author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A1794.
    GARCIA et al. v. ALLEN et al.
    (414 SE2d 742)
   Judge Arnold Shulman.

Appellant Garcia was charged in a multiple count indictment with practicing medicine without a license and unlawfully dispensing controlled substances and dangerous drugs. Shortly before trial his attorneys, who are his co-appellants herein, caused subpoenas duces tecum to be issued to a physician and to a pharmacist who were to be called as state’s witnesses, the former to testify that the prescriptions at issue had not been written for legitimate medical purposes and the latter to testify that the defendant had been writing an unusually large number of prescriptions for controlled substances.

The subpoena issued to the physician directed him to bring to trial copies of his federal and state income tax returns for five specified years, the records of all patients for whom he had prescribed certain controlled drugs during the time period at issue in the indictment, documentation relating to his medical malpractice insurance policy, including premium notices and proof of payment of premiums, and any records relating to medical malpractice claims asserted against him since his admission to practice. The pharmacist was directed to produce at trial records for all customers to whom he had dispensed the types of drugs which Dr. Garcia was accused of unlawfully prescribing. Through separate counsel, each witness filed a motion to quash pursuant to OCGA § 24-10-22 (b).

Following a hearing, the trial court granted the motions to quash based on a determination that the subpoenas were unreasonable, oppressive, overly broad, and intended to harass and intimidate the witnesses. In addition, the court ordered Dr. Garcia and his attorneys to pay $500 in attorney fees to the two witnesses and their attorneys. The case is before us pursuant to our grant of the appellants’ application for discretionary review of these awards. For purposes of this appeal, the appellants do not dispute the merits of the trial court’s ruling that the subpoenas were unreasonable, oppressive, overly broad, and intended to harass and intimidate the witnesses. They contend, however, that no legal authority exists for the imposition of attorney fees in such a situation. With this contention, we must reluctantly agree.

The subpoenas were issued under the authority of OCGA § 24-10-22, which provides as follows: “(a) A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein, (b) The court, upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) Quash or modify the subpoena if it is unreasonable and oppressive; or (2) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.” Notably absent from this statute is any provision for awarding attorney fees against the party seeking the subpoena in the event it is determined to be unreasonable and oppressive.

The appellees contend that the award was nevertheless authorized by OCGA § 9-15-14 (b), which authorizes the trial court to “assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that ... an attorney or party unnecessarily expanded the proceeding by . . . improper conduct, including,, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the ‘Georgia Civil Practice Act.’ ” (Emphasis supplied.) However, the proceedings below were obviously criminal in nature rather than civil; and the subpoenas were not, in any event, issued in connection with discovery procedures. Cf. Cobb County v. Sevani, 196 Ga. App. 247, 248 (395 SE2d 572) (1990). The only other authority offered by the appellees in support of the award is the following provision of the Open Records Act, OCGA § 50-18-70 et seq.: “In any action brought to enforce the provisions of this chapter, if the court shall determine that the action . . . was completely without merit as to law or fact, then the court shall award to the defendant attorney’s fees and expenses of litigation reasonably incurred.” OCGA § 50-18-73 (b). However, the issuance of the subpoenas at issue here clearly did not constitute an action brought to enforce the provisions of the Open Records Act.

While we are in utmost sympathy with the trial court’s desire to compensate the appellees for their expenses in responding to what was perceived to be a gross abuse of legal process, we must regretfully hold that under current statutory law, the trial judge in a criminal case is not authorized to award such compensation in conjunction with an order quashing a subpoena duces tecum pursuant to OCGA § 24-10-22.

Judgment reversed.

Carley, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but do not “reluctantly” or “regretfully” reach the conclusion drawn by the majority. The legislature in its wisdom deliberately confined redress for improper subpoenas to two remedies: complete quashing or at least modifying to legitimacy, and casting of the expense of production by the requesting party. OCGA § 24-10-22 (b). This applied to both civil and criminal cases. It gave the court control over what otherwise might be unreasonable, oppressive, or overly expensive demands. The recipient had only to complain to the court, which was done in this case.

Of course, a cost is incurred when the subpoena recipient is forced to seek judicial redress, and the legislature took steps in 1986 to alleviate what it regarded as an unfair economic burden. It enacted OCGA § 9-15-14, which added the award of attorney fees as an additional method of redress, but it expressly limited this remedy to civil cases.

The limitation was not mere oversight. It reflected a weighing and balancing of competing interests and values in criminal cases. On the one hand is the time and trouble and expense of curtailing an unwarranted subpoena duces tecum, and on the other hand is the protected opportunity for a defendant who faces a possible conviction and imprisonment to marshal all relevant evidence. Obviously there will be at times a difference of opinion regarding what is relevant, and the legislature leaves it to the court to decide, without sanctioning the criminal defendant with the costs engendered by the dispute.

The right to competent counsel is jealously guarded by both the State and Federal Constitutions (Ga. Const. 1983, Art. I, Sec. I, Par. XIV; U. S. Const., Amend. VI), and that competency is not infrequently attacked for what counsel did not do in gathering evidence.

In addition to the values which caution against allowing attorney fees as a sanction for unjustified subpoenas duces tecum is the practical problem of the potential for assessment against an indigent defendant. Imposing them on the indigent defendant’s court-appointed counsel would also be problematic. If it cannot realistically be imposed on such a person or his counsel, would it be fair to impose attorney fees on a non-indigent defendant or his retained counsel?

To this consideration are added others, such as the constitutional and statutory rights to confrontation contained in OCGA § 24-9-64; Ga. Const. 1983, Art. I, Sec. I, Par. XIV; and U. S. Const., Amend. VI. A dispute over the legitimate reach of a subpoena duces tecum in a criminal case was resolved on this basis in favor of the defendant in Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990).

A recognition of these countervailing factors leads me to the conclusion that the legislature’s choice of policy was not unwise.

Decided January 21, 1992.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellants.

Adams, Barfield & Dunaway, David B. Dunaway, Richard H. Bishoff, for appellees.

       In the instant case both the defendant and his retained counsel were individually charged.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A1839.
    RADFORD v. THE STATE.
    (415 SE2d 34)
   Beasley, Judge.

Appellant, Ronald Radford, was indicted for theft by taking (OCGA § 16-8-2) based on allegations that on June 6, 1989, he was in lawful possession of $1,400 in money belonging to Gloria Miles and unlawfully appropriated it with the intent of depriving the owner of the property.

Miles hired appellant to construct a wooden fence and deck around a swimming pool in her backyard. She agreed to pay him $2,800 and she gave him $1,400 in advance in order to buy materials. He was supposed to have the job completed within two weeks. He did virtually no work, giving various reasons and excuses. He left his tools at Miles’ residence and later came to retrieve them, but Miles, suspecting that he had bought the tools with her money, locked them in her garage and informed appellant that she would not return them until he either returned her money or built the fence and deck. She called him repeatedly, but he did not answer the phone or return calls in response to messages she left on his answering machine. She eventually requested that he return her money to her, because she had to hire someone else to do the work. She never heard from appellant again. Someone subsequently broke into her garage and stole only the tools.

Pursuant to USCR 31, the State filed pretrial notice of its intent to present evidence of two similar transactions. Although a pretrial hearing was requested, it was not reported. At trial, Bill Vaughn and Bill Butts gave testimony concerning the two transactions alleged to be similar.

Vaughn testified that in 1984 appellant had gotten his post office box number from his business card. Appellant went to the post office, represented himself as Vaughn, and persuaded a postal clerk to give him the key to the post office box. Appellant stole and cashed a $742 check payable to Vaughn. As a result of this incident, appellant was convicted of theft by taking.

Butts testified that in 1985 or 1986, he stored some furniture and a car with appellant, who told him that he had sold the car for $1,500 or $1,600 by forging Butts’ name on the certificate of title. He gave Butts $400, but never gave him the rest of the money or the furniture. As a result of this incident, appellant was convicted of theft by taking.

Copies of the indictments, pleas, and sentences admitted in evidence showed that appellant committed the Vaughn theft on September 28, 1983, and the Butts theft on December 12, 1985. He was convicted of the Butts crime and sentenced on September 9, 1987. He was convicted of the Vaughn crime and sentenced on January 14, 1988.

The trial court charged the jury that it could consider evidence of the independent crimes “solely with reference to the mental state, identity, or intent of the defendant insofar as the same is applicable to or refers to or illustrates the charge contained in the bill of indictment in this case and for no other purpose.”

1. Appellant enumerates error on the trial court’s refusal to give his requests to charge. One defined an affirmative defense and the burdens related thereto. The other set out the affirmative defense provided in OCGA § 16-8-10 (2): “Should you find that the Defendant acted under an honest claim of right to the property involved or under a right to acquire and dispose of it as he did, then said right or claim of right constitutes an affirmative defense.”

Appellant did not present evidence, and neither the opening statements nor closing arguments of counsel were reported. In cross-examining the victim and in relying on the direct examination of the witness, defendant sought to show that he had commenced performance under the contract and bought some material and bought or rented some tools and hired a workman. He further sought to show that he had gotten into an accident and was incapable of further performance, after which the victim placed his tools under lock and key. We assume without deciding that appellant was entitled to have the jury instructed with respect to this defense, because “ ‘[t]o justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.’ [Cits.]” Randall v. State, 73 Ga. App. 354, 371 (3) (36 SE2d 450) (1945).

