author: Ruffin, Judge.

text:
    A97A1301.
    SCOTT v. THE STATE.
    (490 SE2d 208)
   Ruffin, Judge.

A Warren County jury convicted Frank Ellis Scott of possessing cocaine and selling cocaine to an undercover officer. The trial court sentenced Scott, a recidivist, to life in prison. He appeals, and we affirm the conviction for reasons which follow.

1. Because Scott contends the evidence was insufficient to support his conviction, we review that evidence in a light most favorable to the jury’s verdict. See Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996). The State’s chief witness was a Georgia Bureau of Investigation (“GBI”) agent who worked undercover in Warren County during 1992. He testified that on July 11, 1992, he went to Scott’s home in Warrenton and purchased from Scott $100 worth of crack cocaine, which Scott cut from a “cookie” of crack in his trailer. A GBI chemist confirmed that the substance was, in fact, cocaine. The State presented additional evidence showing Scott sold cocaine to the same undercover officer on May 28, 1992, and was convicted of that offense.

The undercover agent’s testimony was sufficient to identify Scott as the person who sold the cocaine and to rebut the testimony of Scott’s alibi witnesses. Hopkins, supra. “The only issue in this case was the credibility of witnesses, which is a question for determination by the jury. [Cit.] We find the evidence sufficient to meet the stardard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. . . .” Radford v. State, 188 Ga. App. 204 (1) (372 SE2d 480) (1988).

2. Scott attacks the admissibility of the cocaine by arguing that the State did not prove a proper chain of custody. We find no error in the trial court’s admission of this evidence. The undercover GBI agent identified the suspected cocaine he purchased from Scott and testified he carried this material to the State Crime Lab. At trial, he identified the State’s exhibit as being the same material he purchased. A crime lab technician testified that she retrieved this same exhibit from her supervisors and identified it as cocaine. Although the technician who originally received and tested the material did not testify at trial, the crime lab technician testified that crime lab policy requires evidence to be maintained in the lab’s evidence locker.

With this evidence, the State proved a sufficient chain of custody. “The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negative every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence.” (Citation and punctuation omitted.) Williams v. State, 165 Ga. App. 708 (2), 709 (302 SE2d 609) (1983). Here, as in Givens v. State, 214 Ga. App. 774 (2), 775 (449 SE2d 149) (1994), the crime lab employee who received the evidence from police did not testify, and the defendant did not produce any evidence of tampering. In Givens, we did not require the testimony of each individual crime lab employee who handled the evidence; rather, we found that, in the absence of affirmative proof of tampering, proof that the evidence was in the custody of the State Crime Lab established the chain of custody. Id. Therefore, this enumeration of error is without merit.

3. Scott claims the trial court erred by allowing the undercover agent to testify about a conversation he had with Scott during the drug transaction. The agent testified that áfter he purchased the drugs, he asked Scott about rumors that he had “females” available. Scott replied that he “had a couple of females at another location” who would perform sexual favors for money, and the agent replied, “I may be back.” Scott’s counsel objected, arguing this testimony impugned his client’s character by suggesting he was a pimp. The trial court overruled the objection but cautioned the jury that the statement was admitted for a limited purpose, to show how the encounter between Scott and the agent ended.

We find no error because this testimony “included a statement made by [Scott] during the commission of. . . the offenses for which he was indicted and was an integral part of the res gestae. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense.” (Citation and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 140 (2) (410 SE2d 344) (1991). We find this conversation no different from that in Belcher, where the victim was allowed to testify that while the defendant held her against her will, he told her about his prior crimes and time in prison. Id. See also Shealey v. State, 257 Ga. 437 (2) (360 SE2d 266) (1987).

4. In several enumerations, Scott claims the trial court erred by denying him the right to cross-examine certain witnesses, and by so doing denied him a fair trial. “The admission of evidence at trial is within the discretion of the trial court. Although each party is entitled to a thorough and sifting cross-examination, that right is not unfettered. The trial court may, in its discretion, restrict the scope of cross-examination to the relevant issues. [Cits.] The court’s discretion will not be interfered with on appeal unless an abuse is present. [Cit.]” Murray v. State, 219 Ga. App. 405, 407 (465 SE2d 515) (1995).

(a) First, the trial court would not allow Scott’s attorney to delve into the identity of the confidential informant. Scott does not contest this limitation, designed to protect the identity of the informant. See Scott v. State, 219 Ga. App. 906, 908, n. 1 (467 SE2d 348) (1996). Rather, Scott argues the trial court prevented him from establishing that a “Larry Walker” was not the confidential informant. Nothing in the record shows who Larry Walker is or what relevance he had to this case. The trial court did not err by preventing Scott from obtaining an answer to this question. See Murray, supra.

(b) Next, Scott contends the trial court erred by preventing him from asking the agent whether he had “seen” the confidential informant the day of trial. As Scott conceded the importance of keeping the confidential informant’s identity a secret, the trial court did not err by preventing Scott from asking a question which could potentially expose the informant. Moreover, during a colloquy with the trial court, Scott’s attorney said he knew the informant’s identity; therefore, we do not see how this question was relevant to the case. We find no abuse of discretion.

(c) Scott also claims he was improperly prevented from asking the undercover agent whether he had, on the day of trial, seen the GBI crime lab technician who tested the cocaine. Again, the trial court did not abuse its discretion by excluding this question. See Palmer v. Taylor, 215 Ga. App. 546 (1) (451 SE2d 486) (1994) (court properly ruled irrelevant attorney’s cross-examination questions which inquired into the names of witnesses present for trial).

(d) Finally, Scott claims his right of thorough cross-examination was denied because the trial court did not allow him to ask the undercover agent how many “buys” he made during the several months of his Warren County investigation. Scott’s attorney asked this question on re-recross-examination. The trial court agreed with the State that the question exceeded the scope of re-redirect, during which the State only asked the agent why he had not videotaped or audiotaped the transaction. The trial court has discretion to limit the scope of recross-examination, which is not intended for the introduction of new matter. See Owens v. State, 205 Ga. App. 824, 825 (2) (423 SE2d 731) (1992). The trial court did not abuse its discretion by prohibiting the question as beyond the scope of redirect. See Moss v. State, 196 Ga. App. 81, 83 (4) (395 SE2d 363) (1990).

5. The trial court did not err by refusing to grant Scott’s motion for mistrial based on an allegation that two prosecution witnesses had broken the rule of sequestration. Although the witnesses admitted they spoke to each other during the course of trial, each denied discussing any substantive aspects of the case. The trial court has discretion to grant or deny a motion for mistrial based on an alleged violation of a sequestration order. See Owens v. State, 213 Ga. App. 693, 694 (2) (445 SE2d 818) (1994). Here, where no harm was shown from this alleged violation, the trial court did not abuse its discretion by denying the requested mistrial. Id.

6. In his remaining enumeration, Scott complains of the trial court’s refusal to give a curative instruction following the prosecutor’s “speaking objection” to Scott’s closing argument. Scott’s attorney told the jury his client was “an innocent man. He is cloaked in innocence.” The prosecutor objected, arguing in the jury’s presence that the presumption of innocence had been overcome by evidence and that the presumption “doesn’t carry all the way through until closing argument.” The trial court neither sustained nor overruled the objection but called counsel forward for a bench conference. Scott requested curative instructions, but the court declined, stating, “I’m not going to call attention to it. I’m just going to let you go on.” Scott’s attorney resumed his argument, apologized to the jury for the interruption, and once again reminded the jurors, “Frank Scott has the presumption of innocence.” During its charge to the jury, the court gave instructions on the presumption of innocence and the State’s burden of proof.

The prosecutor’s comments were improper and amounted to an incorrect statement of the law, and the trial court should have so instructed the jury. See Postell v. State, 200 Ga. App. 208, 216 (6) (407 SE2d 412) (1991); Oller v. State, 187 Ga. App. 818, 823 (4) (371 SE2d 455) (1988). However, the particular facts of this case show no grounds for reversal. Scott’s attorney was allowed to continue his argument, at which point he again told the jury that his client was presumed innocent, and the court soon thereafter fully and correctly instructed the jury on the presumption of innocence and the State’s duty of proving guilt beyond a reasonable doubt. Considering the defendant’s statements, the trial court’s subsequent instructions, and the overwhelming evidence against Scott, we find the error harmless beyond a reasonable doubt. See Oller, supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Decided August 5, 1997.

Ross, Wallace & Hammond, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A97A1352.
    WELCH v. FORD MOTOR CREDIT COMPANY.
    (490 SE2d 206)
   Ruffin, Judge.

Clyde Welch defaulted on his debt to Ford Motor Credit Company (“FMCC”), which financed his purchase of a truck. FMCC repossessed and sold the truck, then filed this action for a deficiency judgment against Welch to recover the remaining debt. Invoking the provisions of OCGA § 10-1-36, Welch claimed that FMCC’s failure to notify him within ten dáys of the repossession that it intended to seek a deficiency prevented the creditor from doing so. The trial court granted summary judgment to FMCC. Because we find a genuine issue of material fact exists as to when the repossession occurred, we reverse the trial court’s judgment.

The issue in this case is whether FMCC met the statutory prerequisite to a deficiency action. OCGA § 10-1-36 states in relevant part: “When any motor vehicle has been repossessed after default in accordance with [OCGA § 11-9-501 et seq.], the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he forwards by registered or certified mail to the address of the buyer ... a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his rights of redemption, as well as his right to demand a public sale of the repossessed motor vehicle.”

