author: Eldridge, Judge. Smith, Presiding Judge, Barnes, Judge,

text:
    A00A1025.
    CALDWELL v. THE STATE.
    (542 SE2d 564)
   Eldridge, Judge.

Following a bifurcated trial, a Fulton County jury found William Caldwell guilty of armed robbery and possession of a firearm by a convicted felon. Finding no error, we affirm his convictions.

Viewed in a light to support the jury’s verdict, the record shows that the manager of the Church’s Fried Chicken restaurant at 2558 Martin Luther King, Jr. Drive, Rose Abdel-Karim, was locking up the restaurant after closing. The cook, Calvin Fletcher, and his girlfriend were also on the scene; Abdel-Karim had asked them to remain until she had finished closing and had gotten to her car. As she was locking the door, a man with a gun came around the restaurant. He approached manager Abdel-Karim; grabbed her purse with the words, “give me the purse, bitch”; and ran into the woods behind the restaurant. Shortly, after the robbery, Caldwell was apprehended as fitting the description given by the witnesses. On the scene, he was identified by all three witnesses as the armed robber. Caldwell then told the arresting officer that he committed the armed robbery to get money for back child support. He led the officer to the victim’s purse, which had been discarded in the woods behind the store; a trail of the victim’s credit cards led directly to the weapon, which had been discarded six feet from the purse. Following the jury’s verdict on the armed robbery count of the indictment, a certified copy of Caldwell’s previous 1983 conviction for armed robbery was put before the jury to support the indicted charge of possession of a firearm by a convicted felon.

1. Caldwell claims the trial court’s curative instructions, given after defense counsel questioned a State’s witness about his alleged participation in the armed robbery, constituted an improper statement of opinion as proscribed by OCGA § 17-8-57. The resolution of this issue requires consideration of the following factual background:

Caldwell’s defense was that “someone else” committed the armed robbery and that he was misidentified by the State’s witnesses. However, defense counsel chose to go farther and suggest to the jury that the actual perpetrator was a friend of one of the State’s witnesses, the cook Fletcher; that Fletcher conspired with this friend to rob the Church’s Chicken restaurant; that the friend showed up at Church’s too late to accomplish the robbery of the restaurant and thus opted, instead, to rob manager Abdel-Karim; and that, because the robbery of the restaurant did not go as planned, Fletcher was somehow forced to pin the robbery of the manager on Caldwell:

[Defense Counsel:] Mr. Fletcher, did you not, in fact, conspire with somebody to rob the Church’s Chicken that night? [Fletcher:] No, I did not.
[Defense Counsel:] Did you, in fact — did not, in fact, a Mend of yours walk up and rob Rose, sir, at gunpoint? [Fletcher:] No. Are you trying to say that’s [Caldwell] my friend? I ain’t never seen that man a day in my life.
[Defense Counsel:] Not Mr. Caldwell, a Mend of yours? [Fletcher:] No.
[Defense Counsel:] Isn’t it a fact that when your Mend bungled the job of robbing the Church’s, that you decided that you would finger someone else?
[Fletcher:] No.
[Defense Counsel:] You said that this happened about 11:00 o’clock at night? . . . And your Mend failed to come to rob the place that you had planned at 10:00 o’clock; is that correct?
[Fletcher:] I don’t know anything about that. I really don’t, serious. I don’t know why you would approach me with these type of questions. I —.

The prosecutor objected to this line of questioning and argued that defense counsel was improperly attempting to cast suspicion on Fletcher based on foundationless questions. By way of foundation, defense counsel asserted that Fletcher had a prior, nine-year-old conviction for armed robbery and that he was reluctant to testify at trial. Counsel argued that such “proof” showed a good faith basis for a conspiracy theory.

A defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must show that the other person has recently committed a crime of the same or similar nature. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.

Here, not only did Caldwell fail to proffer evidence which raised a reasonable inference of his innocence, especially in light of his confession to the offense, but there was no evidence that Fletcher ever committed the type of crime Caldwell accused him of, i.e., conspiracy to commit armed robbery. In fact, Caldwell introduced no “evidence” on this issue at all; the jury was to draw inferences solely as a result of defense counsel’s questions. Without factual basis and through unsupported questions, alone, Caldwell sought to raise a conjectural inference as to the commission of the crime by some unknown third person in conspiracy with Fletcher. Defense counsel’s questioning was tantamount to testifying and was not admissible.

And that is what the trial court found pursuant to the State’s evidentiary objection. The trial court stated:

She [defense counsel] had a wide latitude to cross-examine him; however, when a lawyer asks a question of a witness when that lawyer knows that they have absolutely not one shred of evidence to back up the proposition that is inferred by the question, that’s what is known among the profession as a cheap shot. I can’t stop it, but I can tell the jury what it is, and that’s what I intend to do. Now, if you’ve got any evidence about conspiracy for a third party, bring it on. I want it in if there’s any such evidence. But to ask these questions to try to plant something like that in the mind of the jury when you know you don’t have any evidence for it is just a cheap shot, and I’m going to explain it to the jury.

Defense counsel offered no evidence in support of her contentions.

Thereafter, the trial court gave the following curative instruction, which separated the actual evidence adduced from the improper inferences raised by the inadmissible questions:

Ladies and gentlemen of the jury, please give attention to this. Sometime shortly before we recessed yesterday afternoon, defense counsel asked Mr. Fletcher, who was the witness at that time, a question something to the effect Mr. Fletcher, isn’t it a fact that you conspired with a friend of yours to commit this robbery; and when it was bungled and he ran away, in order to save your own skin, you decided to identify the defendant in this case. Now, defense counsel has the solemn duty to defend her client. She has wide latitude in asking questions and examination and cross-examination, and she wouldn’t be doing her duty if she didn’t do that within the ethical balance of the law. You, as jurors, however, are bound by the evidence. You must not base your verdict on inferences or speculation or anything that is not supported by evidence. The evidence in this case was the witness was asked did you conspire with another person, weren’t you the one behind all of this. The answer to that question was, no. And until evidence is produced to change your opinion about that, the evidence is no.

Defense counsel objected by claiming the judge’s instruction “tried to explain a witness’ testimony” while “[t]he jury is supposed to decide the credibility of the witness and each witness that takes the witness stand.” Thereafter, although not cited to this Court by Caldwell on appeal, the trial court clarified its instruction and addressed Caldwell’s concern by also charging the jury:

There’s another matter I want to clear up with you while we’re here. Earlier in the trial a question was asked of witness Fletcher to the effect, isn’t it true that you conspired with a friend of yours to commit this robbery and that now you’re testifying to get yourself off the hook. I remind you that a question is not evidence and that you must base your verdict on evidence that you heard at trial. I would now elaborate that to say this: You’re bound by the evidence that you hear during the trial, that you believe. In no way did I intend to tell you that you had to believe what any witness had said was true. So please understand that you are always the sole judges of what evidence you will believe or not believe, and this court cannot tell you what you must believe.

Following this second curative instruction, Caldwell did not object or renew his motion for mistrial.

