text:
    76647.
    HIGHSMITH v. CITY OF WOODBURY.
    (375 SE2d 79)
   Sognier, Judge.

Johnny Highsmith was convicted at a bench trial of driving under the influence of alcohol and he appeals.

The record reveals that on the date in issue, Officer Floyd Burger saw appellant drive a pickup truck out of a convenience store parking lot and observed the truck weaving in the road. Burger followed appellant and stopped him about two-and-a-half miles from the convenience store. Burger asked appellant to step out of the truck, and noticed that appellant staggered in getting out, and that appellant’s speech was slurred. When Burger asked appellant if he had been drinking, appellant responded yes. Burger testified there was an odor of alcohol on appellant and that he was able to stand only by propping himself against the side of the truck. Officer Jack Clark, who was with Burger when appellant was stopped, testified that appellant was “really intoxicated,” and could hardly stand up.

After speaking with appellant for five or ten minutes, Officer Burger arrested appellant for driving while intoxicated at 1:28 p.m. The radio operator’s report indicates appellant was at the police department by 1:46 p.m., at which point appellant was informed of his implied consent rights and signed a document reflecting he had been informed of these rights but that he refused to take the requested State-administered chemical test.

1. Appellant contends the trial court erred by denying his motion in limine seeking to suppress evidence of his refusal to permit the State to conduct chemical testing of his blood alcohol level. He argues that under the holding in Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983), evidence of his refusal to submit to a test was not admissible because he was not advised of his right to an additional test at the time of his arrest.

OCGA § 40-6-392 (c) provides: “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.” The opinion in Perano, supra, rendered prior to the enactment of OCGA § 40-6-392 (c), involved a defendant who submitted to chemical analysis then later argued the test results were inadmissible because he was not informed of his implied consent rights at the time of his arrest. The Supreme Court in Perano interpreted language virtually identical to that in OCGA § 40-6-392 (a) (4) (Ga. L. 1983, p. 100, § 14), which provides: “Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.” (Emphasis supplied.) The Supreme Court in Perano established the general rule that where an accused is not informed of his implied consent rights “at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant,” id. at 708, the results of the state-administered test are not admissible at trial to show that the accused was driving under the influence of alcohol or drugs. Thus, the Supreme Court rejected a “substantial compliance” standard in regard to the statute and approved an exception to the statutory requirement only after a case-by-case determination whether “advising the accused at the moment of physical arrest would not enable the accused to make an intelligent choice concerning the state’s request and his right to undergo an independent test.” Id. at 707.

OCGA § 40-6-392 (c) changed the law in Georgia as to the admissibility of evidence regarding an accused’s refusal to permit chemical analysis to be conducted. See Wessels v. State, 169 Ga. App. 246, 247-248 (2) (312 SE2d 361) (1983); see also Stacey v. Caldwell, 186 Ga. App. 293, 294 (367 SE2d 73) (1988). However, while Perano has been cited or followed in numerous cases since the enactment of OCGA § 40-6-392 (c) in cases where the defendant-motorist submitted to chemical testing then challenged the admissibility of the state-administered test, see, e.g., Whittington v. State, 184 Ga. App. 282, 284 (361 SE2d 211) (1987); Hadden v. State, 180 Ga. App. 496, 497 (1) (349 SE2d 770) (1986); Osteen v. State, 176 Ga. App. 722, 723 (1) (337 SE2d 369) (1985), in only one case has the Perano rule been discussed • where a defendant-motorist refused to submit to testing. In that opinion, Allen v. State, 254 Ga. 433, 434 (2) (330 SE2d 588) (1985), the defendant-motorist had refused to submit to testing and asserted his refusal was inadmissible because the arresting officer, who had uncontrovertedly advised the defendant of his implied consent rights, refused him the right to have an independent test conducted. The Supreme Court acknowledged that “[a] defendant’s refusal to take a blood test is certainly relevant and probative in a case such as this one. [Cit.]” Id. at 434 (1) (c). Without discussion of what ramifications the enactment of OCGA § 40-6-392 (c) had, if any, on the Perano rule, the Supreme Court simply determined that the evidence demonstrated the requirements of OCGA § 40-6-392, as interpreted in Perano, supra, had been complied with. Allen, supra at 434 (2).

Assuming from Allen that under Perano, failure to advise timely a defendant-motorist of his implied consent rights renders inadmissible into evidence not just the test results of an accused who submitted to testing but also evidence that the accused refused to submit to testing, irrespective of OCGA § 40-6-392 (c), we nevertheless find no reason to reverse the trial court’s determination that evidence here of appellant’s refusal to permit testing was admissible. We find Mason v. State, 177 Ga. App. 184, 186 (2) (338 SE2d 706) (1985) and Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986) applicable here. In Mason, although the defendant was detained for some 20 to 30 minutes while the officer finished his investigation of the accident before being advised of his implied consent rights, we found that “[g]iven the more immediate concerns of the arresting officer in the present case with completing his investigation of the accident scene and dealing with the hazard created by the wrecked vehicle, and given the fact that it would have been of no conceivable benefit to the defendant to have been informed of his implied consent rights any earlier, we hold that the advice was given as soon after the moment of the arrest as was reasonably practical.” (Emphasis supplied.) Id. at 186 (2). The Supreme Court denied the'defendant’s application for certiorari in that case. 177 Ga. App. 898. Subsequently, in Fore, supra, this court found no merit in defendant’s argument that a 20 to 25 minute delay in the giving of his implied consent rights rendered inadmissible defendant’s intoximeter test results. In Fore, the only exigent circumstance presented was the fact that after arresting and detaining defendant, the arresting officer received a call and drove to arrest another driver before informing his passenger of his implied consent rights. Noting “the fact that this appellant would likewise have in no way benefitted by being informed of his rights any earlier,” this court concluded that “the advice was given as soon after the moment of arrest as was reasonably practical in compliance with the statutory scheme.” Id.

The record in the case sub judice reveals that Officer Burger arrested appellant at 1:28 p.m. and informed him of his rights at 1:46 p.m. Like Mason and Fore, supra, the record reflects no conceivable benefit to appellant had he been informed of his rights at an earlier point. Appellant having been informed of his implied consent rights at a time enabling him to exercise those rights in a meaningful fashion, and in view of the language of OCGA § 40-6-392 (c) authorizing the admission of evidence of an accused’s refusal to permit testing, we find no error in the trial court’s admission of this evidence.

2. Finally, even if the evidence regarding appellant’s refusal to submit to chemical analysis of his blood alcohol level was “inadmissible, appellant has no grounds for complaint unless he could show some harm caused by [its] admission. In view of the nature of the arresting officers’ testimony, the [refusal testimony] was mere ‘window dressing’ which by no stretch of the imagination could have injured the appellant.” Garrett v. State, 146 Ga. App. 610, 611 (2) (247 SE2d 136) (1978). That evidence showed appellant’s truck was weaving on the road, that appellant smelled of alcohol, was unsteady, and could barely stand. Appellant admitted having been drinking and one officer testified appellant was “really intoxicated.” “It is ndt necessary that the defendant be so under the influence as to be incapable of driving. It is necessary only that he be under the influence to a degree which renders him less safe or incapable of driving safely. [Cit.] . . . This evidence was sufficient to submit to the [factfinder] to determine whether defendant. . . was less safe than he would have been had he not been affected by alcohol. [Cits.] The record reflects that a rational trier of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [cit.]” Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1986).

Decided October 12, 1988 —

Rehearing denied October 31, 1988

Virgil L. Brown, for appellant.

Daniel W. Lee, for appellee.

Judgment affirmed.

Deen, P. J., and Car ley, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    76796.
    HOUSTON v. THE STATE.
    (375 SE2d 239)
   Pope, Judge.

Defendant Manuel E. Houston appeals from his convictions and sentences for the offenses of child molestation (two counts), aggravated sodomy and incest.

1. Defendant first contends the trial court erred in denying his motion for directed verdict of acquittal and his motion in arrest of judgment as to the aggravated sodomy charge, arguing that the State failed to allege or prove that he used force in requiring his thirteen-year-old stepdaughter to perform acts of oral sodomy on him. The indictment charged that defendant “did insert his penis into the mouth of [his step-daughter], a child less than 14 years of age legally incapable of consenting to such act, the sexual act therefore being with force and against the will of the child.” Defendant argues that to uphold his conviction based on the indictment as drawn results in an impermissible extension of our Supreme Court’s holding in Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987), aff'g 180 Ga. App. 37 (1) (348 SE2d 486) (1986).