“This court considers de novo the entire record before it on review of denial of a motion for summary judgment in order to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and movant [FMCC] was entitled to summary judgment as a matter of law. [Cit.]” Cambridge &c. Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (1) (460 SE2d 302) (1995). Here, the record is undisputed that Welch defaulted on his agreement with FMCC by failing to make a necessary payment and that he voluntarily surrendered his truck to FMCC by leaving it at the dealership from which he purchased it. In an affidavit, Welch claims he delivered the truck to the dealership on May 31, 1995. However, FMCC’s customer service representative testified that business records showed Welch did not return the car to the dealership until June 6, 1995. On June 2, 1995, an FMCC representative wrote Welch to inform him, “you’ve broken your contract. ... If you don’t pay the TOTAL AMOUNT NOW DUE [overdue payments and late charges totaling $440.54] by the cure date [June 12, 1995], we plan to repossess the above described property.” On June 14, 1995, FMCC sent Welch the notice required by OCGA § 10-1-36.

This Court has held that a voluntary surrender of an automobile will trigger the ten-day notice requirement so long as, at the time the debtor surrendered the vehicle, the debtor was in default and the creditor had the “right to repossess” the vehicle. See Central &c. Bank v. Williford, 192 Ga. App. 843, 844 (386 SE2d 688) (1989); Barnett v. Trussell Ford, Inc., 129 Ga. App. 176, 179 (198 SE2d 903) (1973). It is undisputed that Welch was in default when he surrendered the vehicle. However, the parties dispute when that surrender occurred and when FMCC’s “right to repossess” the truck arose. If FMCC had the “right to repossess” the truck on May 31, 1995, when Welch contends he surrendered it, its notice sent on June 14 was untimely. Therefore, to determine the materiality of the dispute over the date of surrender, we must determine whether FMCC had the right to repossess the truck on May 31.

Pursuant to OCGA § 11-9-503, “[u]nless otherwise agreed a secured party has on default the right to [repossess] the collateral.” The trial court found FMCC had no right to repossess the truck until June 12, 1995, at the end of the “cure” period provided for in FMCC’s June 2, 1995 letter to Welch. We do not find this letter dispositive. As far as the record before us shows, nothing in the contract between FMCC and Welch required FMCC to provide Welch a ten-day period to “cure” his default. Therefore, if Welch surrendered the vehicle on May 31, FMCC on that date had the right to repossess it.

FMCC’s unilateral statement on June 2 of its intention to grant Welch a ten-day “cure” period did not stop the running of the ten-day notice period. As we have found, “[t]o give the statute a construction contended for by [FMCC] would be to allow a party who is a . . . holder of the note to give notice 6 months, or perhaps even a year, after the repossession occurred based merely on the fact that party then acquired a right to possession of the vehicle. The statute is clear in its import to protect the debtor by giving him notice within 10 days of the repossession so that he might act to prevent the loss of any rights he might have.” (Emphasis supplied.) Barnett, supra. Similarly, the statute does not appear to allow a creditor to unilaterally “toll” the ten-day requirement in the method FMCC has urged. Because the date Welch surrendered the vehicle is disputed, and we find this factual dispute crucial to the outcome of this case, we reverse the trial court’s grant of summary judgment to FMCC.

Judgment reversed.

Birdsong, P. J., .and Eldridge, J., concur.

Decided August 5, 1997.

Donald R. Donovan, for appellant.

Bridgers, Stringfellow, Bland & Peters, Henry R. String fellow, for appellee.


text:
    A97A1501.
    MASSEY v. MASSEY.
    (490 SE2d 205)
   Ruffin, Judge.

Jody Dewayne Massey appeals from the trial court’s order denying his motion to dismiss further proceedings in this action. For reasons which follow, we affirm.

Gail and Jody Massey were divorced in September 1995 pursuant to a Final Divorce Judgment and Decree. The decree awarded Mr. Massey permanent physical and legal custody of their minor child. Ms. Massey subsequently petitioned for temporary and permanent custody of the child. Shortly after Ms. Massey filed her petition, the trial court held a hearing, received evidence, and issued a “Temporary Order” with findings of fact and conclusions of law. As stated in its order, the trial court found no “significant change of circumstances affecting change of custody of the minor child.” Consequently, the trial court ordered that “temporary custody of the [child] remain the same, therefore; custody remains the same on a temporary basis in Defendant Jody Dewayne Massey.”

After the trial court entered its order, Mr. Massey filed a motion to dismiss further proceedings in the action on the ground that the trial court had finally adjudicated all issues in the case. The trial court denied Mr. Massey’s motion, but issued a certificate of immediate review. We granted Mr. Massey’s application for interlocutory appeal.

On appeal, Mr. Massey contends that the trial court erred in not dismissing all remaining proceedings in his ex-wife’s action. He claims that the trial court had no authority to enter a “temporary” order regarding custody in this case. He argues, therefore, that the trial court’s order must be viewed as a final adjudication of custody. We disagree.

Citing Hightower v. Martin, 198 Ga. App. 855 (403 SE2d 862) (1991), Mr. Massey argues that Georgia law does not provide for temporary relief during change of custody proceedings. In Hightower, we concluded that “in a post-divorce child custody modification action, as authorized by OCGA §§ 19-9-1 (b) and 19-9-3 (b), the trial court is without authority to enter a ‘temporary’ custody award. [Cits.]” Id. at 856. Following the Hightower decision, however, the General Assembly added a new subsection to OCGA § 19-9-3, which provides: “Upon the filing of an action for a change of child custody, the court may in its discretion change the terms of [child] custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.” OCGA § 19-9-3 (e); Ga. L. 1993, p. 1983, § 1.

Decided August 5, 1997.

John W. Rhyne, Jr., for appellant.

Charles Clements III, Steven M. Ellis, for appellee.

Comparing this subsection to OCGA § 19-13-3 (b), Mr. Massey contends that the temporary custody provision of subsection (e) contemplates ex parte relief in emergency situations. Nothing in this subsection, however, restricts the trial court’s discretion to emergencies requiring ex parte relief. Compare OCGA § 19-13-3 (b): “Upon the filing of a verified petition [alleging family violence], the court may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor. . . .” (Emphasis supplied.) “[A] statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. [Cit.]” Philips Med. &c. Co. v. Diagnostic Equip. Svcs., 213 Ga. App. 236, 237 (1) (a) (444 SE2d 345) (1994). A plain reading of OCGA § 19-9-3 (e) reveals that once a petition for change of child custody is filed, the trial court has the discretion to temporarily change the terms of custody pending final judgment on the issue. The contrary rule stated in Hightower is no longer applicable.

In her petition, Ms. Massey specifically sought temporary, as well as permanent, custody of the child. Following a hearing, the trial court denied her request for temporary custody, instead awarding custody “on a temporary basis” to Mr. Massey. Pursuant to the clear terms of OCGA § 19-9-3 (e), this temporary custody award does not “constitute an adjudication of the rights of the parties.” Accordingly, the trial court did not err in denying Mr. Massey’s motion to dismiss further proceedings in this action.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Blackburn, Judge.

text:
    A97A1503.
    JAMES v. THE STATE.
    (490 SE2d 556)
   Blackburn, Judge.

Leroy Avon James appeals his conviction for selling cocaine, contesting the sufficiency of the evidence and contending that the court erred in allowing evidence of his sentence for a prior conviction. For the reasons set forth below, we affirm.

1. Jones contends that the court erred in denying his motions for directed verdict. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citation and punctuation omitted.) Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996). “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citation and punctuation omitted.) West v. State, 224 Ga. App. 190 (1) (480 SE2d 238) (1997).

Viewed in the light most favorable to the prosecution, the evidence showed as follows. Officer Michael Murphy of the Savannah Police Department testified that, on September 17, 1993, he was on an undercover operation to buy drugs. He testified that James, who was with another individual, waved at him as he was circling in his car. Both individuals came toward the car, and James asked Murphy what he wanted. Murphy replied that he wanted “a twenty,” meaning a small rock of crack cocaine. James told Murphy to go around the corner and park his car. After he parked his car, Murphy saw the two individuals emerge from between two houses. James handed something to his companion, Holmes, who walked over to the car. Murphy handed Holmes a $20 bill, and Holmes gave him the piece of crack cocaine. Holmes walked over to James and handed him the money, and the two then walked away together.

In addition to this testimony, the State presented evidence of a prior similar transaction in which James pled guilty to possession of cocaine, as well as another transaction in which he pled guilty to selling cocaine.

Under OCGA § 16-2-20 (b) (3), a person is a party to a crime if he “[intentionally aids or abets in the commission of the crime.” “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable the jury to find James guilty beyond a reasonable doubt of the offense charged.

Decided August 5, 1997.

Stephen R. Yekel, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

2. With respect to the similar transaction evidence, James contends the court erred in failing to redact the sentences he received from the certified copies of his convictions. “ We share appellant’s concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. (Cits.)’ Groble v. State, 192 Ga. App. 260 (2) (384 SE2d 281) (1989). While the better practice is to not admit the sentence in a prior offense where a similar transaction is involved, in this case it seems ‘highly probable’ that the admission of the sentence did not contribute to the verdict. See Groble, supra.Hunt v. State, 204 Ga. App. 799, 800-801 (2) (b) (420 SE2d 656) (1992).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Eldridge, Judge.

text:
    A97A1524.
    HAMBRICK v. MAKUCH.
    (491 SE2d 71)
   Eldridge, Judge.

