author: Andrews, Chief Judge. McMurray, Presiding Judge,

text:
    A97A0398, A97A0399.
    ROBERTS v. FORTE HOTELS, INC. (two cases).
    (489 SE2d 540)
   Andrews, Chief Judge.

Case No. A97A0398

Janice Roberts appeals the trial court’s order granting Forte Hotels, Inc.’s f/k/a The Travelodge Corporation, d/b/a Travelodge Hotel, Atlanta. (“Travelodge”) motion for partial summary judgment on the issues of failure to warn and punitive damages and its motion for sanctions and attorney fees in a discovery dispute. For the reasons which follow, we affirm the judgment of the trial court.

This case arose when Janice Roberts was attacked by two unknown assailants at the Travelodge Hotel on North Druid Hills Road. Around 10:30 p.m. on the night in question, Roberts and a friend parked their car and walked toward the lobby of the hotel. As Roberts was about to open the front door, two men attacked them, throwing Roberts to the ground. The assailants tore her clothing and took her purse. Roberts suffered a wrenched shoulder and lower back, sprained hip, muscle strain and bruises. In addition to being physically injured, Roberts was terrified by the attack and had to seek psychiatric help.

Travelodge filed a motion for summary judgment or, in the alternative, a motion for partial summary judgment on the issues of punitive damages and failure to warn. The court denied the motion for summary judgment, but granted the motion for partial summary judgment, and this appeal followed.

1. Roberts claims the trial court erred in granting Travelodge partial summary judgment on the issue of punitive damages because Travelodge failed to provide dusk-to-dawn security every day, even though it was on notice of several previous attacks in and around the hotel. The similar incidents occurring on the hotel premises were: three robberies of hotel auditors in the hotel lobby in August 1987, December 11, 1992, and April 2, 1993; the armed robbery of a hotel guest in the, parking lot; and fifteen incidents of robberies and damage to cars in and around the hotel. Although Travelodge employed dusk-to-dawn security on weekends, it did not have a guard on the premises seven days a week.

OCGA § 51-12-5.1 (b) provides: “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Under this Code section, “it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is general agreement that, because it lacks this element, mere negligence is not enough,” Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36, 40 (4) (470 SE2d 738) (1996), aff’d in part and rev’d on other groünds, Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (482 SE2d 339) (1997) and “even gross negligencet ] is inadequate to support a punitive damage award.” Howard v. Alamo Corp., 216 Ga. App. 525, 526 (455 SE2d 308) (1995).

A former manager at the Travelodge testified at her deposition that she hired security for weekends only because that was when the majority of the problems occurred. She also stated that, in an effort to increase guests’ safety, hedges were cut down around the building, floodlights were added to the parking lot, and a night manager was scheduled to be on duty during the week.

In light of this, we do not find sufficient evidence that Travelodge’s conduct showed the requisite degree of wilful misconduct, malice, wantonness, oppression or otherwise evinced an entire want of care sufficient to authorize the imposition of punitive damages. Walker, supra at 41; Assoc. Health Systems v. Jones, 185 Ga. App. 798, 802-803 (366 SE2d 147) (1988). Accordingly, the trial court did not err in granting Travelodge’s motion for partial summary judgment on this issue.

2. Next, Roberts claims the trial court erred in granting Travelodge’s motion for summary judgment on her failure to warn claim. Roberts admits that Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) is to the contrary.

Lau’s states: “We decline, however, to require owners to post signs warning of a generalized risk of crime. It is difficult even to imagine what such warnings would include: Watch out! This is a high crime neighborhood,’ or, ‘Since 1982, two rapes and one robbery have occurred in this parking lot.’ ” Id. at 493 (2). The Court concluded “no such duty currently exists in the law.” Id.

But, Roberts cites Atlanta Center Ltd. v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986) (physical precedent only) as authority for her contention that Lau’s Corp. is not controlling in this case. However, in Atlanta Center Ltd. the Court never specifically held that defendants had a duty to warn. The Court stated that because defendants had undertaken to provide security to patrons using the elevators and hallways, then, having undertaken that duty, defendants were required to perform it in a non-negligent manner. Atlanta Center, supra at 185. This case is not helpful to Roberts. Travelodge provided security on the weekend, but, as Roberts herself states, there was no security on duty the night she was attacked.

Accordingly, Travelodge did not have a duty to warn its guests of possible criminal attacks. Lau’s Corp., supra at 493. The trial court did not err in granting Travelodge’s motion for partial summary judgment on this issue.

3. Lastly, Roberts claims the trial court erred in granting Travelodge’s motion for sanctions and attorney fees. Travelodge filed the motion under OCGA § 9-11-37 (d) after Roberts’ counsel and expert witness failed to appear for the expert’s deposition.

Roberts contends her counsel made numerous attempts to reschedule the deposition for some later date. Roberts finally filed a motion for protective order on January 30, the day before the deposition was scheduled. Travelodge argues that it wanted to schedule the deposition before the end of discovery, which was January 31, and also that Roberts never stated any legally sufficient reason for failing to attend the deposition. After a hearing on the issue, the trial court granted the motion for sanctions and awarded Travelodge $1,188 in attorney fees.

“ ‘This court has repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.’ ” (Citations omitted.) Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) (306 SE2d 362) (1983). After reviewing the record, we find no abuse of discretion in the trial court’s decision to grant the motion for sanctions.

Further, Roberts’ contention that. her counsel was given no opportunity to question the amount of the attorney fees awarded is without merit. Defense counsel submitted an affidavit listing the amount of the fees. The court conducted a lengthy hearing on the motion and questioned defense counsel as to the amount of his fees. If counsel disputed the amount, he should have said so at the time and asked for an opportunity to cross-examine. He did not do so, nor did he ever mention, at any time during the hearing, that he questioned the amount of attorney fees. This enumeration of error is without merit.

Case No. A97A0399

In this case, Janice Roberts appeals the trial court’s order requiring her to undergo a psychological examination pursuant to OCGA § 9-11-35. Roberts contends the trial court abused its discretion by entering an order which (1) failed to comply with the requisites of OCGA § 9-11-35 and (2) impermissibly abridged the patient-psychiatrist privilege.

Roberts claims she suffers mental injury in the form of emotional distress and post-traumatic stress disorder as a result of the assault that occurred on Travelodge’s premises. Roberts has been under the care of a psychiatrist since the assault. Travelodge attempted to obtain her psychiatrist’s records but Roberts objected, asserting the patient-psychiatrist privilege. When Roberts offered the psychiatrist for deposition, Travelodge declined. Instead, Travelodge asked for an order pursuant to OCGA § 9-11-35 requiring Roberts to undergo an examination with a psychologist of its own choosing.

OCGA § 9-11-35 (a) provides: “When the mental or physical condition . . . of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

The court granted Travelodge’s motion, ordering Roberts to travel to Atlanta for a six-hour interview and “submit to any necessary written or oral psychological tests deemed necessary by Dr. Davis.” The court’s order also stated that any “statements made by plaintiff during this examination will not be protected as privileged under the psychiatric-patient privilege.”

“A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” (Citations and punctuation omitted.) Crider v. Sneider, 243 Ga. 642, 645 (256 SE2d 335) (1979). A trial court has broad discretion in granting or denying a motion under OCGA § 9-11-35 and in determining whether or not “good cause” has been shown. Bradford v. Parrish, 111 Ga. App. 167 (141 SE2d 125) (1965). In a civil case, the court may order an evaluation for “good cause shown” if the party’s mental condition is in controversy. OCGA § 9-11-35. An allegation of continuing mental injury is sufficient to place a plaintiff’s mental condition in controversy. Crider, supra at 645.

4. Roberts argues the trial court erred in granting the motion because Travelodge could have deposed her psychiatrist but chose not to do so. It is true that in determining whether “good cause” has been shown, “ ‘(t)he ability ... to obtain the desired information by other means is also relevant.’ ” (Citation omitted.) Id.; Prevost v. Taylor, 196 Ga. App. 368 (396 SE2d 17) (1990). But, since Roberts stated she was claiming the patient-psychiatrist privilege with regard to all statements made to her psychiatrist, the information to be obtained by deposing her treating psychiatrist would be severely limited and cannot be deemed the equivalent of an independent psychiatric evaluation. The trial court did not err in granting Travelodge’s Rule 35 motion.

5. Roberts also claims Travelodge’s motion did not set out with the requisite specificity the “ ‘manner, conditions, and scope of the examination.’ ” (Citation omitted.) Crider, supra at 644 (1). We agree that the order giving authorization for Dr. Davis to do what is “deemed necessary,” does not comply with the specificity required by Crider, supra. At a minimum, the trial court should have ordered the examination confined to problems which Roberts claims are a result of the attack. In addition, Roberts argues a six-hour examination is unduly oppressive. We note there is no evidence in the record from which the trial court could have determined that it was necessary to order a six-hour examination.