Caldwell’s failure to renew objection following the trial court’s second curative instruction would generally be viewed as a waiver of any alleged violation of OCGA § 17-8-57 on the basis upon which Caldwell objected, i.e., an improper expression regarding the credibility of Fletcher’s testimony. However, in reversing this Court in its recent decision in Paul v. State, the Supreme Court of Georgia announced a new rule of law wherein a claim of error alleging a violation of OCGA § 17-8-57 is not waived by an attorney’s failure to object, if such violation constitutes “plain error”: “[W]e will apply the plain error rule to death penalty cases [ ] and other criminal cases in which the trial court violates OCGA § 17-8-57.” This, although for 25 years the failure to object to an alleged violation of OCGA § 17-8-57 has resulted in the waiver of such claim on appeal. In fact, we have been especially assiduous in applying waiver ever since the Supreme Court of Georgia granted certiorari to vacate an opinion of this Court for not finding waiver:

The Court of Appeals opinion appears to hold that the purported statements require reversal regardless of whether there was a contemporaneous objection entered. The question of whether Code Ann. § 81-1104 [(now OCGA § 17-8-57)] has been violated is not reached unless an objection or motion for mistrial is made. . . . The failure of the appellant to object to the questions or to move for a mistrial at the trial estopped him from raising an objection on appeal.

Notwithstanding such precedent, we will, of course, follow the current mandate of our Supreme Court as articulated in Paul v. State. And although the “plain error” rule is usually applied only in death penalty cases or other criminal cases involving “exceptional circumstances,” we will do as directed and apply such rule to every criminal case alleging a violation of OCGA § 17-8-57. As such, we will determine herein whether those portions of the trial court’s instruction about which Caldwell complains constitute “plain error” and thus require reversal. If not, Caldwell’s claim will be waived. “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.”

(a) Caldwell first claims error in the trial court’s instruction that “[y]ou must not base your verdict on inferences or speculation or anything that is not supported by the evidence.” Although Caldwell failed to object to this portion of the court’s instruction, he now claims that such instruction interfered with the jury’s function as sole arbiter of the credibility of witnesses.

However, this portion of the trial court’s instruction was a correct statement of the law. As such, the court’s statement was not so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or seriously affect the fairness, integrity, or public reputation of the judicial proceeding. Thus, in the absence of “plain error,” Caldwell’s failure to object waives this claim of error.

(b) Caldwell next claims error in the trial court’s instruction: “The evidence in this case was the witness was asked did you conspire with another person, weren’t you the one behind all of this. The answer to that question was, no. And until evidence is produced to change your opinion about that, the evidence is no.” Caldwell contends the trial court’s instruction was an improper expression of opinion as to what had been proved. However,

it must be recognized there is a difference between evidence and proof. Evidence tends to establish or disprove an alleged matter of fact in issue. Proof is the effect of evidence, while evidence is merely the means of making proof. A fact is not proved unless it is established.

In this case, the trial judge neither expressed his opinion nor commented on what was proved. The evidence was that Fletcher testified “No,” he did not conspire to commit the offense. The trial court restated only what the testimony was, absent the improper inferences, and there was no evidence to the contrary. Restating the evidence is not an expression of opinion as to whether that evidence actually proved the fact contained therein. “There is a wide difference between saying that a particular thing has been proved and saying that there has been testimony on that thing.”

The dissent, however, maintains the trial court erred because, “[h]ere the trial court told the jury the effect of the testimony was to deny what Caldwell was trying to establish and that until evidence to the contrary was introduced they were bound by the evidence that ‘the answer is no.’ ” But this does not constitute error. It must be remembered that it was precisely “what Caldwell was trying to establish” through improper questions that the trial court sought to correct through its instructions. Telling a jury that they are bound by the evidence presented at trial, as opposed to factually baseless questions, neither expresses an opinion as to whether the evidence actually proved the fact contained therein nor expresses an opinion as to the credibility of the witness from whom the evidence is derived.

And, in fact, in its second curative instruction to which there was no objection, the trial court specifically stated to the jury that “[i]n no way did I intend to tell you that you had to believe what any witness had said was true[;] . . . you are always the sole judges of what evidence you will believe or not believe, and this court cannot tell you what you must believe.” The jury was then left to determine whether or not to believe Fletcher’s “No,” i.e., whether such evidence was “proved.”

Accordingly, the trial court’s statement was not so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or seriously affect the fairness, integrity, or public reputation of the judicial proceeding. And, as a consequence, Caldwell’s claim of error is waived by failing to renew objection on this issue after the court’s curative instruction with regard thereto.

(c) Caldwell contends that, by virtue of the trial court’s instruction, “the burden of proof that someone other than Appellant committed the offense . . . shifted to the defense.” However, the State never had the “burden of proof that someone other than Appellant committed the offense.” So, such nonexistent burden could not “shift” to Caldwell. Moreover, the court’s reiteration of Fletcher’s testimony that “No,” he did not conspire to commit the offense, in no way relieved the State from proving that Caldwell did commit the offense. Accordingly, the court’s instruction was not so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or seriously affect the fairness, integrity, or public reputation of the judicial proceeding. And, as such, Caldwell’s claim of error is waived for failure to renew objection after the second curative instruction on the issue of Fletcher’s cross-examination testimony.

2. Next, Caldwell challenges the trial court’s ruling on his Bat-son motion as to the State’s use of strikes against two black prospective jurors, Dexter Banner and Carolyn Tanner. We find no merit to such challenge.

There was no showing of a prima facie case of discrimination against the State. However, the prosecutor offered explanation for her use of strikes, asserting that both jurors were struck because each had a brother who had been convicted of robbery and that robbery is “a crime similar to what the defendant is charged with.” The trial court properly found that such explanation was race-neutral.

Caldwell contends that the State’s otherwise race-neutral reason was pretext because “Appellee did not strike a white male number 18, Dale Ashworth who also stated that his brother had been convicted of a crime.” However, the record shows that Ashworth stated he had a deceased uncle who had been convicted of writing a bad check some 15 years earlier. Because writing a bad check is not “a crime similar to what the defendant is charged with,” and Ashworth’s convicted relative was not his brother, Caldwell has failed to show Ashworth was a similarly situated juror so as to cast doubt on the prosecutor’s otherwise race-neutral explanation. Consequently, we cannot say the trial court’s Batson ruling was clearly erroneous.

3. Following a Uniform Superior Court Rule 31.3 (B) hearing as outlined in Williams v. State, the trial court admitted Caldwell’s two prior armed robberies as similar transaction evidence. Caldwell challenges this ruling on several grounds.

In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.

(a) First, on a procedural basis, Caldwell contends that after the USCR 31.3 (B) hearing, the trial court failed to make the three specific findings required by Williams. This issue is waived by Caldwell’s failure to object on such ground at trial.

(b) Next, Caldwell contends that the State failed to show the similarities between the independent offenses and the instant offense so as to establish a probative link. We disagree.

(i) With regard to the introduction of Caldwell’s 1983 guilty plea to the armed robbery of Paschal’s restaurant, Caldwell failed to challenge the similarity of the offense at the time such evidence was introduced. Instead, he objected because the State allegedly failed to prove that Caldwell was the perpetrator of the 1983 armed robbery. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.”