Appellant Michelle Ann Hambrick was involved in an automobile collision on August 26, 1994, in Augusta, Richmond County. It is undisputed that appellee, Emily Makuch, struck appellant’s Ford Explorer from behind while appellant was stopped prior to merging into oncoming traffic. Appellant sued appellee for, inter alia, medical expenses, pain and suffering, lost wages, and vehicle repair expenses. Appellee admitted to negligently causing the collision. Following a jury trial on January 23, 1997, a verdict was returned in favor of appellee. A timely direct appeal followed. Held:

1. Appellant asserts that the trial court erred in failing to direct a verdict for appellant on the issue of appellee’s liability for appellant’s alleged injuries. “To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ (Cit.)” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

Under OCGA § 9-11-50, a motion for a directed verdict “can be sustained only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions, demands a particular verdict. When applying this test, the evidence must be construed in favor of the party opposing the motion. Lolmaugh v. T O. C. Retail, 210 Ga. App. 605, 606 (436 SE2d 708) [(1993)]; Hogan v. Pony Express Courier Corp., 195 Ga. App. 592 (394 SE2d 391) [(1990)].” (Emphasis supplied.) Cox v. State Farm Fire &c. Co., 217 Ga. App. 796 (459 SE2d 446) (1995); see also McQuaig v. McLaughlin, 211 Ga. App. 723, 726 (440 SE2d 499) (1994); MARTA v. Partridge, 187 Ga. App. 637, 638 (371 SE2d 185) (1988); Smith v. Allen, 180 Ga. App. 624, 626 (349 SE2d 548) (1986); Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986).

In the case sub judice, appellee admitted in her answer that she was negligent in causing the collision with appellant’s vehicle, so we find that appellant was entitled to a partial directed verdict on the issues of duty and breach of such duty, as well as the factual causation of the collision, itself.

2. However, as to the resulting damage to appellant’s vehicle and to appellant’s alleged injuries, the plaintiff/appellant still had the burden to provide “a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough. . . . Prosser and Keaton on Torts (5th ed. 1984), 41, p. 269.” (Punctuation omitted.) Anneewakee v. Hall, 196 Ga. App. 365, 367 (396 SE2d 9) (1990); see also Nelson v. Polk County Historical Society, 216 Ga. App. 756 (456 SE2d 93) (1995). “It is basic in our law that no liability attaches unless the negligence alleged is the proximate cause of the injury sustained.” Dietz v. Becker, 209 Ga. App. 678, 679 (434 SE2d 103) (1993), citing Dilworth v. Boeckler, 187 Ga. App. 241 (370 SE2d 17) (1988); Cline v. Kehs, 146 Ga. App. 350 (6) (246 SE2d 329) (1978). Issues of proximate causation generally are reserved for the jury and are not appropriate for summary adjudication. See Smith v. Southeastern &c. Ins. Co., 258 Ga. 15, 16 (365 SE2d 105) (1988); see also Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 862 (424 SE2d 33) (1992).

(a) On the issue of the alleged damage to appellant’s vehicle, appellant submitted a bill for the cost of repairing the damage incurred in the collision. She also submitted a bill for the cost of leasing another vehicle during the repair period.

However, the appellee and her passenger both testified that they did not see any damage to appellant’s vehicle following the collision; the appellee stated that her car “rolled” into appellant’s car; the passenger stated that the appellee’s car was moving at five mph or less at the time it “bumped” appellant’s vehicle; and the defense presented pictures of the appellee’s vehicle, showing one small scratch on the front bumper. Under the “any evidence” standard of review by this Court, we are compelled to find that such evidence iresents a jury question and precludes a directed verdict for the appellant on the issue of proximate causation of the damage to appelant’s vehicle. See Cox v. State Farm Fire &c. Co., supra.

(b) A jury question also exists as to whether the collision caused )r aggravated appellant’s alleged injuries, and the trial court did not irr in refusing to direct a verdict on this issue.

Appellant presented deposition testimony from three physicians, vho opined that the traffic accident could be related to appellant’s illeged injuries. Appellant asserts that such evidence was “uncontralicted,” so that a jury was not authorized to disregard this testimony. We disagree. “Expert testimony is intended to aid the jury in arriving it the correct conclusion upon the issue made; but the jury is not aound by the opinion of experts and may disregard it or give such tesimony credence or not as it sees fit.” Cates v. Harris, 217 Ga. 801, 103 (125 SE2d 649) (1962), quoting Boyd v. State, 207 Ga. 567, 569 63 SE2d 394) (1951), overruled on other grounds, Lavender v. State, 234 Ga. 608, 610 (216 SE2d 855) (1975). In the case sub judice, the ury was so instructed, and they may have chosen to reject the physidan’s testimony regarding causation.

Further, appellant’s characterization of the physician’s testimony as “uncontradicted” is inaccurate, in that all three doctors were subjected to cross-examination during the deposition, and all admitted that the symptoms of appellant’s injuries were subjective in nature; that appellant’s objective x-rays and medical tests, including i CT scan and a myelogram, were negative; that appellant exhibited 10 injuries related to her assertion that, upon impact, her body hit ;he steering wheel; and that the back and neck pain, if present, could have been caused by something other than the collision.

Finally, although appellant also testified about the collision and asserted that her injuries were a direct result of the collision, she admitted during cross-examination that she had experienced some back discomfort prior to the collision as a result of her job as a denta assistant. She testified that, although she was wearing a seatbel and was hit from behind, she was thrown forward, not backward, an< that it was a “low-impact accident.” She also admitted that, after th collision, she told the appellee and a police officer that she and he child, a passenger, were both “fine.”

Decided July 21, 1997

Reconsideration denied August 6, 1997

Glover & Blount, Percy J. Blount, for appellant.

Charles C. Mayers, for appellee.

As previously noted, during the defense’s case, appellee testifiei that her car “rolled” into appellant’s vehicle; her passenger also testi fied that appellee’s car was going no more than five mph at the timi it “bumped” appellant’s vehicle. In support of that assertion, appelle< presented evidence that included pictures of her car, showing on small scratch on the front bumper. As previously mentioned in thi division, neither appellee nor her passenger noticed any damage t< appellant’s vehicle following the collision.

Under the circumstances, a jury issue existed regarding whethe: the collision proximately caused appellant’s alleged injuries. Appel lant was not entitled to a directed verdict on the issue of appellee’: liability for the injuries.

In summary, since it is impossible to determine whether or no the jury’s verdict for the defendant/appellee was predicated on a find ing that the appellee did not breach a duty to appellant, the appel lee’s negligence did not cause the collision, or the collision did no cause the damages asserted by appellant, a new trial is necessarj The only remaining issues for jury determination in such trial ar< whether the collision caused the dámage to appellant’s vehicle anc appellant’s alleged injuries and, if so, the amount of damages to b< awarded.

Judgment reversed and remanded for trial in a manner consis tent with this opinion.

Ruffin, J., and Senior Appellate Judge Harolc R. Banke concur.

       However, we note that a directed verdict may have been appropriate if appellant had astablished that the damage to her vehicle clearly and indisputably was caused by the collision. See Pique v. Lee, 218 Ga. App. 357, 358 (461 SE2d 302) (1995); Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). For example, photographs of ;he damage or testimony from the person who repaired the vehicle would have substantially aided appellant’s casé. Appellant could have negated any inference that the damage repaired on the vehicle occurred at another time by testifying as to the absence of such damage before the collision, or of damage subsequent to the collision but prior to repair. Further, an cross-examination of the appellee and her passenger, appellant could have challenged ;heir testimony regarding the speed of appellee’s vehicle, and on the thoroughness of their nvestigation prior to their determination that there was no damage to appellant’s vehicle. Such testimony regarding the damage may have also been an objectionable lay opinion, as neither witness was qualified to make a determination of the presence or extent of the damage, some of which may have been structural, as opposed to aesthetic, in nature. However, lacking such affirmative evidence of the damage, and in the absence of such challenges, appellee’s evidence is marginally sufficient to avoid a directed verdict.


author: Johnson, Judge.

text:
    A97A1647.
    J. M. HUBER CORPORATION v. HOLLIDAY.
    (491 SE2d 74)
   Johnson, Judge.

We granted J. M. Huber Corporation’s application for discretion ary appeal to review an award of workers’ compensation benefits t< liarry Holliday based on the “superadded injury” theory. Huber contends that the ALJ misapplied this theory in an attempt to find coverage where the claim was not otherwise compensable.

The following facts are not in dispute: Holliday suffered a compensable injury to his left knee in 1985. He was assigned a 16 percent permanent partial disability rating and was given a mostly seden;ary job which never required stress on the knee. Although he had some continuing problems with his knee, including popping and nstability, he worked without incident until 1994, when, while walkng through the woods near his home, Holliday caught his right foot n some vines. He shifted his weight to his left leg which did not hold fim and fell, fracturing his patella.