6. Moreover, the language in the Code section is very clear in requiring the examination be performed “by a physician.” Since a psychologist is not a physician, the trial court had no authority to order Roberts to submit to an examination by a psychologist.

7. Roberts also contends the trial court erred in ruling that the psychological examination would not be subject to the patient-psychiatrist privilege. However, “[bjefore the patient-psychiatrist communications privilege established by OCGA § 24-9-40 may be invoked, the requisite relationship of psychiatrist and patient must have existed, to the extent that treatment was given or contemplated.” (Citations, punctuation and emphasis omitted.) Mrozinski v. Pogue, 205 Ga. App. 731, 732 (423 SE2d 405) (1992). See also Wilson v. Bonner, 166 Ga. App. 9, 16-17 (303 SE2d 134) (1983) (appellee went to psychiatrist of her own volition for the purpose of seeking treatment, thus creating requisite confidential relationship to which the psychiatrist-patient privilege applies).

Decided July 2, 1997

Reconsideration denied July 17, 1997

Richard C. Freeman III, for appellant.

Dennis, Corry, Porter & Gray, Matthew J. Jewell, James S. Strawinski, for appellee.

Here, there has been no treatment given and none contemplated. Therefore, no confidential relationship has been created. Accordingly, the patient-psychiatrist privilege does not apply to a psychiatric examination under OCGA § 9-11-35 to the extent the information is required to defend this lawsuit.

Judgment affirmed in Case No. A97A0398.

Beasley, J., concurs. McMurray, P. J, concurs specially.

Judgment vacated and case remanded in Case No. A97A0399.

McMurray, P. J., and Beasley, J., concur.

McMurray, Presiding Judge,

concurring specially.

I fully concur in Case No. A97A0399, vacating the order for a mental examination by a non-physician. In Case No. A97A0398, I fully concur in Division 1, affirming the grant of partial summary judgment as to any . claim for punitive damages and also concur fully in Division 3 and the imposition of attorney fees as a discovery sanction. As to Division 2, Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (405 SE2d 474) holds that Georgia law does not impose on an owner or occupier of land any duty to post signs warning of a generalized risk of crime. Consequently, the trial court correctly granted partial summary judgment as to this theory of liability as alleged in Count 2 of the complaint, “DEFENDANT’S DUTY TO WARN.” But Count 1 of the complaint, alleging a failure to exercise ordinary care to keep the premises safe, remains a viable theory of liability as to which summary judgment was denied by the trial court. With that understanding, I concur as to Division 2.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A97A0644.
    WESTERN AUTO SUPPLY COMPANY v. McKENZIE et al.
    (489 SE2d 537)
   Andrews, Chief Judge.

The issue raised on this appeal is which of two liens has priority on the proceeds of the sale of a Western Auto store. The trial court determined that Commercial Bank & Trust Company of Troup County’s (“CB&T’s”) lien had priority over that of Western Auto Supply Company (“Western Auto”). We disagree and reverse the judgment of the trial court.

The parties stipulated to the following facts. John Hadden d/b/a Western Auto Associates Store executed a security agreement granting a lien to Western Auto on the assets of his business, including inventory, fixtures, contract rights, accounts receivable, and so on. Western Auto filed a UCC-1 financing statement securing the above collateral on April 27, 1982. On December 30, 1986, John Hadden, d/b/a Western Auto Associates Store, opened a bank account at CB&T and executed a promissory note to CB&T for $175,000. On December 31, 1986, CB&T filed a UCC-1 financing statement covering all accounts and contract rights of John Hadden d/b/a Western Auto Associates Store.

On January 12, 1987, John Hadden incorporated under the name of WASLA, Inc. and executed a new dealer agreement between WASLA, Inc. and Western Auto. On February 4, 1987, WASLA entered into a security agreement with Western Auto, pledging all of WASLA, Inc.’s present and future inventory, accounts receivable, contract rights, chattel paper, fixtures and equipment as collateral to secure present and future debts owed to Western Auto. On March 23, 1987, Western Auto filed a financing statement covering all inventory, fixtures, and assets of WASLA, Inc.

On July 15, 1988, CB&T filed another financing statement listing the debtor as John Hadden d/b/a Western Auto Associates Store and the collateral as all equipment, inventory, contract rights, and accounts.

On October 4, 1991, the Western Auto financing statement was continued and on March 25, 1993, the CB&T financing statement was continued. No additional financing statements were filed by either party after the one filed on March 25, 1993.

In the meantime, on January 9, 1992, WASLA, Inc. was administratively dissolved. It appears the business was not doing well at this point and on April 13, 1994, a buyer was found for the store. On August 30, 1994, the sale was finalized. The settlement statement listed the name of the seller as “John Hadden, d/b/a Western Auto.” Separate Bills of Sale to the purchaser from WASLA, Inc. and John Hadden were signed and delivered at closing.

The funds from the sale of the business were deposited into court and the holder brought an interpleader action to determine which party was entitled to the money. After a bench trial, the court below determined CB&T had the superior lien. The trial' court reasoned that WASLA, Inc., the corporation, had ceased to exist at least by January 9, 1994, two years after it was administratively dissolved. Accordingly, Western Auto’s lien had nothing to attach to, since the security agreement was with WASLA, Inc., not John Hadden. This appeal followed.

This case is controlled by Article 9 of the UCC. In interpreting cases under Article 9, it is important to keep in mind that the drafters of the Code accorded paramount status to the secured creditor first to file. “Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.” OCGA § 11-9-312 (5) (a). In other words, “once the secured party files an effective financing statement, it is relieved, to a certain extent, of the burden of correcting misleading errors, and a prospective creditor is obligated to inquire into the debtor’s source of title.” In re Cohutta Mills, Inc., 108 B. R. 815, 820 (N.D. Ga. 1989).

Here, Western Auto was the first to file a financing statement perfecting its security interest in the collateral of the store. From that date to the sale of the store, there was never any period in which Western Auto did not have a filed financing statement covering the collateral.

Neither a name change nor a change in the corporate structure affects this priority. OCGA § 11-9-402 (7) provides in pertinent part: “Where the debtor so changes his name, or in the case of an organization, its name, identity, or corporate structure, that a filed financing statement becomes seriously misleading, the filing is not effective to perfect a security interest in collateral acquired by the debtor more than four months after the change, unless a new appropriate financing statement is filed before the expiration of that time. A filed financing statement remains effective with respect to collateral transferred by the debtor even though the secured party knows of or consents to the transfer.”

In the trial court, CB&T argued that after WASLA, Inc. was dissolved, it ceased to exist except for the limited purpose of winding up its affairs. OCGA § 14-2-1421 (c). It cited Gas Pump v. General Cinema, 263 Ga. 583 (436 SE2d 207) (1993), for the proposition that WASLA, Inc. ceased to exist two years after it was administratively dissolved. At that time the assets of the corporation became the property of John Hadden as the sole shareholder and, as a result, CB&T claimed Western Auto’s financing statement in the name of WASLA, Inc. became invalid.

Decided June 30, 1997

Reconsideration denied July 17, 1997

Wyatt & Kendinger, John M. Wyatt, for appellant.

Willis, McKenzie & Long, Dewey R. McKenzie, Jr., Duncan, Thomasson & Aeree, Thurman E. Duncan, for appellees.

Whether, and at what point in time, the corporation ceased to exist is immaterial. Assuming the financing statement became seriously misleading due to the change in the debtor’s name from WASLA, Inc. to John Hadden individually after the dissolution of the corporation, Western Auto is still protected as to collateral acquired through that time and up to four months thereafter. OCGA § 11-9-402 (7); In re Cohutta Mills, Inc., supra at 819.

Here, even assuming as CB&T contends, that the corporation ceased to exist two years from the date it was administratively dissolved on January 9, 1992, and the name WASLA, Inc. became “seriously misleading” as to any subsequent creditor searching the record, that does not invalidate an otherwise valid financing statement. As stated above, under OCGA § 11-9-402 (7) the financing statement filed by Western Auto naming WASLA, Inc. as the debtor, was effective until at least four months after January 9, 1994, the date on which CB&T claims the corporation dissolved and the listing of WASLA, Inc. as the debtor on the financing statement became so inaccurate as to be seriously misleading. OCGA § 11-9-402 (7); In re Cohutta Mills, supra at 819. Moreover, at that point the financial statement only became ineffective as to any collateral acquired by John Hadden after May 9, 1994. There is nothing in the record before us to show that any collateral was acquired after May 9, 1994, especially since the parties stipulated that on April 13, 1994, an offer to purchase the store was extended and later accepted. Therefore, for the reasons discussed above, Western Auto had a valid financing statement on file securing the assets of John Hadden’s Western Auto store, and its lien took priority over that of CB&T.

Judgment reversed.

McMurray, P. J, and Beasley, J., concur.

       A financing statement becomes seriously misleading when the two names are completely dissimilar, as are WASLA, Inc. and John Hadden, such that a prospective creditor searching under WASLA, Inc. would not be alerted to inquire into John Hadden’s interests. In re Cohutta Mills, Inc., supra at 820.


author: Ruffin, Judge.

text:
    A97A0206.
    VINCENT v. BUNCH et al.
    (489 SE2d 592)
   Ruffin, Judge.