Although the court refused to give appellant’s requests to charge, it did instruct the jury that, “a person commits the offense of theft by taking when he unlawfully takes or being in lawful possession thereof unlawfully appropriates any property of another with the intention of depriving him of the property regardless of the manner in which the property is taken or appropriated. I charge you that the law defines the term deprive to mean without justification, to withhold property of another permanently or temporarily.” The court also charged on “reasonable doubt.”

These instructions charged the essential principle embodied in appellant’s asserted defense, although employing broader terminology than requested. “ ‘(I)t is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court. [Cit.]’ [Cit.]” Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980). Since the trial court did charge the jury so as to include appellant’s asserted defense, it did not err. Compare McRoy v. State, 131 Ga. App. 307, 308 (3) (205 SE2d 445) (1974); Foskey v. State, 125 Ga. App. 672, 674 (3) (188 SE2d 825) (1972).

2. Appellant enumerates error on the trial court’s admission of evidence of the independent crimes.

The Georgia Supreme Court has recently reiterated in Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991), that “ ‘[i]t is universally recognized . . . that “(t)he general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.” (Cits.)’ [Cit.]” (Emphasis in original.)

“However, for limited purposes such evidence may be admitted if two conditions are met: ‘First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. (Cit.)’ [Cit.] . . . [T]here must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends' to establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which [appellant] is on trial. [Cits.]” Id. at 469.

“The rationale for the latter rule is that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in the same or in a similar manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.” Williams v. State, 261 Ga. 640, 641 (2a) (409 SE2d 649) (1991).

Decided January 21, 1992.

George M. Johnson, for appellant. •

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Radford’s independent crimes were other theft-by-taking offenses involving dissimilar facts and committed between three and six years prior to the date of the commission of the crime charged. Thus, the other crimes were not relevant to that for which appellant was on trial. Although the State proved the details of the prior crimes, there was insufficient similarity and no logical connection so that proof of the independent crimes tended to establish the crime charged, except by raising an inference that appellant, who had committed theft on prior occasions, was likely to have committed the theft being tried. The three affirmative showings required by Williams were not and could not have been made.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.

       It was an expanded version of that which appears in the Suggested Pattern Jury Instructions, Vol. 2, Part 3, V, p. 46. The first sentence, “An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. . . ,” seems to come from 21 AmJur2d, Criminal Law, § 183 (1981). The second sentnece is: “With respect to an affirmative defense, unless the state’s evidence raises the issues involving the alleged defense, the Defendant, to raise the issue, must present evidence thereon.” It appears to be based on Colbert v. State, 80 Ga. App. 641, 644 (56 SE2d 830) (1949); Harris v. State, 14 Ga. App. 574 (81 SE 815) (1914); Green, Ga. Law of Evidence, § 21 (3rd ed. 1988); and State v. Royal, 247 Ga. 309 (275 SE2d 646) (1981).


author: Carley, Presiding Judge.

text:
    A91A1525.
    MERIWETHER MEMORIAL HOSPITAL AUTHORITY v. GRESHAM.
    (414 SE2d 694)
   Carley, Presiding Judge.

When her husband injured himself, appellee-plaintiff accompanied him to appellant-defendant’s hospital facility. In appellant’s emergency room, appellee stood by her husband’s side as he lay on a sheet-draped gurney. When appellee was called away from her husband’s side for the purpose of providing information to appellant, she took several steps and fell. Seeking damages because of the injuries sustained in her fall, appellee filed the instant suit, alleging that she had tripped over one of the wheels of the gurney. Appellant answered and subsequently moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant case results from the grant of that application.

1. Appellee neither fell over a foreign object or substance nor did she slip on a waxed or wet finish that had been intentionally applied to the floor of appellant’s emergency room. Compare Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Appellee simply stumbled over the wheel of a gurney. Anywhere throughout a hospital facility and especially in an emergency room, a gurney must be considered to be a “usual” obstruction rather than a “defect.” Accordingly, appellant had no duty to warn appellee that she might encounter a gurney in its hospital facility, that she was actually standing next to a gurney as she comforted her husband, that a gurney is equipped with freely rotating wheels, or that, if she walked too close to the side of the gurney without watching where she stepped, she might trip over one of the wheels. Instead, the initial duty was clearly upon appellee, while in appellant’s hospital facility, to maintain a lookout ahead so as to discover and avoid tripping over just such a “usual” obstruction as the wheels of a gurney. See generally Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415) (1987).

An invitee must make use of all of his “senses in a reasonable measure — amounting to ordinary care, in discovering and avoiding those things that might cause injury to him. It is his duty to exercise ordinary care to observe such obstructions as an ordinarily prudent person would, under normal conditions, expect in the aisles of the place of business in which he is an invitee. [Cit.]” Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 428 (1) (263 SE2d 171) (1979). “There is no duty [owed] by the owner of property to warn invitees of dangers obvious even to the casual observer and where the invitee knows or should have known of its existence. [Cit.] . . . [T]here should be no duty to warn of the perfectly obvious such as posting a sign on a stairwell that ‘These are steps,’ or on a brick wall that caution should be exercised as ‘This is a brick wall’ or on a telephone pole saying, ‘Beware! This is a telephone pole.’ Would the invitee know more than the obvious simply because he was told what it was he was seeing? A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery. [Cit.] An invitee is under an equal duty with the owner to use [his or] her sight to discover any defect or dangers. [Cits.]” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402-403 (343 SE2d 164) (1986).

That the wheel of the gurney over which appellee tripped may have been covered by a sheet would not serve to render appellant liable. Since a sheet-draped gurney can certainly be considered neither a “defect” nor an “unusual” obstruction in a hospital facility, the mere fact that the gurney upon which appellee’s husband lay happened to be sheet-draped would not serve to relieve appellee of her duty to maintain a lookout ahead so as to discover and avoid a possibly injurious contact with the wheels of the gurney. By maintaining such a lookout, appellee presumably would have discovered that her path along the side of the gurney would necessitate that she place her foot in an area of the floor which was covered by the sheet. By placing her foot under the sheet rather than deviating so as pursue an unobscured pathway around the sheet-draped gurney, appellee, in effect, elected to walk in the dark even though it was reasonably to be expected that, in so doing, she might be obstructed by the wheel of the gurney. It is an act of negligence to go “on and over . . . premises where it [is] to be reasonably expected [that obstructions] incident to [a business activity] exist and are concealed by the darkness. [Cits.] In such circumstances[,] one who chooses to walk in darkness does not exercise ordinary care for his own safety. [Cits.]” Braun v. Wright, 100 Ga. App. 295, 296 (3) (111 SE2d 100) (1959). See also Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 611 (2) (376 SE2d 698) (1988); Carmichael v. Timothy, 104 Ga. App. 16 (120 SE2d 814) (1961). Compare Hatcher v. City of Albany, 147 Ga. App. 843, 846 (2) (250 SE2d 537) (1978) and Kreiss v. Allatoona Landing, 108 Ga. App. 427, 431 (2a) (133 SE2d 602) (1963) (discussing liability where the obstructions encountered by the plaintiffs in darkness were defects on the defendants’ premises, rather than non-defective obstructions which the plaintiffs knew or should have known were incidental to the business activity being conducted on the defendants’ premises).

Decided January 8, 1992

Reconsideration denied January 22, 1992

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Albert M. Yates III, for appellant.

Patrick J. Araguel & Associates, Patrick J. Araguel, Jr., Deborah B. De Palo, for appellee.

2. The issue raised by appellant’s other enumeration of error has become moot as a result of our holding in Division 1.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A2084.
    WALLACE v. POINTE PROPERTIES, INC.
    (414 SE2d 678)
   McMurray, Presiding Judge.

j Plaintiff Wallace was injured when she stepped in a hole , on the property of defendant Pointe Properties, Inc., and subsequently filed this action for damages. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:

The status of plaintiff upon the property is contested in the case sub judice. Defendant contends that plaintiff was merely a licensee, while plaintiff contends that she was an invitee. Plaintiff’s affidavit shows that her job as a case manager with Community Care Services, Inc., allowed her to act as a broker for community support services for senior citizens so as to help them receive all the state and federal aid to which they are entitled, including that which would permit them to remain in an independent living situation such as defendant’s apartments. Plaintiff states that on the day of her injury she was visiting defendant’s premises to help clients who resided there remain independent enough to pay rent and thus continue as tenants in defendant’s apartments. “An invitation is implied where the entry on the premises is for a purpose which is, or is supposed to be, beneficial to the owner. Crossgrove v. A. C. L. R. Co., 30 Ga. App. 462 (118 S. E. 694).” Coffer v. Bradshaw, 46 Ga. App. 143, 148 (167 SE 119). See also Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535); Burkhead v. American Legion, Post No. 51, 175 Ga. App. 56 (332 SE2d 311). As plaintiff’s presence on the premises may have been beneficial to defendant in that it may have aided defendant in retaining tenants, there is sufficient evidence to permit a jury to conclude that plaintiff was an' invitee. Therefore, for purposes of defendant’s motion for summary judgment, we must view plaintiff as an invitee. An owner or occupier has the duty to an invitee to exercise ordinary care to keep the premises safe. OCGA § 51-3-1.