The ALJ characterized this occurrence as “a new injury, separate and distinct from [Holliday’s] original knee condition.” Applying workers’ compensation principles to this factual finding, however, ;he legal conclusion which must follow is that the event is non;ompensable. “No liability arises from disability resulting from a new accident unrelated to the worker’s employment.” (Citation omitted.) Shuman v. Engineered Fabrics, 220 Ga. App. 636, 637 (2) (469 SE2d 347) (1996). It is uncontroverted here that the activity in which Holiday was engaged at the time the injury occurred was not related to bis employment. The ALJ’s finding that Holliday’s fall constituted a aew accident distinguishes it from Hallisey v. Ft. Howard Paper Co., 268 Ga. 57 (484 SE2d 653) (1997) in which the Supreme Court of Seorgia held that the factual finding of the ALJ that the claimant did rot sustain a “new injury” was dispositive regardless of whether the daimant’s behavior was negligent. Likewise, this case is distinguishable from City of Buford v. Thomas, 179 Ga. App. 769 (347 SE2d 713) T986) upon which Holliday relies. As in Ft. Howard, supra, in Thomas, the ALJ and the Board concluded that even if Thomas was aegligent in attempting to get out of his hospital bed against the doctor’s orders while being treated for a work-related injury, that act was not an independent, intervening cause precluding compensability for his resulting death.

Even if we accept the ALJ’s conclusion that the weakened condition of Holliday’s knee was the proximate cause of this event, the facts of this case do not support compensability under a change in condition theory. In Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 157 (338 SE2d 742) (1985), we held that “[a] ‘change in condition’ daim for additional compensation is predicated upon the claimant’s gradually worsening condition, from the wear and tear of performing bis usual employment duties and of ordinary life, to the point that he :an no longer continue to perform his ordinary work.” (Citations and punctuation omitted.) See cases cited in Shuman, supra: Colonial Stores v. Hambrick, 176 Ga. App. 544 (336 SE2d 617) (1985) (gradual deterioration of pre-existing lung disease aggravated by work ii freezer); Thornton Chevrolet v. Morgan, 148 Ga. App. 711 (252 SE2d 178) (1979) (pre-existing emphysema aggravated by inhaling fumes at work). Here there was no evidence of a gradual worsening of Hoi liday’s condition as a result of wear and tear at work or in ordinary life. And Holliday acknowledges that a change in condition analysis does not apply to additional injuries resulting from an original com pensable injury when the additional injury occurs more than twc years after the last payment of income benefits. See OCGA § 34-9 104 (b).

Finally, it is clear from the facts of this case that Holliday’s clain is not compensable simply as a job-related accident. See Slattery Assoc. v. Hufstetler, 161 Ga. App. 389, 390-391 (288 SE2d 654) (1982 in which the court characterized compensable events as accidents new accidents or changes in condition.

Having established that the ALJ was correct in declining to fine compensability under the usual statutory categories, we nex examine whether the superadded injury theory was correctly appliec here. “The ‘superadded injury’ principle generally has been discussec in regard to consequences stemming from physical injuries which art unrelated to the employee’s medical treatment, e.g., psychological disorders, see West Point Pepperell v. Baggett, 139 Ga. App. 813 (229 SE2d 666) (1976) (schizophrenia) and Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 742 (182 SE2d 508) (1971) (traumatic neurosis); aggra vation of health problems by the work-related injury, see Globe Indem. Co. v. Brooks, 84 Ga. App. 687 (67 SE2d 176) (1951) (hearl condition aggravated by chest injury); or incapacitating pain in one member caused by the work-related injury. See Bouldware v. Delta Corp., 160 Ga. App. 100 (286 SE2d 333) (1981) (pain in shoulder iron injury to arm).” Standridge v. Candlewick Yarns, 202 Ga. App. 553 555 (415 SE2d 10) (1992). A superadded injury generally arises as £ natural consequence of, or directly from, the original event and is no1 the result of a new event or accident. In this case we are bound by the ALJ’s finding that Holliday’s fall in the woods constituted a new injury, and as such the legal conclusion that the injury was compensable under the superadded injury theory was erroneous.

Finally, this Court has held that “[a]n employee sustains a compensable ‘superadded injury’ where, in consequence of a specific member disability, he suffers a disabling injury, disorder, or disease to other portions of his body. [Cits.]” (Emphasis supplied.) ITT Continental Baking Co. v. Comes, 165 Ga. App. 598, 599 (1) (302 SE2d 137) (1983). Here, Holliday fractured the same knee which had previouslj been injured on the job.

We decline Huber’s invitation to hold that the superadded injurj theory is no longer viable. Although it was improperly applied in this case, there will certainly be those cases in which the application of fche superadded injury theory is necessary to effect the humane, remedial purposes of the Workers’ Compensation Act.

Decided July 23, 1997

Reconsideration dismissed August 6, 1997

Murphy & Sibley, R. Napier Murphy, for appellant.

Dozier, Lee, Graham & Sikes, Neal B. Graham, Joel M. Grist, Jr., for appellee.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1679.
    SASS v. FIRST NATIONAL BANK OF CHEROKEE.
    (491 SE2d 76)
   Blackburn, Judge.

First National Bank of Cherokee (the bank) brought the underlying action to recover on a promissory note executed by the defendant Gray W. Sass. The jury returned a verdict for the bank on the note and awarded the bank $52,234.77 as expenses of litigation. Sass appeals the jury’s award of attorney fees under OCGA § 13-6-11 contending that it was not supported by the evidence.

“The question of attorney fees under OCGA § 13-6-11 is a question for the jury. The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award.” (Citation and punctuation omitted.) C & S Trust Co. v. Hicks, 216 Ga. App. 338, 340 (2) (454 SE2d 207) (1995).

1. Initially, Sass contends that no evidence of bad faith was presented to the jury and that a bona fide controversy existed over the bank’s right to recover attorney fees pursuant to OCGA § 13-6-11. Such Code section provides that “[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

“A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. OCGA § 13-6-11. A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff. The question is whether there was bad faith concerning the transactions and dealings out of which the cause of action arose.” (Citations and punctuation omitted.) Stargate Software Intl. v. Rumph, 224 Ga App. 873, 878 (4) (482 SE2d 498) (1997).

Sass asserts that mere refusal to pay a just debt is insufficient tc support the award of attorney fees under OCGA § 13-6-11. Although Sass’ statement of law is correct, it does not go far enough. “Bad faith other than mere refusal to pay a just debt may authorize the jury tc award attorney fees, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinistei motive. There may be bad faith in carrying out the provisions of the contract sufficient to support the award.” (Punctuation omitted.) C & S Trust Co., supra at 339 (2). We have previously upheld awards pursuant to OCGA § 13-6-11 which arose out of the defendant’s actions in breaching the contract, i.e., where the refusal to pay a debí was not made in good faith but was an attempt to defeat the clear intent of the contract. See id.

In the present case, Sass contended that he did not sign the promissory note. However, the bank presented evidence that Sass made at least five payments on the note directly to the bank. The bank’s officer who made the loan testified that he witnessed Sass sign the note. Stuart Tasman, a director of the bank, testified that he called Sass and requested that Sass co-sign on the note. Sass agreed. Tasman testified that when Sass called him for lunch one day, Sass indicated he was at the bank signing the note. Additionally, both the bank’s handwriting expert and Sass’ document expert testified that the signature on the note was Sass’ signature.

Under these facts, the jury could have disbelieved Sass’ testimony and found that his refusal to pay the note was not in good faith. The jury could have found that Sass’ bad faith arose out of the transaction which supported the bank’s complaint, i.e., Sass’ breach of his agreement to pay the note. See id.

2. Sass argues in his brief that as the note provided for attorney fees of 15 percent in the event an attorney is hired to collect the note due to nonpayment, attorney fees pursuant to OCGA § 13-6-11 should not be recoverable. This issue was raised in the trial court, and the court reserved its ruling. When the trial court later ruled to submit the issue of OCGA § 13-6-11 attorney fees to the jury, Sass failed to object. Nor did Sass properly enumerate this issue on appeal. Sass’ enumeration of error addresses itself solely to whether sufficient evidence to support attorney fees was presented to the jury. It does not raise the issue of whether such fees were appropriate in light of the contract language for attorney fees. Therefore, the alleged error was waived by Sass’ failure to enumerate it. See Mom Corp. v. Chattahoochee Bank, 203 Ga. App. 847, 849 (3) (418 SE2d 74) (1992).

Decided July 24, 1997

Reconsideration denied August 6, 1997.

Kitchens, Kelley & Gaynes, Mark A. Kelley, Jesus A. Nerio, for appellant.

Quirk & Quirk, Martin G. Quirk, Kevin E. Quirk, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A97A1160.
    In the Interest of M. E. C., a child.
    (491 SE2d 107)
   Beasley, Judge.

Claiming insufficient evidence, Misty Lynn appeals the termination of her parental rights to her son M. E. C., born May 30, 1988. The child’s father had surrendered his parental rights to the child. Because the trial court was authorized to conclude that there was clear and convincing evidence in favor of termination, we affirm.

In November 1994, after hearings, the juvenile court found the child to be deprived and, with the consent of Lynn, transferred his legal custody to Chatham County DFACS. This order was renewed three times, but Lynn consistently failed to comply with the court’s reunification plan. In March 1996, DFACS filed a termination petition, which the court granted after two days of hearings in June 1996.

