text:
    A99A2198.
    DEARING et al. v. STATE OF GEORGIA.
    (532 SE2d 751)
   Pope, Presiding Judge.

Amanda Dearing and John David Edmondson, Jr. appeal the order granting the State’s motion to dismiss their answers under OCGA §. 16-13-49 in this forfeiture case. For the following reasons, we conclude that the answer Edmondson filed was sufficient under OCGA § 16-13-49 (o) (3). Accordingly, we reverse the trial court’s dismissal of his answer and remand the case as to the property he claims for further proceedings. In contrast, we affirm the trial court’s dismissal of Dearing’s answer on the basis that it was insufficient to satisfy the statutory requirements.

On October 5, 1995, the State filed an initial notice of forfeiture under OCGA § 16-13-49 (n) (5), stating that on August 31, 1995, $3,640 and a certain rifle had been seized. The notice stated that the property was seized pursuant to the execution of a search warrant at a residence occupied by Dearing and John David Edmondson, Sr. It further stated that the property was found close to methamphetamine and cocaine and that the property constituted proceeds from methamphetamine and cocaine transactions.

The State published the required notice. On February 26, 1996, Dearing, Edmondson, and Edmondson, Sr. each filed claims to the property as provided for in OCGA § 16-13-49 (n) (3). Edmondson’s response to the notice set forth his mailing address and stated that he “was the owner of ONE REMINGTON MODEL 742 .308 RIFLE W/SCOPE, SERIAL NUMBER 6953558.” The answer also stated that the rifle was acquired from Edmondson’s father, Edmondson, Sr., as a gift on or about Christmas 1992. Edmondson then raised all legal defenses available to him under OCGA § 16-13-49 (e) — specifically, he denied that the property facilitated illegal activity and denied that the property was subject to forfeiture. Edmondson also requested that the property be returned to him immediately. The answer concluded with a verification which stated that Edmondson had personally appeared before a notary public and that he “on oath deposes and says that the facts set forth in the foregoing pleadings are true and correct.” The notary public verified that the document had been sworn to and subscribed before her.

In Bearing’s claim to the property, she stated her mailing address and then asserted that she was the owner of $2,100 of the money seized. She stated that she acquired the money through her work as a house cleaner, and she specifically named four of her customers. Dearing stated that she had divided the money into three envelopes so that she could distribute it to her two co-workers. She then raised all defenses available to her under OCGA § 16-13-49 (e), denied that the property facilitated illegal activity, and denied that the property was subject to forfeiture for various reasons. She also requested that the property be returned to her. Dearing completed her answer with a verification which stated that she had personally appeared before a notary public and that she “on oath deposes and says that the facts set forth in the foregoing pleadings are true and correct.” The notary public also verified that the document had been sworn to and subscribed before her.

On March 20, 1996, the State filed a formal complaint for forfeiture in rem under OCGA § 16-13-49 (o). See OCGA § 16-13-49 (n) (5). Also on that date, the court issued an order for service. Edmondson was served with summons and a copy of the complaint on March 27, 1996; Dearing was served with summons and the complaint the next day.

Both Dearing and Edmondson filed timely answers to the complaint. In her answer to the complaint, as in her previously filed claim to the property, Dearing stated her mailing address and then denied that the property was subject to forfeiture. She again stated that she had acquired the money through her work as a house cleaner; she listed the names of four of her customers; and she explained that the money had been divided to facilitate distributing it to her co-workers. Dearing raised the defenses available to her under OCGA § 16-13-49 (e); again, she denied that the property was used to facilitate the distribution of drugs; and again, she requested that the property be returned to her. The answer concluded with a verification which stated that Dearing had personally appeared before a notary public and that she “on oath deposes and says that the facts set forth in the foregoing pleadings are true and correct.” Again the notary public also verified that the document had been sworn to and subscribed before her.

Likewise, Edmondson’s answer was similar to his earlier claim: he set forth his mailing address; he denied that the property was subject to forfeiture; and he stated that he had received the specifically described rifle as a gift from his father around Christmas 1992. Edmondson then raised all of the legal defenses available to him under OCGA § 16-13-49 (e) and requested an immediate return of his property. He again verified his answer under oath before a Hall County notary public.

The State filed a motion to dismiss the answers and for judgment on the pleadings, arguing that the answers were legally insufficient and that the court should strike them, thus entitling the State to a judgment of forfeiture. The court granted the State’s motion to dismiss, finding that Bearing’s and Edmondson’s answers failed to state with the required particularity the elements of OCGA § 16-13-49 (o) and that the answers were not executed under penalty of perjury as also required by that section. The court concluded that because the answers were legally insufficient they would be dismissed, which effectively meant that no answer was filed to the State’s notice of forfeiture, and no hearing was required. See OCGA § 16-13-49 (o) (4). Accordingly, the court concluded that the property was subject to forfeiture.

1. Dearing and Edmondson argue that the court erred in ruling that their answers were not executed under penalty of perjury as required by OCGA § 16-13-49 (o) (3). We agree.

OCGA § 16-13-49 (o) (3) requires that: “[a]n answer must be verified by the owner or interest holder under penalty of perjury.” The elements of perjury are outlined in OCGA § 16-10-70 (a), which states: “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” Under this statute, false verification of pleadings by oath constitutes perjury. See generally Watson v. State, 235 Ga. App. 381, 385 (1) (b) (509 SE2d 87) (1998).

As stated above, both answers here included verifications signed under oath before a Hall County notary public. The verifications stated that the claimant “on oath deposes and says that the facts set forth in the foregoing pleadings are true and correct.” These verifications satisfied OCGA § 16-13-49 (o) (3).

The statute’s requirement that an answer be verified “under penalty of perjury” does not mean that those precise words must be used. Nevertheless, we recognize that dicta in State of Ga. v. Miller, 234 Ga. App. 650, 651 (507 SE2d 521) (1998), may imply that these words are necessary. See also Jarrett v. State of Ga., 220 Ga. App. 559, 561 (1) (472 SE2d 315) (1996), overruled on other grounds, Rojas v. State of Ga., 269 Ga. 121, 123 (2) (498 SE2d 735) (1998). In State of Ga. v. Miller, the verification stated: “ "the facts stated in the foregoing Answer to the State’s Complaint for Forfeiture are true and correct to the best of his (sic) knowledge and belief.’ ” Id. at 651. The court found that this verification did not “comport with the letter and the spirit” of OCGA § 16-13-40 (o) (3) since it neither specified the mandatory perjury language nor appeared to subject the claimant to a penalty for perjury. Id. at 651. The answer in Miller was also deficient for failing to comply with various requirements of OCGA § 16-13-49 (o) (3) (D).

The verification in Miller was clearly improper. There was no indication in that case that the verification was under oath or that it was executed before a notary public, and the claimant’s representation that the answer was accurate was equivocal. For these reasons, the verification in Miller did not comply with the statute. Nonetheless, the language in Miller which implied that a verification under OCGA § 16-13-49 (o) (3) must contain the mandatory perjury language or explicitly subject the claimant to a penalty for perjury is hereby disapproved.

2. Dearing and Edmondson also claim that the court erred in finding that their answers failed to state with the requisite particularity the items mandated under OCGA § 16-13-49 (o) (3).

OCGA § 16-13-49 (o) (3) requires that an answer stating a claim to property subject to forfeiture satisfy not only the general pleading rules applicable to all civil actions, but must also specifically set forth the following: (C) The nature and extent of the claimant’s interest in the property; (D) The date, identity of transferor, and circumstances of the claim - ant’s acquisition of the interest in the property; (E) The specific provision of OCGA § 16-13-49 relied on in asserting that the property is not subject to forfeiture; and (F) All essential facts supporting each assertion.

(Citation and punctuation omitted.) Knodel v. State of Ga., 222 Ga. App. 514, 515-516 (474 SE2d 700) (1996). See also Tuggle v. State of Ga., 224 Ga. App. 353, 354 (1) (480 SE2d 353) (1997).

“The intent of the General Assembly when it enacted OCGA § 16-13-49 was twofold: to protect the interest of innocent property owners and to provide for prompt disposition of contraband property. [Cit]" Howard v. State of Ga., 223 Ga. App. 323, 325 (477 SE2d 605) (1996). And, while compliance with the strict pleading requirements is necessary, these requirements must be interpreted reasonably. Harris v. State, 222 Ga. App. 267, 268 (474 SE2d 201) (1996).

Applying these requirements to the answers here, we conclude that the answer which Edmondson filed was sufficient and the court erred in dismissing it. Edmondson’s answer provided the caption of the proceedings as set forth in the complaint and the name of the claimant; the address at which he accepts mail; the nature and extent of his interest in the property (i.e., the rifle); the date, identity of transferor, and circumstances of his acquisition of the rifle; the specific provisions of OCGA § 16-13-49 relied on in asserting that it was not subject to forfeiture; the essential facts supporting his assertions; and the relief he sought. In stating that his father gave him the rifle around Christmas 1992, Edmondson asserted specific facts of his ownership and not mere conclusory allegations. In fact, it is difficult to imagine further specifics Edmondson could have provided regarding his acquisition of the rifle. See generally Williams v. State of Ga., 222 Ga. App. 270 (474 SE2d 98) (1996).