In Cooper our Supreme Court held that although there was no evidence in that case that the defendant used force on his five-year-old victim, .this court properly upheld the defendant’s conviction of the offense of aggravated sodomy because “[s]exual acts directed to such a child are, in law, forcible and against the will. [Cit.]” Id. at 631. Defendant argues that to extend this holding to the facts of the present case, involving a thirteen-year-old child, could lead to “a seventeen-year-old [being placed] in prison for life for once placing his mouth on the genitals of a girl one day short of her fourteenth birthday.” Although such a result does not cause us the trepidation apparently felt by the defendant, we nevertheless find it unnecessary to reach this issue, because, in the case at bar, unlike the situation in Cooper, the State presented evidence at trial that defendant used both physical and mental force against his step-daughter so that she would perform the desired acts on him. Specifically, the record shows the victim stated that on at least one occasion after she had refused her step-father’s sexual advances “he just pushed my head down there in his private space and made me do that.” (Emphasis supplied.) The victim further testified that the defendant “made” her perform oral sodomy and that she was required to perform oral sodomy on her step-father in order to obtain food, clothing and money. Consequently, it is unnecessary for us to consider whether the element of force necessary to convict defendant of the crime of aggravated sodomy was supplied solely on the basis of the fact that the victim was under the age of fourteen. Accord Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977).

The question remains, however, as to whether the trial court erred in denying defendant’s motions based on the variance between the allegation of constructive force by virtue of the victim’s age contained in the indictment and the proof of actual force presented at trial. “The true test of the sufficiency of the indictment is not whether it could have been more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. [Cits.]” (Punctuation omitted). St. John v. State, 182 Ga. App. 861, 863 (3) (357 SE2d 311) (1987). Applying these standards, we find the variance here was not fatal, and reversal of defendant’s convictions is not required. Accord Baker v. State, 184 Ga. App. 440, 441 (1) (362 SE2d 96) (1987); St. John v. State, supra; Watson v. State, 178 Ga. App. 778 (3) (344 SE2d 667) (1986).

2. Defendant also contends the trial court erred in not allowing him to play a taped interview between the victim and a law enforcement official “for the purpose of showing . . . the attitude, intonation, tones and inflections of the parties speaking,” which, according to the defendant, would support his contention that the victim made the allegations against him because she was angry about certain rules her mother and he imposed on her. However, the victim testified at trial and was extensively cross-examined by defense counsel. She admitted she did not like coming home from school and doing housework instead of homework, taking care of her younger brother and sister instead of socializing with her friends, and being refused permission to engage in after-school activities such as cheerleading. We find the victim’s blunt testimony about her homelife, including the particulars recited above, provided more than ample information for the jury to determine the credibility of the witnesses in this case. Consequently, we fail to see, and defendant has failed to show, how he has been harmed by the trial court’s refusal to allow him to play the tape-recorded interview. This enumeration affords no basis for reversal.

3. Defendant next enumerates as error the denial of his motions for directed verdicts of acquittal as to the child molestation charges and argues the evidence showed that the acts constituting these charges occurred after the victim’s fourteenth birthday. Although defendant admitted, both in a written statement prior to trial and at trial, that the acts charged had occurred, at trial he recalled that they occurred on Labor Day of 1986, a few weeks after the victim’s fourteenth birthday. The victim, however, testified that defendant committed the crimes as charged in the indictment both before and after her birthday (although she did not specify which birthday). The victim also testified that prior to her fourteenth birthday the defendant had touched her vagina with his penis but did not achieve penetration. The evidence was sufficient to enable any rational trier of fact to have found the defendant guilty on both counts of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Eaton v. State, 184 Ga. App. 645 (362 SE2d 375) (1987). Moreover, defendant’s assertion that the trial court erred in refusing to give his requested charge on simple battery has been decided adversely to him in State v. Stonaker, 236 Ga. 1 (4) (222 SE2d 354), cert. denied, 429 U. S. 833 (1976).

4. Contrary to defendant’s final assertion, the trial court did not refuse to allow the defendant to present evidence showing that the trauma to the genitals of the victim, as testified to by a doctor who examined her, could have been caused by masturbation. Rather, the court held that before such evidence could be presented defendant would have to show, via expert testimony, that masturbation could result in the type of trauma which the doctor testified she observed during her pelvic examination of the victim. Under these circumstances, we find no error.

Decided October 17, 1988 —

Rehearing denied October 31, 1988

Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    77218.
    WYSE et al. v. POTAMKIN CHRYSLER-PLYMOUTH, INC.
    (374 SE2d 785)
   Banke, Presiding Judge.

The appellants brought the present action to recover damages for the appellee’s alleged fraud in connection with the sale to them of an automobile. The appellee moved for summary judgment on January 22, 1988, without requesting oral argument. However, the trial court nevertheless determined that a hearing should be held on the motion and on January 27, 1988, issued an order directing the appellants to appear in court on April 8, 1988, to show cause why the motion should not be granted. On April 7, the day prior to the scheduled hearing, the appellants filed their response to the summary judgment motion, along with a supporting affidavit. The hearing scheduled for April 8 was apparently cancelled; and on April 11, the trial court entered an order granting summary judgment to the appellee. In doing so, the court ruled that the appellants’ response to the appellee’s motion was untimely and could not be considered because it had not been filed within 30 days of the appellee’s motion, as required by Rule 6.2 of the Uniform Rules for the State Courts. The trial court indicated in its order that it had taken the case “under advisement” on April 4, 1988 — i.e., four days prior to the scheduled hearing and three days prior to the filing of the appellants’ response. Held:

1. The Civil Practice Act specifies that the respondent in a summary judgment proceeding may serve opposing affidavits “prior to the day of hearing.” OCGA § 9-11-56 (c). Accord OCGA § 9-11-56 (d). However, Rule 6.2 of the Uniform Rules for the State Courts requires that, “[u]nless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.” 253 Ga. at 887. (Emphasis supplied.) Quite apparently, there is a conflict between Rule 6.2 and the Civil Practice Act as applied to the facts of this case.

Effective September 19, 1986, the preamble to the Uniform Superior Court Rules was amended to provide as follows: “It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.” 256 Ga. at 865. See Russell v. Russell, 257 Ga. 177, 178 (356 SE2d 884) (1987). See also Walton v. Datry, 185 Ga. App. 88, 93 (363 SE2d 295) (1987). As the Uniform State Court Rules are for the most part identical to the Uniform Rules for the Superior Courts, this statement of intention would appear to be applicable to them, as well. See 253 Ga. at 887.

Although OCGA § 9-11-56 (c) does not require that a hearing be set on a motion for summary judgment where none is requested, see Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (350 SE2d 265) (1986), aff’d 256 Ga. 739 (354 SE2d 160) (1987), it unambiguously permits the respondent to serve opposing affidavits at any time “prior to the date of the hearing” in the event that a hearing is set. To the extent the requirements of Uniform Rule 6.2 conflict with this statutory provision, the rule must yield. Accord Russell v. Russell, supra. We accordingly hold that the affidavit offered by the appellant in this case should have been considered.

2. The alleged fraud perpetrated on the appellants consisted of misrepresentations regarding the appellee’s intention to repair certain defects in the vehicle of which the appellants were concededly aware prior to the consummation of the sale. These defects consisted of a torn seat and the existence of bubbles in a protective coating which had been applied over the paint. The appellants allege that the appellee never had any intention of effectuating the promised repairs. However, there was the uncontroverted evidence that the vehicle was serviced and repaired by the appellee on numerous occasions subsequent to the sale, at no charge to the appellants, and that the work performed included removal and reinstallation of the right front seat to correct a misstitch and wet sanding, buffing, and waxing of the paint to eliminate the bubbles. When the appellants continued to express dissatisfaction with the paint repairs, the car was examined by the Chrysler Customer Service Satisfaction Arbitration Board, which ultimately determined that the paint was in good condition and that it required no further repairs.

We hold that this uncontroverted evidence conclusively negated the allegation that the appellee never intended to make good on its promise to perform the repairs in question. See generally Ga. Real Estate Comm. v. James, 152 Ga. App. 193 (262 SE2d 531) (1979); Cooper v. Re/Max North Atlanta, 186 Ga. App. 79 (1) (366 SE2d 328) (1988). As “[a]n appellate court in reviewing a lower court decision will affirm a judgment which is right for any reason,” Smith v. Fleming, 183 Ga. App. 342, 343 (358 SE2d 900) (1987), the grant of the appellee’s motion for summary judgment is accordingly affirmed.

Decided October 14, 1988 —

Rehearing denied October 31, 1988.

Robert M. Ray, Jr., for appellants.

Stephen M. Forte, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    77226.
    ARNOLD v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.
    (374 SE2d 782)
   Banke, Presiding Judge.

The appellant suffered a partial loss of vision in his right eye after being struck by a piece of metal. At the time of his injury, the appellant was covered by a policy of accidental death and dismemberment insurance issued to his employer by the appellee insurer. This policy provided for payment of benefits in the event of “total and irrecoverable loss of sight” in an eye. The insurer declined to pay such benefits to the appellant on the ground that he had not suffered a total loss of sight in the affected eye, prompting him to file the present action. He filed this appeal from the grant of the insurer’s motion for summary judgment. Held:

In State Farm &c. Ins. Co. v. Sewell, 223 Ga. 31 (153 SE2d 432) (1967), the Georgia Supreme Court construed policy language similar to that contained in the subject insurance policy and concluded that it unambiguously restricted coverage to those instances where no eyesight remained in the affected eye after the injury. Id. at p. 32. “The policy of appellate courts is to enforce strictly an insurance contract in accordance with its unambiguous terms, even in those instances where the court’s sympathy may avowedly rest with an unfortunate claimant where recovery is precluded by that strictness of policy.” Executive Auto Leasing v. Guaranty &c. Ins. Co., 170 Ga. App. 860, 863 (318 SE2d 733) (1984).