This incident occurred shortly before noon on a beautiful clear June day. Plaintiff, accompanied by a colleague, was on her way to an appointment with a client when some papers she was carrying were blown from her hand. When plaintiff saw some of the papers across a closed dead end street, she started over to them and stepped into the hole which she had not seen. The hole, which was approximately eight inches in diameter and three feet deep, was one of several similar holes which held cement posts separating a pedestrian mall from the street except that the hole in question did not contain a post and was empty. The pavement surrounding the hole was covered with green paint which continued to the metal encasement of the hole. There was nothing warning anyone of the presence of the hole or which would have blocked plaintiff’s view of the hole. Plaintiff testified that she looked across the route to her papers, saw no obstructions and nothing unusual in the area she would traverse, and proceeded toward her papers looking straight ahead of herself. Plaintiff opined that the reason she did not see the hole was because of “the way the road is curved and the way the shadows of the buildings are there.”

Defendant contends that plaintiff is barred from recovery by the “plain view” doctrine. “The ‘plain view’ doctrine ‘is that one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. (Cits.)’ Stenhouse v. Winn Dixie Stores, [147 Ga. App. 473, 474-475 (249 SE2d 276)].” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 241 (396 SE2d 42). Plaintiff was under a duty to use her eyesight for the purpose of discovering any discernible obstruction in her path. Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413). However, in Froman, in Hospital Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103), and in Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28), it was uncontroverted that the obstructions were clearly visible. Such was the case also in Nunnelley v. Brown, 197 Ga. App. 711 (399 SE2d 219), cited in the dissent, where the steps in question were plainly marked with yellow tape and had been safely traversed by that plaintiff an hour prior to her injury. In the case sub judice, there is evidence that the hole was not in plain view, but was obscured by a combination of factors. Thus, a genuine issue of material fact remains as to whether the hole was in plain view and whether plaintiff maintained a reasonable lookout for such obstructions. See Whitley v. Hulon, 194 Ga. App. 363 (390 SE2d 598). A further issue exists as to whether the hole was “at a location where they are customarily placed and expected to be.” See Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 476 (249 SE2d 276).

We reject the supposition advanced in the dissent that plaintiff’s testimony was contradictory. Even when construed most strongly against her, plaintiff’s explanation, of why the hole was difficult to see, consistently maintains that the difficulty arose when light and shadows combined to conceal the actual contours of the area. The superior court érred in granting defendant’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

The majority concludes that summary judgment was improperly granted because there is evidence the hole was a concealed hazard. The plaintiff testified in her deposition that, “I believe that the way the road is curved and the way the shadows of the buildings are there, that you would not see it unless you knew that that hole was there.” In other words, the plaintiff claims the combination of these two factors obscured the hole or produced an optical illusion which prevented her from seeing it.

It is undisputed that the accident occurred on a clear day between 10:00 a.m. and noon, and the plaintiff testified that she was not distracted in any way. She further testified: “I had a plain view of the area. I looked across. I saw no obstructions to go across that area; saw no holes. Saw nothing that looked unusual, went to go get the papers, and when I did, I ended up in the hole. . . . There was nothing in front of it [the hole] or behind it that would have blocked the view.” Apart from her specific claims that the hole was obscured by shadows and the curve of the road, this evidence establishes that the hole was a discernible hazard and the plaintiff’s ability to apprehend the dangerous condition was otherwise unimpeded. If an invitee knows of a condition or hazard, or by the exercise of ordinary care should have been aware of it, the proprietor has no legal duty to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge of the discernible hazard as the proprietor does. Froman v. George Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990); Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987); Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982); compare Nunnelley v. Brown, 197 Ga. App. 711 (399 SE2d 219) (1990) (despite plaintiff’s claim that optical illusion obscured view, defendant granted summary judgment where plaintiff encountered steps in plain view, under clear conditions, with no distractions).

Moreover, the trial judge was authorized, as a matter of law, to conclude that the plaintiff’s claims that the hole was obscured created no issue of fact on summary judgment. At her deposition the plaintiff presented testimony and evidence which contradicted her testimony that shadows and the curve of the road obscured the hole. When asked if it was her testimony that the hole was obscured by shadows at the time when the accident occurred between 10:00 a.m. and noon, the plaintiff responded: “I think the hole just basically is not easily seen. I think it has to do with the way the road and shadows and the buildings are. I don’t directly recall if there were shadows at that time of day, but it is not able to be seen.” At the deposition the plaintiff produced photographs of the scene taken between 5:00 p.m. and 6:00 p.m. a few days after the accident. The photographs showed apparent shadows at that time of day, and perhaps a slight crown in the road, but no discernible curvature to the road which could have possibly contributed to obscuring the hole.

Although all evidence is to be construed against the movant on summary judgment, an exception to this rule provides that the testimony of a non-moving party in her own behalf is to be construed most strongly against her when it is contradictory, vague or equivocal. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). If a reasonable explanation is subsequently offered to explain the contradiction, the testimony will not be construed against the party giving it. Whether testimony is contradictory, and whether the party giving it has carried the burden of offering a reasonable explanation is an issue of law for the trial judge on summary judgment. Id. at 30; Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987).

Decided January 6, 1992

Reconsideration denied January 22, 1992.

Fleming, Blanchard & Bonner, G. Larry Bonner, for appellant.

Allgood, Childs, Mehrhof & Millians, Richard R. Mehrhof, Jr., for appellee.

The plaintiff contradicted her claim that shadows and the curve of the road obscured the hole when she later testified that she could not recall whether there were shadows at the time of the accident, and produced photographs of the accident scene which did not support her claim that the hole was in any way obscured by a curve in the road. See Prophecy Corp., supra at 31 (witness’ testimony that he could not recall contradicted his testimony that the event had occurred). Since the plaintiff offered no explanation for the contradiction, the trial judge was authorized to construe the plaintiff’s testimony that the hole was obscured against her. In the absence of this claim, there is no evidence that anything obscured the hole or otherwise prevented the plaintiff from seeing it. The hole was an open and observable static condition of which an invitee exercising ordinary care would or should have had as much knowledge as the proprietor. Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986); Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988). The trial court correctly granted summary judgment to the defendant because the facts are so plain and palpable that they demand a finding, as a matter of law, that the plaintiff failed to exercise ordinary care to avoid the hazard. Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (352 SE2d 212) (1986); Soto v. Roswell Townhomes, 183 Ga. App. 286 (358 SE2d 670) (1987).


author: Cooper, Judge.

text:
    A91A1479.
    RANDALL MEMORIAL MORTUARY, INC. et al. v. O’QUINN.
    (414 SE2d 744)
   Cooper, Judge.

On November 16, 1986, appellee was injured in an automobile accident when a car in which he was a passenger collided with a car driven by appellant Nehe Harden, Jr. (“Harden”) and owned by appellant Randall Memorial Mortuary, Inc. (“Randall”). As a result of the accident, appellee suffered extensive facial and head injuries and filed an action against appellants based on negligence and respondeat superior. Harden, the funeral director for Randall at the time of the accident and at the time of trial, testified that another employee was scheduled to report for work at the funeral home the morning of the accident to relieve Harden from his work shift. Harden was the employee’s supervisor and also his personal friend. When the employee was late for work, as he had been at other times in the past, Harden took the company limousine to the employee’s house to determine if he was coming to work, since the employee did not have a telephone at his residence. Harden stated that he did not notify anyone that he was going to the employee’s house; that he went on his own; that, as funeral director, he did have access to the keys to the company vehicles and that he would typically use company vehicles to perform his work-related duties. He stated that he was the employee’s supervisor; that his responsibility was to make sure that employees arrive at work when they are supposed to; that the morning of the accident, Harden needed someone on duty at the funeral home; and that he was prepared to give the employee a ride back to work if he was ready. Harden also stated that he went in an attempt to save the employee’s job and that the limousine was not supposed to be used for this purpose. The accident occurred when Harden was on his way to the employee’s house.

In the emergency room following the accident, appellee was treated by a Dr. Magnan. Dr. Magnan continued to see appellee through January of 1987. In April 1987, Dr. Magnan’s partner, Dr. Freeman, examined appellee and Dr. Freeman again examined appellee in August 1990, prior to trial. In the interim, Dr. Magnan died and his deposition was never taken by either of the parties. Dr. Freeman’s deposition was read at trial, and his testimony concerning the initial injury and immediate post-operative care was based on the notes from Dr. Magnan’s chart. Those notes were not introduced into evidence. However, the remainder of Dr. Freeman’s testimony was based on his own observations of appellee during the two office visits when he examined appellee. After trial, the jury rendered a verdict for appellee and against both appellants in the amount of $100,000. Appellants’ motion for new trial was denied.