The answer Dearing filed is more problematic. On the one hand, Dearing set forth many of the items required under OCGA § 16-13-49 (o) (3). In addition to her address and the defenses she asserted under the statute, Dearing claimed that she earned the money doing housecleaning and listed four specific customers. Nevertheless, Dearing failed to include the date or period of time during which she earned the money, as required by OCGA § 16-13-49 (o) (3) (D). She did not offer any specifics regarding the method of payment for her work, nor did she set forth any information regarding the amount of housecleaning she did to earn $2,100. Dearing argues that she could not remember the specifics of the money transfer, given the six months between the seizure and the filing of her answer, but we find this explanation unsatisfactory. See State of Ga. v. Miller, 234 Ga. App. at 651 (answer setting forth claim to money earned from taxicab service on October 31, 1997, which did not identify the transferors by name and did not list the amounts allegedly obtained from each was deficient); Tuggle v. State of Ga., 224 Ga. App. at 355 (answer which stated only that the currency represented “ ‘money saved from numerous jobs,’” was insufficient); Howard v. State of Ga., 223 Ga. App. at 324 (answer which did not set forth any of the specifics listed in the statute was insufficient). Compare Dennis v. State of Ga., 224 Ga. App. 11(1) (479 SE2d 380) (1996) (answer which failed to specify date or transferor for various household furnishings was sufficient because of extraordinary hardship of requiring owners to supply this information); Harris v. State of Ga., 222 Ga. App. at 268 (answer which outlined dates of acquisition of money, along with the sources and circumstances of acquisition, was sufficient). Accordingly, the answer Dearing filed was insufficient to satisfy the requirements of OCGA § 16-13-49 (o) (3).

3. We also reject Dearing’s argument that the trial court erred in ruling on the State’s motion to dismiss within 15 days, as opposed to the 30-day period required by Uniform Superior Court Rule 6.2. Assuming without deciding that these rules apply to these proceedings, this rule did not require that the court wait 30 days before ruling on the instant motion. Where evidence is not required, a court has the discretion to rule on a motion to dismiss before the 30 days required by USCR 6.2 expires. Phillips v. McCroskey, 234 Ga. App. 87, 88 (2) (506 SE2d 388) (1998). The motion in this case addressed the insufficiency of the answers filed under the strict requirements of OCGA § 16-13-49, and thus no evidence was necessary. As stated above, this statute sets forth a strict timetable and specific pleading requirements regarding factual information that must be included in claims or answers filed by those claiming interests in seized property. State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b) (444 SE2d 76) (1996).

Further, there is no argument here that Dearing was improperly barred from filing an amendment to her answer. See Rojas v. State of Ga., 269 Ga. at 122-124 (2). In fact, almost three weeks after the court’s order dismissing her answer was entered, Dearing filed a motion for reconsideration in which she argued that her answer was sufficient; she made no attempt at that time to amend her previously filed answer. See Waters v. State of Ga., 239 Ga. App. 897 (522 SE2d 493) (1999).

Decided March 28, 2000.

Glyndon C. Pruitt, for appellants.

Lydia J. Sartain, District Attorney, E. Paul Stanley, Assistant District Attorney, for appellee.

Accordingly, the judgment is affirmed with respect to the property Dearing claims; with respect to Edmondson, the judgment of forfeiture is reversed and the case remanded for a hearing within 60 days after receipt of the remittitur. See OCGA § 16-13-49 (o) (5).

Judgment affirmed in part and reversed in part.

Johnson, C. J., McMurray, P. J., Andrews, P. J., Blackburn, P. J., Smith, Ruffin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ, concur.

       Although not directly relevant to the issues involved in this case, the record establishes that on December 7, 1995, the State filed a motion for judgment of forfeiture and disposition of the property, because no answer asserting a claim to the property had been filed. The court granted a motion for default judgment of forfeiture and disposition of the property on December 7, 1995. Nevertheless, on January 28,1996, the court issued an order vacating this judgment because of the State’s failure to print notice in the Gainesville Times, “the legal organ of Hall County.” See OCGA § 16-13-49 (n) (2).

       The court ruled the property of Edmondson, Sr. was not subject to forfeiture under the order. Edmondson, Sr., who was never served with the complaint and never filed an answer, is now deceased, and this appeal involves only the claims of the other two defendants.

       The parties do not here address the issue of the delay in holding the hearing, and accordingly, we do not address this issue either. OCGA § 16-13-49 (o) (5) requires that in forfeiture actions in which an answer is filed “a hearing must be held within 60 days after service of the complaint unless continued for good cause....” On May 1, 1996, the State filed a motion for continuance in which it urged that the court continue the case until the criminal case against Dearing and Edmondson was resolved. The court scheduled a hearing on the State’s motion for June 27, 1996, which was outside the original 60-day window for conducting the hearing, and continued the case “pending a ruling on this motion.” More than two years later — on July 16,1998 — Dearing and Edmondson filed a motion to dismiss the forfeiture action based on the State’s failure to properly give notice of the seizure or to hold a hearing within sixty days. In the motion, Dearing and Edmondson claimed that the court had not held a hearing on the State’s motion for continuance. The court denied defendants’ motion.

       But when in conflict with substantive law, the Uniform Superior Court Rules yield to substantive law. Coastal Plains Trucking Co. v. Thomas County Fed. Sav. &c. Assn., 224 Ga. App. 885, 887 (482 SE2d 493) (1997). In the context of OCGA § 16-13-49, we are also mindful of the substantive legislative goal of expediting the proceedings.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A2372.
    AMERICA NET, INC. v. U. S. COVER, INC.
    (532 SE2d 756)
   Smith, Judge.

In this landlord-tenant matter, America Net, Inc. appeals the judgment of the State Court of Forsyth County granting partial summary judgment in favor of its landlord, U. S. Cover, Inc. and denying summary judgment in favor of America Net. America Net was the tenant under a sublease agreement through lessee/sublessor Nicholson Construction Company, which is not a party to this action. America Net contends the trial court erred in finding that its default precluded exercise of a renewal option in the master lease. It also contends the trial court erred in finding it in default under the terms of the agreement and in enforcing a double rent provision. We disagree and affirm the judgment of the trial court.

1. We first consider the motion of U. S. Cover to dismiss for lack of jurisdiction. America Net did not follow the requirement of OCGA § 44-7-56 that an appeal of “ [a]ny judgment by the trial court” be filed within seven days of the entry of judgment. While this case presents a very close question as to whether the judgment ultimately rendered was subject to the dispossessory statutes and therefore to the time limitation on appeal, we conclude that it was not.

This action began when U. S. Cover filed a dispossessory warrant in the Magistrate Court of Forsyth County, alleging that America Net was a tenant holding over and seeking possession of the premises and past due rent. America Net answered and counterclaimed for breach of the lease contract, including failure to repair. America Net tendered its rent into the registry of the court pursuant to OCGA § 44-7-54 and continued to do so for approximately six months. After paying the rent for December 1997, America Net surrendered the premises, and U. S. Cover moved to transfer the litigation to state court. The parties thereafter filed a consent motion to transfer, stating: “the grounds for this motion are that Defendant’s counterclaims exceed the jurisdiction of this court; and possession of the premises is no longer an issue, thereby depriving this honorable court of jurisdiction.” The magistrate court transferred the case, finding the grounds for transfer “well founded and that jurisdiction of Defendant’s counterclaims is lacking.”

After the transfer to state court, U. S. Cover moved for summary judgment, and America Net filed its cross-motion for partial summary judgment. The trial court’s order was entered June 7,1999, and America Net filed its notice of appeal on July 6, 1999.

Article 3, Chapter 7 of Title 44 governs dispossessory proceedings. OCGA § 44-7-56 provides, in pertinent part: “Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered.” If this Code section applies, America Net’s notice of appeal is untimely.

In response to U. S. Cover’s motion, America Net contends that this action is no longer a dispossessory proceeding because the issue of possession was resolved by agreement and the payment of rent into court was suspended, leaving only the issues of unpaid rent and breach of the lease contract. For this reason, America Net argues that the time limitation of OCGA § 44-7-56 should not apply. While we find the statutory provision unclear on this point, we conclude that the limitation does not apply, particularly in view of our strong public policy to avoid the dismissal of an appeal and to reach the merits of a case whenever it is reasonable to do so. Sellers v. Nodvin, 262 Ga. 205, 207 (1) (b) (415 SE2d 908) (1992).

The parties incorrectly concluded that the dollar amount of the counterclaims deprived the magistrate court of jurisdiction. As we noted in Atlanta J’s, Inc. v. Houston Foods, 237 Ga. App. 415 (514 SE2d 216) (1999),

[u]nder subsection 6, the magistrate court has jurisdiction over the trial of issues and issuance of judgments in dispossessory proceedings as provided in Articles 3 and 4 of Chapter 7 of Title 44. Under OCGA § 44-7-55 (a), judgment in a dispossessory action shall be entered against the tenant for all rents due and for any other claim relating to the dispute. Thus, the magistrate court in this case clearly had jurisdiction to enter judgment for all amounts due under the lease, regardless of whether such amounts exceeded $5,000.

(Citation, punctuation and emphasis omitted.) Id. at 417-418 (1). Moreover, “[t]he statute intends for all related claims between the landlord and the tenant to be determinable in the dispossessory proceeding.” (Citation and punctuation omitted.) Id. at 419 (3).