(ii) The State introduced Caldwell’s 1980 guilty plea to the armed robbery of a teller at First Georgia Bank in order to show Caldwell’s course of conduct in using firearms to demand and obtain cash money from personnel at business establishments. In both the independent offense and the instant case, the victims were women; both women were in the course of their employment at the time Caldwell approached them; in both instances Caldwell was armed; in both instances Caldwell called the victim a “bitch” and demanded money; both armed robberies occurred in close proximity, one in downtown Atlanta on Marietta Street and the other in downtown Atlanta on Martin Luther King, Jr. Drive; and in both instances, Caldwell was after cash only. “In determining admissibility of similar transaction evidence, the correct focus is upon the nature of the similarities, if any, between the extrinsic evidence and the crime charged, rather than incorrectly focusing upon any differences that may exist.” We find the State carried its burden of showing a sufficient degree of similarity for admission of this particular similar transaction evidence.

Moreover, in the instant case, Caldwell was caught on the scene; he confessed to the police that he committed the armed robbery; he led the police to Abdel-Karim’s purse; he was identified by all three eyewitnesses as the perpetrator; and his prior armed robbery of Paschal’s restaurant was properly admitted for the jury’s consideration. Thus, we find it highly probable that error, if any, in the admission of Caldwell’s 1980 armed robbery did not contribute to the verdict.

(c) Caldwell contends that the trial court erred in allowing a witness to testify that “shots were fired” during Caldwell’s 1983 armed robbery of Paschal’s restaurant. However, Caldwell’s trial objection was to the admission of evidence that he committed an aggravated assault against two police officers during the 1983 armed robbery. Pursuant to that objection, no evidence was presented that Caldwell fired at the police. Subsequent testimony that “shots were fired” went only to the circumstances surrounding Caldwell’s arrest for the 1983 offense and did not indicate who fired the shots. No objection was registered to such testimony at the time it was offered. Thus, appellate review of the instant contention is waived.

(d) The record is clear that the two additional counts of aggravated assault contained in Caldwell’s 1983 guilty plea were redacted prior to the jury’s receipt of the indictment. We reject Caldwell’s claims to the contrary.

(e) We find no error in the trial court’s charge to the jury on the use of the similar transaction evidence. Caldwell did not request a limiting instruction prior to the admission of such evidence and did not object to the court’s charge when such instruction was given at the State’s request. Any complaints with regard thereto are waived.

Further, contrary to Caldwell’s contentions, the trial court’s subsequent jury instruction at the close of evidence that “you are strictly limited in your consideration of the evidence as to the identity, state of mind, element of the offense charged in this indictment,” makes our decision in Rivers v. State inapplicable to the instant case.

4. There was no error in the trial court’s charge on reasonable doubt which substantially followed the Suggested Pattern Jury Instructions.

5. Likewise, there was no error in the trial court’s denial of Caldwell’s motion to suppress Abdel-Karim’s out-of-court identification of Caldwell. While identification evidence will be suppressed if the procedure used was impermissibly suggestive, Caldwell has not shown that Abdel-Karim’s identification was conducted in such suggestive manner. “On-the-scene showup identifications, like the one here, have been held not to be impermissibly suggestive but necessary due to the practicabilities inherent in such situations.” Also, Caldwell’s claim that Fletcher tainted Abdel-Karim’s identification was soundly denied by Abdel-Karim who repeatedly stated that, without influence from Fletcher, she was “150 percent” sure that Caldwell was the perpetrator. In a suppression hearing, “we defer to the trial court’s determination on the credibility of witnesses.”

6. Caldwell’s cross-examination of State’s witness Sandra Gates eliciting the same testimony which he now claims was inadmissible on redirect waives any enumeration of error with regard to that testimony. “A party will not be heard to complain of error induced by his own conduct.”

7. Those claims of error not contained in Caldwell’s “Argument and Citation of Authority” are deemed abandoned.

Judgment affirmed.

Johnson, C. J., Pope, P. J., and Blackburn, P. J., concur. Smith, P. J., concurs specially. Barnes and Phipps, JJ, dissent.

Smith, Presiding Judge,

concurring specially.

I write specially because, although I agree with the conclusion of the majority and its affirmance of the judgment, I cannot agree with all that is said in the opinion.

After the Supreme Court’s holding in Paul v. State, 272 Ga. 845 (537 SE2d 58) (2000), we must decide whether an alleged violation of OCGA § 17-8-57 was “plain error” and therefore no waiver occurred even if no objection was made. In this case, I cannot conclude that the judicial comment rose to the level illustrated by that in Paul, and I agree with the majority that the defense waived its right to complain on appeal when it did not renew its objection after the curative instruction.

Barnes, Judge,

dissenting.

Because I find the trial court violated OCGA § 17-8-57 by improperly commenting on the evidence, I must respectfully dissent.

1. OCGA § 17-8-57 prohibits the trial judge from expressing or intimating his opinion as to what has or has not been proved or as to the guilt of the accused. Nevertheless, the trial court told the jury: “The evidence in this case was [that] the witness was asked did you conspire with another person, weren’t you the one behind all of this. The answer to that question was, no. And until evidence is produced to change your opinion about that, the evidence is no.” Because this statement unequivocally expresses the trial court’s opinion “as to what has or has not been proved,” Caldwell’s conviction must be reversed pursuant to OCGA § 17-8-57 and the case remanded for a new trial. Ray v. State, 181 Ga. App. 42, 44 (3) (351 SE2d 490) (1986).

This is not a case in which the trial court merely repeated the testimony of a witness. Here, the trial court told the jury the effect of the testimony was to deny what Caldwell was trying to establish and that until evidence to the contrary was introduced they were bound by the evidence that “the answer is no.” This goes beyond saying that there was testimony on this point, and by telling the jury that they were bound by that evidence, the trial court violated OCGA § 17-8-57.

Although the majority contends the court’s “curative” instruction sufficiently remedies this error, this argument misses the point of the curative instruction. The trial court’s statement that, “[i]n no way did I intend to tell you that you had to believe what any witness said was true” neither modifies nor corrects the earlier violation of OCGA § 17-8-57. The trial court’s earlier instruction told the jury that the evidence “was no. And until evidence is produced to change your opinion about that, the evidence is no.” Therefore, the later instruction was not sufficient to correct the initial error.

Further, the discussion whether the trial court’s comment on the evidence constituted plain error is unnecessary. Caldwell properly and promptly objected to the trial court’s violation of OCGA § 17-8-57 when it occurred:

Your honor I have an objection to the instructions that you gave the jury in that I feel that the instructions that you gave the jury was or does have a — taint Mr. Caldwell’s defense in that you have tried to explain a witness’ testimony. The jury is supposed to decide the credibility of the witness and each witness that takes the stand. They are the ones that are supposed to decide. You have inferred that I did something unethical to the jury in your instructions in defense of Mr. Caldwell, which obviously makes it impossible for them to render a fair and impartial verdict; so, therefore, I would ask for a mistrial, that he cannot [get] a fair and impartial verdict based upon your instructions.

This objection was sufficient. Either an objection or a motion for a mistrial will preserve the issue for appellate review. State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978). Therefore, Caldwell did not waive the OCGA § 17-8-57 issue by failing to object again after the trial court’s later instructions. By requiring that Caldwell both object and move for a mistrial the majority is imposing a burden on Caldwell that does not exist in our law. Even assuming failing to object after the curative instruction waived the mistrial issue, such a failure does not waive the OCGA § 17-8-57 violation issue.

2. Therefore, as I find that the trial court violated OCGA § 17-8-57,1 would reverse Caldwell’s conviction and order a new trial.

Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Decided November 20, 2000

Reconsideration denied December 8, 2000.

Angela B. Clarke, Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(Emphasis supplied.) OCGA § 17-8-57.