T. Appellants first enumerate as error the trial court’s admission of Dr. Freeman’s deposition testimony because they allege that it was based on notes, records and reports not admitted into evidence and prepared by a third party who did not testify at trial. “Generally, an expert cannot state his opinion based upon observations or reports which are not admitted in evidence. On the other hand, an expert can give an opinion based upon facts which he personally observes. And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other’s findings. [Cit.]” (Citations and punctuation omitted.) Westbrook v. State, 186 Ga. App. 493 (2) (b) (368 SE2d 131) (1988). Whereas the part of Dr. Freeman’s testimony that recounted appellee’s initial injuries and post-operative care was based upon inadmissible hearsay, Dr. Freeman’s opinions as to the extent of appellee’s injuries, the residual effects of those injuries, and the prognosis for future recovery were all based upon his own observations of appellee. Thus, even though Dr. Freeman’s testimony was based in part on the records of others, we conclude that, due to his own personal observations, his testimony was admissible. See Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152 (3) (392 SE2d 897) (1990); Dual S. Enterprises v. Webb, 138 Ga. App. 810 (4) (227 SE2d 418) (1976). In the cases relied upon by appellants, Southern Bell &c. v. Franklin, 196 Ga. App. 474 (396 SE2d 514) (1990) and Stouffer Corp. v. Henkel, 170 Ga. App. 383 (317 SE2d 222) (1984), the opinions do not clearly indicate that the expert’s opinion was based on his own observations of the patient, despite reliance by the expert on records of other professionals. It appears that in those cases, as well as in Andrews v. Major, 180 Ga. App. 393 (349 SE2d 225) (1986), also cited by appellants, the expert’s opinion was based only on the records of another. Thus, these cases do not require us to find error with the trial court’s decision.

2. Appellants next enumerate that the trial court erred in denying the motion for new trial because the evidence was insufficient to support the verdict as to appellant Randall. “ ‘[A] . . . judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.’ [Cit.]” Horan v. Pirkle, 197 Ga. App. 151 (2) (397 SE2d 734) (1990). “ ‘ “To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment.” (Cit.) “The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. (Cit.)” (Cit.)’ [Cit.]” Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga. App. 757, 758 (403 SE2d 453) (1991). The jury was properly charged as to the master’s liability for acts of a servant. The jury heard the testimony of Harden as to his motives and his actions. Despite Harden’s contention that he was on a strictly personal mission to save the employee’s job, the evidence showed that the employee was needed at the funeral home for a scheduled work shift and that Harden, as the supervisor who had responsibility over employees, endeavored to secure the needed staff for the funeral home through the use of a company vehicle. “ ‘ “[T]he presence of (a personal) motive or purpose in the servant’s mind does not affect the master’s liability, where that which the servant does is in the line of his duty and in the prosecution of the master’s work.” It was at least a jury question as to whether or not there was a deviation, and, if so, whether the deviation was so slight as not to affect the master’s responsibility for the servant’s act.’ [Cit.]” Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704-705 (373 SE2d 797) (1988). Considering Harden’s testimony, we cannot conclude that there was no evidence to support the jury’s verdict. This enumeration is without merit.

Decided January 22, 1992.

William C. Randall, for appellant.

Martin, Snow, Grant & Napier, Phillip A. Sibley, Joseph E. Williams, Jr., for appellee.

3. Appellant lastly enumerates that the trial court erred in denying the motion for new trial because the jury verdict of $100,000 was excessive. Appellee showed at trial actual property loss and medical bills totaling $19,200. However, there was detailed testimony from the appellee’s family members, who were also in the accident, as to the extent of appellee’s physical injuries and the substantial damage the accident caused to appellee’s quality of life. “The only guideline for awarding damages for pain and suffering is the enlightened conscience of an impartial jury. [Cits.] If the award is not so flagrant as to ‘shock the conscience,’ it will not be disturbed on appeal. [Cits.]” Stover v. Atchley, 189 Ga. App. 56 (2) (374 SE2d 775) (1988). Considering the record, we cannot say that the verdict “shocks the conscience,” and this enumeration, too, is without merit.

Judgment affirmed.

Pope, J., concurs. Birdsong, P. J., concurs in judgment only.


text:
    A91A1560.
    CARROLL v. THE STATE.
    (415 SE2d 37)
   Beasley, Judge.

Following denial of a motion for new trial, Carroll appeals his convictions for selling marijuana to an undercover police officer on March 8 and 9, 1989, and possessing marijuana on September 20, 1989, with intent to distribute, all in violation of OCGA § 16-13-30 (j) (1)

1. Appellant contends that he was entitled to a directed verdict of acquittal on the charge of possession with intent to distribute because the evidence was insufficient. He maintains (a) that the State failed to show that he occupied the premises at which the marijuana was found or had any link to the growing plants, and (b) that it failed to idéntify scientifically the found substances as marijuana.

(a) The evidence construed in favor of the verdicts showed the following events, culminating in the September 20 incident. In March 1989 there was an ongoing criminal investigation of the Carroll family. On the evening of March 8, an undercover narcotics officer went to a residence to attempt to purchase illegal drugs. Carroll came to the residence and introduced himself to the officer. Another individual, possibly the confidential informant, mentioned that the officer was looking for marijuana.

Carroll told the officer he had a pound of it in his vehicle for $400. The officer and Carroll agreed on a price, and Carroll brought the marijuana inside. The amount of marijuana appeared to the officer to be less than a pound, so he negotiated the price to $300. The bag containing the marijuana had several holes in it, which Carroll laughingly explained were caused by his bulldog. The sale was completed and the officer inquired about making another marijuana purchase the following evening. Carroll agreed to sell a pound for $500. The two arranged to meet the next evening at 9:00 p.m. at a market. Carroll gave the officer his telephone number.

The next evening, after both men arrived at the market, Carroll approached the officer’s unmarked vehicle with a brown paper bag containing what the officer estimated to be less than a pound of marijuana. The officer negotiated the price down to $400. In order to maintain his cover the officer pretended to be very nervous, telling Carroll he was afraid they were “going to get busted.” Carroll assured him not to worry, that Carroll had “done this a lot” and that it would be okay. They also discussed a possible future purchase of cocaine. Carroll priced the officer an “Eight-Ball” of 95 percent pure cocaine for $240.

During the next six months, Carroll and the officer communicated by telephone, discussing various other drug transactions. At one point, the officer posed as a drug dealer and told Carroll he had access to a large quantity of cocaine. Carroll inquired about buying cocaine from the officer and said he was attempting to solicit buyers for it.

During this time, a residence believed to be that of Carroll was kept under surveillance. Carroll, his wife, one of the Carrolls’ sons and his wife, and another female were observed staying there. The investigators received information that marijuana was being grown and stored there. In the area, the normal harvest time for marijuana was late August or September. A search warrant was procured and executed on September 20.

When the officers first arrived at the residence, only Carroll’s wife and grandson were present. As more of the officers approached, the undercover officer who had previously bought the marijuana observed Carroll in his car exiting from a patch of woods just south of the residence. As soon as Carroll pulled into the yard, the officers executed arrest warrants for him based on the prior sales. A pat-down search disclosed a handful of freshly-picked marijuana leaves in Carroll’s left shirt pocket.

The wood frame residence was just off the the roadway and driveway. Approximately 75 yards to the southwest was an old school bus converted to living quarters. Among the animals on the property were three bulldogs, one of which was cabled outside the bus. A trail going from the edge of the wood line went down into the woods behind the house. Not very far down the trail, the officers found 11 “head-high” marijuana plants growing in buckets. Thick vegetation near the plants was well worn from travel.

The bus was locked and the officers obtained a key from Carroll. Inside was a quantity of marijuana drying on a small table.

Carroll claimed that he did not occupy the premises at the time the warrants were executed but was there only periodically to do some building and repair work. However, the evidence of sustained occupancy obtained during surveillance, the presence of members of his family and his pet bulldog, Carroll’s emergence from the woods with freshly-picked marijuana in his pocket, the proximity of the school bus containing marijuana to which Carroll had the key, and his prior sales of substantial quantities of marijuana to the officer authorized a rational trier of fact to find that Carroll occupied the searched premises for the purpose of exercising dominion or control over the growing and harvested marijuana beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The “equal access” argument is unavailing. “It is true that ‘ “[m]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Cit.)’ [Cit.] However, ‘(w)here there is evidence other than “equal access” connecting an accused to contraband, it is for the jury to determine guilt or innocence.’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488 (373 SE2d 227) (1988). The only evidence that persons other than Carroll and his family had continuing access to the property was appellant’s assertions of occupancy and control by others at the time of the search and seizure. Access by others would not eliminate the circumstances outlined above as other evidence with which to connect Carroll to the marijuana.

(b) Appellant’s claim that no substance found within the immediate vicinity of the searched residence was scientifically identified as marijuana is without merit.

There were five exhibits directly relevant to identification of the substances seized during the September 20 search. Two were photographs of the growing plants and one was a photograph of the harvested plants spread for drying in the school bus. The other two exhibits, 3 and 9, contained actual specimens of what was seized; number 9 was from the school bus.

Decided January 22, 1992.

Bates, Kelehear & Starr, James E. Toland, Jr., for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

The State’s forensic chemist testified that on October 2, 1989, he received a second package from the police consisting of a brown evidence envelope sealed with tape and two large evidence bags sealed with staples and tape and containing leafy material and that specified tests performed on this leafy material confirmed the presence of marijuana. The parcel was admitted as Exhibit 3. Although it is unclear whether or not the chemist tested and identified as marijuana all substances confiscated on September 20, including that which was later introduced as Exhibit 9, there was undisputed evidence that at least some of the leafy substances seized on September 20 were marijuana.

2. Appellant contends that the trial court erred in failing to grant his motion for mistrial. His ground is that the State was improperly allowed to introduce evidence of a similar transaction regarding cocaine without giving notice of its intent to do so as required by Uniform Superior Court Rule 31.3.