The appellant’s ophthamologist testified that the appellant had corrected vision in his right eye in the range of 20/50, that he could see and read with that eye even without correction, and that he was able to return to work. “This evidence, in effect, was that plaintiff had not suffered an irrecoverable loss of the entire sight” in his injured eye. Smith v. Great American Life Ins. Co., 125 Ga. App. 587, 588 (188 SE2d 439) (1972). It follows that the trial court did not err in granting summary judgment to the appellee.

Decided October 12, 1988 —

Rehearing denied October 31, 1988

Richard D. Phillips, for appellant.

Lamar C. Walter, Megan C. Devorsey, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    77252.
    KELLY et al. v. THE STATE.
    (375 SE2d 81)
    Decided October 14, 1988 —
    Rehearing denied October 31, 1988

      William J. Murray, for appellants.

      William J. Smith, District Attorney, Michael D. Reynolds, As
      sistant District Attorney, for appellee.
   Banke, Presiding Judge.

The appellants, a mother and daughter, were found guilty of shoplifting merchandise with an aggregate value in excess of $100, see OCGA § 16-8-14 (b) (2), and also of shoplifting merchandise with an aggregate value of less than $100. See OCGA § 16-8-14 (b) (1). They appeal from the denial of their motion for new trial. Held:

1. The evidence, considered in its entirety, was sufficient to enable a rational trier of fact to find the appellants guilty on both counts of the indictment beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellants contend that the trial court failed to give adequate instructions to the jury regarding impeachment of witnesses. Pretermitting whether any of the state’s witnesses made any prior inconsistent statements, it does not appear that the appellants requested any instructions on this issue as required by OCGA § 5-5-24 (b). A criminal defendant is relieved of the duty to request instructions only “in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.” Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973). In the present case, the trial court gave a general charge on credibility of witnesses which adequately covered the legal principles at issue. Consequently, this enumeration of error establishes no ground for reversal.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    77410.
    CLARK v. THE STATE.
    (374 SE2d 783)
   Deen, Presiding Judge.

John Robinson Clark appeals from his convictions on three counts of armed robbery and three counts of possession of a firearm by a convicted felon.

1. Clark contends that the trial court abused its discretion in allowing the State to keep Clark in leg shackles during the trial, on the grounds that wearing the shackles hindered his ability to assist counsel in his defense and placed him in a psychologically depressed mood which adversely affected his demeanor throughout the trial. We are unpersuaded by this contention to find error in keeping leg shackles on Clark, who had violently resisted his arrest. Moreover, since Clark was tried by the court sitting without a jury, the usual concerns over the effect restraining a criminal defendant might have upon a jury are absent. See Thomas v. State, 171 Ga. App. 306 (319 SE2d 511) (1984); McKenzey v. State, 138 Ga. App. 88 (225 SE2d 512) (1976).

2. Clark also contends that his confession was involuntary and should have been excluded. Following his arrest in Clarke County, Clark gave a statement to the investigating Gwinnett County police officers and confessed to the armed robberies of three Winn Dixie grocery stores. The officer who took the statement testified at a JacksonDenno hearing that Clark gave the statement after having his Miranda rights explained and under no coercion or promise of benefit. Clark, however, testified that at the time of his arrest he had been beaten, and that nonverbal threats had been made that if he did not give a statement he would be beaten again. In such cases where the testimony is in dispute, the trial court’s determinations of fact and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. Sanders v. State, 257 Ga. 239 (1) (357 SE2d 66) (1987). The trial court’s findings in this case were not clearly erroneous.

3. The foundation for Clark’s three convictions for possession of a firearm by a convicted felon was a certified copy of a Florida conviction for burglary. At the trial, Clark objected to the admission of this record only on the ground that it was not exemplified; the trial court properly overruled the objection, since OCGA § 24-7-24 (b) allows admission of such certified records. On appeal, Clark raises a new objection that there was insufficient showing that he was the same defendant named in the Florida conviction. However, this court will not consider the question, because it was not raised in the trial court. Daniels v. State, 183 Ga. App. 222 (358 SE2d 637) (1987).

Decided October 12, 1988 —

Rehearing denied October 31, 1988.

Robert C. Sacks, for appellant.

Thomas C. Lawler III, District Attorney, Allyson F. Baillus, Assistant District Attorney, for appellee.

4. At the trial, one of the armed robbery victims testified that she had not noticed Clark’s having a weapon at the time of the robbery. Because of that testimony, Clark contends that the evidence may support a conviction for robbery, but not for armed robbery on that count. See Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974). His contention, however, overlooks his own confession in which he admitted committing the armed robbery with a handgun, a fact which was corroborated by the testimony of another grocery store employee who actually had the gun held to her back by Clark.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77083.
    MARTINEZ v. THE STATE.
    (375 SE2d 123)
   Sognier, Judge.

Francisco Martinez was convicted of the offense of aggravated assault and he appeals.

1. Appellant contends the trial court erred by refusing to allow him to question Edward Hoffman regarding the general reputation of the victim, Robert Smith, in order to impeach Smith. The trial court refused to admit this evidence based on the fact that Hoffman and Smith were inmates incarcerated at Georgia State Prison in Reidsville where the assault on Smith occurred. Appellant is likewise an inmate, serving a 20 year sentence for armed robbery and a 10 year sentence for aggravated assault. The proffered evidence showed that Smith has a bad reputation at the prison.

At trial, Smith testified appellant ran up behind him while Smith was lending a magazine to Gustavo Nelson, a co-defendant, and that appellant repeatedly stabbed Smith in the back and the head while Nelson held him. Nelson testified he was not present when the fight started, but arrived shortly thereafter. Appellant testified that after he had seen Smith in possession of some personal items taken from appellant’s cell the day before, appellant approached Smith and told him to return his belongings. Appellant stated Smith then cursed him and pulled out a piece of wire, with a rag for a handle, which Smith used as a weapon against appellant. Appellant testified that after Smith stabbed him twice in the head and three times in the legs, appellant managed to get the weapon away from him as they struggled on the floor and that appellant then stabbed Smith in self-defense. Although various other witnesses at trial testified to what they saw before the fight was stopped, there was no testimony from anyone who had observed the start of the fight and no evidence was adduced that corroborated either Smith’s or appellant’s version as to how or why the fight began.

The record thus reveals that the merits of appellant’s self-defense claim, his sole defense to the charge against him, could have been determined by the jury solely by weighing the credibility of appellant’s testimony against the credibility of Smith’s testimony. “As a general rule, and particularly when the evidence is conflicting, a party may show any fact or circumstance that might aifect the credit of an opposing witness. [Cit.]” Arnold v. State, 163 Ga. App. 10, 13 (4) (293 SE2d 501) (1982). “Impeachment is the process whereby an attack is made on the credibility of a witness.” Agnor’s Ga. Evid. (2nd ed.), § 5-1. Although the witness whose credibility appellant sought to attack was the victim, “where, as here, the ‘victim’ can be and is a witness, he is subject to impeachment, as would be any other witness, ‘by evidence as to his general bad character.’ [Cit.]” Ailstock v. State, 159 Ga. App. 482, 483 (283 SE2d 698) (1981). We note that this is not a case in which the sequence of questions under OCGA § 24-9-84 was improperly asked, compare Harper v. State, 157 Ga. App. 480, 482 (3) (278 SE2d 28) (1981), or where the impeachment testimony either related to inadmissible specific acts or was not material because no actual conflict existed in the evidence. Compare Ailstock, supra at 483-484.

Two arguments have been set forth as to why the impeachment evidence appellant sought to introduce was not admissible. The State argues before this court that evidence impeaching a witness by reputation is relevant only if it is the witness’s reputation in a community or neighborhood consisting of law abiding citizens. Because a penal institution composed of convicted felons cannot be the type of honest and upright “community” or “neighborhood” required for the purposes of OCGA § 24-9-84, the State argues evidence of Smith’s reputation therein was properly excluded.