Accordingly, I must respectfully dissent.

I am authorized to state tha.t Judge Phipps joins in this dissent.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations and punctuation omitted.) Anderson v. State, 238 Ga. App. 866, 873-874 (519 SE2d 463) (1999).

        Billups v. State, 234 Ga. App. 824, 829 (3) (507 SE2d 837) (1998) (“ “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.’ ”).

       272 Ga. 845 (537 SE2d 58) (2000).

       Id. at 849 (3).

       See Pickren v. State, 272 Ga. 421, 426 (8) (530 SE2d 464) (2000); Cammon v. State, 269 Ga. 470, 475 (8) (500 SE2d 329) (1998); Wilson v. State, 268 Ga. 527, 529 (5) (491 SE2d 47) (1997); Waldrip v. State, 267 Ga. 739, 751 (20) (482 SE2d 299) (1997); Rowe v. State, 266 Ga. 136, 137 (2) (464 SE2d 811) (1996); Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995); Gardner v. State, 263 Ga. 197, 200 (429 SE2d 657) (1993); Newton v. State, 259 Ga. 853, 854 (5) (388 SE2d 698) (1990); Walker v. State, 258 Ga. 443, 444 (370 SE2d 149) (1988); Kimbrough v. State, 254 Ga. 504 (3) (330 SE2d 875) (1985); Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979); Davis v. State, 234 Ga. 730, 731 (2) (218 SE2d 20) (1975).

       (Citations and punctuation omitted.) State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978).

        Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). See United States v. Atkinson, 297 U. S. 157, 160 (56 SC 391, 80 LE 555) (1936); Silber v. United States, 370 U. S. 717, 718 (82 SC 1287, 8 LE2d 798) (1962). See also Weems v. State, 268 Ga. 142, 145-146 (11) (485 SE2d 767) (1997).

        Buice v. State, 239 Ga. App. 52, 56 (520 SE2d 258) (1999) (“[a]s this is not a case of plain error, [defendant] waived the error by failing to object”); Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997).

       (Citation and punctuation omitted.) Buice v. State, supra at 56.

       OCGA § 24-9-80.

       See, e.g., OCGA § 24-4-6 (circumstantial inferences must be based on “proved facts”); Strozier v. State, 236 Ga. App. 239, 241 (511 SE2d 295) (1999) (“[c]onvictions in criminal cases must be based on facts and evidence”).

       (Citations and punctuation omitted.) Mooney v. State, 221 Ga. App. 420, 424 (2) (471 SE2d 904) (1996).

        Ridgeway v. State, 174 Ga. App. 663, 667 (7) (330 SE2d 916) (1985).

       (Citation and punctuation omitted.) Thornton v. State, 191 Ga. App. 801 (1) (383 SE2d 181) (1989).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       The defense struck 11 white jurors. The State struck six black jurors. The petit jury comprised eight black jurors and four white jurors, with two black alternate jurors.

        Slade v. State, 270 Ga. 305, 306 (1) (509 SE2d 618) (1998).

        Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263) (1996).

        Roundtree v. State, 270 Ga. 504, 507 (5) (511 SE2d 190) (1999).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       (Citation and punctuation omitted.) Shutt v. State, 215 Ga. App. 617 (3) (451 SE2d 530) (1994). See Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998).

        Willis v. State, 214 Ga. App. 479, 481 (3) (c) (448 SE2d 223) (1994).

        Estep v. State, 238 Ga. App. 170, 172-173 (518 SE2d 176) (1999); Shutt v. State, supra at 617. See also Young v. State, supra at 479.

        Harris v. State, 222 Ga. App. 52, 54-55 (473 SE2d 232) (1996). See also Farley v. State, 265 Ga. 622, 624 (2) (458 SE2d 643) (1995); Nealy v. State, 239 Ga. App. 651, 653 (1) (522 SE2d 34) (1999).

        Tanner v. State, 243 Ga. App. 640, 643 (533 SE2d 794) (2000).

        Anthony v. State, 236 Ga. App. 257, 259 (511 SE2d 612) (1999).

        Turner v. State, 235 Ga. App. 331, 333 (508 SE2d 786) (1998).

       236 Ga. App. 709 (513 SE2d 263) (1999).

        Parker v. State, 242 Ga. App. 10, 12 (2) (528 SE2d 530) (2000).

        Brown v. State, 264 Ga. 48, 49 (3) (a) (441 SE2d 235) (1994).

        Barber v. State, 236 Ga. App. 294, 295-296 (1) (512 SE2d 48) (1999).

       (Citation and punctuation omitted.) Watson v. State, 243 Ga. App. 636, 638 (c) (534 SE2d 93) (2000).

        Bellamy v. State, 243 Ga. App. 575, 577 (1) (b) (530 SE2d 243) (2000).

       (Citations and punctuation omitted.) State v. Barnes, 222 Ga. App. 875, 877 (476 SE2d 646) (1996).

       Court of Appeals Rule 27 (c) (2).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A1256.
    ALBRIGHT et al. v. PETERSON et al.
    (539 SE2d 919)
   Barnes, Judge.

The Albrights, maternal grandparents of D. M. P, appeal the final decree of adoption that denied their petition to adopt D. M. P. and granted the adoption petition of the Petersons, the child’s paternal uncle and aunt. For the reasons that follow, we affirm the trial court’s judgment.

1. The Albrights first contend that the final decree of adoption is void because the juvenile court judge who presided over the consolidated adoption cases was not authorized to do so. The record indicates that the superior court requested that a juvenile court judge be designated to rule upon both adoption petitions. The Albrights claim that in doing so the superior court failed to strictly follow OCGA § 15-1-9.1. Specifically, they argue that there was no statutory basis for requesting judicial assistance, that the chief judge of the superior court did not make the request, that the superior court did not file a written request, and that the juvenile court judge was never appointed “superior court judge pro tempore.”

But where there is no objection to the appointment of a juvenile court judge sitting as a superior court judge before the adoption hearing commences, the issue is not preserved for appellate review. See Troncone v. Troncone, 261 Ga. 662, 663 (3) (409 SE2d 516) (1991). Parties cannot wait until after they see the result of the hearing to challenge a presiding judge’s authority under OCGA § 15-1-9.1. Bennett v. Jones, 218 Ga. App. 714, 715 (1) (463 SE2d 158) (1995). The Albrights have not cited to any place in the record where they raised and preserved this contention. Although they point to affidavits attached to their appellate brief, “a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” Rowe v. Rowe, 195 Ga. App. 493 (1) (393 SE2d 750) (1990). Consequently, this issue was not preserved for appeal.

2. The Albrights contend that the trial court abused its discretion in finding that the Petersons were the proper parties to adopt D. M. P.

In an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion. The purpose of the hearing upon the petition of adoption is to determine the disposition of that petition which is in the best interest of the child.

(Citations and punctuation omitted.) Matherly v. Kinney, 227 Ga. App. 302 (1) (489 SE2d 89) (1997). Pointing to evidence in their favor, the Albrights urge that “given its weight,” the trial court abused its discretion. But questions of credibility and the weight to be attributed to conflicting evidence are matters for the trial court, and we examine only its sufficiency. Bragg v. State of Ga., 226 Ga. App. 588, 589 (2) (487 SE2d 137) (1997); Matherly, supra, 227 Ga. App. at 303 (1). On appeal, we construe the evidence to uphold the trial court’s findings and judgment and affirm if there is any evidence to support the findings. Id.; Bragg, supra, 226 Ga. App. at 589 (“[w]hen even slight evidence supports the trial court’s denial of a petition to adopt, it cannot be held that the discretion residing in that court was abused, particularly if that slight evidence indicates the best interest of the child will be served by denying the petition to adopt”).