No USCR 31.3 notice was required because no such transaction or occurrence was introduced. The officer’s testimony about discussions with appellant for possible future sales of cocaine at the time of the marijuana buys and prior to the search is not evidence of another distinct and separate transaction subject to the rule. It is instead direct evidence of the circumstances of the transactions on trial. See Dickerson v. State, 200 Ga. App. 366, 368 (2) (408 SE2d 137) (1991); Chezem v. State, 199 Ga. App. 869, 871 (3) (406 SE2d 522) (1991); Nolton v. State, 196 Ga. App. 690 (1) (396 SE2d 605) (1990). “ ‘The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.’ [Cits.]” Garrett v. State, 188 Ga. App. 176 (1) (372 SE2d 506) (1988).

Mistrial was not warranted because the evidence “did not fall within the ambit of the rule relating to notice of the State’s intention to present evidence of similar transactions. [Cits.]” Id. at 177 (2).

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1666.
    TOUCH INDUSTRIES, INC. v. 75 CANTON BUSINESS PARK LIMITED PARTNERSHIP.
    (415 SE2d 40)
   Carley, Presiding Judge.

After appellee-plaintiff applied for a distress warrant pursuant to OCGA § 44-7-70 et seq., appellant-defendant filed an answer and traverse, based, in part, upon the asserted non-existence of any landlord-tenant relationship. After a bench trial, the trial court entered judgment in favor of appellee and appellant appeals therefrom.

In relevant part, the trial court made the following findings of fact: appellee originally leased the premises to McDaniel Business Systems, Inc. (McDaniel). Concerned about information that McDaniel had subsequently been purchased by appellant, appellee wrote to appellant seeking a “copy of the agreement whereby [appellant, as] the new owner [,] assumes the obligations of the [McDaniel] lease. One of appellant’s employees responded with a letter containing certain enclosures which were identified as copies of stock purchase agreements “transferring the obligations of the . . . lease to [appellant]. This documentation should provide the confirmation you require.” Appellee relied on these statements and was satisfied that appellant had assumed the lease and was liable for the rent. Thereafter, appellee received monthly checks for the rent from appellant, appellant made requests for repairs based upon various lease covenants, and appellant made use of brochures with the address of the leased premises printed thereon. These factual findings are supported by the evidence of record. Compare Chatham v. World Arts & Crafts Center, 147 Ga. App. 421 (249 SE2d 139) (1978).

Appellant “points out correctly that an assignment of the lease from [McDaniel] to [appellant] does not appear in the record. The absence of such an assignment, however, is not fatal to [appellee’s] claim . . . [b]ecause the doctrine of equitable estoppel or estoppel ini pais prevents [appellant] from assuming an inconsistent position to the detriment of [appellee]. [Cit.]” Primo’s, Inc. v. Clayton Common Assoc., Ltd., 197 Ga. App. 286, 289 (1) (398 SE2d 231) (1990). Appellant represented that in connection with its purchase of the stock of McDaniel, it had assumed the obligations of the lease and, moreover, appellant never made a contrary representation in response to appellee’s direct request for assurance of such assumption. “Thus, [appellant] is estopped from asserting that it did not succeed [McDaniel] aa a tenant under the lease. [Cit.] Although the doctrine of equitabla estoppel cannot create or convey title, it is not being so used in thia case. [Cit.]” Primo’s, Inc. v. Clayton Common Assoc., Ltd., supra at 289 (1).

Decided January 23, 1992.

Andrew J. Ekonomou, Howell A. Hall, for appellant.

Fred J. Hanna, for appellee.

Although the trial court, in its conclusion of law, did not explicitly rely upon the doctrine of equitable estoppel, the facts as found by the trial court and supported in the record would compel the conclusion that appellant is estopped to deny the existence of a landlord-tenant relationship with appellee. “An appellate court in reviewing a lower-court decision will look to the basic question, which is whether or not the judgment is valid as a matter of law; the reasons contained in the judgments are not controlling. [Cit.] Briefly expressed, a judgment right for any reason will be affirmed. [Cit.]” Adams v. Emory University Clinic, 179 Ga. App. 620, 621 (347 SE2d 670) (1986).

Judgment affirmed.

Beasley,- J., and Judge Arnold Shulman concur.


author: McMurray, Presiding Judge.

text:
    A92A0114.
    WILLIAMS et al. v. MACON-BIBB COUNTY WATER & SEWERAGE AUTHORITY.
    (414 SE2d 909)
   McMurray, Presiding Judge.

The Macon-Bibb County Water & Sewerage Authority brought this condemnation action to acquire a strip of land in Bibb County. Condemnees answered the petition, contending, inter alia, that the condemnation was for the benefit of a private developer and did not serve a public service; that the subject property contained vegetation which had been classified by governmental agencies as “endangered species”; and that the decision to condemn the strip of land was capricious and in bad faith. Following a hearing, a special master awarded condemnees the sum of $6,500 (representing $1,500 for the actual market value of the property to be taken and $5,000 for consequential damages to the remaining property). The condemnees’ special defenses were denied “for the purposes of perfecting the record. . . .”

The special master’s award was filed on June 17, 1991. Two days later, the award was approved by a superior court judge. Thereafter, on July 1, 1991, condemnees filed a “notice of appeal and demand for jury trial” pursuant to OCGA § 22-2-112.

Condemnor moved to dismiss the appeal because it was not filed within ten days of the filing of the award of the special master. The trial court granted the motion to dismiss and condemnees appeal. Held:

Decided January 23, 1992.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellants.

Mathis, Sands, Jordan & Adams, Virgil L. Adams, for appellee.

OCGA § 22-2-112 provides, in part: “In case any party is dissatisfied with the amount of the award, he may, within ten days after the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed.” This statute applies to both value issues and non-value issues. Sims v. City of Toccoa, 256 Ga. 368, 370 (349 SE2d 385). It makes it clear that an appeal from an award of a special master must be filed within ten days of the filing of the award. Gwinnett County v. Grant, 181 Ga. App. 304 (352 SE2d 391). It follows that condemnees’ appeal was untimely and the trial court did not err in dismissing it. City of Savannah Beach v. Thompson, 135 Ga. App. 63 (217 SE2d 304).

The fact that the award was approved by a superior court judge on June 19, 1991, is of no consequence. The statute plainly provides that the time period for an appeal starts when the special master’s award is filed.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0391.
    RODRIGUEZ v. DAVIS.
    (415 SE2d 41)
   McMurray, Presiding Judge.

This fraud and breach of contract action is predicated on events which transpired following plaintiff Davis’ purchase from defendant Rodriguez of certain assets which constituted a mobile ice cream vending business. The assets included two step vans, a trade name, and a concessionaire contract for Fort Gordon with the Army and Air Force Exchange Service.

Following the trial of the case, judgment was entered in favor of plaintiff for $38,500, $3,000 attorney fees, and the title to a vehicle still held by defendant. Defendant appeals, enumerating as error certain portions of the charge to the jury, the failure of the verdict to state which count it was predicated on, and the denial of his motions for directed verdict, new trial, and judgment notwithstanding the verdict. Held:

1. Defendant’s enumerations of error nos. 1 and 6-12 complain of alleged errors in the charge to the jury. However, it is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto after the court has instructed the jury and before the jury returns a verdict. After the charge was given, the trial court inquired of counsel if there were objections and none was stated. As there was no proper objection to the jury charge, these enumerations present nothing for review. Issacs v. Williams Bros., 195 Ga. App. 812 (2) (395 SE2d 11); Wigley v. Hambrick, 193 Ga. App. 903, 905 (5) (389 SE2d 763); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156, 157 (2) (378 SE2d 510).

2. Defendant’s second enumeration of error complains that the verdict did not state whether it was being rendered pursuant to the fraud or breach of contract count. “Where a party allows a general verdict to be received and published in open court in the presence of his counsel, without objection or motion to have the jury retired with direction to find a special verdict, he will be deemed to have waived his right to a special verdict. [Cits.] We, therefore, find no merit in this enumeration of error.” Skelton v. Skelton, 251 Ga. 631, 634 (6), 635 (308 SE2d 838).

3. Defendant’s remaining enumerations of error complain of the denial of his motions for directed verdict, new trial (predicated only on evidentiary grounds), and judgment notwithstanding the verdict. These enumerations, individually and collectively, raise the issue of the sufficiency of the evidence to authorize the verdict returned by the jury and must be reviewed on appeal under the “any evidence” standard. Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734); Joe N. Guy Co. v. Valiant Steel & Equip., 196 Ga. App. 20, 21 (1) (395 SE2d 310).

Plaintiff’s evidence clearly shows that defendant breached a non-compete provision of the contract between the parties by bidding against plaintiff for a renewal of the ice cream vending concessionaire contract which was the primary asset transferred under the contract. Indeed, the evidence shows that defendant, by purporting to advise and help plaintiff as required by the contract, learned the amount of plaintiff’s bid for the concessionaire contract and then outbid him.