1. “Under OCGA § 15-11-81 (a), the considerations for terminating parental rights involve a two-step process. [Cit.] The trial court must first determine ‘whether there is present clear and convincing evidence of parental misconduct or inability.’ OCGA § 15-11-81 (a). Such conduct or inability may be proved by showing, inter alia, that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the ‘continued deprivation will cause or is likely to cause -serious physical, mental, emotional, or moral harm to the child.’ OCGA § 15-11-81 (b) (4) (A) (i)-(iv).” In the Interest of E. C., 225 Ga. App. 12, 14 (482 SE2d 522) (1997). A “deprived child” is one who is “without proper parental care or control.” OCGA § 15-11-2 (8).

“[I]n determining whether there is a lack of‘proper parental care and control,’ the court may consider several factors, including the parent’s ‘(e)xcessive use of. . . narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child,’ as well as ‘physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent: OCGA § 15-11-81 (b) (4) (B) (ii), (v).” In the Interest of E. C., supra at 14. Other factors include whether the parent has provided for the care and support of the child as required by court order and whether the parent has complied with a reunification plan ordered by the court. OCGA § 15-11-81 (b) (4) (C) (ii), (iii). These latter two factors focus primarily on the year preceding the filing of the termination petition. Id.

“Once the trial court establishes [parental misconduct or inability], the second part of the test for determining whether parental rights should be terminated is whether such termination ‘is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.5 OCGA § 15-11-81 (a).” In the Interest of E. C., supra at 14.

“ ‘The standard of review of a juvenile court’s decision to terminate parental rights is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” [Cits.]’ [Cit.]” Id. at 13-14. See OCGA § 15-11-86 (parental rights shall be terminated only by clear and convincing evidence); Santosky v. Kramer, 455 U. S. 745, 758-759, 769 (102 SC 1388, 71 LE2d 599) (1982). “ ‘The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.’ [Cit.]” In the Interest ofE. C., supra at 19. See In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997); In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997); Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982).

(a) Deprivation. Following three days of hearings in 1994 at which Lynn and her counsel were present, the juvenile court determined (with Lynn’s consent) that the child was deprived and transferred temporary legal custody to the Chatham County DFACS. The deprivation order was renewed and was not appealed. “Therefore, [Lynn is] bound by this finding of deprivation and the first factor is satisfied. [Cits.]” In the Interest of T. B. R., supra at 473 (1) (a). See In the Interest of E. C., supra at 14-15; In the Interest of R. N., supra at 203; In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1995).

Even without this unappealed finding, there is clear and convincing evidence that the child was deprived and still would be deprived if he were living with Lynn. In August 1994, Lynn and a male friend took then six-year-old M. E. C. boating, and the boat sank. Lynn left the child on a marsh and floated to seek help. Lynn claimed she drifted for 17 hours before reaching land and asked a man to take her home, which he did. She napped for several hours and then she telephoned someone to rescue M. E. C. and her friend. M. E. C. was taken to stay with a relative, who discovered burns on his groin area, wrists, buttocks, and waist. M. E. C. felt abandoned by his mother and angry toward her.

Later in 1994, a psychologist discovered that the child had been sexually abused by an uncle and that Lynn had disbelieved the child and done nothing. The psychologist diagnosed M. E. C. with attention deficit disorder and an adjustment disorder with depressed mood. Acknowledging these facts and that she had a history of unstable home environments which aggravated M. E. C.’s psychological problems, Lynn agreed to the deprivation order transferring temporary custody to DEACS.

The court allowed Lynn to have physical custody on condition that she comply with a case plan approved by the court. It required Lynn to maintain a stable home; maintain financial stability; maintain a lifestyle free of alcohol and drugs; learn and utilize enhanced parenting skills, including non-physical forms of discipline; participate in individual counseling and family counseling with M. E. C.; abide by all public ordinances and probationary conditions (she was serving probation for an earlier drug conviction); visit M. E. C.; and pay $10 per month in child support. She was also ordered to submit to random drug tests. Two weeks later Lynn returned custody of M. E. C. to DFACS, claiming she was experiencing difficulties in managing the child’s behavior and was moving between friends’ residences. The deprivation order was renewed three times. In those renewals the court among other things ordered Lynn to participate in a residential substance abuse program.

Other evidence from both before and after the deprivation order reflects deprivation. In 1996 the psychologist diagnosed M. E. C. with an adjustment disorder with mixed emotional features; Lynn has repeatedly stated she wants an aunt to adopt the child; she told the child in therapy sessions that men are more important to her than he is; she changed her residence more than twenty-five times between 1994 and 1996, living with boyfriends, friends, and relatives, often in trailers and motels; she has abused alcohol and drugs both before and after the deprivation order; in violation of her probation and the case plan, she has been charged with three DUIs and convicted and served prison time for at least two; she has been married five times, twice before the previous marriage had ended; she currently lives with a man whom she hopes to marry; she has not complied with other probationary conditions from the drug conviction; and she falsely told the child months prior to the termination hearing that her parental rights had already been terminated, that he would never see her again, and that he was going to be immediately forced out of the foster home, which greatly upset the child.

(b) Cause of deprivation.

(1) “[C]hronic unrehabilitated abuse of intoxicating liquors or . . . controlled substances” supports a finding that the deprivation was caused by a lack of proper parental care or control. OCGA § 15-11-81 (b) (4) (B) (ii). Despite Lynn’s history of alcohol and drug abuse, and despite having been ordered to obtain treatment, she has consistently refused treatment and has denied having a problem. See In the Interest of J. M. C., 201 Ga. App. 173 (410 SE2d 368) (1991); In re G. M. N., 183 Ga. App. 458 (359 SE2d 217) (1987); In the Interest of A. O. A., 172 Ga. App. 364 (323 SE2d 208) (1984). On five occasions she refused to submit to court-ordered random drug tests. See In the Interest of M. J. T., 217 Ga. App. 356, 357 (457 SE2d 265) (1995) (failure to submit to court-ordered random drug tests resulted in termination of parental rights).

(2) Current or past physical, mental, or emotional neglect of the child is another consideration in determining lack of proper parental care or control. OCGA § 15-11-81 (b) (4) (B) (v). In addition to the boating incident which resulted in severe physical and emotional injury to the child, Lynn told him men take precedence over him, she did not believe him when he complained to her of sexual abuse by an uncle who had abused others, and she failed to attend half of the 50 court-ordered and agreed-upon counseling visits with the child and a counselor, in disregard of repeated advice on the importance of these visits to her son’s emotional well-being. For eight of the twenty-five visits she did attend, she was either late or left early. M. E. C., who looked forward to these visits with great anticipation, wet his pants and became dejected when she would not appear.

Predictably, during the first day of the termination hearing, Lynn committed to attend a counseling visit scheduled for the very next day; at the continuation of the hearing the next week, she conceded she once again failed. See In the Interest of E. C., supra at 15; In the Interest of A. O. S., 189 Ga. App. 860, 861 (377 SE2d 870) (1989); In the Interest of M. M., 207 Ga. App. 722, 725 (1) (429 SE2d 132) (1993) (“mother . . . made no real effort to visit”); In re G. M. N., supra at 460 (mother canceled many planned visitations).

(3) A third consideration is whether the parent during the year or longer prior to the filing of the petition of termination “provide[d] for the care and support of the child as required by law or judicial decree.” OCGA § 15-11-81 (b) (4) (C) (ii). Lynn made only sporadic payments of the required $10 per month both prior to and after the termination petition was filed. See In the Interest of E. C., supra at 13 (mother failed to make $25 a month payments); In the Interest of A. S. M., 214 Ga. App. 668, 672-673 (448 SE2d 703) (1994) (mother failed to make nominal support payments); In the Interest of A. O. A., supra at 365 (mother failed to make $5 a month payments); In the Interest of A. O. S., supra at 861 (mother failed to make $5 a month payments).

(4) A fourth consideration is whether in the year or longer prior to the filing of the termination petition, the parent “complied] with a court ordered plan designed to reunite the child with the parent.” OCGA § 15-11-81 (b) (4) (C) (iii). Lynn fully failed. She did not remain alcohol- and drug-free. She did not submit to random drug screening. She did not establish a stable environment but moved more than twenty-five times in less than two years and now lives in a house with numerous adults moving in and out. She attended only half of the scheduled counseling visits with the child. She refused to undergo the drug and alcohol treatment mandated by the court and the plan. She failed to make the child support payments. Lynn herself admitted she had not complied with the reunification plan. See In the Interest of M. R., 213 Ga. App. 460, 464 (1) (a) (444 SE2d 866) (1994) (mother failed to comply with reunification plan); In the Interest of J. D. D., 215 Ga. App. 68, 70 (449 SE2d 655) (1994) (mother drank in violation of reunification plan); In the Interest of A. S. M., supra at 672-673 (mother failed to get treatment and to pay nominal payments as required by reunification plan).

(c) Likelihood of continuing future deprivation. “ ‘In addition to evidence of present parental misconduct or inability, “evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. . . .” [Cits.]’ [Cit.]” In the Interest of E. C., supra at 16. See OCGA § 15-11-81 (b) (4) (A) (iii); In the Interest of T. B. R., supra at 474; In the Interest of R. N., supra at 204. Lynn’s past conduct would support such a finding.