Charles Vincent sued attorney Gary Bunch and Gary Bunch, RC. (collectively “Bunch”) for legal malpractice and breach of fiduciary duty. Bunch moved for partial summary judgment and requested oral argument. Vincent responded to the motion one day late. Citing Vincent’s failure to respond on time, Bunch moved to strike the response as untimely and requested that the trial court preclude Vincent from presenting oral argument on the motion. The trial court subsequently struck Vincent’s response and granted partial summary judgment to Bunch without hearing oral argument from either side. Vincent now appeals from the trial court’s grant of partial summary judgment. For reasons which follow, we reverse.

1. Vincent argues that the trial court committed reversible error by ruling on Bunch’s summary judgment motion without holding oral argument. We agree.

Uniform Superior Court Rule (“USCR”) 6.3 provides that “oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing,’ and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.” Under this rule, “ ‘whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.’ . . . [Cit.] Moreover, the trial court’s failure to hold oral argument cannot be considered harmless error, because doing so ‘would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.’ [Cit.]” Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103, 107 (5) (456 SE2d 668) (1995).

Bunch argues that Vincent forfeited his right to oral argument by not filing a timely response. A party who fails to respond to a summary judgment motion, however, “ ‘merely waives his right to present evidence in opposition to the motion. . . .’ [Cit.]” (Emphasis supplied.) Standex Intl. Corp. v. Driver, 223 Ga. App. 645 (478 SE2d 605) (1996). The party does not waive the right to present oral argument on the motion. See Spikes v. Citizens State Bank, 179 Ga. App. 479, 481 (1) (347 SE2d 310) (1986) (“[i]f appellant^ who failed to respond to a summary judgment motion,] wanted to present oral argument, all he needed to do was request it in writing as provided in [USCR] 6.3 and it would have been permitted”).

Bunch further contends that because Vincent did not request argument pursuant to USCR 6.3, he cannot complain about the trial court’s refusal to hold argument. The record shows, however, that the mandatory hearing requirements of USCR 6.3 were triggered without a request from Vincent. Bunch made a timely request for argument, which the trial court acknowledged by scheduling a hearing on the summary judgment motion. The scheduled date remained set until the parties arrived for the hearing, at which point the trial court struck Vincent’s written response and determined that Bunch’s motion could be ruled upon without oral argument. Vincent argues that until the hearing date, he reasonably relied upon Bunch’s request and the trial court’s hearing schedule in not filing his own oral argument request. We agree.

Decided July 18, 1997

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellant.

Hawkins & Parnell, H. Lane Young II, Edward C. Henderson, Jr., for appellee.

Gary P. Bunch, pro se.

“The law does not require a useless act.” Tendler v. Thompson, 256 Ga. 633, 634 (352 SE2d 388) (1987). Although Vincent certainly could have filed a separate request, it would have been cumulative and unnecessary under USCR 6.3, which requires that “one of the parties” request argument. (Emphasis supplied.) Richmond Leasing Co. v. First Union Bank &c., 188 Ga. App. 843, 845 (2) (374 SE2d 746) (1988). The trial court had no discretion to deny oral argument in this case. Accordingly, we reverse the trial court’s ruling on Bunch’s motion for partial summary judgment, and we remand this case to the trial court with instructions that oral argument be held on the motion. See APAC-Ga., supra; Pit Stop v. Jackson, 216 Ga. App. 648 (1) (455 SE2d 358) (1995).

2. In light of our decision in Division 1, Vincent’s remaining enumerations of error are moot. Pit Stop, supra at 649.

3. Finally, the parties have filed several motions with this Court. Vincent has moved to strike Bunch’s brief on appeal, and Bunch has moved for sanctions for frivolous appeal. Upon review, we hereby deny both motions.

Judgment reversed and case remanded with instruction.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: ELDRIDGE, Judge.

text:
    A97A1591.
    LOCKHART v. THE STATE.
    (489 SE2d 594)
   ELDRIDGE, Judge.

Appellant, Stanley L. Lockhart, pled guilty but mentally retarded to burglary and rape on June 12, 1995.. He was sentenced in the Sumter County Superior Court to ten years imprisonment (five to serve) on the burglary charge, and ten years (two to serve) on the rape charge, to be served consecutively. Subsequent to the sentencing, the Georgia Attorney General’s office notified the Sumter County District Attorney’s office that appellant’s sentence was void, as appellant should have been sentenced under the provisions of OCGA § 17-10-6.1, which requires a mandatory ten year sentence for rape, without the possibility of parole. On February 20, 1997, appellant was re-sentenced to two ten year terms of imprisonment to be served concurrently. Appellant appeals from this order. Held:

Appellant asserts that the trial court erred in voiding the previous sentence and re-sentencing him under OCGA § 17-10-6.1. We disagree and affirm the trial court’s order.

OCGA § 17-10-6.1 identifies seven “serious violent felon[ies],” including rape, as defined in OCGA § 16-6-1. OCGA § 17-10-6.1 (a) (4). This provision requires that anyone convicted of one of the enumerated violent felonies “shall be sentenced to a mandatory minimum term of imprisonment of ten years” without the possibility of “pardon, parole, or commutation of sentence. . . .” OCGA § 17-10-6.1 (b).

OCGA § 17-10-6.1 was enacted by the Georgia General Assembly in 1994 and became effective on January 1,1995, following voter ratification of a related constitutional amendment. Ga. L. 1994, p. 1959, § 18; see also Ga. Const. of 1983, Art. IV, Sec. II, Par. II. Section 16 of the Act, which was not codified, provided in relevant part that, “The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act. . . .” (Emphasis supplied.) Ga. L. 1994, p. 1959, § 16.

In the same legislative Act, the General Assembly also amended OCGA § 16-6-1 (b), the rape statute, to provide for a punishment of “not less than ten nor more than 20 years” imprisonment for a rape conviction. Ga. L. 1994, p. 1959, § 5. However, the General Assembly amended OCGA § 16-6-1 two years later, in 1996, to provide for imprisonment of “not less than one” year, instead of the previous ten year minimum sentence. Ga. L. 1996, p. 1115, § 1. The effective date of the 1996 amendment was July 1, 1996. Id.

In the case sub judice, appellant asserts that, since he was re-sentenced by the trial court on February 20, 1997, OCGA § 16-6-1, as amended in 1996 to remove the minimum ten year sentence, should apply, because the previous version of OCGA § 16-6-1 was no longer “valid.” Appellant cites to an unofficial opinion of the Georgia Attorney General which stated that, after July 1, 1996, the mandatory minimum term of imprisonment for rape is one year. Op. Atty. Gen. No. U96-20 (issued October 25, 1996).

Decided July 21, 1997.

Harper & Barnes, Russ F. Barnes, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

However, appellant’s acts which were the basis of the June 1995 guilty plea took place on February 27, 1995, several weeks after the January 1, 1995 effective date of OCGA §§ 17-10-6.1 and 16-6-1 (b), as amended, and over 16 months before OCGA § 16-6-1 was amended. Therefore, the trial court was required to sentence appellant in accordance to the sentencing provisions that existed at the time of his criminal act. See Conrad v. State, 217 Ga. App. 388, 391 (457 SE2d 592) (1995); see generally Akins v. State, 231 Ga. 411, 412 (202 SE2d 62) (1973). Failure to sentence appellant to a mandatory ten year sentence without the possibility of parole was error as a matter of law, so that the June 1995 sentence was void ab initio and re-sentencing was required. See Conrad v. State, supra at 391; Jefferson v. State, 205 Ga. App. 687 (423 SE2d 425) (1992); Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991) (holding that “if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time”).

The fact that OCGA § 16-6-1 (b) subsequently was amended to reduce the sentence for the crime has no bearing on this case, as laws, particularly criminal laws, are prospective in nature and are not applied retroactively absent a clear expression of the intent of the General Assembly to do so. See OCGA § 1-3-5; Jackson v. State, 223 Ga. App. 471 (477 SE2d 893) (1996). This holding is further supported by the Attorney General’s opinion cited by appellant, which stated specifically that “as of July 1, 1996, there is no longer a mandatory minimum ten year sentencing provision for rape . . .” and which leads to the conclusion that the previous ten year minimum mandatory sentence, under which appellant should have been sentenced in 1995, was not invalidated by the subsequent amendment of OCGA § 16-6-1. (Emphasis supplied.) Op. Atty. Gen. No. U96-20, supra.

There was no error in the trial court’s February 1997 re-sentenc: ing of appellant.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A97A1592.
    BROWN v. LITTLE.
    (489 SE2d 596)
   Eldridge, Judge.

Appellant Debbie L. Brown appeals from a ruling of the Superior Court of Fayette County on her suit to collect a debt from her former brother-in-law, appellee Richard E. Little. We reverse the trial court’s ruling and remand the case for a new trial.