So construed, the evidence showed that D. M. P. had been born out of wedlock and the biological father never legitimated her. In March 1998, D. M. P.’s biological mother was killed. At that time, the Albrights were residing in Arkansas. Later that month, the Department of Family & Children Services (“DFCS”) took D. M. P. into protective custody. When the Petersons offered their home, DFCS conducted a home study, and the juvenile court temporarily placed the child with the Petersons. D. M. P. was then 11 months old.

In September 1998, a jury convicted D. M. P.’s biological father of the murder of D. M. P.’s mother. The father was sentenced to life imprisonment. The next month, the father surrendered his parental rights in favor of D. M. P.’s adoption by the Petersons, who petitioned to adopt her on October 6. On January 28, 1999, the Albrights also petitioned to adopt her.

During the hearing on the consolidated cases, a DFCS caseworker, who had visited the Petersons’ home monthly, testified that the Petersons were fulfilling their obligations of caring for D. M. P. and that their home was a proper one for the child. D. M. P, who was 23 months at the time of the hearing, had been living with the Peter-sons since the juvenile court granted them temporary custody. Mrs. Peterson testified that she loved D. M. P., wanted to rear her, and was financially able to do so. She testified that she and her husband had one six-year-old son and that her son and D. M. P. got along like brother and sister.

Decided October 3, 2000

Reconsideration denied December 8, 2000

Westmoreland, Patterson & Moseley, Bradley G. Pyles, William J. Camp, for appellants.

Herbert L. Wells, for appellees.

Although the trial court found that both the Petersons and the Albrights were fit and proper parents for D. M. P, it determined that it was in D. M. P.’s best interest for the Petersons to adopt her. We cannot say that the trial court abused its discretion in doing so.

3. The Albrights contend that the trial court erred in not applying a presumption that they were entitled to adopt D. M. P. because her biological father never legitimated her and had surrendered his parental rights to her. Relying on Lucas v. Smith, 201 Ga. 834 (41 SE2d 527) (1947), they urge that they had the strongest “legal claim” to her. Because Lucas involved custody, not adoption, that case is not controlling. Further, we determined in Division 2, supra, that the evidence showed that the trial court did not err.

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.


author: Phipps, Judge.

text:
    A00A1434.
    BAKHTIARNEJAD v. COX ENTERPRISES, INC. et al.
    (541 SE2d 33)
   Phipps, Judge.

Shahriyar Bakhtiamejad appeals an order of the trial court dismissing his claims for defamation and intentional infliction of emotional distress against Cox Enterprises, Inc. d/b/a the Atlanta Journal-Constitution and staff writer Michael Weiss (hereinafter collectively “Cox”). The court dismissed the case after consideration of Cox’s motion to dismiss for failure to state a claim upon which relief could be granted. We find that the motion to dismiss was converted into a motion for summary judgment, and we reverse because we find that neither summary judgment nor dismissal was warranted based on the allegations in Bakhtiarnejad’s complaint and the evidence in the record. Because we find that the motion was converted into one for summary judgment, we also deny Cox’s motion to dismiss this appeal on the ground that it is premature.

Bakhtiarnejad operated a tae kwon do academy in Gwinnett County. On June 19, 1998, S. R. M., a 15-year-old student at the academy, reported to police that during the previous roughly six and one-half months, Bakhtiarnejad had sexually harassed her, fondled her several times and on one occasion forced her to have oral sex with him. Subsequently, S. R. M. was interviewed by Gwinnett County Detective Michael Mirolli, and on August 19, Mirolli procured arrest warrants for Bakhtiarnejad for child molestation and aggravated child molestation.

Weiss obtained copies of the arrest warrants, pertinent affidavits and an incident report. On August 20, Weiss called Mirolli and said that he wanted to print an article about the matter. Mirolli told Weiss that the charges made in the warrants were based solely on S. R. M.’s statements to police and that Bakhtiarnejad had not been questioned or arrested yet. Mirolli further told Weiss not to print anything until he had heard back from him. After initially saying that he would assume it was okay to print a story if he had not heard from Mirolli by a certain time, Weiss agreed to wait until he had heard back from Mirolli.

Later on August 20, Mirolli interviewed Bakhtiarnejad. Shortly after beginning the interview, Mirolli developed serious doubts about the truthfulness of S. R. M.’s allegations. He took a break in the interview and called Weiss, leaving Weiss a voice message saying “do not print anything” because he probably would be withdrawing the warrants. Mirolli did not hear back from Weiss.

The next morning, Mirolli went before a Gwinnett County magistrate and formally withdrew the warrants. That same day, an article authored by Weiss entitled “Martial Arts Instructor Accused of Molesting Girl” appeared in the Gwinnett County Extra section of the Atlanta Journal-Constitution. The following day, August 22, Weiss published an article in the Gwinnett County Extra entitled “Child Molestation Charges Dismissed.” On August 30, the Atlanta Journal-Constitution published a letter to the editor entitled “Martial Arts Teacher Clearly a Man of Highest Character.”

On October 12, Bakhtiarnejad, through his attorney, demanded a retraction from the Atlanta Journal-Constitution. The Atlanta Journal-Constitution refused, asserting that the information contained in the original article was correct.

On December 17, Bakhtiarnejad filed an action for defamation and intentional infliction of emotional distress against Cox, Mirolli and S. R. M. S. R. M. filed counterclaims against Bakhtiarnejad based on sexual assault. Bakhtiarnejad later voluntarily dismissed Mirolli from the suit.

Cox answered and filed a motion to dismiss for failure to state a claim upon which relief could be granted. It attached numerous documents to its answer and brief in support of the motion to dismiss — the incident report, the warrants, the warrant affidavits, an affidavit regarding pretrial release, the order recalling the warrants, the newspaper articles and written correspondence between counsel regarding Bakhtiarnejad’s demand for a retraction. The motion to dismiss was granted.

Bakhtiarnejad appeals the dismissal of his defamation claim. He does not challenge the dismissal of his claim for intentional infliction of emotional distress.

1. Fair and honest reports of court proceedings and truthful reports of information received from arresting officers or police authorities are considered privileged communications. The court’s order granting the motion to dismiss reflects that it compared the substance of the challenged article to the incident report, the affidavits, the warrants and Mirolli’s answer, which was also a part of the pleadings, and determined that the challenged article accurately reported the contents of the court records and Mirolli’s statements. The court rejected Bakhtiarnejad’s assertion that applicability of the fair report privilege was conditioned upon the absence of actual malice; it further found that Bakhtiarnejad had failed to make specific allegations in support of his claim of actual malice and that the pleadings did not establish any set of facts from which he could make such a showing. Consequently, the court dismissed the defamation claim. It dismissed the intentional infliction of emotional distress claim because a defamation action is the legal remedy where one allegedly is injured by words published to a third person.

“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. [Cit.]” [Cit.]
If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Code section 9-11-56.

