author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A1568.
    SYFRETT v. THE STATE.
    (435 SE2d 470)
   McMurray, Presiding Judge.

Defendant Syfrett appeals his conviction of aggravated battery. Held:

1. Defendant’s first five enumerations of error question the sufficiency of the evidence to authorize his conviction. Viewed in the light most favorable to upholding the judgment of the trial court, the evidence was that defendant and a companion (who was a co-defendant acquitted of a charge of aiding and abetting defendant in the commission of the aggravated battery) arrived uninvited at the victim’s house and began arguing with his guests. When the victim asked defendant and his companion to leave, defendant “slung a can of beer across the room . . .” and started “manhandling” the victim. The defendant began hitting the victim, who ended up on the floor with defendant holding him down and continuing to hit him. Defendant withdrew outside to his truck. The victim armed himself with an unloaded shotgun which he held by the barrel like a baseball bat. Defendant then took the shotgun away from the victim and began hitting him with it until he was unconscious. Physicians testified as to the multiple fractures the victim suffered and as to the lasting, disfiguring effect of the injuries.

Defendant relied on a defense of self-defense. The burden was on the State to prove that defendant did not act in self-defense. Shackleford v. State, 198 Ga. App. 768 (1) (403 SE2d 74). “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . . .” OCGA § 16-3-21 (a). The evidence presented in the case sub judice was sufficient to prove defendant did not act in self-defense and to authorize the jury to find defendant guilty beyond a reasonable doubt of the offense of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Parham v. State, 204 Ga. App. 659 (420 SE2d 356).

2. There was no error in permitting a nine-year-old witness to the crime to testify without first determining whether she understood the nature of an oath. OCGA § 24-9-5 (b); Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500).

3. Next, defendant contends that the trial court erred in admitting evidence as to a statement made by defendant after he had been taken into custody but prior to any Miranda (v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) warnings. The incident in question occurred when defendant was being transported from his attorney’s office, where he had surrendered himself into custody, to jail. The police detective who arrested defendant testified that he did not question or interrogate defendant concerning the alleged crime but asked his name, address, and similar things for booking information, and informed him of the charges against him. Defendant then proceeded to discuss the circumstances surrounding the offense at issue.

“[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody.” Ramos v. State, 198 Ga. App. 65, 66 (2) (400 SE2d 353). Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial questioning or interrogation. McClendon v. State, 201 Ga. App. 262, 264 (1b) (410 SE2d 760). “ ‘The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’ (Citation and punctuation omitted. Emphasis in original.) Hibbert v. State, [195 Ga. App. 235, 236 (393 SE2d 96)].” Cottingham v. State, 206 Ga. App. 197, 200 (4) (424 SE2d 794). In the present case, it does not appear as a matter of law from the evidence that the detective knew or should have known that his interaction with defendant was reasonably likely to elicit an incriminating response from defendant. This was a question of fact to be resolved by the trial court, and under the circumstances in this case, we find no abuse of discretion in the trial court’s conclusion that no interrogation occurred. Turner v. State, 199 Ga. App. 836, 838 (3) (406 SE2d 512).

4. The trial court did not err in refusing to permit defendant to impeach the victim by showing his convictions for simple battery and three offenses of driving under the influence. “ ‘A witness may be impeached by showing conviction of a crime involving moral turpitude. (Cit.) The fact of conviction must be shown by record evidence and not by testimony. (Cit.)’ Johnson v. State, 144 Ga. App. 406 (1) (240 SE2d 919) (1977). ‘(E)ven competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment. (Cits.)’ Whitley v. State, 188 Ga. 177, 179 (5) (3 SE2d 588) (1939). Accord Strickland v. State, 166 Ga. App. 702 (305 SE2d 434) (1983).

‘Our Supreme Court has declared that crimes involving moral turpitude are “restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (Cit.)” (Cits.)’ Seaboard &c. R. Co. v. West, 155 Ga. App. 391, 393 (271 SE2d 36) (1980). Accord Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991) (holding that DUI is not such an offense). . . . [Also,] this court has previously held that such offenses as simple battery, see Jabaley v. Mitchell, 201 Ga. App. 477 (411 SE2d 545) (1991), and ‘fighting,’ see Curry v. State, 17 Ga. App. 312 (1) (86 SE 742) (1915), are not crimes involving moral turpitude.” Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506).

5. Relying upon Chandler v. State, 261 Ga. 402 (405 SE2d 669), defendant complains that the trial court refused to allow defendant to introduce evidence of certain acts of violence committed by the victim against third persons. The rule announced in Chandler represented a substantial change from the pre-existing law and the Supreme Court was concerned that “permitting a defendant to introduce evidence of specific acts of violence by the victim without advance notice to the state would result in unfairness to the state,” and directed that “a defendant claiming justification and seeking to introduce evidence of specific acts of violence by the victim against third persons will notify the trial court of such intention prior to trial. The trial court will take reasonable steps to assure that the state has reasonable notice of such intention and of the nature of such evidence.” Chandler at 408.

In the case sub judice, defendant had surrendered to authorities more than a year prior to the trial date. Nonetheless, defendant’s notice of intent to introduce evidence of specific acts of violence by the victim against third persons was not filed or delivered to the State until late on the afternoon of the Thursday preceding the Monday trial date. An amended notice was delivered during trial. The trial court was not informed of the notice until immediately prior to trial. The prosecuting attorney objected to the introduction of evidence as to the incidents listed in the notice and related his efforts to investigate the incidents. The prosecuting attorney complained that lack of time and the indefinite nature of the original notice had prevented any significant investigation into most of the incidents listed. The original notice provided by defendant listed nine incidents but did not provide the dates of the incidents, or as to some, location or identities of the third parties to whom the specific acts of violence were directed.