Appellant was married to appellee’s brother, Raymond Little, until October 1992. In 1990, appellant inherited $32,000 from her father’s estate. Following a request from appellee, appellant loaned appellee $20,000 of such inheritance on March 2, 1990; the actual terms of the oral contract are in dispute. On October 16, 1990, appellee paid appellant $2,100 toward the loan; a second loan payment of $200 in cash followed in August 1991. Both payments were made directly to appellant. Although appellant repeatedly requested payment from appellee, she received no further payments; appellee never claimed to have made payments to appellant’s husband, Raymond Little, on her behalf. Appellant filed a suit to collect the debt in the Superior Court of Fayette County on June 16, 1993. Appellee responded with a general denial, but amended his answer on the day before trial to include a Statute of Frauds defense. The answer did not assert payment as an affirmative defense.

At trial, appellee attempted to testify for the first time that he gave his brother, appellant’s former husband, checks made out to his brother totaling $14,000.78 between November 30, 1990 and February 14, 1992. Appellant’s counsel objected, as the affirmative defense of payment had not been asserted in appellee’s answer or amended answer, as required by OCGA § 9-11-8 (c). The trial court overruled appellant’s objection and allowed the testimony regarding this affirmative defense without amendment to appellee’s answer.

In rebuttal, appellant denied ever sending her former husband to collect payments from appellee; receiving the checks from her former husband; or knowing of the alleged additional payments by appellee. Following the bench trial, the trial court ruled that appellant’s claim was barred by the Statute of Frauds. This ruling was subsequently appealed to this Court, which reversed the decision and remanded the case back to the trial court. Brown v. Little, 217 Ga. App. 632 (458 SE2d 669) (1995). In lieu of a new trial, both parties agreed to re-submit the case to the trial court based on the transcript from the original bench trial. The trial court subsequently found that appellee had made a total of $19,300.78 in payments on the loan and accrued interest. The trial court specifically noted that, since appellant and her former husband were still married at the time appellee made the loan payments directly to the husband, the payments were “received into the family,” so that “the proper party for an action for these sums lies with” appellant’s former husband, not appellee. The trial court reasoned that the husband had received the payments from appellee and had failed to disclose them to appellant. The trial court then awarded appellant a total of $3,057.36, which included $699.22 in remaining principal and $2,358.14 in accrued interest. Held:

1. In the first enumeration of error, appellant asserts that the trial court erred in allowing appellee to present evidence of payments made to appellant’s former husband, since appellee failed to assert such payment as an affirmative defense in his answer or amended answer, as required by OCGA § 9-11-8 (c). We agree.

Under OCGA § 9-11-8 (c), payment is an affirmative defense which must be specially pled in the answer or raised as an amendment to the answer at any time prior to entry of a pre-trial order. OCGA §§ 9-11-12 (b); 9-11-15 (a); see Resiventure v. Nat. Loan Investors, 224 Ga. App. 220 (480 SE2d 212) (1997); Abdalla v. DDCB, 216 Ga. App. 667, 669 (455 SE2d 598) (1995); Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574 (136 SE2d 505) (1964); Rahal v. Titus, 107 Ga. App. 844 (131 SE2d 659) (1963); see also George v. Roberts, 220 Ga. App. 583, 584-585 (469 SE2d 249) (1996). Further, if the affirmative defense is not pled, it is waived, and any evidence regarding the defense is inadmissible at trial. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (33 SE 961) (1899); Blanchard v. Ga. Southern & Fla. R. Co., 117 Ga. App. 858, 859 (162 SE2d 442) (1968); see also George v. Roberts, supra at 584-585; Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga. App. 306, 307 (358 SE2d 884) (1987).

In the case sub judice, appellee answered appellant’s complaint with a general denial; he later amended his answer to include a Statute of Frauds defense. He never asserted a defense of payment prior to trial. As such, appellee waived this defense, and the testimony should have been excluded. The trial court abused its discretion in overruling appellant’s objection, allowing the testimony, and crediting such payments as a set off against appellee’s indebtedness. Therefore, the judgment must be reversed.

In remanding this case for retrial, we note that appellee will have the opportunity to amend his answer to include the defense of payment at any time prior to the re-trial or the entry óf a pre-trial order. See OCGA § 9-11-15 (a) and (c); Resiventure v. Nat. Loan Investors, supra; Abdalla v. DDCB, supra. Such opportunity is consistent with the purpose of the Civil Practice Act’s requirement that affirmative defenses be pled before trial, which is to “prevent surprise and to give the opposing party fair, notice of what he must meet as a defense.” Ohoopee Prod. Credit Assn. v. Aspinwall, supra at 307; McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (341 SE2d 294) (1986); Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (173 SE2d 723) (1970). Assuming that appellee in the case sub judice properly amends his answer to incorporate the defense of payment, appellant will have received the notice required by the CPA and will have the opportunity to prepare a response to appellee’s assertions.

2. In her second enumeration of error, appellant asserts that the trial court erred when it ruled that checks allegedly given by appellee to appellant’s former husband were payments made “into the family,” i.e., to both appellant and her former husband. We agree.

The trial court apparently assumes that all funds brought into a marriage are jointly owned by both spouses. However, Georgia has never subscribed to a community property theory regarding assets acquired during marriage while the marriage exists. Instead, this state has developed extensive case law on treating assets as either separate or marital property, but such analysis applies only for the purpose of the equitable division of property upon the dissolution of the marriage. See Yates v. Yates, 259 Ga. 131 (377 SE2d 677) (1989); Bailey v. Bailey, 250 Ga. 15 (295 SE2d 304) (1982); Moore v. Moore, 249 Ga. 27 (287 SE2d 185) (1982); Stokes v. Stokes, 246 Ga. 765, 768 (273 SE2d 169) (1980), and cases cited therein. Therefore, the trial court erred as a matter of law in determining that the checks given by appellee to appellant’s former husband during the marriage became the property of both spouses jointly and in crediting the checks against appellee’s outstanding indebtedness to appellant.

Since there is no dispute that the loan to appellee was made with appellant’s separate property, i.e., the proceeds of an inheritance from her father, and since it is clear that appellant’s former husband had no property interest whatsoever in the loan transaction, the proper analysis is whether appellant’s former husband was acting as an agent for appellant in accepting the checks from appellee in repayment of the loan. In other words, in the case sub judice, testimony that the alleged payments were made to the husband, without additional evidence in the record proving an agent/principal relationship, is insufficient to carry appellee’s burden of proof on his affirmative defense of payment on the loan. See Hinely v. Barrow, 169 Ga. App. 529, 530 (313 SE2d 739) (1984).

In Georgia, an agency relationship is created “wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. “Agency may result where one party has apparent authority to effect the legal relations of another party by transactions with a third party, but it must be emphasized that apparent authority to do an act is created as to a third person when the statements or conduct of the alleged principal reasonably cause the third person to believe that the principal consents to have the act done on his behalf by the purported agent. Where the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists.” (Citations and punctuation omitted; emphasis in original.) Hinely v. Barrow, supra at 530-531. Clearly, an agent/principal relationship cannot be inferred between two individuals solely because they are married. See id. at 531; compare Barron v. Chamblee, 199 Ga. 591, 599 (34 SE2d 828) (1945) (husband was agent for wife when he acted in her presence without her objection); Aronoff v. Woodard, 47 Ga. App. 725 (171 SE 404) (1933) (wife permitted husband to manage and control her property to the extent that others were induced to believe that the property belonged to him or that he was acting as her authorized agent).

In the case sub judice, appellant’s former husband testified that his brother, the appellee, had given him checks totaling $14,000.78 in repayment of the loan that is the subject of this dispute. These checks were endorsed by appellant’s husband and deposited in the husband’s personal bank account. Appellee presented no evidence that appellant authorized her former husband to accept checks on her behalf; that appellant made any statements that could reasonably indicate that she had consented to her former husband acting as her agent; that appellant ratified her former husband’s acceptance of the checks; or that appellant even knew about the alleged payments on the loan.

Therefore, the evidence at trial was insufficient to establish an agency relationship between appellant and her former husband, and the trial court erred in subtracting the alleged payments to appellant’s former husband from the court’s award to appellant.

Judgment reversed and remanded for re-trial in a manner consistent with this opinion.

Birdsong, P. J., and Ruffin, J., concur in judgment only.

Decided July 21, 1997.

Paul S. Liston, for appellant.

Millard B. Morgan, for appellee.

       The trial court credited to appellee $2,300 in payments directly to appellant; $12,000.78 in payments made to appellant’s former husband; and $5,000 in payments made to appellant following the previous bench trial, in July 1994. Although appellee’s testimony indicated that he had paid appellant’s former husband $14,000.78, the checks in evidence totaled $12,000.78.


author: McMurray, Presiding Judge.

text:
    A97A0067.
    WHITE et al. v. DEPARTMENT OF TRANSPORTATION.
    (489 SE2d 521)
   McMurray, Presiding Judge.

