years of his probation upon a finding that he committed attempted rape, a crime which was not alleged in the probation revocation petition or even brought to his attention until the August 21, 1997 hearing. Kitchens maintains that the State has to give a probationer notice of the specific allegations against him prior to a hearing, especially when the petition alleges he has violated his probation by commission of a misdemeanor and at the hearing the State elevates the offense to a serious felony.

The State’s argument that Kitchens’ probation was properly revoked because the factual events surrounding the attempted rape were part of “the same transaction” as the battery is without merit. The State erroneously relies on Oliver v. State, 169 Ga. App. 716 (314 SE2d 722) (1984) in support of its claim. In Oliver, the probationer was arrested for possession of marijuana with intent to distribute. On appeal Oliver asserted “that the petition for revocation was inadequate because it cited his arrest as the ground for revocation, rather than alleging the substantive facts constituting the offense itself.” Id. at 717 (3). We held that “[t]he inadequacy of a petition is not necessarily a basis for setting aside a revocation where the factual grounds are established at the hearing.” Id. See also Wilson v. State, 152 Ga. App. 695, 697 (2) (263 SE2d 691) (1979). Oliver is clearly distinguishable from the present case. There, the probationer had notice that his probation was in jeopardy due to his arrest for possession of marijuana with intent to distribute', the State did not seek to revoke his probation on the basis of any other crime which could have been found from the facts presented at the hearing. Such was the case here, where the petition alleged that Kitchens committed the offense of battery, and only at his revocation hearing, some three months following service of the petition, was he advised that the State was seeking to revoke his petition on the basis of attempted rape.

Although the State argues that “the factual events surrounding the attempted rape were developed at the hearing,” the prosecutor in fact stated at the start of the hearing that, “[u]pon talking to the vietim, we believe this case may be escalated to a [sic] attempted rape.” (Emphasis supplied.) Thus, the State was clearly aware of the existence of a possible attempted rape charge before the hearing. The State, which itself requested the continuance from the June 9, 1997 hearing and had access to the witnesses, could have amended the petition which alleged only a misdemeanor offense of battery prior to the August 21, 1997 hearing rather than surprising Kitchens at the hearing with an accusation of a serious felony. See, e.g., Dudley v. State, 161 Ga. App. 310, 311 (3) (287 SE2d 763) (1982) (“the petition, as amended, clearly informed [defendant] what constituted the violation of probation”). Thus, we hold that the State’s petition, which alleged only the misdemeanor offense of battery, did not constitute sufficient notice to Kitchens so as to permit the trial court to revoke his probation on the ground of attempted rape, an offense which carried a much greater punishment.

Decided October 19, 1998.

Donna L. Avans, for appellant.

James A. Kitchens, pro se.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment reversed and remanded.

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


author: Smith, Judge.

text:
    A98A1751.
    DILLARD v. THE STATE.
    (507 SE2d 881)
   Smith, Judge.

Dale Dillard was charged with driving under the influence of alcohol (Count 1) and disobedience of a traffic control device (Count 2) in one accusation. The jury found him guilty of Count 2, but was unable to agree on a verdict on Count 1. The trial court declared a mistrial with regard to Count 1 and delayed sentencing Dillard on Count 2 until after his retrial on Count 1. Before his retrial, Dillard filed a plea in bar, contending that a retrial would violate Georgia’s statutory proscriptions against double jeopardy. See OCGA §§ 16-1-7 and 16-1-8. The trial court denied Dillard’s plea and he appeals. See Young v. State, 251 Ga. 153, 155 (1) (303 SE2d 431) (1983).

Dillard contends he cannot be retried on Count 1 because OCGA § 16-1-7 (b) requires the two charges against him to be “prosecuted in a single action.” He also asserts OCGA § 16-1-8 (b) bars a retrial because he was formerly prosecuted “for a crime which involves the same conduct.” Because this Court rejected virtually identical arguments in State v. LeMay, 186 Ga. App. 146, 148 (3) (367 SE2d 61) (1988), we find no merit in Dillard’s appeal and affirm the trial court’s denial of his plea of former jeopardy. See also Rower v. State, 267 Ga. 46, 47 (472 SE2d 297) (1996).

Decided October 19, 1998.

Monte K. Davis, for appellant.

Ralph T. Bowden, Jr., Solicitor, Margaret A. Dunaway, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

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


text:
    A98A2092.
    RENN v. THE STATE.
    (508 SE2d 174)
   Smith, Judge.

A jury found Cary Renn guilty of speeding and driving under the influence. Renn appeals, asserting the trial court committed harmful error when it allowed the State to impeach his testimony through evidence of his prior DUI conviction. Renn also asserts this evidence should not have been admitted because the State failed to provide notice of its intent to introduce similar transaction evidence as required by Uniform Superior Court Rule 31.3. We disagree and affirm.

The evidence shows that Georgia State Patrol Trooper Robert Moody saw Renn driving 80 mph on U.S. Highway 278 at 1:16 a.m. and pulled him over with his blue lights. When Trooper Moody approached Renn’s car, he noticed unopened beer in the back seat. Renn rolled down his window, and Trooper Moody detected a strong odor of alcoholic beverages coming from the car. He asked Renn to step out of the car and watched Renn slowly walk to the rear of the car while swaying back and forth. Trooper Moody then asked Renn to perform two field sobriety tests: the horizontal gaze nystagmus and the one-legged stand.

After these tests revealed alcohol impairment, Trooper Moody administered a preliminary breath test to determine if alcohol was present in Renn’s system. The first time he put the mouthpiece tube up to Renn’s mouth, Renn did not blow, causing the machine to automatically reset itself. On the second attempt, Renn placed his tongue over the tube and blew around its sides. After Renn made a short blow into the tube on the third try, the machine registered positive for the presence of alcohol.

Decided October 19, 1998.

Thomas J. Ousley, for appellant.