But the Code does not state whether litigation remains subject to the provisions of the dispossessory statutes once possession is finally determined and the parties are no longer taking advantage of the special provisions of that Code chapter. We conclude that it does not, at least when, as in this case, the parties stipulate that possession is no longer an issue and agree to a transfer of the remaining claims to another court.

“A dispossessory is a summary proceeding to determine the disposition of the property pending trial of any contested issues.” (Citations and punctuation omitted.) Green v. Carver State Bank, 178 Ga. App. 798, 799 (3) (344 SE2d 507) (1986). “[D]ispossessory proceedings are often characterized as ‘summary,’ and the statutes governing them provide for service of process, a seven-day answer period, and the right to a trial, which the court shall attempt to ‘expedite.’ ” Westbury Square Townhouses Assn. v. Bryan, 223 Ga. App. 885, 887-888 (2) (b) (479 SE2d 190) (1996) (physical precedent only). Once that determination is made and possession of the realty is no longer an issue, the purpose for the accelerated procedure no longer exists. Parties therefore should be able to agree that the provisions intended to expedite possession of the premises will not control once the reason for employing those provisions has ended.

Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 (521 SE2d 456) (1999), relied on by U. S. Cover, is distinguished by its facts. In Wright, a dispossessory proceeding was filed in the superior court by a homebuilder embroiled in a dispute with its dissatisfied customers. Under the terms of the building contract, the dispute was referred to arbitration, and the decision rendered there was confirmed by the superior court. The builder appealed more than seven days after entry of judgment but contended that the appeal was not from a dispossessory proceeding but from the confirmation of the arbitration award. Applying the general principle that the subject matter of the litigation, rather than the relief sought, governs appellate procedure, id. at 522, we found that the action began as a dispossessory proceeding and the appellant sought to obtain legal rights and benefits provided under the dispossessory statutes. The action therefore remained a dispossessory proceeding even in the context of confirmation of an arbitration award. Id. at 522-523. We note that payment of rent into the registry of the court was made a part of the arbitration award. Id. at 523.

Here, in contrast, the underlying subject matter was no longer a dispute over possession of the premises, as that issue was resolved once America Net surrendered possession and ceased to pay rent into the registry of the court. And the appellant here, unlike the appellant in Wright, did not initiate the action and did not seek to rely on the provisions of the dispossessory statutes up to the time of its appeal. It was therefore possible for the parties to stipulate to the transfer of the contractual dispute to the state court, leaving the summary provisions of the dispossessory statutes behind.

This conclusion is supported by the outcome in Atlanta J’s, supra. In that case, a landlord filed an action in superior court seeking to recover amounts due under a lease. While that action was pending, the landlord also sought and obtained a writ of possession in a separate action in the magistrate court. We held that principles of res judicata prevented litigation of the amounts due under the lease in superior court, because those claims should have been asserted in the dispossessory action. Id. at 419.

In light of the holding in Atlanta J’s, the procedure employed by the parties here is the only certain method by which parties may convert litigation on a dispossessory warrant to a conventional contract action under a lease, once possession of the premises is established. Otherwise, once an action was filed as a dispossessory action, it would always retain that character regardless of the issues in dispute or the wishes of the parties, because any attempt to litigate contract claims separately in a court of record would be barred by res judicata.

U. S. Cover’s motion to dismiss is therefore denied.

2. We next consider the trial court’s grant of summary judgment in favor of U. S. Cover. The trial court concluded that America Net was in default of its obligations under the lease agreement and that its attempt to renew the lease was ineffective. We agree.

The original lease expired as of June 30,1997. On June 12,1997, Nicholson Construction Company informed U. S. Cover that it did not wish to renew the master lease. At that time, America Net was in arrears on rent for the months of May and June, due on the first of each month. On June 5, in accordance with the lease provisions, U. S. Cover’s counsel sent a certified letter notifying America Net that it was in default for failure to pay rent and demanding payment of all rentals and other charges, including late charges, in cash or certified U. S. funds within ten days of receipt. The receipt for this letter showed a date of June 9. On June 18, America Net attempted to tender three checks drawn on the bank account of Access America, Inc., two for May and June rent in the amount of $2,625, the amount of base rental stipulated in the sublease, and one for July rent under the renewal fate of $2,703.75. This tender did not include any late charges or utility charges as provided in the lease and was not tendered in cash or certified funds as demanded, and it was refused. America Net did not attempt to amend or supplement its tender in the time remaining before the ten-day period for cure expired. On June 27, by letter to U. S. Cover, America Net attempted to exercise its right to renew the sublease. This letter, however, failed to comply with the notice provisions of the lease because the record does not show that it was sent by certified mail or personally delivered. On June 30, U. S. Cover rejected the attempted renewal of the sublease and noted that the lease expired as of the date of the letter.

The trial court correctly found America Net in default under the terms of the lease. America Net’s attempt to cure the default was insufficient for the reasons stated above. And America Net was not justified in withholding rent because U. S. Cover had failed to make necessary repairs on the property, as it contends, because both the lease and the sublease expressly provide that rent shall be paid without deduction or set-off. Under these circumstances, America Net could not withhold rent in lieu of repairs. Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822, 824 (1) (363 SE2d 31) (1987). The affidavit provided by America Net recounting an alleged agreement to withhold rent pending a roof repair is an impermissible attempt to vary the express terms of a written agreement by parol evidence. See Ga. Assn. of Educators v. Paragon Productions, 238 Ga. App. 681, 682-683 (1) (520 SE2d 37) (1999). While America Net sent a letter to U. S. Cover threatening to withhold rent pending repairs and specific accommodations to 20 separate demands, U. S. Cover responded with a letter rejecting any attempt to withhold rent on this basis.

We also agree with the trial court that America Net’s attempt to renew the lease was ineffective. The renewal provision in the addendum to the master lease did not explicitly provide that the renewal option could be exercised only if the tenant was not otherwise in default under the lease. Such cases as Leah Enterprises v. Chouinard, 189 Ga. App. 744 (377 SE2d 514) (1988), therefore, are not directly on point. But this omission in the renewal clause did not enable America Net to exercise the renewal option regardless of its default under the contract. The master lease provided that upon the happening of any “event of default during the term of this lease, or any renewal or extension thereof (emphasis supplied), including failure “to pay the rental as provided for herein,” the landlord was authorized to pursue any one or more enumerated remedies, including termination of the lease upon proper notice and an opportunity to cure. The landlord did so, and the termination was equally applicable to any attempted renewal because the default was never cured by America Net. And

a plaintiff whose breach of a contract is so material as to amount to a repudiation of the contract itself, may not recover upon breach of such contract by the defendant (see Smith v. Monroe, 82 Ga. App. 118, 121 (60 SE2d 790) [(1950)]; Smith v. Ga. Loan &c. Co., 113 Ga. 975 (39 SE 410) [(1901)]).

McCoy v. Buckhead Clinic Professional Assn., 123 Ga. App. 853, 856 (1) (182 SE2d 798) (1971); Marcre Sales Corp. v. Jetter, 223 Ga. App. 70, 72 (1) (476 SE2d 840) (1996). While America Net contends this rule is confined to employee noncompetitive agreements, this is not an accurate statement of the law, as shown by the cases cited in McCoy, supra. Smith v. Monroe, supra, involved an agreement to publish a book, and Smith v. Ga. Loan &c. Co., supra, was an action on a note.

3. Finally, America Net contends the trial court erred in enforcing the double rent provision of the lease. But the master lease provides:

If tenant remains in possession of the premises after expiration of the term hereof without landlord’s acquiescence, tenant shall be a tenant at sufferance and commencing on the date following the date of such expiration, the monthly rental payable under paragraph 3 above shall for each month ... be twice the monthly rental otherwise payable under paragraph 3 above.

This provision is not a penalty but simply a contract term, and it does not violate public policy. First Capital Institutional Real Estate &c. v. Pennington, 186 Ga. App. 617, 618 (368 SE2d 165) (1988).

The trial court did not err in granting partial summary judgment in favor of U. S. Cover and denying summary judgment to America Net.

Decided March 28, 2000

Banks, Stubbs & Neville, John R. Neville, for appellant.

J. Arthur Lee, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       This stipulation was, as discussed below, not a correct statement of the law.

       This Code section was amended in 1998 to change the time for appeal from ten to seven days. Ga. L. 1998, p. 1380, § 4.

       The magistrate courts of Georgia are not courts of record, and this can raise procedural issues that parties may wish to avoid. See Bowen v. Ball, 215 Ga. App. 640, 642 (451 SE2d 502) (1994).

       We therefore do not reach U. S. Cover’s contention that America Net could not exercise the renewal clause once the lessee/sublessor, Nicholson Construction Company, declined to renew the master lease. See Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777 (300 SE2d 180) (1983).


author: Pope, Presiding Judge.

text:
    A99A2383.
    JACKSON v. DOE.
    (532 SE2d 761)
   Pope, Presiding Judge.

Vassie Jackson filed suit for personal injuries one day before the running of the statute of limitation. The court dismissed her suit for failure to serve the defendant within the statute of limitation. Relying on OCGA § 9-11-4 (c), the court found that Jackson failed to diligently serve the defendant within five days of filing the complaint and that therefore service did not relate back to the time of the complaint. But the five-day time limit in OCGA § 9-11-4 applies to the process server, not the plaintiff, and therefore the court applied the wrong standard.