OCGA § 24-9-84 provides: “A witness may be impeached by evidence as to his general bad character. The impeaching witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath.” Nothing in this sectioñ indicates that the impeaching testimony is limited solely to the reputation of the challenged witness in a neighborhood composed of law abiding citizens. “[T]he place in which to ascertain a man’s true reputation is the place where people, generally, have had the best opportunities of forming a correct estimate of his character. It is obvious that this may not, in every instance, be the neighborhood where a man’s home is situated.” Atlantic &c. R. Co. v. Reynolds, 117 Ga. 47, 48-49 (1) (43 SE 456) (1902). See also Pethel v. State, 89 Ga. App. 8, 10 (1) (78 SE2d 428) (1953). The fact that Smith’s “neighborhood” is the penal institution in which he is incarcerated and which is composed of his fellow inmates does not negate the fact that the penal institution is the place where people have had the best opportunity to form a correct estimate of Smith’s character. Thus, for the purposes of this “exceptional case,” see Atlantic R. Co., supra at 48 (1), Smith’s “neighborhood” is the penal institution where he is incarcerated and we find no merit in the State’s argument.

The other argument, relied upon by the trial court in sustaining the State’s objection to this testimony, is based on the premise that since all the inmate-witnesses were subject to impeachment for their crimes involving moral turpitude (see Beasley v. State, 168 Ga. App. 255, 256 (1) (308 SE2d 560) (1983)), evidence showing that a convicted felon’s general reputation among his fellow convicts was bad and that his incarcerated cellmates would not believe him under oath, was not relevant and could not be considered by the jury. Under the circumstances presented by this appeal, however, we do not agree with the trial court that the impeachment evidence appellant sought to introduce was irrelevant and “an absolute waste of time.”

The jury in this case was well aware that all the parties to the assault, as well as most of the witnesses at trial, were convicted felons. The jury was also aware, from the trial court’s charge, that witnesses convicted of crimes involving moral turpitude are unworthy of belief. However, despite the jury’s knowledge that all of the testimony by the convicts was untrustworthy, the jury was nevertheless faced with conflicting testimony on a material issue which required it to determine which convict to believe, Smith or appellant. We cannot say under these circumstances that the fact that Smith’s reputation was bad even among his fellow inmates would not have affected the jury’s consideration of the credit to be given Smith’s testimony.

Thus, the trial court’s order sustaining the State’s objection to “ ‘the introduction of properly offered evidence of (the victim-witness’ bad character) which would otherwise be admissible (for purposes of impeachment) . . . was erroneous.’ [Cit.]” Ailstock, supra at 483. “The exclusion of the testimony of this character witness, based on the sole ground that reputation [of a convict among other convicts] cannot be considered, was error; and, in view of the importance of the testimony of the witness sought to be impeached, was necessarily harmful and demands a reversal of the case.” Pethel, supra at 10 (1). See also Gilstrap v. State, 250 Ga. 814, 816-817 (2) (301 SE2d 277) (1983).

Decided October 31, 1988.

2. Since the factual circumstances surrounding appellant’s motion for continuance will not be present upon retrial, we need not address the denial of that motion as presented in appellant’s second enumeration. As to appellant’s enumeration regarding the trial court’s order requiring him to wear leg irons in court during trial, it is well established that “the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. [Cit.]” Collins v. State, 164 Ga. App. 482, 484 (4) (297 SE2d 503) (1982). While the use of restraining devices does not always amount to error of constitutional dimensions, id., the cases holding no error was presented by the use of such devices have always relied on detailed, demonstrable evidence set forth in the record to support the infringement by, the court on the defendant’s presumption of innocence. See, e.g., Dennis v. State, 170 Ga. App. 630, 632 (317 SE2d 874) (1984) (court recited facts that convict-defendant had struggled with guards at arraignment and insulted court officials; plus jury charge on subject); Thomas v. State, 171 Ga. App. 306, 308 (4) (319 SE2d 511) (1984) (defendant had escaped three times: twice from county jail and once from courthouse while in leg irons). Upon retrial of this case, circumstances comparable to those set forth above should be demonstrated clearly in the record to avoid elevating the use of leg irons or other restraining devices to error of constitutional dimensions. See McKenzey v. State, 138 Ga. App. 88, 89-90 (1) (b) (225 SE2d 512) (1976).

Judgment reversed.

Carley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

I can concur fully with this case except for the citation of McKenzey v. State, 138 Ga. App. 88, 89-90 (1) (b) (225 SE2d 512) (1976). In the latter case Judge Quillian relegated it to the status of a physical precedent only by voting, “concurs in the judgment only, but not with all of the statements made therein.”

Not knowing precisely with which statements he disagrees in the cited case, I am not sure we could or should rely upon it in the case sub judice, as the cloud or shadow of McKenzey may fall upon our instant case, rendering it suspect.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.


text:
    77109.
    PEACHTREE PURCHASING COMPANY v. CARVER.
    (374 SE2d 834)
   Banke, Presiding Judge.

Carver sued Peachtree Purchasing Company (Peachtree) to recover monies alleged owed him pursuant to an “Employment Termination Agreement and Release” entered into by the parties. Peachtree counterclaimed based on allegations that Carver had breached the same agreement and had wrongfully appropriated a business relationship with one of its customers. A jury found in favor of Carver, awarding him $43,750 in damages, plus $12,582 in prejudgment interest and $35,590 in attorney fees. Peachtree appeals.

The evidence introduced at trial, construed in favor of the verdict, authorized the following factual findings. Peachtree is one of a number of companies controlled by John Portman, Jr., and is in the business of purchasing furniture, fixtures, and equipment for hotels. Carver had worked for the company for seven years and had served as its president for the last three of those years, when, in December of 1982, he was informed by Stanley P. Steinberg, a senior officer in the management of the Portman companies and a director of Peachtree, that someone else would be brought in to serve as Peachtree’s president. Carver responded that he would be unable to stay with the company under those circumstances; and on January 29, 1983, he and Peachtree entered into the “Employment Termination Agreement and Release” on which this litigation is based. Pursuant to this agreement, Carver abandoned all ownership interest and rights in the company and agreed to “maintain and support the good reputation of Peachtree Purchasing, of John C. Portman, Jr., and of the corporations, partnerships, and other business activities in which John C. Portman, Jr., or any member of his immediate family presently has an ownership interest. . . .” In return, Peachtree agreed to make payments to Carver totaling $43,750. The agreement further specified that the parties were to enter into a “consulting agreement,” the terms and conditions of which were not specified.

At the time the termination agreement was signed, Peachtree was seeking to be hired as the purchasing agent for a hotel which was being built in San Francisco. The company was, in fact, already being paid to perform certain preliminary services in connection with this project and had opened a West Coast office based in large part upon its efforts and expectations in this regard. Because Carver had a good working relationship with the developer’s project director, Chris MacDonald, his departure from Peachtree raised concern on the part of Steinberg that Peachtree might lose this job. Accordingly, after discussing the situation with MacDonald, Steinberg sent Carver to San Francisco as a consultant, as contemplated by the termination agreement, with oral instructions to “shepherd the project as necessary” until Peachtree’s new president could take over. Carver agreed to this arrangement only reluctantly.

Carver arrived in San Francisco on January 31, 1983 (i.e., two days after signing the termination agreement) and met with MacDonald immediately thereafter. During this meeting, it became apparent to Carver that MacDonald was expecting him to remain as Peach-tree’s consultant for the duration of the hotel project. When he explained that his consulting arrangement with Peachtree was temporary and that he would not be available after the company’s new president was in place, MacDonald told him that Peachtree would not be retained as the purchasing agent for the project under those circumstances and proposed that he come to work directly for the developers. Carver declined the offer and suggested that MacDonald meet with Peachtree’s new president, but MacDonald was not interested.

Immediately after this meeting, Carver telephoned Steinberg to tell him that the decision had been made to give the hotel job either to him (Carver) personally or to another purchasing company, rather than to Peachtree. According to Carver, Steinberg’s only response was to ask him to attempt to “arrange for some type of situation where Jean Anderson [Peachtree’s project manager in San Francisco] could stay involved in the project.” Testifying with apparent reference to this conversation during the trial, Steinberg stated: “I talked to [Carver] . . . about the possibility, if he stays as the project executive on their payroll, fine, but keep Peachtree Purchasing involved. . . .” Shortly after this conversation, MacDonald telephoned Steinberg and explained “that our owners wanted to have Mr. Carver as necessary and that under the proposed consulting arrangement that they didn’t feel comfortable that it would work.”

During the following days, MacDonald renewed his offer to Carver, and the two began to discuss terms. The next week, Carver tentatively accepted MacDonald’s offer but told MacDonald that he (Carver) would have to “clear it” with Steinberg first. Carver thereupon returned to Atlanta, where, upon discussing the situation with Steinberg and Portman, he was met with expressions of displeasure. Held:

1. Peachtree contends that it was entitled to a directed verdict both on Carver’s complaint and on its counterclaim because the evidence established without dispute that Carver had breached a fiduciary duty of loyalty to the company by placing himself in a position where his interests and the company’s were in conflict.

“It is recognized, as a part of the general rule against an agent acting on his own account and adversely to his principal, that the rule is subject to qualification in that the agent may so act with the consent of the principal, freely given with full knowledge of the facts known to the agent which might affect the transaction. Even though the agent is dealing on his own account and for his own benefit, if the agent deals fairly and openly with the principal and if the principal has full knowledge of the material facts attending the transaction and which are known to the agent, the transaction is as valid as though consummated between the principal and some other person.” 3 AmJur2d, Agency, § 229, p. 730.