The trial court shall give 30 days notice from the time the court considers matters outside the pleadings, sua sponte converting the motion to dismiss into a motion for summary judgment, to permit the respondent an opportunity to respond as required under OCGA § 9-11-56.

However, “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” In considering a motion to dismiss for failure to state a claim for which relief can be granted, a trial court may properly consider exhibits attached to and incorporated into the pleadings.

The court’s order indicates that in addition to considering the attachments to Cox’s answer, it also read Mirolli’s deposition which had not been incorporated into the pleadings. The order states:

[Bakhtiamejad] cites to the deposition of Defendant Mirolli in support of his contention that the Journal-Constitution Defendants acted with actual malice in the present case. Although Defendant Mirolli’s deposition is not relevant to the present motion to dismiss and was not necessary to the Court’s ruling, the Court’s review of the deposition leads it to conclude that nothing contained therein is supportive of plaintiff’s contention that dismissal is improper or that further discovery is warranted. [Cit.]

Despite the declaration that Mirolli’s deposition was irrelevant and unnecessary to the court’s ruling, it was considered by the court and not excluded. Thus, we find that the motion was converted into a motion for summary judgment.

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]”

A study of Mirolli’s deposition reveals that there is a genuine issue as to whether Weiss accurately reported Mirolli’s statements. According to his deposition, Mirolli told Weiss during their phone conversation that the charges leveled against Bakhtiarnejad in the court documents were based solely on the uncorroborated allegations of S. R. M. It further appears that although Mirolli had sworn in warrant affidavits that to the best of his knowledge and belief Bakhtiarnejad had committed acts of child molestation and aggravated child molestation against S. R. M., he was not willing during his conversation with Weiss to go on record as saying the allegations were true. Yet, Weiss printed an article saying:

Bakhtiarnejad fondled the girl and forced her to perform a sex act on him in the women’s locker room of the academy, said Detective Mike Mirolli. . . . Bakhtiarnejad, a friend of the girl’s family, warned her that if she told her parents, she would be disgraced in their eyes, Mirolli said. . . . “That’s what he was holding above her head,” Mirolli said. ... He also threatened to return to his native Iran if police were involved, Mirolli said.

Even taking into consideration the warrant affidavits completed by Mirolli, there remains a genuine issue as to whether Weiss and the Atlanta Journal-Constitution fairly reported Mirolli’s statements.

Decided October 13, 2000

Reconsideration denied December 8, 2000

Wood & Grant, Wayne Grant, Kimberly W. Rabren, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, for appellees.

Furthermore, if we view the court’s order as the resolution of a motion to dismiss for failure to state a claim upon which relief may be granted, still we find that dismissal was not warranted. Bakhtiamejad asserted in his complaint that the article defamed him and that “it did not constitute a truthful report of information received from an arresting officer or police authority.” If the pleadings are construed most favorably to Bakhtiarnejad, the allegations of his complaint do not disclose with certainty that he would not be entitled to relief under any state of provable facts asserted in support thereof. Although pleadings from other parties may have conflicted with Bakhtiarnejad’s assertions, the standard was not met for sustaining a motion to dismiss for failure to state a claim upon which relief may be granted.

For these reasons, we reverse the order of dismissal with respect to the defamation claim and remand this case to the trial court for further proceedings consistent with this opinion.

2. Cox filed a motion to dismiss Bakhtiarnejad’s appeal. It asserts that because Bakhtiarnejad’s and S. R. M.’s claims against one another remain pending in the trial court, Bakhtiarnejad may not yet bring a direct appeal from the dismissal order.

However, an order granting summary judgment on any issue or as to any party is directly appealable. Because we have determined that the trial court sua sponte converted Cox’s motion to dismiss into a motion for summary judgment, we deny its motion to dismiss this appeal.

Judgment reversed and case remanded.

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

       See generally OCGA § 9-11-12 (b) (6).

       See OCGA § 51-5-7 (6), (8); see generally Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 496 (95 SC 1029, 43 LE2d 328) (1975).

       See Munoz v. American Lawyer Media, 236 Ga. App. 462, 465 (1) (b) (512 SE2d 347) (1999).

        Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998).

       OCGA § 9-11-12 (b).

        Nix v. Cox Enterprises, 242 Ga. App. 515, 518 (529 SE2d 426) (2000), cert. granted, Cox Enterprises v. Nix, 242 Ga. App. 913 (2000).

       OCGA § 9-11-10 (c).

       Cf. Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998) (on a motion for judgment on the pleadings, court may consider exhibits attached to and incorporated into the pleadings); Davidson v. American Fitness Centers, 171 Ga. App. 691, 692 (2) (320 SE2d 824) (1984) (motion to dismiss converted into motion for summary judgment because letter considered by court had not been incorporated into pleadings).

       OCGA § 9-11-56 (c).

        Gill v. Cooper Tire &c. Co., 231 Ga. App. 482, 484 (1) (499 SE2d 85) (1998).

       See Mooney, supra.

       Mirolli admitted in his answer to making portions of the statements attributed to him in the article.

       See, e.g., Liberty Mut. Ins. Co. v. Anthony, 233 Ga. App. 463 (504 SE2d 525) (1998).

       See OCGA § 9-11-56 (h); see also Artis v. Gaither, 199 Ga. App. 114 (404 SE2d 322) (1991).


text:
    A00A1725.
    PENA v. THE STATE.
    (542 SE2d 630)
   Phipps, Judge.

Andrew Pena was convicted of one count of child molestation and one count of aggravated child molestation. He appeals the denial of his motion for new trial and asserts seven claims of error related to evidence admitted at trial and actions of the trial judge. Pena has waived several of his claims by failing to raise them in the trial court. Because we find no merit in the remaining claims, we affirm.

In September 1996, the Cobb County Department of Family & Children Services (DFACS) received a complaint that Pena’s wife was abusing their children, E. P, A. R, and U. P. DFACS caseworker Valerie McKenzie and Powder Springs police officer Cheri Brown jointly investigated the allegations. Ultimately they determined that there was not enough evidence to prove that the abuse occurred and closed the case.

In October 1996, DFACS received a report that Pena had been sexually abusing 11-year-old E. P. McKenzie and Brown scheduled an interview with E. R, her mother, and Pena at the Powder Springs Police Department. They first spoke to E. R, who disclosed incidents of sexual abuse by Pena, including an allegation that Pena had made her touch his penis. At that point, they stopped the interview so that they could arrange for it to be taped.

E. P.’s second interview, at the Child Advocacy Center, was taped. During that interview, E. P. said the following: One weekend when E. P. was at home with A. R, U. R, and Pena, E. P. told Pena that her knee was hurting and he told her to go to her room. There Pena began rubbing her knee and then pulled down her underwear and put his fingers on what she referred to as her private area. Before Pena left the room, he told E. P. that “this is between me and you.” E. P. said that she was eight years old at the time. Pena again touched E. P.’s “private area” approximately two weeks later. E. P. was afraid to tell her mother what had happened for fear that she would not care about her anymore.

E. P. also described an incident when she was playing cards with A. P. and U. P. and Pena told her to go to his room. He followed her into the room and told her to lie down on his bed. While she was lying down on her side, Pena pulled down her panties and put his “pito” or “peanut” (her word for his penis) in her “pompas” or “bottom.” E. P. believed that this happened when she was nine years old. Another time, Pena told E. P. to clean his bathroom. When she was finished, Pena told her to get on his bed. When she did so, Pena lifted up her shorts and placed his “pito” in her “pompas.” It happened again when E. P. was reading a book in her room and Pena told her to go to his room and get on the bed. E. P. said that Pena then placed his “pito” in her “bottom” and it hurt.