Jackson filed suit against an unknown person in the Superior Court of Washington County on December 15, 1998; the limitation period expired the next day. The record reflects that seven days later, the Fulton County Sheriff’s Department received the summons and complaint for service on Jackson’s uninsured motorist carrier. The sheriff indicated on his “Entry of Service” dated December 23 that Cotton States Mutual Insurance Company could not be found in the jurisdiction. The entry of service was returned to Jackson, but the record does not reflect how or when. On January 13, 1999, Jackson returned the summons and complaint to the same sheriff with instructions that service should be reattempted. Cotton States was served on February 2, 1999, and it appears that the address was correct all along.

The trial court held that there was no evidence that Jackson acted diligently in relation to the seven days that it took to get the summons and complaint to the sheriff of Fulton County, such as using expedited mail. The court relied on cases applying the five-day requirement of OCGA § 9-11-4 (c) to plaintiffs. These cases provide that if a plaintiff files a complaint just before the expiration of the statute of limitation but service is not perfected within the limitation period or five days of the complaint, the plaintiff must show that he or she acted diligently to ensure that service relates back to the filing of the complaint.

But the Supreme Court has clarified that OCGA § 9-11-4 (c) imposes a five-day burden on the process server, not the plaintiff.

OCGA § 9-11-4 (c) provides a time frame for performance by the process server once service is sought, but does not provide a time limit within which service must be initiated by the plaintiff. Thus, “the mere time lapse” between the date of filing and the date of service is not a valid basis for dismissal.

(Emphasis supplied.) Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995), citing Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975). This holding reflects the language of OCGA § 9-11-4 (c):

When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.

(Emphasis supplied.) Id.

Thus, the principle of law controlling whether service was timely is whether the plaintiff acted diligently:

Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that [s]he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If [s]he were, of course [s]he would be barred, but if [s]he acted in a reasonably diligent manner then [s]he would not be.

(Citations and punctuation omitted.) Freemon v. Dubroca, 177 Ga. App. 745 (2) (341 SE2d 276) (1986). See also Childs, 134 Ga. App. at 781. “The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Freemon, 177 Ga. App. at 746 (2).

Decided March 28, 2000.

Robin Shipp-Matos, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellee.

Relation back is not dependent on whether service was accomplished within five days of the filing of the complaint. Therefore, a plaintiff need not use express mail in order to meet a five-day deadline. Accordingly, we remand for further proceedings consistent with this opinion.

Judgment reversed and remanded.

Smith and Miller, JJ, concur.

       See also Deloach v. Hewes, 211 Ga. App. 321, 322 (439 SE2d 94) (1993) (it is the statutory duty of the marshal’s office to accomplish service within five days, not the plaintiff’s duty to accomplish service within five days of filing their complaint).


text:
    A99A2436.
    ALFORD v. THE STATE.
    (534 SE2d 81)
   Smith, Judge.

A jury found Sammy Alford guilty of rape, incest, and cruelty to children. In considering and denying Alford’s motion for new trial, the court merged Alford’s convictions and sentences for incest and rape. In this appeal, Alford challenges the sufficiency of the evidence relating to each crime and contests two evidentiary rulings. Having found no merit to these asserted errors, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Alford no longer enjoys the presumption of innocence. Rhodes v. State, 221 Ga. App. 792 (470 SE2d 790) (1996). Viewed in that light, the State’s evidence was as follows. On December 28, 1996, the victim, Alford’s minor daughter, was sent from Atlanta by her mother to Woodbury to live temporarily with Alford, her father. The victim’s parents had divorced in 1982 when the victim was two years old. Her mother believed that a change in her daughter’s environment would be beneficial, even though Alford had not seen his daughter in several years. According to the victim’s mother, Alford told her he had changed, was a “different person,” and “wanted the chance to be a father.” Just three days after the victim’s arrival in Alford’s home, she and Alford became embroiled in a vehement argument. The victim threatened to call police and to go back home to her mother in Atlanta. According to the victim, soon after this argument, at about 3:00 a.m. on New Year’s Day, Alford entered her bedroom and forced himself on top of her. She testified that “he took his pants down, and he raped me.” She testified that he “put some lotion on his penis, and then stuck it into me.” The victim also testified that “he put spit on his finger and put his finger inside of my vagina.”

Ruby Kate Martin, Alford’s live-in girlfriend, disclosed that Alford arrived home late on the night in question and “was drunk” after being out drinking for several hours. Martin told an investigator that shortly before these crimes, she saw Alford slapping, choking, and throwing his daughter on the bed. Martin’s version of events corroborated substantial portions of the victim’s account. Although Alford admitted being in the victim’s bedroom, he denied raping his daughter or having improper sexual contact with her.

1. Alford contends the evidence was insufficient to show he raped his daughter. He claims the State failed to prove “penetration of the female sex organ by the male sex organ” as required by OCGA § 16-6-1 (a). He further urges that no evidence corroborated the victim’s spurious allegations. He asserts the scant evidence failed to exclude every reasonable hypothesis except guilt. We disagree.

A victim’s testimony, even without more, can be sufficient to sustain a conviction. Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790) (1993). Here, the victim explicitly testified that Alford “raped” her and had “stuck it into me.” When asked, “you said that he put his penis into your vagina[,]” the victim responded, “[r]ight.” This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain Alford’s conviction for rape. Williams v. State, 218 Ga. App. 743, 744 (3) (463 SE2d 58) (1995).

2. Alford asserts that the evidence was insufficient to establish his conviction for incest because the State failed to prove that he engaged in sexual intercourse, an essential element of the offense of incest. OCGA § 16-6-22 (a). Since sufficient evidence existed to prove the occurrence of sexual intercourse as discussed above, we find no merit to this claim. OCGA § 16-6-22 (a) (1). Raymond v. State, 232 Ga. App. 228, 229 (1) (501 SE2d 568) (1998) (evidence of even slight penetration sufficient to satisfy the intercourse element of incest).

3. Alford contends the evidence was insufficient to sustain his conviction for cruelty to children. He claims that the State failed to prove he caused excessive mental pain by raping his daughter as alleged by the indictment. OCGA § 16-5-70 (b).

The indictment charged Alford with the offense of cruelty to children in the first degree by “unlawfully and maliciously causing] [the victim] a child under the age of eighteen (18) years, EXCESSIVE MENTAL PAIN ... by RAPING SAID CHILD.” While conceding that the victim testified to being “uncomfortable,” Alford claims that a feeling of discomfort does not constitute being treated with excessive cruelty as alleged by the indictment.

What constitutes cruel or excessive physical or mental pain must be resolved by a jury. Sims v. State, 234 Ga. App. 678, 679 (1) (a) (507 SE2d 845) (1998). Alford’s argument fails to take into account that a determination of what constitutes excessive mental pain need not depend solely on the victim’s testimony. Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74) (1993).

The victim explained that she did not scream or “cry out” or try to run because her father was drunk and “acting very weird” and she was afraid. She testified that earlier that same night he had threatened to kill her and she “was fearful of [her] life.” Also, the victim’s therapist, Georgiana Bagley, who counseled her on numerous occasions for over a year, described the victim as very depressed and suffering from recurrent flashbacks. According to the therapist, at times the victim would become hysterical, fearful, and suicidal and needed “lots and lots of support.” She described the victim as “very pained.” Having viewed the evidence in the light most favorable to the jury’s determination, we conclude that the standard of Jackson v. Virginia, supra, was met. Id.

4. Alford contends the State twice improperly bolstered the victim’s credibility by allowing two expert witnesses to testify generally about her credibility.

“The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. Under no circumstances may the credibility of one witness be bolstered by the opinion of another witness, including an expert, that the witness is telling the truth. Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). “[A]n expert witness may not put his or her stamp of believability on the victim’s story [Cit.]” State v. Oliver, 188 Ga. App. 47, 50-51 (2) (372 SE2d 256) (1988). But an expert witness may testify generally about the ability of children of certain ages to distinguish fiction from reality. Id.

In this case, Pat Highsmith Lawyer, a psychologist working as a forensic interviewer, stated that in 1997, she had interviewed more than 275 children. Lawyer testified in general terms about teenagers and their truthfulness about such highly personal issues. When Lawyer was asked by the prosecutor to talk to the jury about “basically what a teenager goes through when they bring forth an allegation of sexual abuse,” Alford objected. After the prosecutor argued, “I think she is more than qualified as an expert to testify to the behavioral problems and things that teenagers go through,” the trial court overruled the objection. Alford did not renew his objection or move for a mistrial. He therefore waived his objection. Mims v. State, 191 Ga. App. 628, 630 (2) (382 SE2d 414) (1989) (failure to renew objection and move for mistrial results in waiver).

Decided March 28, 2000.

Thomas R. Morgan, Jr., for appellant.