Renn testified in his own behalf and claimed during direct examination that he did not know how to use the preliminary breath test because Trooper Moody’s directions were unclear. The prosecutor elicited the following response from him on cross-examination: “No, he wasn’t — well, yeah, I guess you could say he was mean, yeah. I mean in a mean, forcibly manner. It was intimidating to me telling me to get out of my car and opening my door and telling me to walk to the back of his car and before I even knew what was going on. I had never taken those tests. He does these tests all month long. Am I just suppose[d] to know what to do? Am I suppose[d] to know how to do all this stuff?” Renn made this statement after the prosecutor asked him a series of questions about his performance on the one-legged stand test.

After these statements were made by Renn, the trial court allowed the State to question Renn about his previous DUI conviction and admitted a certified copy of the conviction into evidence over the objections of Renn’s counsel. During further cross-examination, the State established that Renn had taken a preliminary breath test in connection with his previous DUI charge.

1. We find no merit in Renn’s contention that the trial court erred when it allowed the State to impeach his testimony through evidence of his previous DUI conviction. OCGA § 24-9-82 provides: “A witness may be impeached by disproving the facts testified to by him.” Renn’s testimony that he did not know how to use the preliminary breath test and “that he had never taken those tests” opened the door for the State to impeach him with his previous DUI conviction. Long v. State, 185 Ga. App. 277, 278 (1) (363 SE2d 807) (1987). See also Wadsworth v. State, 209 Ga. App. 333, 334 (5) (433 SE2d 419) (1993).

2. Since evidence of Renn’s prior DUI conviction was admissible to impeach his testimony, the State was not required to notify Renn of its intent to introduce similar transaction evidence under Uniform Superior Court Rule 31.3. A failure to comply with USCR 31.3 does not render impeachment evidence inadmissible. King v. State, 264 Ga. 502, 503-504 (448 SE2d 362) (1994); Chezem v. State, 199 Ga. App. 869, 871 (406 SE2d 522) (1991); USCR 31.3 (E).

Judgment affirmed.

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

Alan A. Cook, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A98A1299.
    HOSSAIN et al. v. NELSON.
    (507 SE2d 243)
   Judge Harold R. Banke.

Mohammed Hossain and State Farm Mutual Automobile Insurance Company (“State Farm”) contest a jury verdict in favor of Robert B. Nelson. On appeal, they enumerate seven errors.

After Hossain and Nelson were involved in a multi-vehicle accident, Nelson sued Hossain for soft tissue injuries. Nelson served the complaint on his uninsured motorist carrier, State Farm. While reserving its rights under OCGA § 33-7-11, State Farm filed an answer and cross-claim on its own behalf.

Prior to trial, State Farm withdrew its cross-claim but argued that by law it had three options: to appear in its own name, to appear without disclosure of insurance involvement, or to act as additional counsel for defendant. The court disagreed and ruled that State Farm could participate only if it were identified as a party and the jury was informed that State Farm was Nelson’s uninsured motorist carrier. Contending that the injection of insurance would prejudice the jury and that the jury would be misled into believing that Hossain failed to obtain insurance, both State Farm and Hossain stated their opposition. The court ruled that if State Farm elected not to be a party, then its counsel could have no active role in the trial but could confer with Hossain’s counsel and could appear as additional counsel for the defendant in closing. State Farm accepted this ruling and elected not to proceed in its own name.

In its jury instruction, the trial court referred to “defendant” in the singular. Nevertheless, the court provided the jury with a verdict form drafted by the court which identified State Farm as an individual defendant and insinuated that Hossain was an “uninsured motorist.” The jury rendered a $150,000 verdict for Nelson. Held:

1. State Farm contends that the trial court abrogated its statutory right not to appear in its own name by designating State Farm as a defendant on the verdict form. We agree.

When State Farm answered the suit in its own name as allowed by OCGA § 33-7-11 (d), it became a party to the case. See generally Hulsey v. Standard Guaranty Ins. Co., 195 Ga. App. 803, 804 (395 SE2d 282) (1990). Nothing in OCGA § 33-7-11 (d), however, “prevents the insurer from changing its position during the course of litigation.” Singleton v. Phillips, 229 Ga. App. 286, 288 (2) (494 SE2d 66) (1997). Accord Keenan v. Hill, 190 Ga. App. 108, 109 (1) (378 SE2d 344) (1989). In this case, we see no reason why State Farm could not unilaterally withdraw from the action prior to the start of the trial. Hill v. Demery, 219 Ga. App. 225, 228 (464 SE2d 831) (1995). Nor would Nelson have been prejudiced in any way, particularly since the record does not show the entry of a pretrial order. Singleton, 229 Ga. App. at 289 (2). See Applied Ecological Systems v. Weskem, Inc., 212 Ga. App. 65, 66-67 (441 SE2d 279) (1994).

In Smith v. Phillips, 172 Ga. App. 459, 461 (1) (323 SE2d 669) (1984), we held that “no judgment could be entered against the [uninsured motorist carrier] since it was not a named party to the proceedings.” We see no reason for a different result here. Because State Farm had withdrawn from the case, its insertion on the verdict form was error. State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 654 (2) (152 SE2d 641) (1966) (OCGA § 33-7-11 (d) does not authorize an insurance company to be named as a party defendant).

Nelson claims that by failing to object to the verdict form, State Farm waived its right to raise the issue on appeal. But this argument miscasts the issue. State Farm is not challenging the form per se but its inclusion as a named defendant when it had opted not to be a party. Nelson cites no authority, and we know of none, which authorizes a non-party to object to its inclusion on a verdict form. Compare Monk v. Dial, 212 Ga. App. 362, 365 (7) (441 SE2d 857) (1994) (where defendant fails to object to form of verdict at time of publication, issue is waived). But here, State Farm was not a defendant, and, in fact, State Farm’s counsel had been expressly instructed by the court just to “spectate” and not to make any motion or objection whatsoever.