The Georgia Department of Transportation (“DOT”) filed a Declaration of Taking to condemn 0.027 acre of land belonging to condemnee-appellants Harold S. White, Jr. and Angelique deGolian White for “Project No. MLP-400 (27) Fulton CountyC, being] a project to construct Georgia 400 Extension at State Route 400 from Buck-head Loop north to 1-85. . . .” DOT paid “$4,100.00 as estimated just compensation . . .” into the registry of the superior court. Dissatisfied with this amount, condemnees appealed to the superior court, where the case was referred to a special master. The special master awarded an interlocutory award of $6,000 as the actual market value of the property condemned and $84,000 as consequential damages to the remainder, and this award was confirmed by the superior court “without prejudice to any party to pursue a greater or lesser award. . . .” The issue of just and adequate compensation was ultimately tried before a jury, which awarded condemnees the total “sum of $7,500.00.”

Following the denial of their motion for new trial, condemnees appeal from the final judgment entered on the jury’s general verdict. Held:

1. Prior to trial, the presiding judge ratified an earlier evidentiary ruling by a different judge who had granted DOT’s motion in limine. This motion sought to exclude “any reference to any damages that may result from some part of the project other than the taking of the condemnee’s property.” This would also exclude reference to “damages from the construction on portions of the roadway project which it [DOT] already owned, or from other parcels which were owned by parties, other than the condemnees.”

The presiding judge ruled that if condemnees “seek compensation for any alleged diminution in value of their property as a result of the Georgia 400 Construction Project, as opposed to the taking of this 0.027 ACRES OF LAND, this [condemnation proceeding] is not the proper vehicle,” apparently concluding that a separate action for inverse condemnation was necessary.

Condemnees enumerate this ruling as error, contending the trial court “erred in excluding evidence and argument of proximity of the highway to the remainder as an element reasonably affecting the value of Condemnees’ property and erred by refusing Condemnees’ charge no. 16 And giving Condemnor’s charge no. 21.”

“Consequential damage to property is a ‘taking’ entitling the owner to compensation, and where part of a tract is taken, consequential damages to the remainder must be sought, if at all, during the proceedings to establish the value of the land taken [because a] judgment of condemnation precludes a subsequent action for consequential damages unless they result from negligent or improper construction. [Cits.]” (Footnote omitted.) Wright v. MARTA, 248 Ga. 372, 374-375 (283 SE2d 466). In our view, the trial court’s ruling that the proximity of condemnees’ remainder to the Georgia Highway 400 project is not relevant to this condemnation proceeding is in error, for in this case, some portion of condemnees’ property was actually taken for the actual construction of the Georgia 400 project.

“ ‘There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner’s property from the taking of the part [that] is taken and the devoting of it to the purposes for which it is condemned. . . .’ McArthur v. State Hwy. Dept., 85 Ga. App. 500 (69 SE2d 781) (1952).” (Emphasis omitted in part.) Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777).

“A jury is entitled to hear evidence that an ordinary buyer on the date of taking would consider, inter alia, the potential benefits of the condemnor’s completed project and the effect of delay or uncertainty in the project’s completion. (Footnote omitted.) See Wright v. MARTA, 248 Ga. 372, 375-376, [supra].” Dept. of Transp. v. Acree Oil Co., 266 Ga. 336, 337 (3) (467 SE2d 319). “In the Elevated Railroad cases, damages from smoke and noise were allowed to abutting property owners.” Austin v. Augusta Terminal R. Co., 108 Ga. 671, 681 (34 SE 852), disapproved on other grounds, Bowers v. Fulton County, 221 Ga. 731, 734 (2), 736-737 (146 SE2d 884). Nevertheless, “[t]he proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. [Cits.]” Wright v. MARTA, 248 Ga. 372, 376, supra. Whether the remainder was damaged or benefited by its proximity to the Georgia 400 project was relevant to the jury’s determination of just and adequate compensation. Whether any diminution in fair market value of the remainder in its condition immediately after the taking, considering the use to which the portion actually taken was devoted, was substantial or de minimis was a question for the trier of fact. DOT’s motion in limine was overbroad, and the trial court erred in excluding relevant evidence.

Decided June 17, 1997

Reconsideration denied July 23, 1997

Greene, Buckley, Jones & McQueen, Daniel A. Angelo, for appellants.

Harold S. White, Jr., pro se.

Thurbert E. Baker, Attorney General, Cathy A. Cox-Brakefield, Senior Assistant Attorney General, Dwyer, White & Sapp, Anne W. Sapp, Carmen Smith, for appellee.

Herron v. MARTA, 177 Ga. App. 201, 202 (2) (338 SE2d 777) does not control. In Herron, “condemnation proceedings were initiated to acquire three easements. . . .” Id. at 201. The trial court struck the testimony of the homeowner-condemnee where the witness “was basing his calculation of consequential damages on the final overall effect that the completed MARTA rapid transit project would have on the resale value of [that condemnee’s] home.” Id. at 202 (2). This Court affirmed, reasoning that “no part of [that condemnee’s] property had been taken for the actual construction thereon of the final MARTA project. All that was in issue was MARTA’s two temporary easements which were to facilitate construction of the nearby project [plus a] permanent utility easement to lay a sewer line.” Id. at 202 (2). Likewise, Mason v. Dept. of Transp., 159 Ga. App. 471 (283 SE2d 690) does not control. In Mason, the devotion of the land actually taken was to extend a drain pipe from an existing right of way. Id. It was not taken for the initial construction of a major highway.

2. Remaining enumerations have been considered and are found to be without merit or else to present circumstances unlikely to recur upon any retrial.

Judgment reversed.

Beasley and Smith, JJ, concur.


text:
    A97A0780.
    HODSON v. MAWSON.
    (489 SE2d 855)
   Andrews, Chief Judge.

Nancy Mawson obtained a jury verdict against Kenneth Hodson on her claim for injuries she suffered in an automobile accident. Hod-son, who admitted liability in the accident, appeals from the award of damages and enumerates as error several evidentiary rulings by the trial court.

1. Hodson claims the trial court erred by failing to enforce its ruling granting his motion in limine that Mawson be instructed not to give hearsay testimony regarding diagnosis and treatment she received from physicians not testifying at trial. He claims the trial court should have granted his motion for a mistrial for Mawson’s repeated violations of the ruling.

The record does not support Hodson’s contention that the trial court granted his motion in limine. At best, the record shows that Hodson made the motion orally prior to trial and that the trial court discussed it and obtained opposing counsel’s assurance that no such testimony would be elicited from Mawson. In response to that assurance, both counsel for Hodson and the trial court replied, “Okay.” The trial court did not thereafter rule on the motion.

As to Hodson’s complaint that Mawson repeatedly gave hearsay testimony regarding what physicians said about her injuries, these complaints were waived to the extent Hodson failed to object when the alleged testimony was given. Although the trial court sustained several hearsay objections by Hodson on this issue, none of Mawson’s remarks had the effect of denying Hodson a fair trial, so the trial court did not abuse its discretion in refusing to grant a mistrial. Wright v. State, 253 Ga. 1, 4 (316 SE2d 445) (1984); Jones v. State, 250 Ga. 166, 168 (296 SE2d 598) (1982). Moreover, since Hodson declined the trial court’s offer to give curative instructions, he will not now be heard to complain that he was prejudiced. Id. at 168.

2. Hodson claims the trial court erred by admitting into evidence and allowing into the jury room medical records identified by Maw-son’s treating physician, who testified at trial by deposition. He claims this violated the “continuing witness” rule because the records substituted as a written record of the oral testimony.

The medical records at issue were identified by the treating physician and admitted as original evidence. Dennis v. Adcock, 138 Ga. App. 425, 428 (226 SE2d 292) (1976). The records were not read to the jury and were not “written testimony” merely duplicating the physician’s testimony or substituting as a written record of the testimony. See Hughes v. State, 217 Ga. App. 766, 768 (458 SE2d 911) (1995); Vinyard v. State, 177 Ga. App. 188, 189 (338 SE2d 766) (1985); compare Sackett v. L. L. Minor Co., 244 Ga. 375, 377 (260 SE2d 37) (1979); Dept. of Transp. v. Benton, 214 Ga. App. 221, 223 (447 SE2d 159) (1994). “The proscription on the jury’s possession of ‘written testimony’ does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.” Munda v. State, 172 Ga. App. 857, 860 (2) (324 SE2d 799) (1984); Waldrup v. Baker, 180 Ga. App. 121, 123 (348 SE2d 566) (1986); Atlanta Transit System v. Smith, 141 Ga. App. 87, 89 (232 SE2d 580) (1977).

There was no error in sending the medical records out with the jury.

Decided June 17, 1997

Reconsideration denied July 23, 1997

Greer, Kiosik & Daugherty, Robert J. McCune, for appellant.

Lefco & Blumenthal, Stanley M. Lefco, Ned Blumenthal, for appellee.