Alford also claims that during the prosecutor’s direct examination of Deputy Jeannie Griggers, an investigator assigned to crimes against children, the prosecutor impermissibly attempted to bolster the victim’s credibility. When the prosecutor asked Deputy Griggers about her investigation of false accusations, she explained that sometimes children do make false allegations, so she looks for “holes in the story, major gaps.” When the prosecutor asked her, “[w]hat do you look for when you are determining that the allegations are indeed true when you speak with children,” Alford objected to this line of inquiry. The trial court overruled the objection, and the witness explained that the accounts of children are often jumbled and resemble puzzles that must be pieced together. After the court’s ruling, Alford again neither renewed his objection nor moved for a mistrial. This objection was therefore waived as well. Mims, supra; Garrett v. State, 184 Ga. App. 593, 594 (2) (362 SE2d 150) (1987).

5. Alford asserts the trial court erred by limiting questions about the victim’s mode of dress at the time of the rape and by not allowing him to cross-examine statements made by the victim. He claims he should have been allowed to introduce this evidence to show the victim’s state of mind.

Under the rape shield statute, evidence of the past sexual behavior of a victim is generally inadmissible either on direct or cross-examination of the complaining witness. OCGA § 24-2-3 (a). Inadmissible past sexual behavior includes “evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, [and] sexual mores contrary to the community standards.” Id. The trial court therefore properly refused to permit Alford to introduce evidence or to make inquiry about the mode of the victim’s dress on the night of the rape. OCGA § 24-2-3.

Alford argues that the trial court refused to permit cross-examination of statements made by the victim, but he has failed to support his claim with any citation to the record or with any argument or citation of authority. This unsubstantiated claim is therefore deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2). Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Julianne W. Holliday, Assistant District Attorneys, for appellee.

       The jury was also shown a videotaped interview of the victim conducted by a forensic interviewer.


author: Johnson, Chief Judge.

text:
    A00A0076.
    SANDERS v. THE STATE.
    (534 SE2d 78)
   Johnson, Chief Judge.

A jury found Roger Lee Sanders guilty of selling cocaine. On appeal, he contests the denial of his motion for directed verdict of acquittal and claims that the verdict is contrary to the law and the evidence and that the verdict is against the weight of the evidence. He claims that the state failed to show chain of custody as to the cocaine and as to a videotape of the transaction and that the state failed to prove he was the seller of the drugs. We find that the state produced sufficient evidence regarding the chain of custody of the cocaine, that no chain of custody was required as to the videotape, and that a rational trier of fact could find from the evidence that Sanders was guilty beyond a reasonable doubt of selling cocaine. Therefore, we affirm his conviction.

On appeal, we apply the same standard in reviewing the denial of a motion for directed verdict of acquittal as we do in reviewing the sufficiency of the evidence: that is, whether, after considering the evidence in a light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Yawn v. State, 237 Ga. App. 206 (515 SE2d 182) (1999).

Viewed in a light most favorable to the verdict, the evidence shows that drug enforcement agents enlisted the help of two confidential informants in making a controlled drug buy. On February 25, 1998, at about 3:45 p.m., the agents searched both informants and the male informant’s car for money and contraband and found none. The agents set up audio surveillance and video equipment in the informant’s car. They gave the female informant $20, which she was to use to buy crack cocaine.

The informants drove into the targeted area, and, at approximately 4:15 p.m., the informants saw Sanders. The female informant had known Sanders for about five months. Her male companion had known Sanders “for years.” After the trio chatted briefly, the female informant asked Sanders if he had “anything.” Sanders replied that he had one piece of crack cocaine. He handed a piece of crack cocaine to the female informant, who in turn gave him $20. The agents monitored the conversation via audio surveillance equipment.

The informants returned to the agents’ location, where the female informant gave the female agent the cocaine. The agents searched the couple and the informant’s car and found nothing. The female agent placed the cocaine in a plastic bag and sealed it with evidence tape. She wrote the date, a case number, and her initials on the evidence tape, then placed the evidence bag in the trunk of her police car. She removed the bag from the trunk of her car and put it in a vault at the station on March 2, 1998. The bag remained in the vault until March 25, when the agent transported it to the state crime lab for analysis. She placed the evidence bag in a.locked cabinet at the crime lab.

On March 27,1998, a forensic chemist at the crime lab retrieved the bag from the locked cabinet. She tested the substance and concluded that it was cocaine. The evidence bag remained in the possession of the crime lab until it was brought to trial.

The videotape which recorded the transaction was removed from the informant’s car on the day of the sale by one of the agents involved in the transaction. The agent labeled the tape with her initials, the date, time, case number, and evidence sheet number and kept it in her custody and then in a vault. The agent testified that the video equipment was working properly on the day of the sale, that she viewed the tape, that it depicts the transaction that occurred that day, and that the tape had not been altered. Before the tape was shown to the jury, the female informant testified that she viewed the tape, that it fairly and accurately represents the transaction, and that it did not appear to have been altered in any way. The other informant also testified that he viewed the videotape and that it accurately depicts what happened on the day of the sale.

1. Sanders claims that the state failed to show a proper chain of custody because: the cocaine was left in the agent’s car trunk for several days after the sale; a month passed between the time the cocaine was sold and the date it was delivered to the state crime lab; the informants were drug users and may have given the agent cocaine they had hidden in the car before the sale; and the videotape may have been tampered with. These arguments present no grounds for reversal.

In order to show a chain of custody adequate to preserve the identity of fungible evidence, the state must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. Slade v. State, 222 Ga. App. 407, 408 (1) (474 SE2d 204) (1996). The state is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. Id.

(a) The cocaine. The state traced the travels of the cocaine from Sanders’ hands to the state crime lab. At every point, the cocaine was clearly marked and well secured. Although we do not encourage officers to routinely leave evidence in a police car for days after the crime, there is no evidence in this case that the substance admitted at trial was tampered with in any way. The state has given reasonable assurance of the identity of the evidence. See Redding v. State, 239 Ga. App. 718, 722 (5) (521 SE2d 840) (1999).

Decided March 28, 2000.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

(b) The videotape. Nor was there error in admitting the videotape. Distinct physical objects that can be identified and differentiated by the senses of observation, such as videotapes, are not subject to the chain of custody requirement. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993); Johnson v. State, 231 Ga. App. 823, 826 (4) (499 SE2d 145) (1998). The testimony of the informants and the agent was sufficient to identify the tape. Sanders’ chain of custody argument is therefore without merit.

2. Sanders’ contention that the state failed to prove that he was the person who sold the informant the cocaine also lacks merit. A police officer testified that he watched the videotape and that he recognized Sanders, whom he had known for years, as the seller shown on the tape. Both informants testified that they had known Sanders months or years before the sale and identified him at trial as the seller. A rational trier of fact could have found beyond a reasonable doubt that Sanders was guilty of selling cocaine. See Ellison v. State, 233 Ga. App. 637, 638 (1) (504 SE2d 779) (1998).

3. Based on the foregoing, the trial court did not err in denying Sanders’ motion for directed verdict of acquittal on any of the grounds enumerated.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A99A1663.
    SINYARD v. THE STATE.
    (531 SE2d 140)
   Pope, Presiding Judge.

Benny Ray Sinyard was convicted of theft by conversion after he agreed to invest $45,000 for Opal Nelson but never returned or accounted for the funds. On appeal, Sinyard claims that the State failed to prove an element of the crime, that the jury pool was tainted by a prospective juror’s statement, and that he received ineffective assistance of counsel. The victim testified that in February 1997, Sinyard told her that he worked for American Income Life Insurance Company and that it had a brokerage section called “American Income Services.” He promised that if she gave him $10,000 to invest for one year, she would get $30,000, including her investment, and that she “may get even more than that.” He stated that the return was “one-hundred percent” guaranteed and that she could get her money back at any time. She did not see any documentation of the investment, and she conceded at trial that she did not know the nature of the investment, but she agreed and gave him $10,000 cash. Sinyard signed a receipt for the investments, handwritten by Nelson, promising to return the entire principal at any time Nelson requested. He had refused to sign a receipt that mentioned the $20,000 return.

Three weeks later Sinyard again approached Nelson and told her that if she invested another $10,000, she would receive interest in the amount of $1,000 per month. She accepted and made three payments totaling $10,000. On one of the checks, Sinyard told Nelson to write that it was payment for a fence, and she wrote “fence” in the memo area. Two of the checks, which Nelson made out to Sinyard, are signed by Sinyard on the back below an endorsement stating, “for deposit only.” Sinyard signed another receipt, also handwritten by the victim, promising to return the entire principal at any time Nelson requested.

In April, Sinyard again approached Nelson and told her that he was going to invest $900,000 that he had received from some doctors and lawyers, and he said, “Opal, you ought to get in on this; minimum is $25,000.” She gave Sinyard a $25,000 check. Nelson had to go to his office to get him to sign another handwritten receipt, in which he promised to return the principal plus interest in one month.

Despite her requests, Sinyard never returned any of the money from the first investment. As for the second investment, she received only one “interest” payment of $500. In response to her questions, Sinyard told Nelson that he had the money invested, that $500 was all she was going to get, and that, “that was the end of it.” He also refused to return the principal. Nelson never saw her $25,000 investment again and never got any interest. In response to her demands to return the money, Sinyard told her he had cashed a check — ostensibly some sort of return on the investments — but he was afraid that it was going to bounce. Eventually, Nelson demanded in writing that Sinyard return all of her money. Sinyard never complied.