2. State Farm and Hossain contend that the trial court erred by unilaterally injecting liability insurance into the case by improperly identifying Hossain as an “uninsured motorist.” We agree. As noted above, Hossain did, in fact, have a liability insurance policy. See Cotton States Mut. Ins. Co. v. Austin, 143 Ga. App. 309, 312 (238 SE2d 253) (1977) (negligent driver carrying minimum liability insurance is not an “uninsured motorist” within the meaning of OCGA § 33-7-1 l’s predecessor statute). See Strickland v. English, 115 Ga. App. 384 (1) (154 SE2d 710) (1967) (uninsured motorist has right to have all reference to insurance stricken).

The reference to “uninsured motorist” on the verdict form and the designation of State Farm as a defendant after it opted not to participate improperly invited “the potentially prejudicial injection into the case of the presence of insurance coverage.” Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980). Nor is this a case where only a brief reference to insurance was made. Compare Dubose v. Ross, 222 Ga. App. 99, 100-101 (473 SE2d 179) (1996) (trial court rebuked counsel and gave curative instruction after plaintiff mentioned that defendant told her he had insurance). In light of the erroneous designation of State Farm as a named defendant, the incorrect suggestion that Hossain was an uninsured motorist, and the implicit injection of liability insurance into the case, we reverse. Smith, 172 Ga. App. at 462-464.

We address only those issues likely to recur on retrial.

3. The trial court did not err in refusing to restrict Nelson to the special damages pleaded in the “consolidated pretrial order” because no pretrial order had been entered. See Applied Ecological Systems, 212 Ga. App. at 66-67.

4. Hossain and State Farm contend that the admission of a summary of Nelson’s medical expenses was error. Rather than introducing his actual medical bills, Nelson offered, over objection, a summary sheet which listed only the medical providers by name, range of dates and the total amount per provider with a final total of $12,959.71 from multiple sources. For example, entry 11 was for “miscellaneous prescriptions” from October 3, 1993 to October 5, 1996, totaling $1,355.91; while entry 12 was for “therapeutic exercise” from October 11, 1993 to December 29, 1993, totaling $3,230. Nelson admitted that he did not and could not compile the totals. Nor did he provide specific testimony substantiating the various subtotals. Hossain objected to the summary as inadmissible hearsay.

Although OCGA § 24-7-9 streamlines the process for offering medical bills without the necessity of a medical provider appearing personally, the rule does not obviate the need for laying a proper foundation. See Atlanta Transit System v. Smith, 141 Ga. App. 87 (1) (232 SE2d 580) (1977). Here, no proper foundation was made.

5. State Farm contends that its participation in the trial presentation was improperly restricted. We agree. On retrial, even if State Farm opts not to be a named defendant, it may participate in Hossain’s defense as authorized by OCGA § 33-7-11 (d).

Judgment reversed.

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

Decided September 24, 1998

Reconsideration denied October 20, 1998

Crim & Bassler, Michael O. Sheridan, Joseph M. Murphey, Harper, Waldon & Craig, Thomas D. Harper, Trevor G. Hiestand, for appellants.

Akin & Tate, William M. Akin, Samuel L. Tate III, for appellee.

       It is undisputed that Hossain carried the statutory minimum amount of liability insurance and had a $15,000 liability policy with Safeway Insurance Company.

       According to the transcript, State Farm’s counsel stated, “(j]udge, we’ll accept Your Honor’s ruling, but given the choices, I will appear as additional counsel for the defendant.” State Farm claims the court reporter made a typographical error and that the transcript should read, “except to” the ruling.

       In the space for the defendant, the case caption on the verdict form provided: “vs. MOHAMMED HASSAIN, and -Uninsured Motorist- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants.”

       No pretrial order had been entered by the court although counsel had submitted a consolidated one. See Keenan, 190 Ga. App. at 109 (3).


text:
    A98A1341.
    VEASEY v. THE STATE.
    (507 SE2d 799)
   Judge Harold R. Banke.

Anthony Thomas Veasey was convicted of one count of child molestation. On appeal, Veasey asserts four errors.

When viewed in the light most favorable to the verdict, the evidence showed that Veasey and his 15-year-old victim worked together in a kitchen at a resort. After Veasey asked the victim whether he was a homosexual, the victim became uncomfortable and reported the conversation to a co-worker. Later, Veasey asked the victim to have sex with him and told him about a prior homosexual encounter. On the same evening, Veasey followed the victim into a storeroom, ostensibly to retrieve some supplies. While alone, Veasey asked the youth if he “want[ed] to see it” then unzipped and dropped his pants and exposed his erect penis. The victim testified that when Veasey told him to drop his pants he complied because he was frightened.

Veasey was tried under a two-count indictment for the offenses of child molestation and enticing a child for indecent purposes. Veasey admitted at trial that he had exposed himself to the youth. The trial court directed a verdict on the enticement count but denied the motion for a directed verdict on the molestation count. Veasey argued that he was entitled to a directed verdict since both counts contained the same factual allegations and because the State failed to prove that he knew that the victim was under the age of 16. Following the jury’s verdict, the court sentenced Veasey to first offender treatment. Held-.

1. Veasey contends that the trial court erred by refusing to give his requested charge on mistake of fact under OCGA § 16-3-5. He claims that he was mistaken as to the age of the victim because the youth worked in the bar area of the resort, worked at least 40 hours per week, and had a Mustang vehicle.

Knowledge of the victim’s age is not an element of the crime of child molestation, notwithstanding Veasey’s claim to the contrary. See Tant v. State, 158 Ga. App. 624-625 (2) (281 SE2d 357) (1981). Since a mistaken belief as to the victim’s age would not have justified the act, a charge on mistake was not warranted. Id. Smiley v. State, 34 Ga. App. 513 (1) (130 SE 359) (1925).

2. Veasey contends that he was entitled to a directed verdict on the child molestation count because he obtained a directed verdict on the enticement count. We disagree.