“An agent, during the term of the agency, is subject to a duty not to compete with the principal concerning the subject matter of the agency, unless the principal clearly consents or waives his rights. Thus, an agent may not, without his principal’s knowledge and consent, enter into any business in competition with the latter and make and keep for his individual use and benefit any profit accruing from the transaction. However, an agent is not absolutely precluded by law from competing with his principal. Rather, the right of an agent to engage in competitive business is dependent to a certain extent upon the character of the agency, the circumstances surrounding it, and the agreement, express or implied, of the parties; and there is no violation of the agent’s duty if the principal understands that the agent is to compete. Nevertheless, an agent who engages in a business which might conflict with his principal’s interests has a duty to exercise good faith by disclosing to the principal all the facts regarding the matter.” Id., § 230, p. 731. (Emphasis supplied.) Accord Spratlin, Harrington & Thomas v. Hawn, 116 Ga. App. 175, 178-9 (156 SE2d 402) (1967); 3 CJS, Agency, § 281; Restatement (2d), Agency, § 393, Comment (a), p. 216. See also Restatement (2d), Agency, §§ 387, 390.

The jury was authorized to conclude from the testimony in this case that Carver had apprised Peachtree’s management of his potential conflict of interest immediately upon learning of it and had been instructed to continue to represent the company’s interests with respect to the project as best he could under the circumstances. In reviewing the denial of a motion for directed verdict, this court must construe the evidence most favorably to the party opposing the motion; and if there is any evidence to support a verdict in favor of that party, the trial court’s ruling will not be disturbed on appeal. See Minuteman Press Intl. v. Hedrick, 167 Ga. App. 453 (306 SE2d 718) (1983). The evidence in this case, construed most favorably toward Carver, did not demand a verdict against him on either the complaint or the counterclaim.

2. We do not, however, find any evidentiary support for the award of attorney fees. Carver contends that the award was authorized on the basis of Steinberg’s alleged bad faith in “fraudulently” misrepresenting to him that his services as a consultant would be needed for only a short period of time, while simultaneously representing to MacDonald that he would be available as a Peachtree consultant for the duration of the project. It would, of course, have been pointless and self-defeating for Steinberg to have made such conflicting representations, and we have been cited to no evidence from which it could be inferred that he actually did so. Moreover, even accepting Carver’s allegations in this regard as true, it is clear that he was not misled, since any misunderstanding which may have existed was cleared up immediately upon his arrival in San Francisco, yet he did not thereafter accuse Steinberg of misleading him but remained in San Francisco as Peachtree’s consultant until such time as he agreed to go to work directly for MacDonald.

We find no evidence from which it could be inferred that Peach-tree either procured or retained Carver’s services as a consultant through bad faith, fraud or deceit. Nor do we find any other basis upon which the award of attorney fees could be upheld, it being apparent as a matter of law that Peachtree’s refusal to pay Carver the sums called for under the termination agreement stemmed from a bona fide controversy as to whether he had used the consulting arrangement to promote his own interests over those of the company. While the company did not prevail in this dispute, it cannot be assessed attorney fees for litigating it. See generally OCGA § 13-6-11; Ostrom v. Kapetanakos, 185 Ga. App. 728 (2), 729 (365 SE2d 849) (1988); Nestle Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (4) (265 SE2d 61) (1980). The award of attorney fees is consequently reversed.

3. Pursuant to Peachtree’s request, the trial court charged the jury that when an agent places himself in a position where his personal interests conflict with those of his principal, he is presumed to be disloyal and acquires the burden of proving that he made no profit from the transaction. Over Peachtree’s objection, however, the court further charged the jury that in order for Peachtree to recover on its counterclaim for Carver’s alleged breach of the consulting and/or termination agreements, it was required to “establish by a preponderance of the evidence that [Carver] failed to perform some obligation imposed on him under the terms of the agreement.” Peachtree contends that this latter charge conflicted with its requested charge with respect to the burden of proof and was incorrect. We disagree.

Whether Carver had placed himself in a position where his interests conflicted with Peachtree’s or whether Peachtree, with knowledge of all the facts, had instead placed him in that position was a question of fact to be resolved by the jury. Insofar as its counterclaim was concerned, the initial burden clearly lay on Peachtree to come forward with evidence that Carver had violated some obligation to the company arising either from the oral consulting agreement or from the written termination agreement. Consequently, we find this enumeration of error to be without merit.

Decided October 31, 1988.

C. B. Rogers, James W. Beverage, for appellant.

R. Michael Robinson, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Beasley, J., concur.


author: Carley, Judge.

text:
    77172.
    PIE NATIONWIDE, INC. et al. v. PRICKETT.
    (374 SE2d 837)
   Carley, Judge.

Appellee-plaintiff brought suit against appellants-defendants, seeking to recover for property damage that was incurred as the result of a traffic incident. The initial trial of the case resulted in a jury verdict in favor of appellants. After the jury had been dismissed, but prior to the entry of judgment, however, appellee notified the trial court of the possible occurrence of juror misconduct. Thereupon, the jury and counsel were recalled by the trial court for the purpose of' conducting a hearing into the alleged misconduct. During the course of this hearing, only the members of the jury were called to testify. As a result of this hearing, the trial court, on appellee’s motion, declared a mistrial. The subsequent retrial of the case resulted in a jury verdict in favor of appellee. Appellants bring this appeal from the judgment entered by the trial court on the jury verdict returned after the retrial.

In their sole enumeration, appellants urge that the trial court’s declaration of a mistrial as to the original proceedings was erroneous.

The trial court’s declaration of the mistrial was based entirely upon the testimony of the original jurors, which testimony was impeaching of the verdict that they had returned. “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 9-10-9. This prohibition against the impeachment by a juror of his verdict extends to oral testimony offered at a hearing. Bissell v. State, 153 Ga. App. 564, 567 (3) (266 SE2d 238) (1980). See also Lozynsky v. Hairston, 168 Ga. App. 276 (308 SE2d 605) (1983); Pinkston v. Hagin, 157 Ga. App. 2 (1) (276 SE2d 67) (1981); Rylee v. State, 28 Ga. App. 230, 231 (3) (110 SE 749) (1922). “ ‘As a matter of public policy, a juror cannot be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.’ ” Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (1) (284 SE2d 74) (1981). Appellee relies upon Leonard v. Owen, 125 Ga. App. 5 (186 SE2d 506) (1971) as authority which supports the trial court’s grant of his motion for mistrial. However, there is nothing in Leonard u. Owen, supra, which would indicate that the jurors therein were permitted to impeach their verdict or which would support the proposition that a trial court is authorized to grant a mistrial based solely upon such impeaching testimony.

Appellee further urges that appellants have waived their right to enumerate the trial court’s declaration of a mistrial as error. In the trial court, appellants did fail to object or except to the ruling or to the proceedings which produced it. However, “the trial judge has no power to receive, hear, or consider affidavits of jurors submitted for the purpose of impeaching their verdict, though submitted without objection. [Cit.] That a juror will not be heard to impeach his verdict is too plain to be misunderstood by the bench or the bar.” (Emphasis supplied.) Wellbeloved v. Wellbeloved, 209 Ga. 709, 711 (4) (75 SE2d 424) (1953). See also City Council of Augusta v. Hudson, 94 Ga. 135 (6) (21 SE 289) (1894). Likewise, appellants’ failure to appeal immediately is not a waiver of their current right to enumerate the trial court’s declaration of a mistrial as error. The grant of a mistrial is not a final order. Nickles v. State, 86 Ga. App. 284 (1) (71 SE2d 574) (1952). Appellants were not required to seek an immediate interlocutory appeal and, a final order having since been entered in the case, they now have the right to secure an appellate review of the ruling. See OCGA § 5-6-34 (a); Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 883 (2) (204 SE2d 789) (1974).

“ ‘ “Ordinarily motions for mistrial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge.” [Cit.] ‘Unless there is an abuse of discretion concerning the trial court’s ruling on alleged improper juror conduct, the appellate court will not upset the trial judge’s determination. [Cit.]’ [Cit.]” Sawnee Elec. &c. Corp. v. Thompson, 168 Ga. App. 511, 512-513 (1) (309 SE2d 809) (1983). See also Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 112 (6) (316 SE2d 554) (1984). In the present case, however, the trial court granted a motion for mistrial based solely upon evidence which it had “no power to receive, hear, or consider. . . .” Wellbeloved v. Wellbeloved, supra at 711 (4). Accordingly, we hold that the trial court did abuse its discretion in declaring the mistrial because the jurors’ testimony afforded the trial court no basis upon which its discretion could be exercised. The judgment entered by the trial court on the second verdict is therefore reversed, and the case is remanded for the entry of a judgment on the initial jury verdict. When the trial court has entered final judgment on the initial jury verdict, the losing party will then be free to file a notice of appeal or appropriate motions in the trial court within the statutorily specified period.