1. We first address whether the State proved the elements of the crime.

Under OCGA § 16-8-4 (a), to convict for theft by conversion the State must prove the following elements: (1) the defendant “lawfully obtained funds or other property of another . . . under an agreement ... to make a specified application of such funds . . .”; (2) the defendant “knowingly convert [ed] the funds ... to his own use”; (3) “in violation of the agreement. . . .”

There is no question that Sinyard received the money. The only question is whether there was evidence that he converted the money to his own use. Although it would be better practice to present specific evidence showing where the money went, we hold that the evidence in this case was sufficient to authorize the jury to infer that Sinyard converted the money to his own use. It is true that Nelson admitted she had no proof that Sinyard failed to invest her money or that he bought anything for himself with the money. And, she plainly admitted she did not know what he did with the money. But Nelson testified to many facts which could lead a rational juror to conclude beyond a reasonable doubt that Sinyard fraudulently converted the money. Therefore, the evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

With Sinyard’s “investments,” none of the standard paperwork evidencing an investment was furnished to Nelson. In fact, she herself had to handwrite receipts for Sinyard to sign. And although Sinyard guaranteed highly improbable returns, he refused to sign a receipt to that effect. He even told her to write on one check that it was payment for a fence. Further, he had her make the checks out to him personally, not to an investment company or his life insurance company. He deposited at least two of the checks into a personal account, and although this was consistent with the fact that the checks were made out to him, that fact too raises an inference of wrongdoing under the circumstances.

In Baker v. State, 143 Ga. App. 302 (238 SE2d 241) (1977), this Court held that the jury was entitled to infer from the collective evidence that the defendant had intended to convert a church’s funds to his own use. The evidence showed that the defendant failed to use the church’s money to pay a bill that the money was intended for; rather, he used money that he had borrowed from others. Id. We held that the jury could infer from the fact that the bill was paid with borrowed funds that the defendant had appropriated the money to his own use. Id. at 304.

“OCGA § 16-8-4 is intended to punish fraudulent conversion, not breach of contract, and in order to avoid the constitutional prohibition against imprisonment for debt the State must prove fraudulent intent.” Scarber v. State, 211 Ga. App. 260 (439 SE2d 83) (1993). Construing the facts in this case in favor of the verdict, we hold that like in Baker, the jury was authorized to infer fraudulent intent based on the circumstances of the transaction.

Cases cited by Sinyard are distinguishable from this case. None contain the type of outlandish promises and irregular procedures found in this investment transaction. See Scarber, 211 Ga. App. 260 (defendant had not accounted for furniture left with him on consignment; improper for the jury to infer fraudulent intent from victim’s testimony that she thought defendant was avoiding her); Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993) (defendant failed to return rented video equipment; no evidence of fraudulent intent); Tchorz v. State, 197 Ga. App. 185 (397 SE2d 619) (1990).

Decided March 10, 2000

Reconsideration denied March 29, 2000.

Theft by conversion. Pulaski Superior Court. Before Judge Mullis. Nicholas E. White, for appellant.

2. Sinyard also argues that he is entitled to a new trial because the entire jury pool was tainted by a comment made by one prospective juror during voir dire. That prospective juror responded to a question put to the panel by stating that a friend of hers had been cheated by Sinyard. Sinyard’s attorney moved for a mistrial, but the court denied the motion. The court gave a lengthy curative instruction.

The test to be applied is whether the remarks were “inherently prejudicial and deprived [defendant] of his right to begin his trial with a jury ‘free from even a suspicion of prejudgment or fixed opinion. . . .’ [Cit.]” (Emphasis omitted.) Lingerfelt v. State, 147 Ga. App. 371, 373 (1) (249 SE2d 100) (1978).

Here, even with the curative instruction the statement is prejudicial. As stated in Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980):

It cannot seriously be argued that a prospective juror in [a criminal conversion] case could remain neutral after hearing sworn testimony by another prospective juror to the effect that the defendant was reputed to be a [cheat]. If such knowledge was sufficient to authorize the disqualification of the panel member who made the statement, as the trial court evidently concluded, it was necessarily sufficient to require the disqualification of the others.

In Moore, this Court found that a remark by a potential juror in an arson case that the defendant was a “firebug” was prejudicial. Id. In Lingerfelt we found prejudice where the prospective juror in a rape case said he had heard that the defendant was a peeping Tom. Id. at 373 (1). Here, Sinyard was directly linked to criminal activity similar to the charges against him, and the comment implied he was guilty. A new trial is warranted. As a result, Sinyard’s assertion that his trial counsel was ineffective is moot.

Judgment reversed.

Smith and Miller, JJ., concur.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, James E. Turk, Assistant District Attorneys, for appellee.


author: Phipps, Judge.

text:
    A00A0804, A00A0805.
    REDFEARN et al. v. HUNTCLIFF HOMES ASSOCIATION, INC.; and vice versa.
    (531 SE2d 376)
   Phipps, Judge.

Huntcliff Homes Association, Inc. is composed of homeowners in a residential subdivision. Its Board of Directors enforces the subdivision’s Declaration of Covenants and Restrictions. Alec Redfearn and his wife live in a house on Lot 64 and are constructing a new home on Lot 65. The Association complains of the Redfearns’ construction of a retaining wall for a driveway within 25 feet of the boundary line between Lot 65 and adjoining property to the west owned by the Rainwaters. The Association claims that the Redfearns built the wall in violation of the Declaration of Covenants and in breach of an agreement between the parties. The Association sought equitable relief in the form of a mandatory injunction requiring the Redfearns to remove the wall, as well as an award of attorney fees and litigation expenses under OCGA § 13-6-11. The Redfearns maintained that the Board had approved plans and specifications for the retaining wall. They further asserted that the equitable defense of laches barred a grant of equitable relief because the Association did not bring suit until after the wall was built even though it had been put on notice before construction began.

The trial court granted summary judgment to the Association on its claim for injunctive relief but denied the Association’s attorney fee request. In Case No. A00A0804, the Redfearns appeal the summary judgment ruling. In Case No. A00A0805, the Association cross-appeals the denial of its claim for attorney fees. Because the Georgia Constitution states that the Supreme Court shall have appellate jurisdiction of “[a] 11 equity cases,” this case was initially appealed to that court. A divided Supreme Court, however, concluded that this is not an equity case and transferred the appeal to us. We find that the Redfearns did not have a variance for the retaining wall and that summary judgment in favor of the Association on the issue of contract construction was appropriate. However, we find that the trial court erred in not submitting the Redfearns’ defense of laches and the Association’s claim for attorney fees to a jury.

Sections 1 (a) and 4 (b) of Article 5 of the Declaration of Covenants are drawn in issue. In pertinent part, section 1 (a) prohibits erection of any house, wall, or other aboveground structure until the Association has approved plans and specifications showing, among other things, its nature, kind, shape, height, materials, basic exterior finishes, location, and elevations. Section 4 (b) prohibits the erection of any house or appurtenant structure less than 25 feet from the boundary line of an adjoining lot without the Association’s special written permission.

On September 17, 1996, Redfearn made a presentation to the Board requesting approval to build the new home on Lot 65. Board members Bob Kellen, Jack Siewert, and Roger Wach were present at the meeting. As part of the presentation, Redfearn requested a variance authorizing a 20-foot setback from the western boundary line of Lot 65. A decision on the variance request was deferred until a later date.

On October 19, Siewert and other Board members visited the site of the proposed new home. On November 11, the Board informed Redfearn by letter that his request for a variance to allow construction of the home a distance of 20 feet from the adjoining property line was denied. The letter also advised Redfearn that when he developed specific architectural plans for the improvements to the lot “conforming with side-yard setback requirements,” he should submit the plans for approval prior to the commencement of any construction.

On November 19, Redfearn wrote to the Board that he was submitting a “complete set of plans and specifications.” In the letter, Redfearn agreed to maintain a 25-foot setback from the Redfearn/ Rainwater property line. Although the letter additionally stated that Redfearn would “[m]eet all setback requirements,” his submissions included a request for a 15-foot setback from the pool house on Lot 64 to the boundary line between Lots 64 and 65.

The Board then formed an ad hoc committee consisting of Kellen, Siewert, and Wach and gave it authority to approve or deny Redfearn’s November 19 proposal. On December 17, an agreement was negotiated. The agreement was memorialized in a letter dated December 18. In paragraph (a) of the letter, the Association approved Redfearn’s request to construct a house on Lot 65 in accordance with the plans and specifications submitted by him on November 19. Redfeam was thereby authorized to construct a house with a side-entry garage and driveway-turnaround on the western side of the lot. In paragraph (b) of the letter, Redfearn agreed to remove the pool house. In paragraph (e), the Association stated that it was denying Redfearn’s request for a variance “and under no circumstances whatsoever should this approval by the Association be construed as an agreement to issue a variance.”

The Redfeams began construction of the home in February 1997. On March 17, Redfearn sent Wach a letter informing him that the Rainwaters would be complaining about the retaining wall for the driveway-turnaround area. In the letter, Redfearn suggested that Wach “[a]sk the Rainwaters the distance from their retaining walls to the line.” He also commented that “[i]f the Rainwaters had approved my original request of a 20' setback from the property line and the proposed home with a garage entrance from the front of the house . . . , a retaining wall would not have been required to support the current house plan.” Construction of the retaining wall began on or about April 15.