Child molestation and enticement are distinct and separate offenses which are not included within each other as a matter of law. Wittschen v. State, 259 Ga. 448, 449 (2) (383 SE2d 885) (1989). OCGA § 16-6-5 (a) has an element of asportation not found in the offense of child molestation, OCGA § 16-6-4 (a). Id. Only where the same facts are used to prove both offenses, do the offenses merge. Wells v. State, 222 Ga. App. 587, 588-589 (3) (474 SE2d 764) (1996). See Williams v. State, 156 Ga. App. 481, 482 (1) (274 SE2d 826) (1980). Thus, notwithstanding Veasey’s claim to the contrary, neither collateral estoppel nor res judicata nor double jeopardy apply in these circumstances. See Jarrell v. State, 234 Ga. 410, 412 (1) (a) (216 SE2d 258) (1975).

3. Veasey contends that the child molestation statute is unconstitutionally vague in that it does not sufficiently apprise a defendant as to which of his acts may be criminal. See Smith v. State, 178 Ga. App. 300, 303 (4) (342 SE2d 769) (1986) (transfer to the Supreme Court inappropriate when law is well-settled). This issue has already been resolved adversely to Veasey. In McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982), the Supreme Court of Georgia upheld the constitutionality of this statute, rejecting the same challenge asserted here. The Supreme Court determined that the child molestation statute is neither impermissibly vague nor violative of due process. Id.

4. Veasey claims that the child molestation statute as applied to him is unconstitutional under both the federal and state constitutions because it authorizes conviction without a requirement that a defendant know that the alleged victim is under the age of 16. We disagree. See Smith, 178 Ga. App. at 303 (4).

The United States Supreme Court has long recognized that it is constitutionally permissible to enact criminal statutes which do not include án element of knowledge. Lambert v. California, 355 U. S. 225, 228 (78 SC 240, 2 LE2d 228) (1957). Veasey cites no authority and we know of none which supports his asserted due process violation under the Georgia constitution premised on the argument that the State should have been required to prove that he knew the victim was under the age of 16. See Phagan v. State, 268 Ga. 272, 274 (1) (486 SE2d 876) (1997) (finding a compelling state interest in protecting children, the Supreme Court upheld the constitutionality of the child molestation statute as amended in 1995, which changed the age of the victim to 16).

Decided September 28, 1998

Reconsideration denied October 20, 1998

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Darrell E. Wilson, District Attorney, Lynn Akeley-Alderman, Christopher M. Quinn, Assistant District Attorneys, for appellee.

The Due Process Clause does not inject a knowledge element into the definition of a crime but rather requires that the “ ‘ “law give sufficient warning that men [and women] may conduct themselves as to avoid that which is forbidden.” ’ [Cits.]” Kevinezz v. State, 265 Ga. 78 (1) (454 SE2d 441) (1995). The statute at issue sufficiently warns of the conduct it forbids. McCord, 248 Ga. at 766.

Judgment affirmed.

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

       At the time of its decision, the statute criminalized the same conduct but differed as to the age of the victim.


author: McMurray, Presiding Judge.

text:
    A98A1548.
    NIXON v. THE STATE.
    (507 SE2d 833)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of child molestation and one count of cruelty to children. L. G., a female child born December 29, 1982, lived with her grandmother and defendant, her step-grandfather. Although she recanted on the stand, her prior inconsistent statement to the police authorized the following facts: On the evening of Saturday, June 22, 1996, when L. G. was 13 years old, she and defendant were watching television in defendant’s bedroom. L. G. was wearing shorts and a T-shirt. Defendant “came over and sat on the bed with [L. G.]. . . and began rubbing on [her] legs[, going] higher and higher[.]. . . [Defendant] touched [L. G.’s] face and said, You’re so beautiful, you’re so beautiful[.]’ ” “[He] also rubbed [L. G.’s] breast over [her] shirt[.]” L. G. was scared and confused. When she “tried to block [defendant’s caresses] with [her] hand . . . Defendant pulled [L. G.] by [her] legs to the edge of the bed . . . [and] then unbuttoned [her] shorts with one hand and with one hand held [L. G.] down on the bed[.]” When L. G. “struggled a little bit [defendant] said, ‘Be still.’ [H]e got [L. G.’s] shorts and underwear down to [her] mid-thigh. . . . [Using] his left hand to hold [L. G.] down, . . . with his right hand [defendant] inserted two of his fingers, one being his index finger, into [L. G.’s] vagina. R. R. G., L. G.’s stepmother, related L. G.’s statement that she moved from defendant’s home because “she was molested by her grandfather.” But L. G. later told R. R. G. “that she was going to change her testimony because she didn’t want her mother and her grandmother put out on the street.”

S. M., born February 20, 1978, is defendant’s granddaughter. In late 1993, when S. M. was a 15-year-old sophomore in high school, she was watching television in defendant’s bedroom. Defendant “usually rubbed [S. M.’s] back when [she] went to bed. [This night,] one thing led to another, and [defendant] fondled [S. M.] with his fingers[, putting] his fingers inside of [her] . . . vagina.”

T. J., born September 12, 1992, is defendant’s stepgrandson. When T. J. was three years old, the boy “poked [another child’s] butt with his finger[, asking did that child] want to play butt games like he [T. J.] played with his Papa,” that is, defendant. Terry Cone, M. D., examined T. J. on December 5, 1995. He discovered “in the midline between the folds of the two buttocks, about an inch or an inch and a half above the rectum, there was a fissure — which is a tear in the skin — along the line of the fold, with some slight white coloration of the skin around it.” This was consistent with “persistent rubbing possibly, not one particular episode. . . .” On January 9, 1997, approximately one year after this event, Officer Gail Solomon, of the Columbus Police Department’s Sex Crimes Unit, interviewed T. J. and recorded the boy’s statement “that he [defendant] stuck his finger in his [T. J.’s] butt.”

Defendant denied the charges and produced evidence of his good character. Nevertheless, the jury found defendant guilty as charged on all three counts. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant’s eighth enumeration contends the trial court erred in permitting audiotaped statements of T. J. and L. G., along with transcription of those tapes, to go out with the jury during their deliberations, over defendant’s objection that this would “place undue influence on that portion of the evidence.” We agree this procedure was error but find that error to be harmless under the particular facts of this case.