The trial court did not err in submitting the case to a jury and in refusing to disturb the jury’s verdict. Horan v. Pirkle, 197 Ga. App. 151, 153 (2), supra; Joe N. Guy Co. v. Valiant Steel & Equip., 196 Ga. App. 20, 21 (1), supra. Nor is there any merit in defendant’s contention that the trial court should have partially granted his motion for directed verdict so as to remove the fraud count from the case. Even assuming that such a partial grant of defendant’s motion for directed verdict would not have been error, the trial court did not err in failing to grant such relief where, as in the case sub judice, the motion in the trial court was directed to the whole case and there was no specific request for the grant of a partial directed verdict. See Butts v. Ga. Cas. &c. Co., 179 Ga. App. 819, 820-822 (348 SE2d 94).

Decided January 23, 1992.

James F. Findlay, for appellant.

Samuel F. Maguire, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1663.
    ANEPOHL v. FERBER et al.
    (415 SE2d 9)
   Sognier, Chief Judge.

Joan Anepohl brought suit against David Ferber and Patricia Whatley seeking to recover damages for personal injuries she allegedly incurred when her automobile was rear ended by a car driven by Ferber and owned by Whatley. The trial court granted Anepohl’s motion for a directed verdict as to the issue of liability, but the jury awarded her no damages. Anepohl appeals from the denial of her motion for new trial.

1. Appellant moved for a new trial based on the Supreme Court’s opinion in Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), which was rendered after her trial and which held that the collateral source rule set forth in OCGA § 51-12-1 (b) was unconstitutional. She asserted that under Denton, the trial court had improperly allowed appellees to cross-examine her about payments she received from collateral sources reimbursing her for lost wages and medical bills allegedly incurred as a result of the collision and had improperly charged the jury as to OCGA § 51-12-1 (b). We agree and reverse.

“ ‘(A)n appellate court must apply the law in effect at the time it renders its decision.’ [Cits.] While there well might be an exception to the rule to prevent ‘manifest injustice,’ [cit.], this equitable exception does not reach a private civil suit where the change [in the law] does not extinguish a cause of action but merely requires a retrial on damages before a properly instructed jury. [Cit.]” Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (101 SC 2870, 69 LE2d 784) (1981). See City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) (1944).

Appellees argue appellant waived any error by failing to object to the admission of this evidence below. We need not address that argument, however, because appellant also based her motion for new trial on the giving of the jury instruction setting forth the provisions of OCGA § 51-12-1 (b). “[T]he appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” OCGA § 5-5-24 (c). The charge given the jury as to the unconstitutional provisions of OCGA § 51-12-1 (b) authorized the jury in the case at bar to calculate the amount of damages awarded in its verdict on the “inherently prejudicial” evidence of collateral source benefits, see Denton, supra at 45, and thus was a charge which would have been likely to influence unduly the jury and deprive appellant of a fair trial. See Mack v. Barnes, 128 Ga. App. 328, 329 (1) (196 SE2d 684) (1973).

Decided January 8, 1992

Reconsideration denied January 24, 1992

Bovis, Kyle & Burch, Steven J. Kyle, Charles M. Medlin, for appellant.

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. Mc-Cune, for appellees.

2. Our holding in Division 1 renders it unnecessary for us to address appellant’s remaining enumerations.

Judgment reversed.

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


text:
    A91A1757.
    STANDRIDGE v. CANDLEWICK YARNS et al.
    (415 SE2d 10)
   Sognier, Chief Judge.

We granted Larry Standridge’s application for discretionary appeal from the judgment of the Superior Court of Catoosa County affirming the State Board of Workers’ Compensation’s award in favor of Standridge’s employer, Candlewick Yarns.

Appellant sustained a work-related injury to his lower back on April 2, 1990. He reported pain in his lower back to his employer. The health professional who examined appellant on April 5 testified that claimant made no complaint about experiencing pain in his abdomen, groin, or testicles; documentary evidence established that the health professional’s examination revealed no sign of an abdominal hernia. The health professional “prescribed” exercises “for training in correct body mechanics” and instructed appellant in the exercises. Appellant testified that on April 9, when he saw an orthopedist on his employer’s panel of physicians, he was told to perform the exercises. That evening, while performing the exercises, appellant experienced a sharp onset of groin pain, which exploratory surgery later confirmed resulted from an inguinal hernia.

The administrative law judge awarded appellant compensation for the hernia condition on the basis that the hernia was the direct result of the exercise program appellant undertook as part of his treatment for the work-related back injury. The ALJ cited both OCGA § 34-9-203 and Sanders v. Georgia-Pacific Corp., 181 Ga. App. 757 (353 SE2d 849) (1987), a “superadded injury” case. The Board reversed the ALJ, finding that the hernia did not arise out of and in the course of appellant’s employment; that the hernia occurred because of the exercises appellant was performing; and that there was no evidence that appellant’s participation in the exercise program was not entirely voluntary. Our review of the record reveals some evidence therein to support these findings. The Board also found that the hernia injury did not meet the requirements of OCGA § 34-9-266 because it neither resulted from nor immediately followed the accident. See generally Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334, 337-339 (3) (28 SE2d 860) (1944). The superior court affirmed the Board.

Appellant contends that his employer is responsible for his medical bills arising from the hernia condition because under OCGA § 34-9-203 the consequences of a panel physician’s treatment are deemed part of the injury resulting from the accident and thus compensable. However, OCGA § 34-9-203 actually provides that it is the consequences of the panel physician’s malpractice which are deemed part of the injury resulting from the accident. “[T]he employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to this chapter, but the consequences of any malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.” (Emphasis supplied.) Id. Appellant does not contend, nor does the evidence present the slightest inference, that the medical treatment appellant received amounted to malpractice of any kind. Accordingly, we find no merit in appellant’s argument that OCGA § 34-9-203 is applicable here.

This is not to say that the consequences of a panel physician’s treatment of a work-related injury are never compensable. Case law has long recognized that an employee sustains a compensable “super-added injury” where, in consequence of a specific member work-related disability, the employee suffers a disabling injury to another portion of the body. ITT Continental Baking Co. v. Comes, 165 Ga. App. 598, 599 (1) (302 SE2d 137) (1983); see Georgia Cas. Co. v. Jones, 156 Ga. 664, 667 (119 SE 721) (1923) (if a work-related injury is “accompanied or followed by partial permanent or total disability due to some other cause, such as infection or paralysis, and not to the mere loss of such member, whereby a superadded injury followed, the employee would be entitled to additional compensation”). Although the “superadded injury” principle is usually applied without reference to its statutory basis in the Workers’ Compensation Act, OCGA § 34-9-1 et seq., this court has noted that such injuries are generally deemed compensable because they constitute either a change in the employee’s condition or a new accident. Paideia School v. Geiger, 192 Ga. App. 723, 724 (2) (386 SE2d 381) (1989). The “superadded injury” principle generally has been discussed in regard to consequences stemming from physical injuries which are unrelated to the employee’s medical treatment, e.g., psychological disorders, see West Point Pepperell v. Baggett, 139 Ga. App. 813 (229 SE2d 666) (1976) (schizophrenia) and Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 742 (182 SE2d 508) (1971) (traumatic neurosis); aggravation of health problems by the work-related injury, see Globe Indem. Co. v. Brooks, 84 Ga. App. 687 (67 SE2d 176) (1951) (heart condition aggravated by chest injury); or incapacitating pain in one member caused by the work-related injury. See Bouldware v. Delta Corp., 160 Ga. App. 100 (286 SE2d 333) (1981) (pain in shoulder from injury to arm). However, the “superadded injury” principle has also been applied to hold compensable an incapacitation resulting from medical treatment undertaken to cure the work-related injury, see Sanders, supra at 758-759 (1) and Noles v. Aragon Mills, 116 Ga. App. 560 (158 SE2d 261) (1967) (skin grafts taken from one healthy leg to repair work-damaged leg), or where the incapacitation resulted when the medical treatment failed to cure the work-injured member, leading to damage to another body part. See National Surety Corp. v. Martin, 86 Ga. App. 77 (71 SE2d 666) (1952) (fractured leg bone failed to knit, resulting in damage to hip socket).

Nevertheless, as noted by this court in Thompson-Weinman Co. v. Yancey, 90 Ga. App. 213, 221 (82 SE2d 725) (1954), “[t]he provisions of the Workers’] Compensation Act in a case of hernia are different from those applying to other injuries.” We find that the “superadded injury” principle does not avail appellant because of the language in OCGA § 34-9-266. That statute provides: “In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee’s employment it must be definitely proved to the satisfaction of the board (1) that there was an injury resulting in hernia, (2) the hernia appeared suddenly, (3) the hernia was accompanied by pain, (4) the hernia immediately followed an accident, and (5) the hernia did not exist prior to the accident for which compensation is claimed.” (Emphasis supplied.) The Supreme Court has interpreted this statute as requiring the hernia, or the rupture of the tissues of the abdominal walls from which the hernia is a natural result to appear “immediately and without substantial interval following the [work-related] accident.” Liberty Mut. Ins. Co., supra at 338. Thus, given the Board’s finding that appellant’s hernia condition did not result from his work-related injury and it did not immediately follow the accident, we agree with the Board that OCGA § 34-9-266 bars appellant’s claim and that appellant cannot recover for his hernia as a “superadded injury” or change of condition from his back injury. See Perrien v. Southern Co-operative Foundry Co., 60 Ga. App. 195 (3 SE2d 240) (1939). The superior court’s judgment is accordingly affirmed.

Decided January 8, 1992

Reconsideration denied January 24, 1992

Harriss, Hartman, Aaron & Wharton, William G. Boyd, for appellant.