Lynn’s refusal of the substance abuse treatment ordered by the court demonstrates that change cannot be realistically anticipated. See In the Interest of E. C., supra at 17. She has yet to comply with the probationary conditions of her drug conviction. She lied to the court about not drinking for a year prior to the hearing, for the court found that two months prior to the hearing an officer found her intoxicated, and she admitted to him she had been drinking alcohol that night. See In the Interest of E. C., supra at 19, n. 5 (mother lied about substance abuse); In the Interest of J. D. D., supra at 70 (mother had abused alcohol “as recently as six months prior to the termination hearing”). Her current boyfriend with whom she lives and on whom she relies for financial support has a recent history of employment instability. Her attendance at AA meetings took place only four to five weeks prior to the termination hearing. See In the Interest of L. S. F, 217 Ga. App. 478, 479-481 (458 SE2d 370) (1995) (changes made just before termination hearing are suspect). A psychologist testified that Lynn had a very low tolerance for frustration, had only superficial relationships, was hostile toward others, downplayed her problems, and had poor coping skills and lapses in judgment. He recommended the child not be returned to Lynn.

“Although the mother contends she has now changed, judging the credibility of her good intentions was a task for the juvenile court. ‘(T)he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ [Cit.]” In the Interest of R. N., supra at 205 (2). The juvenile court had ample basis for its finding that “Lynn’s actions are practically habitual,” and that her promises proved empty in the past and lacked credibility.

(d) Likelihood that continued deprivation will cause serious physical, mental, emotional, or moral harm to the child. This relates to the factor articulated in OCGA § 15-11-81 (b) (4) (A) (iv). The evidence showed that when DFACS initially gained custody, the child had very poor behavior (kicking, hitting, biting, throwing chairs). While in foster care the child’s emotional state and behavior improved significantly. See In the Interest of E. C., supra at 18 (child improved in foster care); In the Interest of A. O. A., supra at 364-365. But he often reverted to bad behavior when Lynn failed to keep commitments to visit. See In the Interest of E. C., supra at 18; In the Interest of W. W. C., 210 Ga. App. 492, 494 (436 SE2d 685) (1993) (child bit other children during periods when he was seeing his natural parents). The psychological evaluations of the child confirmed the harm Lynn’s parenting inflicted on M. E. C. The juvenile court also found that the child was being harmed “by virtue of his languishing in temporary foster care.” See In the Interest of T. B. R., supra at 476 (“foster care drift” prevents a child from forming emotional attachments with others); In the Interest of J. M. C., supra at 175 (court may consider “the detrimental effects of prolonged foster care”).

Without any doubt, a rational factfinder could find clear and convincing evidence of parental misconduct or inability.

.2. The second step in this procedure is, as earlier stated, to determine “whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a). “ ‘Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.’ [Cit.]” In the Interest of E. C., supra at 18. See In the Interest of R. N., supra at 205.

As in the E. C. case, so here: “After viewing the evidence, as presented above, in the light most favorable to the appellee, there is more than sufficient clear and convincing evidence that the termination of appellant’s parental rights is in [M. E. C.’s] best interests. At [eight] years of age, [M. E. C.] is apparently thriving in foster care. [His] physical, emotional, and educational needs are being addressed. Upon termination of appellant’s parental rights, [M. E. C.] will become eligible for adoption and will have a realistic possibility of having a secure, stable home.” In the Interest of E. C., supra at 18.

Decided August 6, 1997.

Mark J. Nathan, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.


text:
    A97A1300.
    PARKER v. THE STATE.
    (491 SE2d 113)
   Beasley, Judge.

Gary Parker was convicted of failing to stop for a school bus which had actuated its flashers and stop-arm at an intersection where it was letting off a child. See OCGA § 40-6-163 (a). Parker’s defense was that the bus was stopped at an intersection “where traffic is controlled by traffic-control signals” and therefore the bus driver was forbidden from actuating the flashers and stop-arm. See OCGA § 40-6-162 (1). He argues that he was under no duty to heed the wrongfully actuated visual signs of the bus.

Regardless of whether or not a driver is excused from obeying wrongfully actuated flashers and stop-arm of a bus and so risk injury to a child who may begin to cross the street, a stop sign is not a traffic control signal. Thus the bus driver was authorized to actuate the visual signals of the bus. “ ‘Traffic-control signal’ means any device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop and permitted to proceed.” OCGA § 40-1-1 (67). Stop signs are not “operated” in any fashion, not manually, not electrically, not mechanically. They are static, non-moving structures. Secondly, they do not “alternately” direct traffic to stop and proceed. All traffic must stop before proceeding. Parker’s contention that all intersections are dangerous and that no bus should be allowed to discharge students at any intersection is public policy for the legislature to decide, not this Court.

Decided August 6, 1997.

George W. Weaver, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

It was not error to refuse to direct a verdict of acquittal.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.


text:
    A97A1565.
    McBEE v. THE STATE.
    (491 SE2d 97)
   Eldridge, Judge.

Appellant Michael McBee appeals his October 13, 1995 conviction for rape and aggravated sodomy. For the reasons outlined below, we affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463[, 464] (1) (393 SE2d 737) [(1990)].” Wells v. State, 208 Ga. App. 298, 299 (1) (430 SE2d 611) (1993). Further, the admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Samuels v. State, 223 Ga. App. 275 (477 SE2d 414) (1996); Hestley v. State, 216 Ga. App. 573 (455 SE2d 333) (1995); Bell v. State, 203 Ga. App. 109 (416 SE2d 344) (1992).

In the case sub judice, the evidence showed that appellant met the victim at a Chattanooga, Tennessee lounge in August 1994. Approximately four weeks later, on September 24, 1994, appellant and the victim met again by chance at the same lounge and danced together three times. As the victim was leaving the lounge at approximately 2:00 the next morning, appellant approached her in the parking lot and asked her for a ride home, saying that his ride had already left. Since appellant’s home in Ringgold, Georgia, was on the victim’s way home to Dalton, Georgia, she agreed to give appellant a ride.

Upon arriving at appellant’s home, the victim asked to use appellant’s bathroom. While she was using the bathroom, appellant walked in; she immediately told him to leave, which he did. However, as the victim walked out of the bathroom, appellant, who had removed his shirt, grabbed her and pulled her into his bedroom, which was adjacent to the bathroom. Appellant demanded that she take off her clothes; the witness complied because he was bigger, stronger, and she was afraid of him. Appellant proceeded to rape and anally sodomize the victim.

During the act, however, someone rang the doorbell to appellant’s duplex; appellant stopped his assault, put on his jeans, and answered the door. While appellant and his male visitor talked in the living room, the victim put on some of her clothes and rushed out the front door, past both men. The victim drove to a Chevron station and immediately called the police. The victim was interviewed by police officers, directed the officers to appellant’s duplex, and was examined at the local hospital. During the medical examination, which occurred at approximately 5:15 a.m. the day of the assault, a nurse took a photograph of a bruise on the victim’s shoulder; the photograph was introduced as evidence. The nurse testified that the victim was distraught, angry, and tearful; diazepam (commonly known as Valium) was prescribed to calm her down.

Detective Vic Wells of the Catoosa County Sheriff’s Department interviewed the victim before the medical examination and testified that the victim “was very upset, she was crying, she was scared, she was mad, she didn’t know what to do, and she wanted help.” Detective Wells also noticed the bruise on the victim’s shoulder. The victim told Detective Wells that, in her haste to flee appellant’s home, she had left her belt, panties, and a glass in appellant’s bedroom. Detective Wells contacted a magistrate, submitted an affidavit, and secured a search warrant for appellant’s duplex; such warrant was executed at approximately 7:50 a.m. the same day. Upon arriving at appellant’s duplex, police officers were met by appellant on the porch. The officers told appellant that they had a search warrant, but did not tell him why it had been secured. Even so, an officer testified that appellant spontaneously stated that “if we was [sic] there about the girl that brought him home last night, that he didn’t rape her, that they had sex.”

During the search, the officers recovered the victim’s belt and panties; they also seized photographs of nude and semi-nude women in various sexual poses.

Appellant was arrested a few days later and charged with rape and aggravated sodomy. A hearing on appellant’s motion to suppress the seized evidence was held on March 23, 1995; the motion was denied. Appellant was tried by a jury in October 1995 and convicted on October 13, 1995. He was sentenced to life imprisonment for the rape and was given a consecutive 20-year sentence for aggravated sodomy. Appellant’s motion for a new trial was denied on April 17, 1996, and he timely appealed.

1. In the first enumeration of error, appellant asserts that the trial court erred in allowing the State to introduce as similar transactions evidence of appellant’s conviction for criminal trespass and evidence of a non-sexual dispute with a former girl friend. For the reasons set forth below, there was no error.

Georgia’s courts have long held that evidence of a separate crime unfairly places a defendant’s character in issue and therefore is inadmissible. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). However, there are exceptions to the rule, so that before any evidence of independent offenses or acts may be admitted, a hearing must be held during which the State must make three affirmative showings as to each independent act it seeks to admit. Id. at 642. “The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of admissibility.” Id. at 642 (2) (b). Such appropriate purposes include proving malice, intent, motive, plan, scheme, course of conduct, or bent of mind. Id. at 642, n. 2; Johnson v. State, 242 Ga. 649, 653 (250 SE2d 394) (1978); O’Neal v. State, 170 Ga.. App. 637 (318 SE2d 66) (1984). “The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” Williams v. State, 261 Ga. at 642 (2) (b); see also Davis v. State, 249 Ga. 309, 311 (290 SE2d 273) (1982).

“Similarity between the charged crime and the extrinsic crime is an important factor pertinent to a determination of the admissibility of the extrinsic crime. However, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.” (Citation and punctuation omitted.) Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) (1992), quoting Felker v. State, 252 Ga. 351, 359 (314 SE2d 621) (1984); Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995); Wells v. State, 208 Ga. App. at 302.