An hour into deliberations, the jury asked to review the taped statements. In response, the trial court charged the jury: “Now, I would like you to understand this, too: It’s fine for you to have them [tapes and transcripts]. I’m going to let you have them. It’s within the discretion of the Court. But I want — even though I’m letting you have them, I don’t want you to add any particular emphasis to them. I want you to consider them in light of all the other evidence and all the other testimony. With that curative instruction, if you will, I’ll send them to you briefly.” State’s Exhibit 4, the transcript of four-year-old T. J.’s statement is 13 pages long, but half the questions posed by investigators were greeted with silence or unresponsive statements. L. G.’s transcribed statement is three pages, and contains only one paragraph implicating defendant. Eighty-five minutes later, the jury recessed for the night, with instructions to “[r]eturn in the morning at 9:00.” At 10:00 a.m., the jury returned its verdicts.

Defendant “correctly contends the trial court erred in allowing [the] recorded statements] of [four-year-old T. J. and fourteen-year-old L. G., with transcripts] and a tape player to go out with the jury. Our courts have consistently held that it is error to allow a jury to take written or recorded statements into the jury room during deliberations unless those statements are consistent with the defendant’s theory of the case. See, e.g., Lane v. State, 247 Ga. 19, 20 (273 SE2d 397) (1981); Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984).” Fields v. State, 266 Ga. 241, 243 (2) (466 SE2d 202). Accord Strickland v. State, 167 Ga. 452, 460 (6) (145 SE 879). But it has also “been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. Allen v. State, 187 Ga. 178, 183 [(6)] (200 SE 109) (1938); Green v. State, 122 Ga. 169[, 170 (1)] (50 SE 53) (1905); Green v. State, 43 Ga. 368, [373 (5), 374] (1871).” Byrd v. State, 237 Ga. 781, 782 (1) (229 SE2d 631). See also Brooks v. State, 231 Ga. App. 561, 564 (4) (500 SE2d 11); Barnes v. State, 230 Ga. App. 884, 885 (2), 886 (497 SE2d 594); Payne v. State, 219 Ga. App. 318 (2), 319 (464 SE2d 884). We must test for harm as well as error. Owens v. State, 248 Ga. 629, 631 (284 SE2d 408).

We can say with confidence that the procedural error in permitting the recorded statements of T. J. and L. G. (guided by transcripts) to be played again for the jury in the jury room during deliberations did not contribute to these verdicts, for it amounted only to rehearing admissible material evidence, albeit at an unauthorized place. The tapes are brief, and the qualified jurors, under oath, are presumed to follow the trial court’s procedural and limiting instructions. Harris v. State, 202 Ga. App. 618, 619 (3) (a), 620 (414 SE2d 919); Dykes v. State, 191 Ga. App. 879 (2), 880 (383 SE2d 210); Truitt v. State, 168 Ga. App. 616 (1), 617 (309 SE2d 895). “[T]he jury should be permitted to limit what they rehear to what they desire to rehear, absent special circumstances which might work an injustice.” Byrd v. State, 237 Ga. 781, 782 (1), 783, supra. “[T]he issues presented by the tape[s] [and transcripts] had been properly placed before the jury as the tape[s] [themselves were] properly admitted into evidence and had been heard by the jury (and could have been reheard in open court). This fact, along with the [ample corroborative] evidence on the same issues [and the trial court’s contemporaneous limiting instruction], makes it highly probable that the [procedural] error of allowing the tape[s] [and transcripts] to go to the jury room did not contribute to the judgment.” Owens v. State, 248 Ga. 629, 632, supra. “Where there is other evidence relating to the same issues the error addresses, especially where it is overwhelming, it is highly probable the error did not contribute to the judgment. [Cits.]” Owens v. State, 248 Ga. 629, 631, supra. In the case sub judice, L. G. and S. M. gave identical descriptions of defendant’s modus operandi, thereby independently corroborating each other’s testimony. As to all three incidents, there is evidence of outcry and permissible child hearsay statements. As to T. J., there is expert medical opinion that relates the physical evidence to indecent liberties. Also, T. J. acted out his experiences in front of adults. The totality of the direct and circumstantial evidence is overwhelming that defendant committed the two acts of child molestation and one act of cruelty to children as alleged in the indictment. Consequently, it is highly probable that the procedural error in permitting the tapes of relevant and material evidence to be replayed for the jury during their deliberations (rather than in open court) did not contribute to the judgment. Owens v. State, 248 Ga. 629, 632, supra.

2. Defendant’s remaining seven contentions have been considered. Objections to evidentiary rulings regarding the admissibility of statements by children recounting episodes of sexual contact or physical abuse are without merit. OCGA § 24-3-16. Limitation on cross-examination of the victim S. M. under OCGA § 24-2-3, the Rape Shield Law, precluding examination of whether she was dating an older man did not preclude questioning whether she had a motive to fabricate the allegations due to conflicts with defendant over parental discipline. Evidence from eyewitnesses that T. J. acted out or acted inappropriately with other children was not proof of defendant’s extrinsic acts and so was not inadmissible because of any failure to comply with the notice and hearing requirements of Uniform Superior Court Rules 31.1 and 31.3. After defendant placed his character in issue, evidence of similar transactions or occurrences, otherwise admissible according to the rules of evidence, was admissible notwithstanding those notice and hearing requirements. Uniform Superior Court Rule 31.3 (D). The second enumeration is without merit. The prosecutor’s closing argument about medical testimony was a reasonable inference based upon the evidentiary posture of this case. The seventh enumeration is without merit.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided October 7, 1998

Reconsideration denied October 20, 1998

Hagler, Hyles & Adams, Richard C. Hagler, for appellant.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.


text:
    A98A1579.
    MOWERY v. THE STATE.
    (507 SE2d 821)
   Smith, Judge.

David Mowery was charged by accusation with DUI, improper lane change, failure to maintain lane, and no proof of insurance. A jury found him guilty on all counts except improper lane change. He appeals from the judgment of conviction and sentence entered thereon. Finding no error, we affirm.