Decided October 31, 1988.

Kenneth P. McDuffie, for appellants.

Russell D. Waldon, for appellee.

Judgment reversed and case remanded with direction.

Sognier, J., concurs. Been, P.J., concurs dubitante.


text:
    77251.
    In the Interest of J. A. B.
    (374 SE2d 839)
   Carley, Judge.

Appellant is the mother of a minor child. The juvenile court adjudicated appellant’s child to be deprived, and entered an order placing the child in the custody of the Department of Family and Children Services. Some twenty months later, the juvenile court terminated appellant’s parental rights and appellant appeals from that order.

1. Appellant enumerates the termination of her parental rights as erroneous, urging an absence of clear and convincing evidence which would support such an order.

“This court has long recognized that termination of parental rights is a severe measure. [Cit.] ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. When we do this, we make a decision on human frailties and their consequences. It becomes an agonizing undertaking.’ [Cit.]” In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986). The juvenile court’s termination of appellant’s parental rights must be based upon clear and convincing evidence which supports the following findings: “(i) The child is a deprived child . . .; (ii) The lack of proper parental care or control by [appellant] is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A). If clear and convincing evidence of these elements exists, the juvenile court must then have given consideration to the best interests of the child before it ordered the termination of appellant’s parental rights. See OCGA § 15-11-81 (a).

Decided October 31, 1988.

John B. Degonia, Jr., for appellant.

John R. Laseter, Billy J. Waters, Stephen Noel, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

The previous order of the juvenile court adjudicating the child to be deprived satisfies the evidentiary requirement as to the first statutory finding. Wynn v. Dept. of Human Resources, 149 Ga. App. 559 (254 SE2d 883) (1979). With regard to the remaining three elements of OCGA § 15-11-81 (b) (4) (A), a review of the record shows the existence of clear and convincing evidence that appellant’s lack of parental care or control was the cause of the deprivation, that such deprivation was likely to continue, and that the continued deprivation would cause serious harm to the child. The. testimony of the case workers and appellant, especially when viewed in conjunction with the testimony of a clinical psychologist, is clear and convincing evidence of appellant’s unwillingness to accept the truth of the facts which underlay the earlier determination of deprivation, which unwillingness was both a cause of the deprivation and a factor which rendered the deprivation likely to continue should the child ever be returned to appellant’s home.

“On review of such a decision [terminating parental rights], the standard is whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody have been lost. [Cit.]” In the Interest of J. L. Y., 184 Ga. App. 254, 255 (1) (361 SE2d 246) (1987). There being clear and convincing evidence in the record to support the juvenile court’s termination of appellant’s parental rights, this enumeration is without merit. See In the Interest of S. G. & T. G., 182 Ga. App. 95 (354 SE2d 640) (1987).

2. Appellant’s remaining enumeration has been considered and found to be without merit.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76974.
    RAY v. ANDERSON.
    (374 SE2d 819)
   Pope, Judge.

Appellant Freddie Jean Ray brought an action against appellee Ursula Anderson, seeking damages for personal injuries allegedly received through the negligence of Anderson in an automobile collision which occurred on May 30, 1986. The evidence presented at trial showed that five automobiles were stopped at a red light, with appellant driving the fourth car and appellee driving the fifth one. The traffic light turned green and all the cars proceeded forward until the first automobile suddenly made a U-turn to the left from a no-turn lane. When the following cars had to make sudden stops, appellee hit appellant from the rear and pushed her into the vehicle in front of her. Over appellant’s objection the trial court charged the jury on the doctrine of sudden emergency. After requesting and receiving a recharge on sudden emergency and proximate cause, the jury returned a verdict in favor of appellee. This appeal is from the denial of appellant’s motion for new trial.

1. Appellant contends that the trial court erred in refusing to allow her to present evidence that appellee carried liability insurance in the amount of $300,000 and argues that such evidence is admissible pursuant to OCGA § 51-12-1 (b). Pretermitting the issue of whether OCGA § 51-12-1 (b) authorizes the admission of evidence concerning benefits that a plaintiff may be entitled to under the alleged tortfeasor’s policy, that section is to be given prospective effect only; therefore it is inapplicable to the present action which arose and was filed prior to July 1, 1987, the effective date of the statute. Polito v. Holland, 258 Ga. 54 (5) (365 SE2d 273) (1988); Quality Rental Co. v. Grier, 187 Ga. App. 5 (1) (369 SE2d 276) (1988). Consequently, the trial court did not err in refusing to admit such evidence.

2. Appellant also complains that she suffered reversible error because the trial court charged the jury on the doctrine of sudden emergency when the facts did not support such a charge. Appellant argues that since appellee was not confronted with a choice of conduct, any issue of sudden emergency was negated. See Davis v. Calhoun, 128 Ga. App. 104 (1) (195 SE2d 759) (1973). The defense of emergency is not available unless the evidence shows that there has been a “ ‘sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.’ ” Hall v. Chastain, 246 Ga. 782, 785 (5) (273 SE2d 12) (1980), quoting Davis v. Calhoun, at 106. See also Howard v. Jones, 187 Ga. App. 756 (2) (371 SE2d 196) (1988); F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (3b) (354 SE2d 6) (1987).

In the above cases it was held that because there was no evidence that the defendants made an emergency choice after being confronted by a sudden danger, but rather that the accidents were due to negligence of others, a sudden emergency charge was not warranted. In the instant case, appellee testified that “the first car made an illegal left turn and everybody came to a quick stop and . . . had to slam on their brakes”; and that when she saw appellant’s brake lights come on she applied her brakes, but “just bumped into her.” Thus, “[i]t is apparent that [appellee] apprehended the danger or peril and attempted to avoid the collision by engaging the brakes of [her car]. [Cits.] ‘(W)hether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury. (Cits.)’ [Cits.] Under the evidence presented at trial, we conclude that this issue was properly submitted to the jury. [Cits.] Accordingly, this enumeration of error is without merit.” Federal Ins. Co. v. Pascoe Steel Corp., 161 Ga. App. 204, 206 (1) (288 SE2d 267) (1982). Accord Ellis v. Cameron & Barkley Co., 171 Ga. App. 211 (5) (319 SE2d 38) (1984).

Decided October 21, 1988 —

Rehearing denied November 1, 1988

Allen W. Johnson, for appellant.

Robert L. Allgood, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77065.
    SCHECTER v. STRICKLAND.
    (375 SE2d 93)
   Pope, Judge.

Plaintiff Harvey Schecter and defendant Steve Strickland are both osteopathic doctors and members of the staff at Doctors Hospital in Tucker, Georgia. In 1978, Dr. Schecter expressed his opinion to a professional review committee that a third physician, Dr. Joseph D. Morrow, was not competent. Dr. Schecter repeated this view at numerous meetings of the review committee over a period of several months.

In 1980, Dr. Morrow came under review by the Composite State Board of Medical Examiners and ultimately voluntarily surrendered his Georgia license. Dr. Morrow then applied for a medical license from the State of Oklahoma. An Oklahoma newspaper reporter, who learned of the controversy concerning Dr. Morrow’s Georgia practice, contacted Dr. Strickland for his comments. In an article published on October 26, 1981, the reporter wrote that Dr. Strickland told him, inter alia: (1) Dr. Morrow was driven from his Georgia practice “by a vendetta launched by doctors Harvey Schecter and [another doctor]”; (2) the two physicians brought complaints against Dr. Morrow because of professional jealousy; and (3) “while [Dr. Morrow] was in Vietnam they were burning draft cards, smoking pot and wearing beads.” Dr. Schecter brought a slander claim against Dr. Strickland for the statements made to the reporter. Alleging the statements were made willfully and maliciously, Dr. Schecter prayed for actual and punitive damages.

The initial trial of the case resulted in a verdict against Dr. Strickland for $200,000 general damages and $325,000 punitive damages. The trial judge granted Dr. Strickland’s motion for new trial on the ground that the verdict was excessive. On retrial of the case, a verdict was returned in favor of Dr. Strickland (hereinafter “defendant”). Dr. Schecter (hereinafter “plaintiff”) appeals the original grant of new trial and raises several enumerations of error in regard to the second trial.

1. After the initial trial, defendant filed a motion for new trial on the general grounds. In support of his motion, defendant argued the verdict was excessive. Plaintiff contends the grant of new trial on the ground the verdict was excessive was improper because excessiveness must be raised by special ground and may not be raised by the general grounds in a motion for new trial. Plaintiff’s assertion is true regarding a motion for new trial brought by a plaintiff on the ground the verdict was inadequate. See Brown v. Garcia, 154 Ga. App. 837 (2) (270 SE2d 63) (1980); Selman v. Manis, 100 Ga. App. 422 (1) (111 SE2d 747) (1959). However, the issue of the excessiveness of the verdict falls within the general grounds for a new trial. See Baxter v. Weiner, 246 Ga. 28 (268 SE2d 619) (1980).