Mitchell, Coppedge, Wester, Bisson & Miller, Tommy D. Goddard, for appellees.

Judgment affirmed.

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


text:
    A91A1795.
    McBRIDE v. THE STATE.
    (415 SE2d 13)
   Sognier, Chief Judge.

Stephen Lewis McBride was convicted in a nonjury trial of 21 counts of first degree forgery. He appeals from the judgment entered on the conviction.

Appellant contends there was a fatal variance between the allegata and the probata and that the evidence was insufficient to support the verdict. The indictment charged that appellant, on 21 different occasions between September 14, 1989 and October 12, 1989, “with the intent to defraud, did unlawfully, knowingly possess [a specified check] drawn on the account of Biltmore Atlanta for [a certain sum] in such a manner that the writing as made purported to be made by authority of Biltmore Atlanta [which] did not give such authority and did utter and deliver said writing.” Appellant stipulated to the truth of all allegations of the indictment except those concerning intent to defraud and the charge that the checks were “drawn on the account of Biltmore Atlanta.”

The evidence adduced at trial established that each check, which purported to be a payroll check, was imprinted with the name “Biltmore Atlanta,” an address almost identical to that of the Biltmore Atlanta hotel building in midtown Atlanta, and a phone number identical to that of the hotel. All the checks except one were issued for the same amount, and appellant cashed the checks at various bank branch offices in Cobb County. Each check was issued to “Stephen McBride,” and several of them were signed by Angela Shaw, appellant’s former wife. Additional testimony established that the checks were drawn on an account appellant opened at First Atlanta in August 1989 under the name “Steven McBride.” Jac Baker, a representative of the company which owns the Biltmore Atlanta, testified that the hotel had been closed for a number of years and had no salaried employees and no bank account under the name “Biltmore Atlanta.” Baker testified that appellant was neither employed by the Biltmore Atlanta nor authorized to use any Biltmore Atlanta checking account.

Appellant testified that the checks were issued to him on his account as payment for his services to his catering business, Biltmore Atlanta Catering Service, and that he had intended to supply funds to the account sufficient to cover the checks but was unable to do so because of his arrest. He admitted having the checks printed with the name and address shown, but asserted that the printing company printed the wrong phone number.

Appellant contends there was a fatal variance between the allegata and the probata because the indictment alleged that the checks . were drawn on the account of Biltmore Atlanta, but the evidence established that they were written on appellant’s account. We agree that the variance occurred, but conclude it was not fatal to the State’s proof. “The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” (Citations and punctuation omitted.) West v. State, 178 Ga. App. 550, 552 (343 SE2d 759) (1986). While all material averments — i.e., averments that describe either the offense or the manner in which it was committed — must be proved as alleged, Walker v. State, 146 Ga. App. 237, 242 (246 SE2d 206) (1978), an unnecessary description of an unnecessary fact need not be proved. Id. at 241.

“By statutory definition, forgery in the first degree can be committed in either of three ways: By knowingly and with intent to defraud uttering a writing (1) in a fictitious name; or (2) in such a manner that the writing purports to have been made by another person, at another time, with different provisions; or (3) in such a manner that the writing purports to have been made by the authority of one who did not give such authority. OCGA § 16-9-1 (a).” McBride v. State, 199 Ga. App. 527, 528 (405 SE2d 345) (1991). In the case at bar, the State alleged and proved that appellant committed first degree forgery in the third manner described above — i.e., with writings that purported to be by the authority of the Biltmore Atlanta, which did not give such authority. The proof of this essential element was complete when the State adduced evidence showing that appellant uttered checks imprinted with the Biltmore Atlanta name and phone number and a confusingly similar address and established that the Biltmore Atlanta did not authorize the issuance of these checks. The statute did not require that the State prove that appellant uttered writings actually written on a Biltmore Atlanta account, but instead only required proof that he cashed checks purporting to be drawn on such an account. See OCGA § 16-9-1 (a). Thus, the inclusion in the indictment of the phrase “drawn on the account of Biltmore Atlanta” was “mere surplusage, unnecessary to constitute the offense, need not be proved, and may be disregarded.” (Citations and punctuation omitted.) Hamlin v. State, 193 Ga. App. 453, 454 (388 SE2d 48) (1989); compare Cantrell v. State, 162 Ga. App. 42 (290 SE2d 140) (1982). The language of the indictment was sufficient to put appellant on notice as to the essential elements of the charged offense so as not to be taken by surprise, and appellant could not be prosecuted again for these offenses. See West, supra. Accordingly, we reject appellant’s contention concerning the variance and hold the evidence was sufficient to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Faulkner v. State, 186 Ga. App. 879-880 (1) (368 SE2d 820) (1988).

Decided January 8, 1992

Reconsideration denied January 24, 1992

Daniel L. Henderson, for appellant.

Thomas J. Charron, District Attorney, Iruan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A1561.
    HOLDEN v. THE STATE.
    (414 SE2d 910)
   Cooper, Judge.

Defendant appeals his conviction by a jury of two counts of child molestation.

1. Defendant, Daniel Holden, enumerates the general grounds. The evidence adduced at trial, construed favorably to the prosecution, showed that Jean Holden, defendant’s wife, operated a licensed in-home child care center which the two victims attended. Defendant was often at home during the time that the victims were at the center. In October 1988, on the way home from the center, Jessica Cundy (“Jessica”), then three years old, stated to her mother that “Daniel had hurt Jean’s butt” and that “he hurts my butt all the time.” When Jessica and her mother got home, her mother asked Jessica what happened and Jessica pulled her pants down and put her hands between her legs indicating where Daniel had hurt her. Several days later, Jessica’s mother took the child to the local Department of Family & Children’s Services (“DFCS”) where she was interviewed by a caseworker with DFCS. During the interview, Jessica indicated, by using anatomically correct dolls, that defendant had touched her on her breasts and genital area with his penis. During a subsequent videotaped interview conducted by the DFCS caseworker and a counselor, Jessica again used anatomically correct dolls to indicate that defendant had touched her in her genital area with his genitals. Jessica testified at trial that defendant had touched her in a bad way, that he put salt and peanut butter on her vaginal area and removed it with a napkin. The second victim, who was four years old at the time she reported the molestation, also testified at trial. While using anatomically correct dolls, the second victim stated at trial that defendant touched her on her genital area with his penis and his hands and put salt and pepper as well as peanut butter on her genital area. The State also presented medical evidence that the second victim had a torn hymen and that this was consistent with the insertion of a man’s penis or finger into the vaginal opening. Both victims testified that the acts of molestation occurred while they were at the child care center. The evidence was sufficient for a rational trier of fact to find defendant guilty of two counts of child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Hurst v. State, 198 Ga. App. 380 (3) (401 SE2d 348) (1991).

2. Defendant contends that the trial court erred in denying his motion to suppress evidence seized from his home pursuant to two search warrants. The first warrant, No. 878, was issued on November 18, 1988, and authorized a search of defendant’s residence for “any and all records, papers, writings, or receipts concerning the care or control of children.” In support of that warrant, a detective gave an affidavit in which he stated that on November 9, 1988, he had received information from DFCS that several children had been molested by defendant, including one report of molestation of a child seven-and-one-half weeks old. The affiant further stated that his independent investigation revealed that defendant’s wife had the day care center license and that at least one of the children had been molested while being cared for by defendant’s wife. During the execution of warrant No. 878, in addition to records and documents relating to children cared for at the child care center, the officers seized two videotapes and two sexually explicit paperback books. Approximately three days after warrant No. 878 was executed, the second warrant, No. 881, was issued, authorizing a search of defendant’s residence for “any and all pornographic material, including but not limited to magazines, obscene devices.” During the execution of warrant No. 881, over 200 items were seized, including sexually explicit magazines and books and various sexual aids and devices. A hearing was held on defendant’s motion to suppress the items seized pursuant to both search warrants. As to warrant No. 878, the trial court entered an order granting defendant’s motion as to the two videotapes seized but denying the motion as to .the other items seized during the first search. No order was entered relating to warrant No. 881.

(a) Warrant No. 878. Defendant first argues that the affidavit given in support of the warrant did not give the magistrate probable cause to believe that the items sought would be located at defendant’s residence. The trial court took judicial notice of the rules and regulations of the State which require all licensed child care centers to keep records concerning the care and control of children. We find no error with the trial court taking judicial notice of rules and regulations promulgated by a State. OCGA § 50-13-8. Since defendant’s wife had the child care center license, there was probable cause for the magistrate to believe that the records would be found at the residence.

Defendant also contends that the information in the affidavit was stale because there was no allegation as to when the molestation took place. “ ‘Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. (Cit.)’ [Cit.]” Bayles v. State, 188 Ga. App. 437, 438 (373 SE2d 266) (1988). The affidavit indicates that several acts of molestation occurred with different victims. “Because of that ongoing scheme, ‘the passage of time becomes less significant than would be the case with a single, isolated transaction.’ [Cits.]” Id. Moreover, the affidavit reflects that defendant’s wife was presently engaged in the operation of a child care center. We conclude that the magistrate had a reasonable belief that the documents sought in the search warrant would be at the location described in the warrant.