Further, “[wjhere forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.” (Citation and punctuation omitted.) Moore v. State, 207 Ga. App. 412, 415 (1) (a) (427 SE2d 779) (1993). Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Wells v. State, 208 Ga. App. at 300, 303 and cases cited therein.

Evidence of an earlier assault on a woman is “material [to] the issue of consent or the lack thereof, and [has] a direct bearing on appellant’s bent of mind.” O’Neal v. State, 170 Ga. App. at 638 (1); see also Thomas v. State, 234 Ga. 635, 636 (217 SE2d 152) (1975); Hunt v. State, 233 Ga. 329 (211 SE2d 288) (1974). Such evidence would tend to rebut appellant’s claim of consent by establishing that appellant has a propensity to initiate or continue an encounter without a woman’s consent and, in fact, against her explicit request to stop. See Farley v. State, 265 Ga. at 623-624 and cases cited therein; see also Sudlow v. State, 140 Ga. App. 146, 147 (230 SE2d 106) (1976) (evidence of a previous assault “is justifiable rebuttal evidence where the defendant admits the transaction but denies the coercive element”). Such evidence also corroborates the victim’s testimony that appellant acted in the manner charged. Touchton v. State, 210 Ga. App. 700, 701 (437 SE2d 370) (1993). “[R]elevant 'other transactions’ evidence is admissible notwithstanding its tendency to discredit the character of the defendant.” Farley v. State, 265 Ga. at 623, 625; see also O’Neal v. State, 170 Ga. App. at 638.

In the case sub judice, a witness testified that she had a brief relationship with appellant, but that she had broken up with him. Shortly thereafter, appellant arrived unannounced at her apartment in the middle of the night; he said he wanted to talk, and the witness let him in. Appellant shoved the witness against a wall, dragged her into the bathroom, and held her down. After turning on the water, he told the witness that she could “yell as loud as you want” and no one would hear her. He also told the witness that he could kill her “and no one would know.” He then told the witness to say that she loved him. After several hours, she calmed him down, and he left. The witness did not report the incident to police because she “didn’t really want to make him any madder than he already was at me, I was kind of scared of him.”

Six months later, the same witness awoke in the middle of the night to find appellant standing in her bedroom without her permission. Appellant pled guilty to criminal trespass in that incident.

While appellant correctly points out that the prior acts by appellant did not involve an actual sexual assault on the witness, his attempt to capitalize on the dissimilarities misses the mark. The fact that appellant previously surprised and assaulted a woman, restraining her until she told him that she loved him, is highly relevant to his bent of mind and course of conduct, i.e., whether he is likely to force himself on women without their consent. See Johnson v. State, 242 Ga. at 653; see also Smith v. State, 267 Ga. 363, 364 (3) (478 SE2d 379) (1996) (similarity between acts included “extreme rage against the victims”); Ward v. State, 262 Ga. at 295 (2) (the extrinsic transactions showed that the defendant was “obsessed with having control and dominance over women”); Smith v. State, 225 Ga. App. 553 (484 SE2d 515) (1997). For this reason, the testimony of the witness regarding the prior assault and trespass was sufficiently similar and connected to the crime for which appellant was being tried, so that the evidence was relevant and admissible to show appellant’s course of conduct, lack of consent, bent of mind, motive, plan, or scheme. There was no abuse of discretion in the trial court’s decision to admit this evidence.

2. In the second enumeration of error, appellant asserts that the trial court erred in allowing the State to introduce evidence of a pending contempt action to establish the lack of trustworthiness and credibility of appellant’s witness. While we agree that the impeachment was improper, we find that it did not rise to the level of reversible error.

The witness was appellant’s former defense attorney, who had been charged with contempt in an unrelated civil action for falsifying evidence; he had not yet received a hearing on the charge. The witness no longer represented appellant in the case sub judice and apparently was called to testify in order to impeach another defense witness. In an effort to “test the truthfulness of this witness,” the State questioned the witness about the pending charge, and the witness was allowed to explain in detail the circumstances that resulted in the pending charge. Appellant claims that raising such issue “significantly injured the credibility of Appellant,” so that a new trial is required.

However, while we agree that the attempted impeachment of appellant’s former counsel was improper, it does not rise to the level of harmful error, particularly in light of the substantial evidence of appellant’s guilt. The witness’ only apparent value to appellant was his assertion that another defense witness, who lived in the adjoining unit of appellant’s duplex, had made a prior inconsistent statement regarding whether or not he could hear noises emanating from appellant’s duplex. Therefore, even if the jury inferred, as appellant asserts, that appellant’s former counsel was not being truthful in his testimony, the only harm was that the jury would disregard his testimony, thereby leaving the credibility of the other defense witness unchallenged. Further, the former counsel was allowed to explain the circumstances of the pending charge and to stress that it was unrelated to appellant’s case. Finally, there is no basis upon which the jury could form a nexus between the former counsel’s allegedly fraudulent conduct and the appellant’s defense in the case sub judice, as the former counsel neither represented appellant at the trial nor put forward appellant’s defense therein.

For a conviction to be reversed, appellant must show both error and harm. See Moreland v. State, 213 Ga. App. 75 (443 SE2d 701) (1994); Gann v. State, 190 Ga. App. 82 (378 SE2d 369) (1989). Such impeachment, while improper, did not rise to the level of reversible error.

3. Appellant asserts that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant which he characterizes as a “general warrant” giving complete discretion to the police officers conducting the search.

In the case sub judice, the warrant was issued by a magistrate upon the affidavit of Detective Wells, to whom the victim had specifically described items she had left at the scene of the crime, including panties, a belt, and a “Hard Rock Cafe” glass. The affidavit noted that “certain personal items” of the victim had been left at appellant’s home. The warrant authorized a search of appellant’s residence for “[ejvidence in regards to the crime committed therein which is . . . rape.”

The seized items, including several photographs of nude and semi-nude women, were the result of a search for the victim’s belongings. The police officers’ testimony indicates that the search was reasonably limited to appellant’s bedroom, the site of the assault. Apparently, it became obvious during the search that appellant may have put away evidence of the assault, hanging the belt on the back of the bedroom door and putting the panties in the closet. Even though the belt was in plain sight, the officers were justified in manipulating clothing, personal items, etc. in their continuing search for the panties and the missing glass. It was during this search that a wooden box containing the photographs inadvertently was found. The photographs were seized as evidence of a transaction similar to the rape, but not as evidence of another crime. See Dugan v. State, 130 Ga. App. 527, 531 (203 SE2d 722) (1974). Compare Lockhart v. State, 166 Ga. App. 555, 557 (305 SE2d 22) (1983). The police officers were not compelled to overlook relevant evidence of the rape (see Division 6, infra) simply because it was not specifically enumerated in the search warrant. See generally Brown v. State, 187 Ga. App. 714, 715 (371 SE2d 257) (1988). “The fact that the police officers seized items not listed in the warrant did not render the search a general one or make it unlawful.” (Citation and punctuation omitted.) Jarvis v. Rubiano, 244 Ga. 735, 737 (2) (261 SE2d 645) (1979); see also OCGA § 17-5-21 (b).

The record does not indicate that the police officers undertook a generalized search for additional contraband, other incriminating evidence, or evidence of other crimes. In fact, it appears that the search and seizure was “reasonably related in scope to the justification for their initiation.” Terry v. Ohio, 392 U. S. 1, 18-19, 29 (88 SC 1868, 20 LE2d 889) (1968); Grant v. State, 220 Ga. App. 604, 607 (469 SE2d 826) (1996), citing Lockhart v. State, 166 Ga. App. at 557.

This case is distinguishable from Grant v. State, supra, where police officers seized business records, computers, and numerous files belonging to individuals not named in the warrant. Grant v. State, 220 Ga. App. at 609. In Grant v. State, supra, this Court could not determine from the record which items were legally seized under the warrant; we remanded the case to the trial court to make such determination, as it appeared that some of the evidence was properly seized under the warrant. Id. Further, in recognizing the problems with a generalized search of records, this Court specifically noted that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable.” (Citation and punctuation omitted; emphasis supplied.) Id. at 608 (2).

In the case sub judice, no personal papers were sought or seized, and no one else lived in appellant’s home, the site of the search. Appellant admitted that the seized photographs belonged to him, and the victim testified that the belt and panties found in the bedroom were hers. “The items seized from the home were obviously relevant to the crime and were properly seized as evidence. The warrants were issued by a neutral and detached magistrate and were supported by probable cause. There was no error in the denial of the motion to suppress.” (Citation omitted.) Ward v. State, 262 Ga. at 297-298 (7); see also Division 6, infra.

4. In the fourth enumeration of error, appellant asserts that his constitutional right to confront witnesses against him was violated when the trial court allowed the introduction of a sworn hearsay statement which allegedly lacked necessity and reliability. We disagree for several reasons.