“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” OCGA § 5-5-50; accord Tri-State Augusta v. Woodward Lumber Co., 88 Ga. App. 748 (77 SE2d 769) (1953). The trial judge may, within his discretion, grant a new trial on the general grounds when that judge disapproves of the amount of the verdict. Blanchard v. Westview Cemetery, 133 Ga. App. 262 (1) (211 SE2d 135) (1974). Consequently, we find no abuse of discretion in the granting of a new trial after the initial trial of the case.

2. Plaintiff argues defendant slandered him by saying plaintiff launched a “vendetta” against Dr. Morrow. Truth was asserted as an affirmative defense. Throughout the second trial, plaintiff maintained that the jury could not determine the truth or falsity of defendant’s statement without hearing evidence concerning Dr. Morrow’s professional competence and treatment of patients. While some evidence of Dr. Morrow’s methods of treatment was presented without objection, plaintiff was generally precluded from presenting such evidence. The trial court ruled Dr. Morrow’s competence was not at issue in the case, but only whether plaintiff did, in fact, file complaints against Dr. Morrow or was involved in an ongoing feud or controversy concerning Dr. Morrow.

The jury was first confronted with the issue of whether the word “vendetta” was defamatory. “The gist of the action of slander is the unfavorable impression created in the mind of a third party by an alleged tortfeasor in using defamatory words of and concerning another in the hearing of such third party.” Kaplan v. Edmondson, 68 Ga. App. 151, 154 (22 SE2d 343) (1942). Here, the meaning of “vendetta” was left to the determination of the jury. The jury could find the statement was slanderous or not slanderous. Yet, by repeatedly ruling that the only issue was whether an ongoing feud or controversy existed the trial court implicitly based its rulings upon the assumption that “ongoing feud or controversy” is the definition of “vendetta.” The trial court’s rulings ascribed a nonpejorative meaning to the word. However, dictionary definitions suggest a pejorative or derogatory meaning. For example, the jury’s understanding of vendetta might include an element of revenge or hostility. In that event, whether the actions of the plaintiff in regard to Dr. Morrow amounted to a vendetta might reasonably depend on whether plaintiff’s actions were justifiable, as opposed to undeservedly vengeful or hostile.

At trial, most of the examples given by the defendant to illustrate his conclusion that plaintiff launched a vendetta against Dr. Morrow concerned complaints by plaintiff about Dr. Morrow’s competence or attempts to have his treatment of patients reviewed by other physicians. If plaintiff’s actions were justifiable, then the jury might conclude the actions did not amount to a vendetta. A jury might find plaintiff’s actions were justifiable if it were shown that Dr. Morrow’s competence was a bona fide issue at the time plaintiff brought these complaints against him. The jury should not have been precluded from considering the motivation for plaintiff’s actions.

When the plaintiff was permitted at the first trial to introduce evidence concerning Dr. Morrow’s competence, the jury returned a verdict of $525,000 in plaintiff’s favor. The second trial, at which such evidence was excluded, resulted not in a mere reduction of the amount of the verdict but in a complete reversal to a defendant’s verdict. The drastic reversal of the verdict when the evidence was excluded supports the conclusion that the jury must decide the motivation or justification for plaintiff’s actions before it can determine whether plaintiff launched a vendetta.

“The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” Agnor’s Ga. Evidence § 10-2, p. 224 (1986). Accord Baker v. State, 246 Ga. 317 (3) (271 SE2d 360) (1980); Kelly v. Floor Bazaar, 153 Ga. App. 163 (264 SE2d 697) (1980). While any and all evidence concerning Dr. Morrow’s professional competence and treatment of patients might not be relevant, such evidence which relates directly to specific complaints voiced or actions taken by plaintiff against Dr. Morrow is relevant to the issues in the case. We hold the court erred in the second trial by excluding such evidence.

3. Defendant also told the reporter that the complaints made by plaintiff against Dr. Morrow were motivated by professional jealousy. On cross-examination defendant stated he believed in good faith that plaintiff was jealous of Dr. Morrow; he admitted, however, he could not prove the statement and should not have made it. He also testified that the term “professional jealousy,” as used in the medical community, refers to financial success or patient volume. Plaintiff was not permitted to cross-examine the defendant any further concerning the reasons for making the statement or the reasonableness of defendant’s belief, because the trial court ruled defendant had already conceded the issue. Plaintiff argues the court erred in barring further cross-examination concerning the jealousy statement.

To be actionable under the slander statute, a statement must be false as well as malicious. Williams v. Trust Co. of Ga., 140 Ga. App. 49 (I) (230 SE2d 45) (1976). A defendant in a slander case may prove a statement was not malicious by setting forth the facts upon which he based his belief that the statement was true. See id. at (IV). Fairness demands that the plaintiff, who carries the burden of showing the statement to be false and malicious, be permitted to examine the defendant regarding the facts or reasons upon which he based his belief that the statement was true. Plaintiff should be allowed to submit evidence to show that defendant’s reasons are false and his belief is unreasonable and, therefore malicious.

Defendant admitted he should not have made the statement concerning professional jealousy because he could not prove it to be true. He did not, however, admit it was false and malicious. Those issues remained to be tried and the court erred in precluding plaintiff from introducing evidence relating to those issues.

4. Defendant denied he was referring to the plaintiff when he made the comment to the reporter concerning burning draft cards, etc. He claimed he was commenting about other members of plaintiff’s generation and, moreover, that he and the reporter were no longer discussing the Schecter-Morrow controversy at that point in the conversation. Essentially, defendant asserted the newspaper article inaccurately portrayed him as referring to the plaintiff. Because the accuracy of the article was attacked by defendant, plaintiff attempted to impeach defendant’s assertion of inaccuracy by cross-examining defendant concerning the contents of the remainder of the newspaper article. Plaintiff argues the trial court precluded him from conducting a thorough examination of defendant on the accuracy of the article. To the contrary, the record shows plaintiff was adequately permitted to question defendant concerning the content of defendant’s conversation with the reporter and the contents of the article.

5. The allegedly slanderous statements at issue in this case were made three days before the newspaper article reporting the statements was published on October 26, 1981. On November 18, 1981, defendant introduced a resolution at the meeting of the Department of General Practice of Doctors Hospital to reprimand and censure plaintiff for actions which adversely affected Doctors Hospital. Plaintiff argues the court erred in excluding evidence concerning the censure resolution because such evidence is relevant to defendant’s state of mind and shows continuing hostility toward plaintiff.

Evidence of extraneous hostile acts or remarks by the defendant, while not pertaining directly to the slanderous statement at issue, nevertheless may be relevant to the issue of malice because “it is competent to show the state of mind of the parties at the approximate time of the remarks, and is of probative value.” (Cit. and punctuation omitted). Savannah Bank &c. Co. v. Sumner, 174 Ga. App. 229, 232 (329 SE2d 910) (1985). However, extraneous statements that are neither timely nor pertinent regarding the issue of malice in the alleged defamatory remark are properly excluded. Id. at (2). The censure resolution was proposed by defendant over three weeks after he made the statements at issue in the case. Also, the record shows the resolution was proposed only after plaintiff had submitted to the committee, on the same day, a resolution concerning defendant’s professional behavior. Given the intervening time and events, plaintiff failed to show that defendant’s resolution is relevant to the earlier, allegedly slanderous, statements. The trial court did not err in excluding such evidence.

6. For reasons set forth in Divisions 2 and 3 of this opinion, we hold the trial court improperly denied plaintiff’s motion for new trial.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.

Decided October 17, 1988 —

Rehearings denied November 1, 1988

Stanley M. Lefco, for appellant.

Mackay, Cordes, Daniel & King, James A. Mackay, David L. King, Jr., for appellee.

       The order granting new trial was issued December 9, 1985, prior to the 1987 Tort Reform Act (Ga. L. 1987, p. 915, § 7) which, inter alia, expressly authorizes the trial court to grant a new trial as to damages only in the event the jury’s award of damages is so excessive as to be inconsistent with the preponderance of the evidence. OCGA § 51-12-12 (b).

        The Compact Edition of the Oxford English Dictionary (1971) defines vendetta as “A . . . prosecution for private revenge.”

        Webster’s Third New Intl. Dictionary (3d ed. 1981) defines vendetta as “A prolonged feud marked by bitter hostility.”


author: Beasley, Judge.

text:
    77077.
    LEE v. MYERS.
    (374 SE2d 797)
   Beasley, Judge.

We granted defendant Lee interlocutory appeal from the denial of his motion for summary judgment. The suit was brought by Myers for personal injuries she sustained when she fell on a set of metal steps at the Columbus Farmers’ Market, then managed by Lee, an employee of the Georgia Department of Agriculture.

The evidence construed most favorably for plaintiff Myers, Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (1) (307 SE2d 683) (1983), showed the following. One Saturday evening, Myers was visiting the home of her friend Mrs. Watford. Mrs. Watford’s husband was an owner and operator of Bi-City Produce Company, a produce business located in the wholesale section of the Columbus Farmers’ Market. The business was primarily a wholesale one but on occasion the public was permitted to make purchases, and on occasion the business solicited the public by mail.