Defendant next contends that the information in the affidavit did not show how the items sought were used in connection with the commission of a crime. We disagree. The trial court noted that while the affidavit could have included a statement from an expert that indicated other children at the center may be at risk, such a statement was not required. We agree with the trial court that the magistrate could have concluded based on the information in the affidavit that the records would be the most expedient way to identify other possible victims of the crime. There is no merit to defendant’s argument.

Defendant also alleges that the search warrant failed to describe with particularity the items sought. “The warrant description was sufficient to enable the searching officer to seize the described items with ‘reasonable certainty.’ ” Tyler v. State, 176 Ga. App. 96, 97-98 (1) (335 SE2d 691) (1985).

Finally, defendant argues that the officers executing the search warrant exceeded the scope of the authorized search. The affiant testified at the suppression hearing that during the search he accompanied defendant’s wife while she showed him the records and that the videotapes and sexually explicit books were in plain view and were seized at that time. The evidence shows that the officers were in defendant’s house pursuant to a lawfully issued search warrant and that, while conducting a lawful search, seized certain items not listed in the warrant which were in plain view. “ ‘[I]f an article is already in plain view, neither its observation nor its seizure (involves) any invasion of privacy. . . .’ ” Bozeman v. State, 196 Ga. App. 743, 744 (1) (397 SE2d 30) (1990). We find no error in the denial of defendant’s motion to suppress as it relates to the sexually explicit books.

(b) Warrant No. 881. The affidavit given in support of this warrant was not available at the suppression hearing. The officer testified that to the best of his knowledge the application for that warrant was based on items seen at the defendant’s house during the execution of warrant No. 878. The trial judge allowed the officer to testify as to the execution of warrant No. 881 but noted that he did not see how he could issue a ruling without seeing the affidavit. Defendant’s counsel informed the judge that the thrust of his argument as to warrant No. 881 was that no prior determination of what would be considered “pornographic” was made. The trial court indicated that if that were the only basis for the motion, there was controlling authority against defendant. The trial court did not enter an order ruling on defendant’s motion as it related to the second search warrant. When the items seized pursuant to warrant No. 881 were introduced at trial, defense counsel objected, incorporating into his objection all objections made during the suppression hearing. The only objection made by defendant during the hearing was that the magistrate should have made a prior determination that the items sought were pornographic. As stated in Tyler v. State, supra at 98, “the question of whether [the items seized] were in fact ‘pornographic,’ vel non, is not in issue.” Id. This court noted in Tyler that the word pornographic as used in the warrant was merely descriptive of the acts defined in the affidavit, rather than as a constitutional classification. Furthermore, the items seized could be used to show the bent of mind of defendant to commit sexual crimes. Tyler v. State, supra at 99. Accordingly, we find no error with the denial of the motion to suppress on the only ground raised by defendant during the suppression hearing.

Due to the unavailability of the affidavit given in support of warrant No. 881, the question of probable cause to issue the warrant was not addressed by the trial court. Defendant neither brought this to the court’s attention nor sought a'further ruling on the issue of probable cause. He stated to the court that his motion to suppress the items seized pursuant to warrant No. 881 had been denied, and when he objected at trial, he incorporated his objections made during the suppression hearing. We discussed above the only objection made by defendant with regard to warrant No. 881. Defendant’s attempt to raise on appeal arguments which were not raised during the motion to suppress or at trial will not be considered. See Ely v. State, 192 Ga. App. 203 (5) (384 SE2d 268) (1989).

3. Defendant contends that the trial court erred in admitting over 200 of the State’s exhibits which consisted of adult magazines and books, sex games, and various sexual paraphernalia. Prior to trial, defendant made a motion in limine to exclude the items on the ground that the items did not relate to any sexual activity involving children, and were therefore not connected to the crime charged. Defendant informed the court that he would voice his objection to those materials at the proper time. When the State introduced the exhibits, defendant objected, incorporating the grounds raised in his motion in limine and the trial court admitted the exhibits over defendant’s objections. “ ‘[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990). All of the exhibits related to sexual activity and were relevant to show a bent of mind toward sexual activity. See Tyler v. State, supra at 99. There was also evidence from some of the victims that they had seen certain of the adult magazines at defendant’s home and had seen defendant playing with some of the sex games. We find no error with the admission of the State’s exhibits.

4. Defendant argues that the trial court erred in admitting, pursuant to OCGA § 24-3-16, out-of-court statements made by Jessica to the DFCS caseworker during the initial interview and to the counselor during the videotaped interview. OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The trial judge conducted a hearing outside the presence of the jury and determined that the statements had sufficient indicia of reliability to be admissible. Our review of the transcript reveals that the judge considered the atmosphere under which Jessica’s statements were made as well as the child’s demeanor. The judge specifically commented on what appeared to be a lack of spontaneity with which the victim responded to questions asked during the videotaped interview and found that there was nothing which indicated that the interviews were unduly suggestive. This enumeration of error is without merit. Newberry v. State, 184 Ga. App. 356, 357 (2) (361 SE2d 499) (1987).

Decided January 24, 1992.

David L. Cannon, for appellant.

Garry T. Moss, District Attorney, for appellee.

5. The testimony of Jessica’s mother was also admitted into evidence pursuant to OCGA § 24-3-16, over defendant’s objection. Defendant contends that the trial court erred in admitting the statement without first conducting a hearing to determine whether there were sufficient indicia of reliability. “ ‘OCGA § 24-3-16 does not require a hearing to determine “indicia of reliability” be held prior to receiving the testimony . . . (and) we cannot say that failure to do so in this case was error. . . .’ ” Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988). We find no error in the admission of the mother’s testimony.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1649.
    BURNETT v. THE STATE.
    (415 SE2d 43)
   Cooper, Judge.

After a jury trial, appellant was convicted of molesting his 13-year-old granddaughter. He appeals from the conviction and sentence entered by the trial court on the verdict.

1. Appellant contends the trial court erred in admitting evidence of similar transactions. He argues the unfairness of having to defend against charges of which the State was aware at the time of his indictment- but chose not to pursue. He also claims that the State’s notice of similar transactions was vague, contrary to Uniform Superior Court Rule 31.3, and that the State failed to demonstrate the similarity of the transactions to the offense for which he was indicted.

The indictment charged that on June 5, 1989, appellant did an immoral and indecent act to a child under the age of 14 with the intent to arouse and satisfy his sexual desires. The evidence adduced at trial showed that the particular act which allegedly occurred involved appellant’s demand that the child remove her clothes and be photographed in the nude. The State’s notice of intention to produce similar transactions provided that those transactions involved other acts of child molestation against the same child in 1987 through 1988 in Clayton County; that on approximately three occasions, appellant placed his hand in or on the child’s vagina; and that on approximately two occasions, appellant had the child remove her clothes and pose nude for photographs.

“An ‘ “indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the . . . period of limitation, including the date(s) alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period.” (Cit.)’ [Cit.] The [date] alleged in appellant’s indictment [was] not an essential averment thereof. The . . . prior similar acts of molestation which the victim attributed to appellant had occurred within the applicable four-year statute of limitation. ‘Thus, the evidence did not fall within the ambit of Rule 31.1 relating to notice of the State’s intention to present evidence of a similar transaction. Rather, it was evidence of the offense charged and admissible. . . .’ [Cit.]” Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987). See also Dempsey v. State, 197 Ga. App. 674 (1) (399 SE2d 239) (1990). It is of no consequence that three of the similar transactions differed from the June 5, 1989 incident in the specific manner in which the molestations were committed because the indictment did not charge that the molestation occurred in any particular manner. The similar transactions were “transactions of the nature charged” in the indictment {Bowman, supra), and the indictment did not show that the date was an essential averment (see Grantham v. State, 117 Ga. App. 444 (1) (160 SE2d 676) (1968)). In comparison, in Story v. State, 196 Ga. App. 590 (396 SE2d 547) (1990), the indictment charged that the molestation was committed in a specific manner, and the similar offense was committed in a different manner than the offense charged. This court held that the similar offense was not admissible as direct evidence of the offense charged in the indictment. In the instant case, therefore, the State’s actual notice to appellant was superfluous, and any deficiencies therein did not prejudice appellant.

2. Appellant also enumerates as error the trial court’s failure to dismiss the indictment on the ground that it was vague and not sufficiently specific. The indictment followed the language of OCGA § 16-6-4 and did not state the offense charged in detail. Where the offense of child molestation is charged, “[w]e think the terms of the statute on which the indictment is based distinctly individuate the defined offense and that the use of those terms in the indictment is sufficient to give defendant reasonably certain notice of the specific acts charged and thus enable him to prepare his defense. [Cits.]” Cragg v. State, 117 Ga. App. 133, 134-135 (159 SE2d 717) (1968). “It has been broadly held that an indictment may charge lewd and lascivious conduct in general statutory terms without particularizing details which would be offensive to decency. [Cit.]” Id. Thus, this enumeration is without merit.

Decided January 24, 1992.

James W. Bradley, for appellant.

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

3. Finally, appellant contends the trial court erred in charging the jury that a conviction was authorized where there was proof that the offense occurred anytime within four years preceding the return of the indictment. “It is well settled in Georgia law that ‘evidence of guilt is hot restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense.’ [Cits.]” Carpenter v. State, 167 Ga. App. 634, 642 (9) (307 SE2d 19) (1983). This enumeration is also without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.