Within the next several days, Rainwater came home from work and observed a concrete wall about twelve feet high, approximately thirty feet long, and within one foot of the western boundary line. He immediately called Siewert. On April 30, the Board faxed Redfearn’s attorney a letter demanding that Redfearn remove the retaining wall and cease any further construction that would require the wall to remain on the lot. By that time, the Redfearns had spent or committed to spend approximately $13,000 for building the wall. After Redfearn refused to remove it, the Association sued.

Finding that the Redfeams had violated the restrictive covenants as well as the parties’ agreement by building the retaining wall, the trial court “reluctantly” concluded that the Association was entitled to the injunction sought. Because the court found no evidence of bad faith or stubborn litigiousness, and because of the expense the Redfearns had incurred, the court declined to award attorney fees.

1. The Redfearns contend that there are material issues of fact on the question whether their agreement with the Association granted approval for them to build the retaining wall within the 25-foot setback.

Redfearn testified that when the Board conducted its October 19 site inspection, the western boundary line of Lot 65 had been staked and the driveway-turnaround area had been partially graded, making it apparent that the driveway-turnaround would be built within the 25-foot setback. Redfearn argues that when the Association granted him permission to build the home in accordance with the plans and specifications submitted on November 19, it approved construction of the retaining wall for two reasons: (1) one of the plats he submitted showed that a driveway-turnaround would be built within the 25-foot setback, and (2) a construction drawing showed that a retaining wall would be built to support the turnaround. Redfearn maintains that the driveway-turnaround is represented on the construction drawing by an area marked “slab” and that the retaining wall is shown by double lines on the western side of the slab. Redfeam also claims that the necessity for constructing a retaining wall was apparent because of the location of the driveway-turnaround as shown on the construction drawing and the steepness of the lot. Redfeam contends that the denial of a variance in the parties’ written agreement related only to the pool house on Lot 64 and not to the retaining wall on Lot 65.

We do not find error in the trial court’s grant of summary judgment to the Association for any reason given by Redfeam. Even if the Board had been put on notice that the driveway-turnaround would be located within 25 feet of the western boundary line, that fact has no per se relevance because the trial court did not order Redfearn to remove the driveway-turnaround. It is undisputed that neither the plat nor the construction drawing relied on by Redfeam, nor any of his other submissions to the Board, made reference to any structure labeled or identified as a retaining wall. There is no merit in Redfeam’s argument that a retaining wall is shown on the construction drawing by a set of double lines on the western side of the slab. Double lines enclose the area marked “slab” on the southern and eastern sides as well, and the retaining wall was built only on the western side. Obviously, the double lines do not represent a retaining wall. The parties’ December 18 written agreement cannot reasonably be interpreted as denying Redfearn’s request for a variance only for the pool house. His request for a variance from the setback between his and the Rainwaters’ properties had been expressly denied in the November 11 letter from the Board, and the parties’ letter agreement explicitly stated that under.no circumstances should it be construed as an agreement to issue a variance.

Even if the Board should have surmised that a retaining wall would have to be built because of the steep topography of the lot or for other reasons, Redfeam did not submit plans and specifications showing the height of the retaining wall, materials to be used, or other information required by section 1 (a) of Article 5. Nor did he receive “special written permission” for a variance from the 25-foot setback requirement for the retaining wall. The parties’ letter agreement states the opposite. In addition, the record shows that after Redfeam obtained the Board’s approval to construct the house, he developed a set of revised plans and specifications which includes explicit drawings and descriptions of the retaining wall. The revised plans were never shown to the Association.

Clearly, the parties’ agreement does not grant Redfeam a variance authorizing construction of the retaining wall within the 25-foot setback between his property and that owned by Rainwater.

2. Redfearn contends that the trial court erred in not submitting the defense of laches to a jury.

Redfearn argues that the March 17 letter to Wach put the Board on notice that a retaining wall would be constructed and that any objection by the Board should have been raised before the wall was built. Wach testified that he provided Siewert with a copy of the letter and, to the best of his recollection, they decided to defer action until there was a specific request for action by either Redfearn or Rainwater.

The Supreme Court, in Beaulieu of America v. L. T. Dennard & Co., held that “[1]aches is peculiarly a factual defense, the resolution of which will rest in the sound discretion of the trial judge, sitting as a chancellor in equity, and without the intervention of a jury. [Cit.]” The rule stated in Beaulieu was, however, disapproved in Redfearn v. Huntcliff Homes Assn. In reliance on cases which predated Beaulieu, the Court in Redfearn held that laches is ordinarily a question of fact properly left to to a jury.

Laches requires a balancing of numerous factors to determine the fairness of the competing interests. On the basis of all matters of record, there is at least slight evidence from which a jury could find that the Board was on notice that a retaining wall would be constructed within the 25-foot setback before the wall was built. Whether the Board is chargeable with laches because it deferred action, rather than making inquiry before construction began, is a question for the trier of fact which, under Redfearn, is the jury.

3. In its cross-appeal, the Association challenges the court’s determination that there was no evidence of bad faith to support an award of attorney fees under OCGA § 13-6-11.

OCGA § 13-6-11 authorizes the jury to award the expenses of litigation to the plaintiff “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Attorney fees may be awarded under the statute where there is bad faith in defendant’s carrying out the provisions of the contract. Where there is at least some evidence to support a claim for attorney fees under OCGA § 13-6-11, the trial judge is bound to submit the issue to the jury. Contrary to arguments advanced by the Redfearns, “[njothing in OCGA § 13-6-11 . . . excludes equity actions from its application. There is no logical reason that such actual damages should be unavailable to equity actions as a remedy. . . .”

Decided March 16, 2000

Reconsiderations denied March 29, 2000

Chilivis, Cochran, Larkins & Bever, Nicholas P. Chilivis, John K. Larkins, Jr., Brian V. Patterson, for appellants.

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Derek W. Johanson, for appellee.

There is ample evidence from which a jury could find that Redfearn could not have believed in good faith that his construction of the retaining wall had been authorized by the Association. Consequently, the claim for attorney fees should have been submitted to a jury rather than summarily rejected by the court.

Judgments reversed.

Johnson, C. J., and McMurray, P. J, concur.

       Art. VI, Sec. VI, Par. Ill (2) of the Ga. Const. of 1983.

        Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999).

       253 Ga. 21 (1) (315 SE2d 889) (1984).

       271 Ga. at 749, n. 20.

       Id. at 754 (Carley, J., dissenting).

        Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (501 SE2d 30) (1998).

        City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (b) (470 SE2d 238) (1996).

        King v. Baker, 214 Ga. App. 229, 234 (4) (447 SE2d 129) (1994) (noting that the Supreme Court of Georgia has chosen not to follow a contrary holding in Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986)).

       Compare Spratt v. Henderson Mill Condo. Assn., 224 Ga. App. 761, 764 (3) (481 SE2d 879) (1997) (where the court awarded attorney fees apparently under OCGA § 9-15-14).


author: Eldridge, Judge.

text:
    A00A0877.
    ODOM v. THE STATE.
    (531 SE2d 207)
   Eldridge, Judge.

Benjamin William Odom appeals from a Richmond County jury’s verdict finding him guilty of aggravated sodomy and aggravated child molestation for sexual acts he perpetrated against his three-year-old stepson. Before this Court, Odom raises a type of challenge that has seen some “success” in terms of reversal and, thus, is raised repeatedly on appeal of sexual abuse convictions: Odom challenges the opinion testimony of each of the State’s expert witnesses, claiming that — in one form or another — the expert’s testimony invaded the province of the jury and improperly bolstered the credibility of the victim.

1. At the onset, there is absolutely nothing wrong with expert opinion testimony that bolsters the credibility of the indicted allegations of sexual abuse, e.g., “the victim’s physical examination showed injury consistent with sexual abuse,” or “the victim’s psychological evaluation was consistent with sexual abuse.” Establishing the credibility of the indicted acts of sexual abuse is what the State’s case is all about and is the purpose for such expert testimony in the first place; the fact that such testimony may also “indirectly, though necessarily, involve [] the child’s credibility does not render it inadmissible.”

What is forbidden is expert opinion testimony that “directly addresses the credibility of the victim,” i.e., “I believe the victim; I think the victim is telling the truth,” Barlow v. State, 270 Ga. 54, 55 (507 SE2d 416) (1998); Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989), or expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the “ken” of the average juror, i.e., “In my opinion, the victim was sexually abused.” Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). Although the distinction may seem fine to a layman, there is a world of legal difference between expert testimony that “in my opinion, the victim’s psychological exam was consistent with sexual abuse,” and expert testimony that “in my opinion, the victim was sexually abused.” Id. In the first situation, the expert leaves the ultimate issue/conclusion for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion which invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused? See Knight v. State, 207 Ga. App. 846 (1) (429 SE2d 326) (1993); Hall v. State, 201 Ga. App. 626, 627 (2) (411 SE2d 777) (1991).

Since the State is required to prove its case, expert opinion testimony often becomes necessary, especially in instances of the abuse of very young children, as in this case. And we have seen these “improper opinion testimony” claims of error again and again on appeal, because (1) the inconsistency of appellate consensus over what constitutes improper opinion testimony has made the raising of such claims worth a try in almost every case, regardless of the merits of the claims; and (2) the State’s prosecutors ask open-ended questions of their experts that inevitably elicit improper opinion testimony regarding either the ultimate issue or the credibility of the victim. In affirming Odom’s conviction, we have an opportunity to review both of these aspects: the utterly meritless claim raised on the chance that it might be taken seriously, and the merited claim of error occurring because of a prosecutor’s question that inevitably called for improper opinion testimony.