3. Hodson claims that the trial court erred by refusing to admit certain medical records of non-testifying physicians who had treated Mawson. Even if the records would otherwise have been admissible pursuant to OCGA § 24-3-4 to show facts or history stated by Maw-son to the physicians, it was still necessary for Hodson to lay a proper foundation for admission of the records. Hodson, who submitted this evidence as business records pursuant to OCGA § 24-3-14 and not as certified medical records pursuant to OCGA § 24-7-8, failed to produce the requisite foundation testimony of a witness who was familiar with the method of record keeping and who could testify to facts showing the entry was made in the regular course of business at the time of the event or within a reasonable time thereafter. Suarez v. Suarez, 257 Ga. 102, 103-104 (355 SE2d 649) (1987). The trial court properly excluded the evidence.

There is no merit to Hodson’s contention, that the records were authenticated in a pre-trial order entered in the case because the record shows that no pre-trial order was signed by the trial court.

4. Hodson contends that certain testimony given over his objection by Mawson’s treating physician as to a causal connection between the accident and an injury she suffered to her hip area should have been excluded because the physician merely stated there was a possible connection rather than stating the connection was reasonably probable. “While medical testimony as to the mere possibility of a causal relation between a given event and the subsequent physical or mental condition of an injured person will not establish the causal relationship, medical evidence which shows the possibility of a causal relationship in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, is sufficient to establish the causal relation.” (Citation and punctuation omitted.) Hert v. Gibbs, 191 Ga. App. 471, 472 (1) (382 SE2d 191) (1989). The physician’s testimony was properly admitted along with other non-expert testimony which authorized the jury to find a causal connection between the injury and the accident. Id.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A1035.
    SAWYER v. THE STATE.
    (489 SE2d 518)
   Judge Harold R. Banke.

William H. Sawyer was accused of two counts of burglary. After a jury trial in which he appeared pro se, Sawyer was convicted of one count of burglary. He enumerates six errors on appeal. -

The charge at issue arose after over $20,000 in jewelry was taken from the victim’s home. Law enforcement officials focused on Sawyer after receiving a tip that he was in possession of some of the missing jewelry and had discussed his plans to commit a burglary. They arrested Sawyer after recovering some of the stolen goods at Sawyer’s home during the execution of a search warrant.

After his arrest, Sawyer, an indigent, obtained appointed counsel. However, prior to trial Sawyer “decided to let him go” due to conflicts over the adequacy of counsel’s trial preparation.

Just before trial commenced, Sawyer expressed to the court his concern about proceeding pro se. The court responded, “Well, you’ve been through this before with another judge, haven’t you? ... I understand they appointed you two different lawyers.” After Sawyer stated that he had a constitutional right to have counsel appointed, the court replied, “Well, you did.” Sawyer then informed the court that since learning he was proceeding pro se the sheriff had denied him access to a law library, prohibited him from calling prospective witnesses, and denied him the right to subpoena witnesses. He subsequently told the court that he was forced into representing himself. Held:

1. The record does not refute Sawyer’s contention that he did not properly waive his right to counsel at trial.

The absolute and unconditional right to counsel may be waived only by voluntary, knowing action. Prater v. State, 220 Ga. App. 506, 508 (469 SE2d 780) (1996). The relinquishment of this constitutional right, of itself, invokes the trial court’s protection. Id. “This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Id. The trial court must apprise the accused of his right to counsel and the dangers attendant to self-representation. Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981); Staples v. State, 209 Ga. App. 802, 804 (3) (434 SE2d 757) (1993).

The trial court’s fulfillment of this duty should appear on the record. Prater, 220 Ga. App. at 508. In the face of a silent record, “ ‘waiver is never presumed and the burden is on the [Sjtate to present evidence of a [proper] waiver. . . .’ [Cit.]” Kirkland v. State, 202 Ga. App. 356, 357 (1) (414 SE2d 502) (1991).

The record before us is silent. It shows that the trial court was informed that another judge had resolved the issue of Sawyer’s waiver of counsel and believed the waiver was on the record. The State, however, failed to include a transcript of the waiver hearing in the record on appeal. The record before us contains no assurances of proper waiver. Sawyer’s requests for counsel were met with summary rejection. Nor was Sawyer apprised “of the dangers to a layman in conducting his own defense.” Compare Staples v. State, 209 Ga. App. at 804 (3). Had the record contained a proper waiver, these facts would be irrelevant. But because the State failed to satisfy its burden of providing proof of a proper waiver, we are constrained to reverse. Kirkland, 202 Ga. App. at 357. Because the following issues may arise on retrial, we address them.

2. The denial of Sawyer’s motion to suppress was appropriate. We reject Sawyer’s contention that the warrant lacked probable cause, was insufficient on its face, and was improperly executed.

An informant’s tip may provide probable cause only if, under the “totality of the circumstances,” including consideration of the informant’s “veracity” and “basis of knowledge,” there is a “fair probability” that contraband or evidence of a crime will be found in a particular place. State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993). At a minimum, an affidavit supporting a search warrant must contain sufficient facts to allow the magistrate to independently gauge the reliability of both the informant and the information. Id. When reviewing orders disposing of motions to suppress, the evidence must be construed in the light most favorable to the trial court’s decision. Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996).

Viewing the evidence in that light, we find that the affidavit supporting the search warrant was sufficient on its face to provide the requisite probable cause to search. The affidavit stated that a reliable informant who had previously provided truthful information told the sheriff that Sawyer had stated that he intended to commit a burglary. The affiant stated that the informant then reported to the sheriff that he had seen jewelry similar to that taken in the instant burglary while visiting at Sawyer’s residence and that Sawyer stated he had taken some of it to Florida to sell. See Sams v. State, 121 Ga. App. 46, 48 (1) (172 SE2d 473) (1970).

The informant had provided reliable information to the sheriff previously. Compare McRae v. State, 204 Ga. App. 234, 235 (418 SE2d 796) (1992). The informant’s stated basis of knowledge was Sawyer himself. The record shows that the informant contacted the sheriff within days of the burglary. See Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987) (factual statements within the affidavit which create reasonable belief that conditions described therein remain are fatal to staleness argument). The affiant verified the informant’s information about the location of Sawyer’s residence. This evidence refutes Sawyer’s claim that the warrant was insufficient on its face or lacked probable cause. OCGA § 17-5-30.

Decided June 17, 1997

Reconsideration denied July 23, 1997

Alice C. Stewart, for appellant.

William H. Sawyer, pro se.

Robert B. Ellis, District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Nor was it illegally executed. The record shows that the authorities returned after they initially executed the warrant because Sawyer’s roommate called them. He subsequently gave his consent for an additional search. Under these facts, we cannot say the State failed to satisfy its burden of establishing that the search was lawful. Bowman v. State, 205 Ga. App. 347, 348 (422 SE2d 239) (1992); see State v. Davis, 217 Ga. App. 225, 227 (457 SE2d 194) (1995) (“deferential” standard of review).

3. Sawyer maintains that the trial court erred by failing to charge on the lesser included offense of theft by taking. On retrial, if such a charge is properly requested and the evidence supports it, the jury should be instructed on the lesser included offense. Strickland v. State, 223 Ga. App. 772, 777 (1) (b) (479 SE2d 125) (1996); OCGA § 16-1-6 (1).

4. Sawyer correctly argues that the trial court committed reversible error by charging the jury on flight. The binding authority of Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990) prohibits the charge under these circumstances. Compare Rodriguez v. State, 211 Ga. App. 256, 257 (1) (439 SE2d 510) (1993).

Judgment reversed and case remanded.

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

       Sawyer’s initial counsel had previously represented the victim and was permitted to withdraw. Sawyer then discharged his second counsel.

       We decline to address Sawyer’s contention that the search was rendered illegal because the authorities may have seized items not listed in the warrant because it is raised for the first time on appeal. Stafford v. Bryan County Bd. of Ed., 219 Ga. App. 750, 752 (4) (466 SE2d 637) (1995).


text:
    A97A0010.
    NEY v. THE STATE.
    (489 SE2d 509)
   Ruffin, Judge.

David Harold Ney appeals from his conviction on two counts of child molestation and one count of aggravated child molestation. For reasons which follow, we affirm.

Construed in the light most favorable to support the verdict, the record shows the following. Sixteen-year-old C. L. H. testified that when she was twelve years old, she spent the night at the home of Ney and his wife Doris, who is C. L. H.’s grandmother. The next morning, Ney entered C. L. H.’s bedroom while she was sleeping, pulled up her shirt and bra, and put his mouth on her breasts, at which point she awoke. C. L. H. further testified that Patricia Haynes, who was staying with the Neys, walked into the bedroom during the incident and “saw [Ney] pull my shirt down real quick.”