Myers told Mr. Watford she wanted to buy some produce but did not want to wait until the market’s regular operating hours. Watford agreed to allow Myers to accompany his wife and granddaughter to the market, where he was going that night to do paperwork.

After arriving at the market, Myers ascended a set of metal steps located at one end of the loading dock. She noticed that the steps were “wobbly,” “not sturdy,” “unbalanced.” The area was well lit and Myers could see clearly, but she did not notice that the steps were not anchored to the loading dock. She said she “paid no attention” to whether they were anchored down. The steps were not the only means of ingress and egress.

After purchasing several bags of produce, Myers proceeded to leave with Mrs. Watford and her granddaughter. Mrs. Watford and the granddaughter stepped off the front of the loading dock onto the ground. Myers chose to descend the same metal steps she had come up. As she approached the steps, she looked to take the handrail to go down. As she had one foot still on the concrete loading dock, she put her other foot on the top step and tried to take hold of the handrail when the steps suddenly moved forward and out from the concrete dock. She lost her balance and fell.

There was no evidence of any such prior mishaps with use of the steps.

Myers sued Bi-City Produce, Lee, and John Doe. She alleged it was defendants’ duty 1) to exercise ordinary care and diligence to design, build, keep and maintain the steps in a condition reasonably safe for their intended uses and free from all defects and conditions which would render them dangerous and unsafe or present an unreasonable risk of harm in her lawful and reasonable use of them; 2) to exercise reasonable care to protect her, by inspection and other affirmative acts, from the danger of reasonably foreseeable injury occurring from reasonably foreseeable uses of the steps; 3) to use reasonable care in the design, construction, and maintenance of the steps in a manner consistent with and in conformity with recognized standards of step construction, design and safety. She further alleged that 1) defendants had actual or constructive knowledge of the defective condition of the steps and breached their duty to warn her of the dangerous and unsafe conditions existing on the steps; 2) the fall and resulting injuries to her were proximately caused by the defendants’ negligence in the particulars aforesaid.

Lee answered the complaint and filed a third-party complaint against the designer and manufacturer of the steps. He contends that the court erred in denying him summary judgment by declining to find as a matter of law that 1) Myers was a mere licensee at the time of the fall and 2) that he had breached no duty to Myers.

1. Appellant argues that Myers was a licensee at the time of the incident because she was on the premises after hours and by permission, so he is not liable because his conduct was neither willful nor wanton.

“The owner or occupier of land is liable to a licensee only for willful or wanton injury. OCGA § 51-3-2 (b). As to an invitee, the owner or occupier of land owes the duty to exercise ordinary care. OCGA § 51-3-1. ‘ “The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. . . . [Cits.]”’ [Cit.]” Burkhead v. American Legion, Post 51, 175 Ga. App. 56 (332 SE2d 311) (1985). See also Frankel v. Antman, 157 Ga. App. 26, 27 (276 SE2d 87) (1981).

Under such test, Myers was an invitee. The cases cited by appellant, Armstrong v. Sundance Entertainment, 179 Ga. App. 635 (347 SE2d 292) (1986) and Clark v. Rich’s, 114 Ga. App. 242 (150 SE2d 716) (1966), do not require a different result because Myers did not exceed the temporal or spatial limits of her invitation. Although the wholesale part of the market was officially closed to the general public at the time, Myers was present with express permission and for the intended purpose of purchasing produce, which purpose would have been mutually beneficial to her and to defendant Lee.

2. Appellant’s second point is that even if he owed Myers a duty to exercise ordinary care in keeping the premises safe, he did not breach that duty and Myers had equal or superior knowledge of the condition of the steps, barring recovery.

The basis of liability of the owner of property on which an invitee is injured is the superior knowledge by the owner of the existence of a condition that may subject the invitee to an unreasonable risk of harm. Burdine v. Linquist, 177 Ga. App. 545, 546 (340 SE2d 198) (1986); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). Relative knowledge is the key. See the discussion in Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 160 (342 SE2d 468) (1986). The gravamen of appellant’s argument is that because upon Myers ascent she observed that the steps were “wobbly,” “not sturdy,” and “unbalanced” by choosing to descend the steps with this knowledge, Myers assumed the risk and dangers incident to the known condition. See Pound v. Augusta Nat., 158 Ga. App. 166,168 (279 SE2d 342) (1981). Lee also maintains that it is undisputed that he had neither actual nor constructive knowledge that the steps might move under a person trying to descend them.

Lee acquired the portable steps for the premises. Consequently, “he may reasonably be charged with knowledge of [the existence of the detached steps] and of the alleged danger presented by [them.] [Cits.]” Gerdes v. Dziewinski, 182 Ga. App. 764, 766 (2) (357 SE2d 110) (1987). As to plaintiff’s knowledge, while it is true that the uncontradicted evidence is that plaintiff made observations about the unsteady nature of the steps when climbing them, she is not claiming that she was injured as a result of the steps being “wobbly” or “not sturdy” or “unbalanced,” but rather because the steps were not anchored to the loading dock and thus were able to move away from it. The evidence construed for the plaintiff does not demand a finding as a matter of law that she had actual knowledge of the detached nature of the steps or that from her observations of their condition upon her ascent she should be charged with constructive knowledge of the detachment and the resulting risk of movement and separation upon her descent. The circumstances present a question of fact as to relativity, that is, as to whether plaintiff’s relevant knowledge was equal to or surpassed that of defendant Lee.

In order for Lee to prevail on summary judgment, he had the burden to negate the existence of superior knowledge on his part, with all doubts and conflicts being resolved in plaintiff’s favor. Gerdes, supra at 766 (2); Sealey v. Western Broadcasting, 168 Ga. App. 493, 495 (309 SE2d 633) (1983). His failure to carry this burden led to the proper conclusion that he was not entitled to summary judgment.

Decided October 18, 1988 —

Rehearing denied November 1, 1988

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Patricia T. Barmeyer, Senior Assistant Attorney General, Gordon R. Alphonso, Assistant Attorney General, Barbara H. Gallo, Staff Assistant Attorney General, for appellant.

Oates, Byars & Hollington, Samuel W. Oates, Jr., for appellee.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Benham, Judge.

text:
    76499.
    BEDLEY v. THE STATE.
    (374 SE2d 841)
   Benham, Judge.

This appeal is from a denial of new trial on a simple battery conviction.

1. Appellant contends the evidence is insufficient to support a conviction for simple battery. OCGA § 16-5-23 (a) defines simple battery as follows: “A person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.”

The jury was authorized to find that Phillip Scott Bedley, a Clayton County deputy sheriff, was on duty at the Clayton County Jail on September 21, 1986, when Edward Lance Cooper, who was under arrest for an offense involving another off-duty deputy sheriff, was booked into the jail. Cooper testified that Bedley slapped him twice without provocation, and the two deputies who had arrested Cooper testified that they saw Bedley strike Cooper without provocation. A videotape recording of Cooper’s booking, played for the jury, showed appellant striking Cooper. Although Bedley contends that any striking of the victim was justified in part by the victim’s use of opprobrious and abusive language and that the victim constituted a security threat, the jury was authorized to find that no security threat existed and that Bedley struck Cooper without justification. Viewing the evidence in a light most favorable to the verdict, the evidence authorized a rational trier of fact to find appellant guilty beyond a reasonable doubt of simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 182 Ga. App. 826 (357 SE2d 143) (1987).

Decided November 1, 1988.

Johnny B. Mostiler, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred in not excluding from evidence a manual known as Standard Operating Procedures. This manual is a three-page document which outlines department policies and procedures as to the use of force by a Clayton County law enforcement officer. Where evidence tends to prove or disprove a material issue of fact, it is relevant and therefore admissible at trial. Harris v. State, 142 Ga. App. 37 (7) (234 SE2d 798) (1977). Matters of relevancy are addressed to the sound discretion of the trial judge, and in the absence of an abuse of discretion, we will not interfere with his decision. Baker v. State, 246 Ga. 317 (271 SE2d 360) (1980). Since defendant’s defense was that his use of force was justified, and the manual directly related to the defense of justification, it was therefore admissible.

3. In his last enumeration of error, appellant contends that the video recording of the incident was inadmissible because no proper foundation was laid. There was a video recorder located in the intake room, and it was activated during the time Cooper was being booked into the jail. This recording was admitted into evidence at trial and appellant took exception to its admission. The evidence shows the following with regard to the foundation being laid as to the admissibility of the recording: (1) the VCR was functioning properly; (2) it was being operated by competent personnel; (3) no deletions or alterations of the tape were made; (4) participants were identified; (5) there was a proper chain of custody; (6) the conduct of the parties was voluntary; and (7) the incident was correctly recorded. Therefore, the requirements of Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (88 SE2d 167) (1955), were met, and this enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.