(a) Dr. Gwendolyn Smith Psychotherapist/Play Therapist. Odom claims error in Dr. Smith’s foundation testimony that the victim was referred to her for treatment of “[a]lleged child sexual abuse and post traumatic stress disorder.” Odom claims that, if Smith did not believe the victim to be sexually abused, she would not be treating the child; so, Smith’s foundation testimony improperly bolstered the credibility of the victim. Candidly, this contention shows how farfetched' some of these “improper expert testimony” claims can be. Taken to its logical conclusion, no expert (or any witness, for that matter) could testify on behalf of the State, because his or her supporting testimony indicates a belief of the victim that improperly “bolsters” the victim’s credibility.

Needless to say, there is no error in testimony that the young victim was initially referred to Smith for treatment of alleged sexual abuse. Smith did not express an opinion regarding the merits of the referral. If the jury wished to infer from Smith’s treatment of the victim that such referral had validity, that inference impacted on the credibility of the allegations of abuse; the expert did not “directly address” the credibility of the victim or express a direct opinion that the victim was sexually abused. Barlow v. State, supra at 55; Knight v. State, supra at 846.

(b) Dr. Lisa Christenson Pediatric Emergency Medicine Specialist. Odom claims error in Dr. Christenson’s testimony that, “[B]y what he was able to tell me — what a 3 year old boy was able to describe to me, in my opinion, was knowledge that he should not have had; by his physical exam and by his behavior, it was most consistent with a history of sexual abuse.” Odom claims that this testimony was “an affirmative response from the expert that [the victim] has been sexually abuse[d].” No. It was not. Christenson did not testify that the victim had, in fact, been sexually abused. Christenson’s testimony was that the victim’s physical examination and related behavior were consistent with sexual abuse. As such, Christenson’s testimony was a permissible expression of the expert’s opinion based on factors beyond the ken of the average juror. The jury was permitted to draw for itself the final conclusion as to whether the victim had, in fact, been sexually abused. Hall v. State, supra at 627.

(c) Investigator Thelma Gilchrist. Gilchrist testified regarding the circumstances leading to Odom’s arrest. She testified that, “I later received a report from the University Hospital, I think it was Dr. Christenson who did the exam on this child. And her impression documented on that report was that the child’s physical exam was very consistent with sexual abuse.” Pursuant to such investigation, Gilchrist testified that she issued a warrant for Odom’s arrest. Odom contends that Gilchrist’s testimony was hearsay evidence of an expert’s opinion “as to the existence vel non of a fact,” i.e., that Christenson believed the victim had been sexually abused. However, the fact that the evidence was hearsay did not render it inadmissible, since it was in furtherance of Gilchrist’s investigation leading to the arrest of Odom. OCGA § 24-3-2.® In addition, the substance of the hearsay statement was admissible for the reasons addressed in Division 1 (b) above.

(d) Dr. Robert Blackwood Psychiatrist. Dr. Blackwood testified regarding his treatment of the victim for various behavioral disorders the victim began to display. He testified in detail as to how the behavioral disorders manifested themselves at home, at school, and in treatment; he also testified as to the medications the victim was taking to control the disorders, as well as his depression. Following such testimony, the prosecutor asked Blackwood: “Have you been able to attribute a source to the child’s problems?” To which question Blackwood replied, inter alia, “this child, in my opinion, had been sexually abused.” Odom objected, without moving for mistrial. The trial court sustained the objection and told the jury to disregard that portion of Blackwood’s testimony. Defense counsel made no further comments or objections.

Odom contends that Blackwood’s testimony was improper opinion testimony that went to the ultimate issue to be decided by the jury. We agree. And the prosecutor’s question invited such improper testimony; the question was open-ended and begged for the answer received. As long as such errors are made by prosecutors who will not learn the distinctions discussed supra and thus cannot prepare their experts for such distinctions, “improper opinion testimony” claims — with and without merit — will be raised again and again on appeal of sexual abuse convictions. And reversals (in my view, warranted and unwarranted because of the lack of appellate consensus) will be forthcoming, thereby putting the child/victim through the trauma of retrial.

In this case, however, reversal of the jury’s verdict is not warranted for the following reasons:

(i) Odom objected to the testimony, and the trial court sustained the objection. The jury was instructed to disregard the testimony, and no further relief was requested. Odom did not move for mistrial. “When an appellant could have tendered a timely motion for mistrial or requested additional limiting or curative instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.” (Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451 (2) (436 SE2d 562) (1993).

(ii) The trial court directed the jury to disregard Blackwood’s offensive testimony, and jurors are presumed to follow the directives of the trial court, in the absence of contrary evidence.

(iii) The evidence against Odom was overwhelming and included two videotapes of the victim identifying Odom, his stepfather, as the perpetrator and describing sexual acts about which a three-year-old should have no knowledge; strong physical evidence of sexual abuse as described in footnote 3, supra; three outcry witnesses who demonstrated the consistency of the victim’s outcry, including his identification of Odom as the perpetrator; and testimony from two mental health experts who each offered proper, competent testimony that the victim’s outcry and behavior are consistent with that of children who have been sexually abused. We find that Blackwood’s sole improper statement was not such a significant addition to the properly admitted evidence of sexual abuse so as to displace the jury’s minds on this issue and usurp their authority. Accordingly, it is highly probable that the single instance of improper opinion testimony did not contribute to the verdict, especially since the jury was instructed to disregard the testimony.

2. After the start of deliberations, the jury requested to review the videotaped testimony of the victim. The trial court granted the request, played the tapes in open court, and returned the jury to the jury room to continue deliberating. Odom claims that, although he did not request cautionary instructions, the trial court erred by failing to sua sponte issue a cautionary instruction either prior to or following the jury’s review of the tapes.

Decided March 15, 2000

Reconsideration denied March 29, 2000

Jerry M. Daniel, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

“The rule in this state is that the trial judge, in his discretion, may permit the jury at their request to rehear in the defendant’s presence the requested testimony after beginning deliberation. The jury is entitled to designate the testimony which it desires to rehear, in the absence of special circumstances which might work an injustice. While some later cases approve of cautionary instructions they do not demand that they be given so as to require reversal in the event such instructions are not given.”

Accordingly, Odom’s contention is without merit.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        State v. Butler, 256 Ga. 448, 450 (2) (349 SE2d 684) (1986); Pyron v. State, 237 Ga. App. 198, 200-201 (514 SE2d 51) (1999); Hicks v. State, 196 Ga. App. 311, 313 (2) (396 SE2d 60) (1990).

        See Putnam v. State, 231 Ga. App. 190, 194 (498 SE2d 340) (1998) (Beasley, J., concurring specially); see also Hilliard v. State, 226 Ga. App. 478, 481 (487 SE2d 81) (1997); Flowers v. State, 220 Ga. App. 814, 815-816 (468 SE2d 199) (1996), overruled on other grounds, Strickland v. State, 223 Ga. App. 772 (479 SE2d 125) (1996); Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995); compare Cline v. State, 224 Ga. App. 235, 237 (2) (480 SE2d 269) (1997); Knight v. State, supra at 846; Moss v. State, 216 Ga. App. 711, 714 (455 SE2d 411) (1995); Stamey v. State, 194 Ga. App. 305, 306 (390 SE2d 409) (1990).

       Typically in therapy, an expert may have to see the victim for a number of visits prior to being capable of formulating an opinion as to credibility, regardless of the initially stated purpose for the referral.

       A physical examination of the three-year-old victim showed that his rectum was dilated, had decreased tone, and had growths of skin around it, all consistent with forceful penetration of the anus. In addition, at the time of the exam, the victim had bruises on his anterior thighs. The victim told Christenson that “Ben fucked me.”

        State v. Butler, supra at 450; Hawkins v. State, 236 Ga. App. 346 (512 SE2d 59) (1999); Randall v. State, 207 Ga. App. 637, 640 (428 SE2d 616) (1993).

       See Ivester v. State, 252 Ga. 333, 335-336 (2) (313 SE2d 674) (1984).

       As opposed to being framed narrowly as the prosecutor’s proper question to Dr. Christenson was framed, e.g., “Can you offer an opinion as to whether the child’s problems are or are not consistent with sexual abuse?”

       See also Weems v. State, 268 Ga. 515, 516 (2) (491 SE2d 325) (1997); Paz v. State, 239 Ga. App. 278 (1) (521 SE2d 362) (1999) (failure to renew motion for mistrial after curative instructions presents nothing for review on appeal).

        Smith v. State, 267 Ga. 372, 374 (3) (477 SE2d 827) (1996); Garcia v. State, 207 Ga. App. 653, 658 (428 SE2d 666) (1993). See also Castro v. State, 241 Ga. App. 546, 551 (527 SE2d 12) (1999) (Eldridge, J., concurring specially).

        Moss v. State, supra at 714; Stamey v. State, supra at 306.

        Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Castro v. State, supra.

       (Citation omitted.) Farrow v. State, 222 Ga. App. 689, 691 (2) (475 SE2d 706) (1996).