E. P. said that on Thanksgiving Day 1995, when she was ten years old, Pena came into her room at 6:30 a.m. after her mother had gone to work and tried to wake her up. Fearing that “it” would happen again, she screamed “no,” and Pena left. When her mother came home, E. P. began crying and asked her not to go back to work but would not tell her why.

After the interview, McKenzie and Brown asked E. P. to prepare a written statement. The written statement describes essentially the same events described during the second interview.

E. P. testified at trial and described basically the same events she had described in her interviews with McKenzie and Brown. She was not able to remember exactly when the events took place, except to say that it started when she was “around eight years old.” E. P. said that she did not tell her mother everything that had happened at once. In August 1996, E. P. and her mother were watching a television commercial about children telling their parents about inappropriate touching, and E. P. told her mother that Pena had “touched her in the wrong way.”

After interviewing E. P., her mother, and Pena, McKenzie and Brown developed a safety plan pursuant to which Pena agreed to leave the house while the investigation was ongoing. As part of the investigation, E. P. was physically examined by Dr. DeGrandi, director of the child advocacy clinic at Scottish Rite Children’s Medical Center. He testified that E. P.’s rectal examination results were normal, with no scarring. Dr. DeGrandi also testified that his findings were both consistent and inconsistent with a determination that E. P. had been sexually abused. He testified that a child could be sexually abused by anal intercourse without scarring.

Beginning in October 1996, E. P.’s mother took her to Yael Layish, a child and adolescent therapist and licensed clinical social worker, for counseling. E. P. told Layish about some of the same incidents involving Pena and explained why she initially did not tell her mother about it. Layish described E. P. as anxious, sad, and depressed.

Pena was charged with two counts of child molestation (Count 1 for the period from December 6, 1992, to June 30, 1995, and Count 2 for the period from July 1, 1995, to October 23, 1996) and two counts of aggravated child molestation (Count 3 for the period from December 6, 1992, to June 30, 1995, and Count 4 for the period from July 1, 1995, to October 23, 1996). The State reduced Count 2 (the incident on Thanksgiving Day 1995) to attempted child molestation, and the court directed a verdict of acquittal on Count 4. The jury found Pena guilty on Counts 1 and 3 and not guilty on Count 2.

1. Pena argues that several of the State’s witnesses improperly offered their opinions that Pena was guilty of molesting E. P. He acknowledges that he failed to make timely objections to most of the complained-of testimony, but contends that he preserved the error for appellate review by filing a motion in limine, which the trial court granted. In fact, Pena’s motion in limine to exclude testimony on the ultimate issue — Did Pena molest E. P.? — was never ruled on by the trial court. “[W]hen an appellant fails to invoke a ruling on his motion, he has waived the issue for purposes of appeal. [Cits.]”

Pena nonetheless argues that the admission of the opinion testimony should be reviewed under the plain error standard.

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.
(a) Pena complains about the following testimony from Brown:
THE STATE: Have you ever run across any children in any types of cases who have not told you the truth?
OFFICER BROWN: Yes, I have. In fact, in a couple of cases I have.
THE STATE: How did you determine if they were fabricating or making it up?
OFFICER BROWN: Children have a way of maintaining or being consistent. They will tell you something and you can go back a week later and ask them again. Especially when they talk to other péople in the case, DFACS or whatever, they maintain their consistency. Also, along with their consistency is how they act; how they are acting toward the offender that they are pointing their finger to. Such as, I had a case where the child claimed his father broke his arm. I listened to him and I didn’t believe — there was a part of me that didn’t believe him. There was a gut reaction. I thought something was wrong. I called the paramedic in and the arm wasn’t broke. He just didn’t want to tell his dad he got an F on his report card, but he was ready to send his dad to jail so he wouldn’t have to tell him he got the F.
THE STATE: When you determine a child is lying, what happens to the allegation?
OFFICER BROWN: It is pretty much found unconfirmed.
We unconfirm the case. We put it in a file and if we should receive another referral, we will immediately work it and go back out on it. When they are unconfirmed, we suggest counseling or psychiatric help for that child.
THE STATE: So, you have run into cases where the child has lied?
OFFICER BROWN: Yes, I have.
Pena also complains about this exchange:
THE STATE: How did you close up this interview with the defendant?
OFFICER BROWN: I told Mr. Pena that this was an active case and that I would have to be conducting the interview and at this time I was having some trouble believing his interview and that I needed to look it over and we would have to find some way to make E. P. safe right now because we couldn’t allow him to go back into the home while the investigation was ongoing and Mrs. Pena had requested that he leave so she could maintain the children in school and that the children maintain going to school and the next solution would be removing all the children out to foster care. He didn’t want that to happen.
THE STATE: Why were you having some difficulty in believing some of the defendant’s statements?
OFFICER BROWN: It’s just some of the answers I received.
For example, I did go into an incident, the first incident with him about the knee with the daughter. I asked why he asked her daughter to go upstairs.

The trial court sustained an untimely objection to this testimony.

The first portion of Brown’s disputed testimony merely explains how she determines if a child is being truthful and does not offer any opinion as to Pena’s guilt. Its admission was not erroneous.

The second portion indirectly comments on Pena’s guilt by commenting on his truthfulness during the interview, but its admission is not so egregious as to justify review under the plain error standard.

(b) Pena challenges the following testimony from counselor Layish on redirect examination:

THE STATE: What kind of characteristics or symptoms would a child have that had a False Memory Syndrome? LAYISH: Again, I am going to call it false allegations.
THE STATE: All right. . . . When you were speaking with E. P. in her sessions, did E. P, was she able to communicate to you specific details?
LAYISH: Yes, she was.
THE STATE: Did you notice any symptoms of parroting or repeating want from E. P?
LAYISH: No.
THE STATE: Did E. P. use any inappropriate language? LAYISH: No.

Before this exchange, Pena’s counsel objected to the State’s general questions about false memory syndrome. The court overruled the objection because Pena’s counsel had raised the issue during Layish’s cross-examination, thereby opening the door to allow its discussion.

We agree that Pena’s cross-examination of Layish opened the door to allow this testimony. Pena has waived his right to complain that the testimony improperly commented on his guilt.

(c) Pena also challenges the following testimony from DFACS caseworker McKenzie:

THE STATE: Did you talk to Mrs. Pena about any safety concerns of the daughter, E. P?
McKENZIE: Yes, we did. After we talked with Mr. Pena regarding the allegations, then Cheri and I talked with Mrs. Pena regarding what she needed to do. We believed her daughter and we felt like either he and her children need to leave the home; or if not, then E. P. would come into care and Detective Brown stated if E. P. came into care, that A. P. and U. P would come into care also. . . .
THE STATE: What arrangements did you make with Mrs. Pena regarding E. P, the child?
McKENZIE: I can’t remember exactly because it’s been so long ago, but I believe we signed a safety plan because we do that in allegations where we feel like allegations are confirmed. . . .
THE STATE: What were the reasons you decided to confirm the case?
McKENZIE: Number one; I believed E. P.