The record shows that Mowery was stopped by two Peachtree City police officers who observed the car he was driving making several abrupt lane changes without warning. Because four persons were in the car, Corporal Todd covered the passenger side and Officer Anderegg approached the driver’s side. As Anderegg neared the driver, he informed Todd that he detected the odor of marijuana, and Todd also “immediately detected an odor of burnt marijuana coming from the interior of the vehicle.” To make sure that the smell was not emanating from the vehicle but from the driver, the officers requested that the driver, Mowery, exit the vehicle. When he did so, they ascertained that the odor of marijuana was “coming from his breath and his person” as well. They told him why he was stopped and requested that he perform voluntary field sobriety tests. During those evaluations, Todd observed that Mowery’s speech was slurred, his eyes were glassy and bloodshot, his movements were slow and lethargic, and he was unsteady on his feet. Todd testified that this behavior was consistent with Mowery’s having smoked marijuana.

The officers’ shift supervisor arrived at the scene and read Mowery his Miranda rights; he “agreed to discuss the incident.” He admitted that he and his friends had smoked marijuana. He was then placed under arrest for DUI and read his implied consent rights. Mowery agreed to take State-administered blood and urine tests, and he was taken to a local hospital, where samples were taken. The blood test results were negative, but the urine test was positive for marijuana.

1. The State’s motion to dismiss the appeal is denied.

2. Mowery contends the trial court abused its discretion in refusing to exclude the blood and urine test results, his admission that he had smoked marijuana, and testimony based thereon. Mowery sought exclusion of this evidence through an oral motion in limine made after the jury was impaneled. The motion was made on the ground that the prosecution had not responded to Mowery’s requests for copies of his statement, a witness list, and copies of the scientific reports. The trial court denied this motion, finding that Mowery’s discovery requests were untimely. Mowery contends the trial court erred because OCGA §§ 17-16-21, 17-16-22, and 17-16-23 set no time limit for the accused to file requests for the discovery of witness lists, custodial statements, and scientific reports.

OCGA § 17-16-21 provides that the witness list is discoverable “on demand.” OCGA §§ 17-16-22 and 17-16-23 both require that the requests for copies of custodial statements and scientific reports be made “within any reasonable period of time prior to trial.” OCGA §§ 17-16-22 (a); 17-16-23 (b). The purpose of statutes such as these is to avoid surprise. Byrd v. State, 216 Ga. App. 510, 512-513 (4) (455 SE2d 318) (1995). But here, in making the motion in limine defense counsel was not seeking to avoid surprise or prepare for trial. The timing of his motion, which was made after the jury was sworn, demonstrates it was made as part of a strategy to ambush or trap the State. At the time counsel made the motion in limine, he actually had received all the requested material. Defense counsel refused the State’s invitation to ask for a continuance, and he admitted waiting until after the jury was sworn because “the time to bring this, from a defense point of view, is after jeopardy is attached. It is not prior to it.”

Counsel’s conduct prior to trial supports the trial court’s ruling that the discovery requests were untimely. This conduct included: failing to file a timely entry of appearance, as required by USCR 4.2 (3); filing numerous motions 11 or 12 days before trial, including discovery requests, notwithstanding having been retained many months before that date; failing to appear at the call of the motions calendar at which those motions were to be heard; and arriving several hours late for trial, even after the trial court had his secretary call counsel to notify him personally to be there at 10:00 a.m. These actions and circumstances show that the discovery motions, although filed prior to trial, were not brought “within any reasonable time.”

The law does not favor exclusionary rules; they hinder the search for truth. They apply only if the State fails altogether to furnish discovery material. If material is furnished late, the proper remedy may be a continuance upon proper request by the accused. But this rests within the discretion of the trial court. Wilburn v. State, 199 Ga. App. 667, 669 (3) (405 SE2d 889) (1991). Given defense counsel’s conduct, the fact that the material had been furnished to him, and his absolute refusal to ask for a continuance, the trial court did not abuse its discretion in denying the motion in limine.

Decided October 5, 1998

Reconsideration denied October 20, 1998

William H. Toler III, for appellant.

Steven L. Harris, Solicitor, for appellee.

3. Mowery contends that the urine test results should have been excluded because the Division of Forensic Sciences of the Georgia Bureau of Investigation had not established rules relating to testing urine in compliance with the Administrative Procedure Act (APA). See OCGA § 50-13-3. We note that pursuant to OCGA § 35-3-155, which became effective May 1, 1997, the APA does not apply to testing by the GBI’s Division of Forensic Sciences. Mowery’s argument that this Court should apply the APA because it was applicable when he was arrested has been decided adversely to him. See Helmeci v. State, 230 Ga. App. 866, 868 (498 SE2d 326) (1998). But even if we applied the APA, this Court has held that Mowery’s contention about noncompliance is incorrect. State v. Cooper, 229 Ga. App. 97 (493 SE2d 1) (1997).

4. In view of our holding in Division 3, we need not address Mowery’s remaining enumeration of error, in which he claims he was prohibited from cross-examining the State’s forensic chemist in regard to whether the urine testing was done in compliance with the APA.

Judgment affirmed.

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

       These motions were dismissed for failure to prosecute when, without the court’s permission, counsel failed to appear at the call of the motions calendar. Technically, therefore, no discovery requests were outstanding at the time of trial.


text:
    A98A1408.
    VANN v. BILLINGSLEY et al.
    (508 SE2d 180)
   Ruffin, Judge.

Ronald Lee Billingsley and Wilma Billingsley sued Donna Joyce Vann for injuries arising out of an automobile accident. The trial court dismissed the complaint without prejudice due to plaintiffs’ failure to timely perfect service. Vann appeals, contending that the dismissal was in fact a grant of summary judgment and should therefore have been with prejudice. Finding that the trial court did not err, we affirm.

According to plaintiffs’ complaint, the traffic accident at issue occurred on December 13, 1993. Plaintiffs filed their complaint on December 12,1995, shortly before the expiration of the two-year statute of limitation period. See OCGA § 9-3-33. However, service was not made on Vann until March 3, 1997, more than 14 months after the expiration of the limitation period.