Haynes testified that on the day in question, she opened the door to C. L. H.’s room and saw C. L. H. “laying spread eagle on a beach towel” with her shirt pulled up and her arm over her eyes. Haynes also saw Ney kneeling on the towel below C. L. H.’s feet. .When Haynes asked Ney what he was doing, Ney stated that he was rubbing cream on C. L. H.’s stomach. A few days later, Haynes described the incident to C. L. H.’s grandmother, who testified that she immediately asked C. L. H. about it. C. L. H. responded that Ney had not “done anything to her” and that he had simply rubbed lotion on her back. At trial, C. L. H. explained that she denied the incident when initially questioned by her grandmother because she doubted her grandmother would believe her.

C. L. H. also testified about another incident that occurred while she was living with the Neys the following year. According to C. L. H., on that occasion Ney entered her bedroom when her grandmother was at work, pushed her shorts and underwear to the side, and placed his mouth on her vagina. Ney denied both incidents described by C. L. H.

In addition, the State presented the testimony of seven-year-old J. B., Doris Ney’s grandniece. J. B. testified that when she was approximately three years old, David Ney touched her on her “private.” J. B. further explained where she was touched by circling the area around the vagina on a diagram of a girl. Denying any molestation, Ney testified that J. B.’s “panties [were] pulled up into her crack and [he] reached and got them and pulled them out.” Doris Ney also testified that this incident occurred in the living room and that she saw her husband “pull[ ] the panty where it would slip down out of the crack. He did not touch anywhere around her vagina or buttocks at all.”

On cross-examination, J. B. agreed that Ney pulled her underwear from her “crack.” She also testified, however, that Ney rubbed her with his hand and that his actions made her feel “[v]ery sad.” J. B. further stated that Doris Ney did not witness the incident, which occurred in a back bedroom. J. B.’s testimony was bolstered by C. L. H., who testified that J. B. told her Ney touched her vagina.

The jury found Ney guilty of child molestation and aggravated child molestation of C. L. H. and child molestation of J. B. The jury acquitted Ney of an additional count of child molestation relating to a third child. Ney subsequently moved for a new trial. The trial court denied Ney’s motion, and this appeal followed.

1. Ney claims that the evidence was insufficient to support his conviction on two counts of child molestation and one count of aggravated child molestation. We disagree.

On appeal, Ney’s conviction will be upheld if the evidence, construed favorably to support the verdict, was sufficient to authorize the jury to find him guilty beyond a reasonable doubt of these offenses. Brewer v. State, 219 Ga. App. 16 (1) (463 SE2d 906) (1995); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Brewer, supra at 17.

The former version of OCGA § 16-6-4 (a), under which Ney was indicted, provided that “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Aggravated child molestation is “an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

We find the evidence in this case sufficient to authorize a rational trier of fact to find Ney guilty beyond a reasonable doubt of the child molestation and aggravated child molestation of C. L. H. and the child molestation of J. B. Brewer, supra. Ney’s claim thát the State failed to prove intent with respect to the charge relating to J. B. is without merit. “Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6.” Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). “A reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground.” (Citations and punctuation omitted.) Id. at 205-206.

J. B. testified that Ney touched her vagina in a back bedroom. “From these facts it can be inferred that [Ney] committed those acts in order to satisfy his own sexual desires.” In re J. B., 183 Ga. App. 229, 231 (358 SE2d 620) (1987).

2. Ney also claims that the trial court erred in excluding evidence of C. L. H.’s alleged past false accusation of child molestation. Before evidence of a prior false accusation can be admitted, the trial court “must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” (Citations and punctuation omitted.) Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989).

Pursuant to this requirement, the trial court held a hearing relating to the prior false accusation. The defense presented the testimony of Arnie Cain, who testified that C. L. H. had accused his brother-in-law, Terry, of “messing with her” in a swimming pool. In an effort to establish the accusation as false, Cain testified that he was at the pool and “there was no molestation there.” He further stated his belief that Terry remained at least ten feet from C. L. H. while in the pool. On cross-examination, however, Cain conceded that he did not know exactly what C. L. H. claimed happened that night. He also admitted that he was playing with other children and did not watch C. L. H. and Terry the entire time they were in the pool.

Following this testimony, the trial court concluded that the evidence failed to establish a reasonable probability of falsity. We agree. Although Cain claimed he saw “no molestation,” he was not privy to the substance of C. L. H.’s accusations and admittedly did not watch C. L. H. the entire time she was in the pool with Terry. Neither Terry nor any other witness to the alleged molestation testified at the hearing, and we can find no evidence in the record that Terry denied the accusation. Compare Smith, supra. The trial court properly excluded this evidence.

3. Ney further argues that the trial court erred by not permitting Ney one full hour for closing argument, despite the requirements of OCGA § 17-8-73. Closing arguments were not transcribed below. At the hearing on his motion for new trial, however, Ney proffered witness testimony that his argument was cut short.

Ney’s proffer is insufficient to preserve this alleged error for review. “ ‘Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. [Cit.]’ ” Whitt v. State, 215 Ga. App. 704, 707 (3) (452 SE2d 125) (1994) (physical precedent only). “Outside testimony provides no material basis for reconstructing a transcript from recollection. The only means for reconstructing a transcript from recollection is via agreement of the parties or their counsel or independent recollection of the trial judge. OCGA § 5-6-41 (g).” Id. at 708.

Our decision on appeal must be based upon the record. Id. In this case, no record relating to closing arguments exists, and Ney made no effort to complete the record under OCGA § 5-6-41. “Consequently, the issue raised in this enumeration is deemed abandoned by [Ney’s] failure to supplement the record by any of the methods approved under OCGA § 5-6-41 (d) or (g).” (Citations and punctuation omitted.) Id.

4. Finally, Ney argues, through new appellate counsel, that his trial counsel provided ineffective assistance at trial. After an evidentiary hearing at which Ney’s trial counsel and several other witnesses testified, the trial court determined that trial counsel was effective. We find no basis on which to reverse the trial court’s determination.

“To establish a claim of ineffective assistance of counsel, [Ney] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Ney] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless ‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cit.]” Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996).

Ney cannot meet his burden simply by questioning trial tactics. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . [T]he fact that [Ney] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Ney’s] original representation was inadequate.’ [Cits.]” White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989). Trial counsel’s decisions regarding “which witnesses to call, whether and how to conduct cross-examinations . . . and all other strategies and tactical decisions are [within] the exclusive province of the lawyer after consultation with the client.” (Citations and punctuation omitted.) Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995). To succeed in his claim, Ney “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) White, supra. Absent clear error, we will affirm the trial court’s finding that Ney received effective assistance of trial counsel. Johnson, supra.

(a) Ney first characterizes trial counsel’s performance as ineffective because counsel is related by blood to C. L. H., one of the victims. At the hearing on Ney’s motion for new trial, trial counsel testified that C. L. H.’s mother is his first cousin. He further testified that he saw C. L. H. on only two occasions before the trial and that his relations with Ney and his wife, whom he had previously represented, were stronger than his relations with C. L. H. The record also shows that Ney knew trial counsel was related to C. L. H. before the trial and that trial counsel took the case at the request of Ney and his wife.

“To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations and punctuation omitted.) Sartin v. State, 223 Ga. App. 759, 760 (1) (479 SE2d 354) (1996); see also Tenant v. State, 218 Ga. App. 620, 623 (4) (g) (462 SE2d 783) (1995) (“When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict which caused his counsel’s performance to be adversely affected.” (Citations and punctuation omitted.)). Ney does not contend that he raised the claimed conflict of interest at trial. Instead, Ney argues that trial counsel had an actual conflict of interest that impaired his representation in this case.

Pretermitting whether any actual conflict existed, or whether there is any difference between a conflict based upon relationship and one based upon dual representation, the record evinces no evidence that trial counsel’s work was impaired by any “divided loyalties,” as Ney claims. Trial counsel conducted a thorough cross-examination of C. L. H., challenged her recollection of events, and attempted to impeach her with prior inconsistent statements. We find no evidence that trial counsel’s performance was adversely affected by his relationship to C. L. H.

(b) Ney further argues that trial counsel did not adequately investigate the case or properly prepare for trial. In particular, Ney asserts that counsel’s failure to interview the child victims prior to trial illustrates his ineffectiveness.

The record shows, however, that trial counsel sought and received full discovery from the State. Trial counsel also provided the State with detailed information relating to various defense witnesses, indicating that counsel conducted his own investigation. In addition, trial counsel reviewed and highlighted statements and other information obtained from the State, and discussed the case with defense witnesses before trial. Although trial counsel admittedly did not interview the children involved in the case, he spoke with J. B.’s mother and explained that he did not contact C. L. H. because “[Ney] told [him] that she had disappeared.” The record further shows that trial counsel considered and investigated various theories for Ney’s defense, including (1) the possibility that C. L. H. fabricated her story; (2) an alleged prior false allegation by C. L. H.; (3) a family feud between Ney’s wife and the mother of one of the victims; and (4) potential bias against Ney by the investigating officer.