At that point, Pena’s counsel objected and asked that the State be admonished. The trial court sustained the objection and instructed the jury that the witness could state facts, but was not to give her opinion. The trial court also gave what it deemed an admonishment to the State’s counsel. Pena’s counsel did not object further or move for a 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.’ [Cits.]”

2. Pena claims that the trial court improperly expressed its opinion of Pena’s guilt in violation of OCGA § 17-8-57 when it informed the jury that a directed verdict had been granted on Count 4. Specifically, during its jury charge, the court stated that “[t]he court has removed Count 4 from your consideration because the evidence, as presented during trial, does not support the allegation in Count 4 of the Indictment.” Pena contends that this comment left the jury with the impression that there was evidence to support the remaining counts.

Although Pena raised no specific objection to the court’s comment, he preserved the matter for review by reserving a general objection to the charge. “Remarks of the trial court assigning a reason for its ruling are neither an expression of opinion nor a comment on the evidence.” Moreover, the trial court instructed the jury that the court did not intend to express any opinion upon the evidence or the guilt or innocence of the defendant by its rulings or comments. There is no merit to Pena’s claim.

3. Pena argues that the trial court improperly inquired into the jury’s numerical division during deliberations when the jury told the court that they were unable to reach a unanimous verdict on any count of the indictment. He claims that the inquiry violated his rights under both the United States and the Georgia Constitutions.

Although the trial court informed counsel that it was going to inquire into the jury’s numerical division before doing so, Pena made no objection at any time to the inquiry. “Errors not raised in the trial court will not be heard on appeal. [Cit.]”

4. Pena claims that the trial court erred by refusing to allow him to be present at the motion for new trial hearing. He argues that he had a constitutional right to be present at what he refers to as a critical proceeding in his case.

The Supreme Court of Georgia has ruled to the contrary. “[T]here is no law or constitutional principle which guarantees to a prisoner the right to be present in court upon the hearing of his motion for new trial.”

5. Pena contends that the trial court erred by allowing the victim’s written statement to go out with the jury during deliberations. Pena concedes that his counsel introduced the statement into evidence and did not object to it being sent to the jury room. He urges that the claimed error should be reviewed under the “plain error” doctrine.

In Walker v. State, pursuant to binding precedent of the Supreme Court of Georgia, we declined to review the same alleged error under the plain error standard. We also decline to do so here and hold that Pena “ ‘has waived his right to complain of this on appeal by failing to object at trial.’ [Cits.]”

6. Pena argues that the trial court made improper remarks when recharging the jury in response to their report that they were deadlocked.

He claims that the trial court’s Allen charge was coercive because it failed to inform the jurors that they would be required to retire to the jury room only for a reasonable time. Instead, the trial court instructed the jury that “[t]he rule of thumb is that you deliberate for the same number of days . . . that the case took to try.”

Pena is precluded from raising this issue on appeal because he did not properly preserve it for review. He made no objection to the Allen charge, requested no further instruction, and failed to renew his general objection to the jury charge. As a result, we have nothing to review.

7. Pena objects.to testimony by Layish regarding post-traumatic stress disorder or syndrome because it has not been accepted in Georgia as a verifiable and admissible scientific principle. At issue are two questions posed to Layish. After Layish was qualified as an expert in child therapy, the State asked her to describe the post-traumatic stress syndrome. At the end of her direct testimony, the State asked if some of the symptoms that Layish had testified E. P. exhibited during counseling were consistent with post-traumatic stress syndrome, and she said that they were.

Again, Pena’s counsel failed to object to the testimony at trial but urges that it should be considered under the plain error standard. For the following reasons, we decline to do so. Layish did not testify that she had actually diagnosed E. P. with post-traumatic stress syndrome. In addition, Pena presented an expert psychologist who testified about post-traumatic stress syndrome and what impact it may have on a child’s grades. One of Pena’s defenses was that if E. P. had actually been abused, her grades at school would have suffered. The jury was thus presented with conflicting expert testimony on the syndrome and on whether E. P. had symptoms consistent with it. We do not find that the disputed testimony presents an exceptional circumstance justifying review under the plain error standard.

8. The trial court charged the jury that “when you consider the evidence in this case, if you find a conflict, you should settle this conflict, if you can, without believing that any witness made a false statement.” Pena contends that the court’s use of the word “evidence” instead of “testimony” instructed the jury to accept testimonial evidence over all other forms of evidence. Relying on Noggle v. State, he also contends that this type of charge is inappropriate because it is misleading.

The charge given by the court was taken verbatim from the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991). It does not suggest or instruct that testimonial evidence be given greater weight than other evidence.

The charge given in Noggle was that “ ‘when witnesses appear and testify in a case such as this, they are presumed to speak the truth unless they are impeached in some manner provided by law.’ ” The Supreme Court found that charge constitutional, but misleading, and recommended that its use be discontinued. The charge given here was not the “presumption of truthfulness” charge disapproved in Noggle. It contains no suggestion that an unimpeached witness must be believed, but merely urges the jury to attempt to reconcile conflicting evidence before considering the credibility of witnesses. We find no error in the charge as given.

Decided November 21, 2000

Reconsideration denied December 8, 2000

Berk & Moss, Stephen J. Berk, Brian Steel, for appellant.

Patrick H. Head, District Attorney, Marsha S. Lake, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Pena is E. P.’s stepfather and A. P. and U. P.’s natural father.

       She was 13 years old at the time of trial.

        Delong v. State, 185 Ga. App. 314 (363 SE2d 811) (1987).

       (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) (on motion for rehearing).

       See Franklin v. State, 224 Ga. App. 578, 580-581 (4) (481 SE2d 852) (1997) (“one cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing”).

       See Beasley v. State, 202 Ga. App. 349 (1) (414 SE2d 663) (1991).

        Smith v. State, 210 Ga. App. 451 (2) (436 SE2d 562) (1993).

        Sims v. State, 266 Ga. 417, 418 (2) (467 SE2d 574) (1996).

       (Citations omitted.) Young v. State, 269 Ga. 490, 494 (4) (500 SE2d 583) (1998); see also Holmes v. State, 210 Ga. App. 118 (1) (435 SE2d 492) (1993).

        Holmes, supra.

        Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992); see also Meders v. State, 260 Ga. 49, 54 (2) (389 SE2d 320) (1990) (constitutional issue not raised below is not preserved for appeal).

        Sims v. Smith, 228 Ga. 136, 137 (184 SE2d 347) (1971); see also Dobbs v. State, 245 Ga. 208, 209 (2) (264 SE2d 18) (1980) (defendant’s general right to be present during trial does not extend to post-verdict procedures such as a motion for new trial, where questions of law, not fact, are determined).

       216 Ga. App. 236, 237 (2) (454 SE2d 156) (1995).

       Id. (citing Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338) (1980)).

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). The charge essentially advises the jury of the desirability of agreement if possible and instructs them to examine the issues with candor and fairness and with deference to the opinions of the other jurors. See Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986).

        Peterson v. State, 212 Ga. App. 31, 32 (2) (441 SE2d 267) (1994).

       Id.

       Cf. Prickett v. State, 220 Ga. App. 244, 246-247 (3) (469 SE2d 371) (1996), overruled on other grounds, State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

       256 Ga. 383 (349 SE2d 175) (1986).

       Id. at 385 (4).

       Id. at 386.

       See Mallory v. State, 271 Ga. 150, 151 (2) (517 SE2d 780) (1999).