On June 25, 1997, Vann filed a motion for summary judgment based on the expiration of the statute of limitation. In the alternative, she asked the court to dismiss the complaint due to plaintiffs’ failure to diligently perfect service. Attached to the motion was an affidavit by Vann, stating that she had lived at her current address for 21 years, that her address was correctly listed on the police report of the incident, and that she had not attempted to evade service of process. Plaintiffs did not submit a responsive brief or any evidence in opposition to Vann’s motion. On February 12, 1998, the trial court entered an order dismissing the complaint without prejudice due to the plaintiffs’ failure to timely perfect service. The order did not purport to grant or deny Vann’s motion for summary judgment.

Vann’s sole enumeration of error is that “[t]he trial court erred in dismissing the [plaintiffs’] complaint without prejudice instead of with prejudice when it granted [Vann’s] Motion for Summary Judgment.” In her brief, Vann clarifies that this enumeration is based solely on her contention that the trial court’s order, although purporting to dismiss the complaint without prejudice, actually constituted a grant of summary judgment. Since the trial court granted summary judgment, which is an adjudication on the merits, Vann argues that it should have dismissed the complaint with prejudice.

This enumeration of error, as framed by Vann, is clearly without merit, as it fails to recognize that summary judgment and dismissal with prejudice are separate and inconsistent procedural measures. Summary judgment is an adjudication on the merits and, where it disposes of the entire case, constitutes a final judgment. Dismissal, on the other hand, is the remedy for matters in abatement. See Nat. Heritage Corp. v. Mt. Olive Memorial Gardens, 244 Ga. 240, 242 (260 SE2d 1) (1979); Nowell v. Fain, 174 Ga. App. 592, 594 (330 SE2d 741) (1985). If, as Vann contends, the trial court’s order was in fact a grant of summary judgment, it would have been improper for the trial court to “dismiss” the complaint with prejudice, as urged in the enumeration. Therefore, the issue presented in Vann’s enumeration of error is without merit.

Although not raised in her enumeration, it appears from her brief that what Vann is actually seeking from this Court is not a reversal of the trial court’s order, but a declaration that such order, although purporting to dismiss the complaint without prejudice, in fact constituted a grant of summary judgment, thus preventing plaintiffs from relitigating the issues raised in this case. In essence, then, Vann is seeking an advisory opinion as to the nature and preclusive effect of the trial court’s order.

This Court generally does not issue advisory opinions, see Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 583-584 (3) (442 SE2d 860) (1994), and it would be particularly inappropriate to do so where, as here, the issue has not been properly framed in an enumeration of error. See Vick v. State, 205 Ga. App. 600, 601 (2) (423 SE2d 46) (1992); Crotty v. Crotty, 219 Ga. App. 408, 410 (3) (465 SE2d 517) (1995); In the Interest of K. L. L., 204 Ga. App. 320, 321 (1) (419 SE2d 312) (1992). Moreover, it is not necessary for this Court to issue such an opinion at this time, as the effect of the trial court’s order can be considered if and when it is used as the basis for a plea of res judicata in a subsequent suit based on the same transaction. A similar issue was addressed in Nat. Heritage, supra, where the trial court granted the defendant’s motion for summary judgment based on the plaintiff’s failure to obtain a certificate of authority to transact business in this state. The plaintiff reasserted its claim in a separate suit, and defendant raised the defense of res judicata. When plaintiff’s claim was dismissed, plaintiff appealed, arguing that the purported grant of summary judgment in the first suit was actually the grant of a dilatory plea or matter in abatement, and not an adjudication on the merits. Id. at 241-242.

The Supreme Court agreed with the plaintiff, noting that “summary judgment (an adjudication on the merits) should not be used in ruling on a dilatory plea (a plea in abatement).” Id. at 243. The Court then addressed the issue: “Should plaintiff have been required to appeal in the first suit the order granting summary judgment in that suit, to urge only that summary judgment should not have been the vehicle used in ruling on a dilatory plea? We think not. There is no need for such an appeal because the matter can be rectified in the second suit.” Id.

The Court further held that “where an order granting summary judgment in a prior suit is relied upon in final support of a plea of res judicata in a subsequent suit, the court considering the plea of res judicata should examine the underlying basis of the summary judgment. If that summary judgment actually was an adjudication of the merits (a plea in bar, or otherwise on the merits), the plea of res judicata should be sustained. However, if examination shows that the summary judgment actually was not an adjudication of the merits (a dilatory plea, etc.), the res judicata plea should be denied.” Id.

Nat. Heritage thus makes it clear that, in determining the preclusive effect of a judgment, it is irrelevant whether it is styled a summary judgment or the grant of a plea in abatement. What is important is the underlying basis of the judgment, and that is properly examined when such judgment is used as the basis for a plea of res judicata in a subsequent suit. Accordingly, if plaintiffs hereafter seek to refile their lawsuit and Vann asserts the defense of res judicata, the trial court can then consider the facts underlying the dismissal in this case to determine whether it actually amounted to an adjudication on the merits. Until the issue has been properly joined in such subsequent action, we decline to issue an advisory opinion on this matter, particularly since Vann has not properly raised it in her enumerations of error.

Decided October 20, 1998.

Greer, Klosik & Daugherty, John F. Daugherty, Deborah M. Carter, for appellant.

Harris, Hartman, Aaron, Wharton & Boyd, James A. Secord, for appellees.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.

       Whether or not the trial court should have ruled on and granted Vann’s motion for summary judgment is not at issue in this appeal. Generally, there is nothing to review on appeal where no ruling has been made by the trial court on a motion. See Northeast Ga. Artificial Breeders Assn. v. Brown, 209 Ga. 547-548 (3) (74 SE2d 660) (1953). Moreover, even if the failure to rule on the summary judgment motion were appealable, Vann has failed to enumerate such failure as error, precluding our consideration of the issue. See Vick, supra; Crotty, supra; In the Interest of K. L. L., supra.


author: Ruefin, Judge.

text:
    A98A1521.
    SHIELD INSURANCE COMPANY v. SMILEY et al.
    (508 SE2d 183)
   Ruefin, Judge.