The evidence at issue in this enumeration involves an aggravated sexual assault committed by appellant in 1988; appellant pled guilty to the charge and was sentenced to five years probation. The State sought to compel the victim, who now resides in South Carolina, to testify in the case sub judice as a material witness to a similar transaction committed by the appellant. When the victim refused to testify in Georgia, the Georgia trial court issued a certificate of materiality of an out-of-state witness under the Uniform Foreign Deposition Act on August 23,1995; such certificate was filed with the Catoosa County Superior Court on the same day. A hearing was held on September 28, 1995, before a Circuit Court Judge in Pickens, South Carolina to determine whether the victim could be compelled to testify. See OCGA § 24-10-92 (a). At this hearing, the South Carolina Circuit Court heard testimony from the victim, who responded under oath to questions from her own attorney; the prosecutor in the case sub judice was also present but did not question the victim. The South Carolina Circuit Court also considered a report from a psychologist who examined the victim and who determined that the victim would be “very likely to suffer serious consequences if she was compelled” to testify in the Georgia case. The South Carolina Circuit Court found that compelling the victim would not be in her “best interest” and refused to require her to testify in Georgia. The Georgia trial court subsequently found that the victim was “unavailable,” and admitted, over appellant’s objection, portions of the transcript of the hearing as evidence of a similar transaction. The trial court specifically noted that appellant could submit the psychologist’s report at trial to rebut the transcript, but appellant chose not to do so.

At trial, the State read into evidence the prior victim’s testimony. The State also presented the testimony of a witness who arrived shortly after the assault, confronted appellant in the victim’s apartment, and was told by the victim that appellant had just raped her.

(a) Waiver of Appellant’s Right to Confront a Witness. With regard to appellant’s assertion that he was denied his right to confront this witness, we note that this Court, in Moore v. State, 207 Ga. App. at 417, held that when victims of crimes for which appellant had pled guilty were unavailable, it was not error to admit police officers’ testimony regarding the victims’ prior statements to the officers. “By pleading guilty to these crimes, appellant waived his earlier opportunity to cross-examine the victim when they made the complaints against him.” Id. at 417 (2). Appellant, in admitting to the commission of the rape of the witness as described in the indictment, waived his right to challenge the witness’ statements regarding the incident. Therefore, the admission of the evidence did not violate appellant’s right under the Confrontation Clause of the Sixth Amendment of the United States Constitution, and there was no error in admitting the statements under the necessity exception of OCGA § 24-3-1 (b). Id.

Further, appellant received notice of the State’s efforts to compel the witness to testify, when the trial court’s certificate of materiality of the witness was filed on August 23, 1995. It seems clear that appellant had the opportunity to attend the South Carolina hearing if he had, in fact, followed up on the State’s motion to compel. As such, he has waived the right to complain that he was not specifically notified of the hearing.

(b) Necessity Exception to Hearsay Evidence. It is incumbent at this point to stress that the transcript evidence was not, as appellant asserts, hearsay. Hearsay is defined as evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). In the case sub judice, the testimony of the witness was given under oath in a proceeding which was ancillary to the case for which appellant was being tried, i.e., a hearing on the State’s motion to compel the witness to testify. The weight of the testimony was dependent solely on the veracity of the witness, not a third party, as a court transcript transmitted the witness’ statements to the jury. However, since the trial court specifically admitted the transcript under a “necessity exception” to the hearsay rules, we will address appellant’s contention that the trial court erred in its hearsay analysis.

“OCGA § 24-3-1 (b) . . . provides that ‘hearsay evidence is admissible in specified cases from necessity.’ There are two prerequisites for admission of hearsay because of necessity: T) necessity; [and] 2) particularized guarantees of trustworthiness.’ Idaho v. Wright, [497] U. S. [805] (110 SC 3139, 111 LE2d 638) (1990); Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987).” Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839) (1991); see also Wallace v. State, 216 Ga. App. 718, 719 (455 SE2d 615) (1995); Moore v. State, 207 Ga. App. at 417. “[T]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” (Citation and punctuation omitted.) Patterson v. State, 202 Ga. App. 440, 443 (4) (414 SE2d 895) (1992); Adams v. State, 191 Ga. App. 16, 17 (381 SE2d 69) (1989). “The necessity exception usually applies ‘in cases where the witness may not be compelled to testify. . . .’ [Cit.]” Patterson v. State, 202 Ga. App. at 443 (4); see also Luallen v. State, 266 Ga. 174, 178 (465 SE2d 672) (1996); Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993); McKissick v. State, 263 Ga. 188,189 (3) (429 SE2d 655) (1993); Swain v. C & S Bank of Albany, 258 Ga. 547, 549-550 (372 SE2d 423) (1988); Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905) (1992); Patterson v. State, 202 Ga. App. at 443-444.

In the case sub judice, the South Carolina Circuit Court decided that the witness should not be compelled to testify in Georgia, concluding that to do so would “unduly jeopardize” her mental health. The Georgia court had already determined that the witness was a “necessary and material witness” to appellant’s prosecution. Therefore, the witness was unavailable for the purposes of OCGA § 24-3-1 (b).

“The second aspect operates once a witness is shown to be unavailable. Only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule may be admitted.” (Citation and punctuation omitted.) Adams v. State, 191 Ga. App. at 17 (2). Such guarantees of trustworthiness act as a “substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” (Citation and punctuation omitted.) Wallace v. State, 216 Ga. App. at 719 (2). For example, the party offering the hearsay evidence may establish that the declarant consulted an attorney before giving the statement; the declarant never recanted or retracted the statement; and the statement was corroborated by other evidence. Mallory v. State, 261 Ga. at 627-628; Wallace v. State, 216 Ga. App. at 719-720; Patterson v. State, 202 Ga. App. at 444.

All of these indicia are present in the case sub judice. The victim gave a sworn statement under oath; was questioned by her personal attorney during the hearing in front of the South Carolina Circuit Court judge; the hearing was transcribed; the victim never recanted her testimony; and the testimony was corroborated by testimony from another witness. Further, while appellant complains that the psychologist’s report indicates that the witness’ testimony could have been unreliable, appellant was given the opportunity to introduce the report in rebuttal to the admission of the transcript testimony. However, appellant refused to do so, which was understandable since the report was, in many ways, unfavorable to his position, in that it underscored the “severe emotional trauma” inflicted on the witness by appellant.

“We have held that it is implicit in the trial court’s admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding of sufficient indicia of reliability. [Cits.]” (Punctuation omitted.) Green v. State, 212 Ga. App. 250, 251 (1) (441 SE2d 689) (1994). Therefore, there was no error in the trial court’s admission of the transcript under the necessity exception of OCGA § 24-3-1 (b).

5. Appellant asserts that the trial court erred in failing to charge the jury on the limited purpose of the similar transaction evidence. However, the trial court specifically instructed the jury that such evidence was “admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone, . . . [and] if you believe that the accused has had similar transactions, you will bear in mind that in connection with any such evidence you are considering it solely with reference to the mental state, identity or intent of the defendant. . . .” (Emphasis supplied.) Appellant apparently takes issue with the reference to “identity” in the instructions, since the identity of appellant was never an issue regarding either the crime for which he was being tried or the similar transactions. However, for the same reason, such reference was harmless. See Miller v. State, 219 Ga. App. 284 (464 SE2d 860) (1995); Mapp v. State, 191 Ga. App. 622 (382 SE2d 618) (1989). Further, appellant never requested limiting instructions, as required in Miller v. State, 219 Ga. App. at 286. See also Moore v. State, 202 Ga. App. 476, 480 (414 SE2d 705) (1992). This enumeration is without merit.

6. In his final enumeration, appellant asserts that the trial court erred in allowing the introduction of photographs of nude and semi-nude women, allegedly to demonstrate appellant’s bad character. The photographs at issue were discovered during the search of appellant’s home, while police officers were looking for a glass belonging to the victim.

“With regard to allegations of illegal sexual conduct, this court has repeatedly held that possession of [sexually explicit photographs] is relevant to show ‘state of mind and lustful disposition.’ Stamey v. State, 194 Ga. App. 305, 307 (2) (390 SE2d 409) (1990).” King v. State, 209 Ga. App. 529, 530 (2) (b) (433 SE2d 722) (1993). “The true issue is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition. [Cits.]” (Emphasis omitted.) Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992); see also King v. State, 209 Ga. App. at 530; Stamey v. State, 194 Ga. App. at 307. “[I]t would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition of the defendant or that they say nothing about his state of mind, as to inclination towards and preoccupation with such matters. If there is any question about it, it is a well established rule of law that the rules of evidence require that the evidence be admitted and its weight and effect left to the jury. Stamey v. State, 194 Ga. App. at 308.” (Punctuation omitted.) Helton v. State, 206 Ga. App. at 217; see also King v. State, 209 Ga. App. at 531.

This case is distinguishable from Roose v. State, 182 Ga. App. 748 (356 SE2d 675) (1987), in which this Court found harmless error when photographs of a male defendant kissing another man were admitted in defendant’s trial for performing oral sodomy on a twelve-year-old boy, as the two incidents were dissimilar in nature, the photograph did not depict a crime, and there was no logical connection between the first incident and the charged offense. In the case sub judice, all of the photographs were found in the room where the rape took place within hours of the rape. Several different nude women were shown in the photographs. Notably, two pictures showed two different women engaging in oral sodomy with an unidentified man, and the angle- of the photographs strongly suggests that they were taken by appellant, who admitted ownership of the pictures. This is significant because appellant is charged with aggravated (anal) sodomy and he testified that, prior to this trial, he did not know what “sodomy” meant.

Decided August 6, 1997

Roland L. Enloe, Jr., Christopher A. Townley, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

There was no abuse of discretion in the trial court’s admission of the photographs into evidence.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.