We find that trial counsel investigated numerous avenues for defense and prepared his witnesses for trial. Furthermore, trial counsel reviewed the State’s evidence relating to the children’s allegations and cross-examined each child. Even if trial counsel’s failure to interview the victims constituted deficient performance, Ney has not shown how it prejudiced his defense. The trial court did not err in refusing to find trial counsel ineffective on this ground. See Duitsman v. State, 217 Ga. App. 435 (1) (457 SE2d 702) (1995).

(c) We also reject Ney’s claim that trial counsel was ineffective because he was unable to introduce evidence of C. L. H.’s alleged prior false accusation of molestation. As discussed in Division 2, the trial court properly deemed the evidence insufficient to satisfy the required threshold showing for admissibility. Despite trial counsel’s inability to make the threshold showing, we find no evidence that counsel was deficient. The record shows that trial counsel spent at least one hour discussing the incident with his primary witness, Arnie Cain, and had several follow-up conversations with Cain about his expected testimony. When Cain testified, however, he apparently forgot details about the incident that he had previously related to trial counsel.

Ney argued at the new trial hearing that trial counsel should have questioned Cain differently. Yet, the record does not show that any deficiency in trial counsel’s performance hindered his examination of Cain or prevented introduction of this evidence at trial. Trial counsel’s tactical decisions about his examination of this witness do not equate with ineffective assistance of counsel. See Hudson, supra.

(<j.) Ney next criticizes trial counsel’s failure to present evidence of his good character at trial. Although trial counsel developed good character evidence, he elected not to introduce it because he was afraid “that might have opened up a can of worms, because [he] did not know what the State would do in rebuttal” and he was aware of witnesses that might challenge Ney’s good character. Trial counsel’s “decision to not place [Ney’s] character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Owens v. State, 207 Ga. App. 153, 155 (1) (427 SE2d 529) (1993); see also Mitchell v. State, 223 Ga. App. 319, 320 (5) (477 SE2d 612) (1996).

(e) Ney further argues that trial counsel deficiently failed to present evidence of C. L. H.’s reputation for untruthfulness. At the new trial hearing, several witnesses testified that C. L. H.’s reputation in the community was “bad” and that they would not believe her under oath. Trial counsel also testified that he knew about C. L. H.’s reputation for untruthfulness and planned to question witnesses about her reputation, but “forgot.”

Given trial counsel’s candid admission, his failure to present this evidence cannot be considered trial tactics or strategy. Even if this failure constitutes deficient performance, however, we find no error in the trial court’s conclusion that counsel was effective.

As described at the new trial hearing, Ney’s defense centered around showing that the child victims were not telling the truth. Trial counsel testified that he attempted to establish C. L. H.’s lack of credibility by bringing out inconsistencies in her story and showing that she (1) delayed in reporting the crime; (2) was angry with Ney and used these allegations to “get back at him”; and (3) denied the molestation when initially confronted by Doris Ney.

The record shows that though counsel did not present evidence of C. L. H.’s reputation, he pursued several avenues for attacking her credibility. Although we are troubled by counsel’s failure to present this evidence, it does not appear from the record that counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Cunningham, supra. Accordingly, we find no abuse in the trial court’s decision to reject Ney’s ineffective assistance of counsel claim on this ground.

(f) Ney’s claim that trial counsel ineffectively failed to move for a directed verdict of acquittal as to Count 4 of the indictment, which involved molestation of J. B., has no merit. As found in Division 1, the evidence was sufficient to support the jury’s verdict on Count 4. “It follows that trial counsel’s failure to move for a directed verdict on this ground did not amount to deficient performance.” Sartin, supra at 762.

(g) Ney also claims trial counsel was ineffective in not requesting a jury charge on simple battery as to Count 4. According to Ney, simple battery was a lesser included offense of the child molestation charge relating to J. B. because the jury could have found him guilty of mere intentional physical contact by “adjusting] [J. B.’s] panties when they became stuck in the crack of her bottom.” J. B. conceded that the touch cited by Ney occurred. That touch, however, does not form the basis of Count 4. Instead, the indictment accuses Ney of molesting J. B. by “placing his hand on [her] vagina[.]”

The record establishes no basis for a charge on simple battery as a lesser included offense of the crime alleged in the indictment. J. B. testified that Ney fondled her on her vagina; Ney denied that he touched J. B. as claimed. “Under this testimony, [Ney] either committed an act of child molestation or he did not. His testimony would not show that he had merely made physical contact of an insulting or provoking nature with the victim rather than fondling her with the intent to arouse or satisfy his sexual desires.” Brooks v. State, 197 Ga. App. 194, 195 (1) (397 SE2d 622) (1990). Accordingly, trial counsel’s performance was not deficient on this ground. Stephens v. State, 208 Ga. App. 620, 621 (2) (d) (431 SE2d 422) (1993).

(h) We find no merit in Ney’s claim that trial counsel was ineffective in failing to preserve for review the argument that the trial court erroneously limited closing argument. Although Ney’s argument is not clear, we assume this allegation revolves around trial counsel’s failure to have closing arguments recorded. Ney, however, “had no right to have . . . closing arguments fully recorded. [Cits.] Accordingly, the fact that trial counsel did not request that. . . arguments be fully recorded did not deprive [Ney] of any right and would not serve to demonstrate that [his counsel] was ineffective.” Anderson v. State, 206 Ga. App. 354, 356 (4) (426 SE2d 6) (1992).

Furthermore, we note that OCGA § 5-6-41 provided Ney the means to reconstruct the proceeding for purposes of appeal, potentially removing any prejudice from the absence of a transcript. Apparently, Ney did not explore this option.

(i) Ney further argues that trial counsel’s performance was deficient because he failed to request a jury instruction on OCGA § 24-9-85 (b) relating to false swearing by a witness. The trial court charged the jury on witness credibility and impeachment. According to Ney, however, a jury charge on OCGA § 24-9-85 (b) was warranted by evidence regarding C. L. H.’s prior inconsistent statement, her conduct toward Ney following the incidents, and her motives for fabricating the allegations. This claim is without merit.

“OCGA § 24-9-85 (b) is applicable where the witness admits that he wilfully and knowingly swore falsely, or where the testimony is such as to render the purpose to falsify manifest.” (Citations and punctuation omitted.) Perguson v. State, 221 Ga. App. 212, 215 (2) (470 SE2d 909) (1996). Ney does not claim that C. L. H. admitted to swearing falsely. Furthermore, we find that the evidence does not “ ‘render [C. L. H.’s] purpose to falsify manifest.’ [Cit.]” Id. “Under these circumstances, [C. L. H.’s] credibility was for the jury under proper instruction from the court regarding credibility and impeachment. [Cit.]” Id. Trial counsel’s decision not to request a charge under OCGA § 24-9-85 (b) was proper.

Decided April 29, 1997

Reconsideration denied July 24, 1997

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

(j) We similarly find no deficiency in trial counsel’s failure to request a charge that “ ‘a bare suspicion is not sufficient to establish a fact.’ [Cit.]” Stinson v. State, 151 Ga. App. 533, 540 (3) (260 SE2d 407) (1979). The evidence presented at trial raised more than a “bare suspicion” of Ney’s guilt. In particular, the child victims testified directly about Ney’s acts of molestation. In light of the evidence presented, trial counsel’s decision not to request a “bare suspicion” charge did not constitute ineffective assistance.

(k) Ney next argues that trial counsel failed to lay a proper foundation for introducing a prior inconsistent statement by Patricia Haynes. The record shows that Ney did not raise this ineffective assistance claim in his motion for new trial. Accordingly, “he is barred from raising it here.” Sartin, supra at 762.

(l) Finally, Ney claims that his trial counsel was unprepared for trial, failed to present an adequate defense, and failed to prepare him to testify. We disagree.

In subdivision (b) above, we determined that trial counsel properly investigated and prepared for trial. Furthermore, the record reveals that trial counsel pursued numerous avenues of defense at trial in an effort to discount the victims’ allegations. Trial counsel’s testimony at the new trial hearing further shows that he adequately prepared Ney to testify at trial. Specifically, counsel discussed Ney’s testimony with him for at least six hours, explained the process, and described the types of questions the prosecution might ask on cross-examination.

We find no evidence that trial counsel’s overall performance was deficient or prejudicial to Ney. This conclusion is buttressed by trial counsel’s success in obtaining an acquittal on one of the four charges against Ney. As we have previously found, “[t]he strongest evidence of trial counsel’s effectiveness was the jury’s acquittal” on a charge. Young v. State, 213 Ga. App. 278, 280 (3) (444 SE2d 598) (1994); see also Abreu v. State, 206 Ga. App. 361, 363 (1) (425 SE2d 331) (1992). The trial court did not err in denying Ney’s motion for new trial on ineffective assistance of counsel grounds.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Daniel J. Porter, District Attorney, Jennifer M. Risley, Assistant District Attorney, for appellee.

       Effective July 1, 1995, the General Assembly amended this Code section in several ways, including raising the relevant age in the definition of molestation from 14 to 16 years old. OCGA § 16-6-4 (a).