Latrell Denise Sharpe was involved in an automobile accident while driving a car owned by her boyfriend’s mother, Addie Smiley. State Farm Mutual Insurance Company, as subrogee of the other driver, sued Sharpe for negligence. Shield Insurance Company (Shield), Addie Smiley’s insurer, filed this declaratory judgment action, seeking a declaration that it is not obligated to provide coverage or a defense to the negligence action because Sharpe was driving the car without Smiley’s permission. The trial court denied Shield’s motion for summary judgment, and we granted Shield’s application for interlocutory review. Because the uncontroverted evidence shows that Sharpe did not have Smiley’s permission to use the car, we reverse.

“ ‘Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.’ Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).” American Southern Ins. Co. v. Abbensett, 232 Ga. App. 16 (501 SE2d 53) (1998).

Shield relies on a provision in its insurance policy that states, “We do not provide Liability Coverage for any person . . . [ujsing a vehicle without the express or implied permission of the ‘named insured’ [i.e., Addie Smiley].” Shield contends the evidence establishes that Sharpe did not have Smiley’s express or implied permission to drive the car on the date of the accident. We agree.

The record reveals that, on the date of the accident, Sharpe was living with her boyfriend, Brian Smiley (whom she later married), and their two small children. At that time, Sharpe did not have a driver’s license, although she had a learner’s permit allowing her to drive when another licensed driver was in the car. Sharpe testified that Brian Smiley was teaching her to drive his mother’s Pontiac Firebird because it had an automatic transmission. However, Brian never let Sharpe drive the car without him, and never told Sharpe she could drive it without him.

On April 15, 1995, Brian went to work, leaving Sharpe at home with their two children. Sharpe’s sister and her children were also at the house. At some point in the day, Addie Smiley dropped the Fire-bird off at the house because she was leaving that afternoon to go to Savannah with one of her daughters. That evening, Sharpe’s two-year-old son developed a fever, and Sharpe decided to go to the store to buy him some Tylenol and Gatorade. Although the store was within walking distance, only a block or two away, Sharpe decided to drive the Firebird. As she was driving to the store, she was involved in a collision with another car.

Sharpe testified that neither Addie Smiley nor Brian Smiley gave her permission to drive the Firebird, and that she did not feel she could use the car without their permission. She knew that, because she did not have a valid driver’s license, she did not have the right to drive an automobile by herself. She testified that she used the car because her child was sick and she was afraid. Before the date of the collision, Sharpe had never driven a car without another licensed individual present.

Addie Smiley testified that she did not give Sharpe permission to drive the Firebird. At some point during the day of the incident, before Smiley left for Savannah, Sharpe told Smiley that her child was not feeling well, but did not ask for permission to use Smiley’s car. Smiley testified that “if I knew the baby — if she had to go, I would have told her to go on or I would take her before I left.” Smiley testified that she was not aware Sharpe did not have a driver’s license.

The evidence clearly establishes that Sharpe did not have permission to drive the automobile at the time of the incident, and that she knew she did not have such permission. Although Addie Smiley’s after-the-fact testimony suggests that, if she had been asked, she might have either driven Sharpe herself or given Sharpe permission to use the car, this testimony does not change the fact that Sharpe drove the car without permission, and indeed in violation of the law. See, e.g., Rogers v. Travelers Indem. Co., 202 Ga. App. 77, 78 (1) (413 SE2d 254) (1991) (holding that driver could not reasonably believe under the circumstances that he had owner’s permission to use car, particularly since driver only had learner’s permit). Compare Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 717 (4) (470 SE2d 659) (1996) (fact that driver is unlicensed does not as a matter of law result in exclusion from coverage where use is with permission of owner).

Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22 (479 SE2d 410) (1996), relied on by Sharpe, does not change this result. In Harding, which involved different exclusionary language, the issue was whether the insured’s son had a reasonable belief that he had permission to use his parents’ car. Although the son testified that he had never driven the car before and did not believe he had permission to drive the car on the date in question, the victim impeached this testimony by showing that the son had previously been given permission to use the car under certain circumstances and that he believed similar circumstances existed at the time he borrowed the car. Id. at 24. Under these facts, we held there was a jury question as to whether the son actually had a reasonable belief that he had permission to use the car on the date in question. Id. at 25.

Decided October 20, 1998.

Forbes & Bowman, Morton G. Forbes, Scot V. Pool, for appellant.

R. Michael Patrick, for appellees.

In this case, unlike Harding, the evidence is uncontroverted that Sharpe did not have permission to use the car, did not believe she had such permission, and knew that driving the car constituted a violation of the law. Because Sharpe clearly did not have express or implied permission to use the car, she was excluded from liability coverage under Addie Smiley’s insurance policy, and the trial court erred in denying Shield’s motion for summary judgment.

Judgment reversed.

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

       The complaint also named Sharpe’s boyfriend as a defendant, but did not allege that he was negligent or assert any basis for his liability.

       The testimony of Sharpe and Smiley is not in the form of depositions or affidavits, but consists of sworn statements given in response to questions by Shield’s attorney and taken down by a court reporter. As such, this testimony is arguably not admissible as summary judgment evidence and was subject to being stricken upon motion. See Spell v. Bible Baptist Church, 166 Ga. App. 22, 23 (2) (303 SE2d 156) (1983). However, defendants did not object to the statements or move to strike them below. Indeed, defendants themselves relied on such statements and submitted complete copies thereof in opposition to Shield’s motion for summary judgment. Moreover, defendants do not assert on appeal that the statements are inadmissible and rely on this testimony in the statement of facts and argument sections of their appellate brief. Defendants also do not challenge the recitation of the essential facts in Shield’s brief. Accordingly, defendants have waived any right to object to consideration of this evidence. See Court of Appeals Rule 27 (b) (1); Bradbury v. Mead Corp., 174 Ga. App. 601-602 (2) (330 SE2d 801) (1985).