We trust that appropriate procedures for the application of the Chandler decision will soon be incorporated, as anticipated by the Supreme Court, into the Uniform Superior Court Rules in order to lend some certainty and efficiency to this process. In the meanwhile, although some guidance may be derived from the analogous provisions of Uniform Superior Court Rule (USCR) 31.3, we must address these issues on a case-by-case basis. While it is true that the victim in the case sub judice, unlike the victim in Chandler, was alive and able to communicate, and the prosecuting attorney was able to interview defendant’s witnesses on this issue during a recess during the trial, the prosecuting attorney was still entitled to some reasonable period of time to investigate the incidents of specific acts of violence by the victim against third persons which defendant sought to present. Under the circumstances in the case sub judice, we conclude that the trial court did not abuse its discretion in determining that defendant’s notice was untimely and not sufficiently definite to put the trial court or the State on notice as to the conduct which defendant sought to present.

Nonetheless, the trial court did determine that the prosecuting attorney had been able to adequately investigate two of the incidents and authorized defendant to present evidence as to those two incidents. Defendant chose not to present evidence as to these specific acts of violence by the victim, and objected during closing argument when the prosecuting attorney commented on the absence of such evidence. While the defendant’s objection was sustained and the prosecuting attorney directed to cease this line of argument, defendant argues that the corrective actions of the trial court were not sufficient. However, this contention was not raised before the trial court and as there was no request for mistrial, rebuke of counsel, or admonishment of the jury to disregard this argument, there is nothing for us to review on appeal. Flanders v. State, 188 Ga. App. 98, 99 (5) (371 SE2d 918).

6. Defendant’s tenth enumeration of error contends that the trial court erred in refusing to include in the charge to the jury a requested instruction that in determining the weight to be attributed to testimony, the personal interest of the witness should be considered. The substance of the requested charge was included in the charge on credibility given by the trial court. The failure to use the exact language requested was not error. Kennedy v. State, 205 Ga. App. 152, 156 (5b) (421 SE2d 560).

7. The eleventh enumeration of error also complains of the trial court’s refusal to give jury instructions requested by defendant. The four charges at issue under this enumeration all relate to the jury’s consideration of the testimony of the child witness to the crime. The first two charges contain incorrect statements of law concerning the competency of the child witness, that is, requiring that the child understand the nature of an oath. See OCGA § 24-9-5 (b) and Sizemore v. State, 262 Ga. 214, 217, supra. The third refused instruction was adequately covered in the trial court’s charge on credibility. Kennedy v. State, 205 Ga. App. 152, 156 (5b), supra. As to the fourth of these requests, the trial court did not err in refusing to caution the jury that children are more susceptible to influence and suggestion and are more prone to imagination than are adults, since this charge was patently argumentative. Estep v. State, 181 Ga. App. 842, 844 (2c) (353 SE2d 913).

8. In his final enumeration of error, defendant contends the trial court erred in refusing to admit into evidence copies of the complaint filed on behalf of the victim in a civil lawsuit against him and his co-defendant. Defendant argued that these documents were relevant to the issue of the credibility of the victim and should have been admitted for the jury to consider. However, the defendant was permitted to cross-examine the victim concerning his lawsuit and the allegation in the complaint duplicated this and other evidence developed at trial. There was no error in the exclusion of such cumulative evidence. Chisholm v. State, 199 Ga. App. 746, 747 (2) (406 SE2d 112).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

Although I concur with the majority opinion, additional observations regarding the application of Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), are appropriate.

As noted by the majority opinion, in Chandler, the Supreme Court required that “a defendant claiming justification and seeking to introduce evidence of specific acts of violence by the victim against third persons will notify the trial court of such intention prior to trial. The trial court will take reasonable steps to assure that the state has reasonable notice of such intention and of the nature of such evi- ' dence.” Id. at 408. Unlike the ten-day notice requirement imposed upon the State when it intends to present evidence of similar transactions pursuant to Uniform Superior Court Rule 31.3, or the State’s duty to produce scientific reports at least ten days before trial pursuant to OCGA § 17-7-211, there is no specific time frame involved with regard to notifying the State of the intent to produce evidence of specific acts of violence by the victim, nor is the requirement to do so statutorily provided.

In the instant case, the trial court made a thorough effort to determine whether the State had sufficient time to investigate the incidents listed in the notice given by the defendant four days before the trial. The court concluded that the defendant could present evidence of two prior incidents of the victim’s violence, because the State had ample opportunity to investigate, but not the other seven incidents listed. Under these circumstances, it appears that the trial court took “reasonable steps” to assure that the State had “reasonable notice,” consistent with the general guidelines provided in Chandler. (It should be noted, however, that unlike the victim in Chandler, the victim in this case was alive and readily available to the State for its investigation. An argument could be made that Chandler should be limited to those situations where the victim is dead or otherwise unavailable.)

In Chandler, the Supreme Court foresaw that specific procedures governing the admission of such evidence would eventually be incorporated into the Uniform Superior Court Rules. However, two years later, as indicated by the majority opinion, we are still “trusting” that appropriate procedures will soon be added to those rules. If we are to continue addressing this issue on a case-by-case basis until that indefinite eventuality, I suggest that we assimilate our evaluation employed in determining whether sufficient notice of intent to produce evidence of similar transactions, or other procedures where the duty to give notice or produce lies with the State.

In the latter situations, where the State has not complied with the applicable time requirements, “the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant.” Shannon v. State, 205 Ga. App. 831, 832 (424 SE2d 51) (1992). See also Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992); Wilburn v. State, 199 Ga. App. 667 (405 SE2d 889) (1991). However, it should be noted that the application of that rule by trial courts and this court appears unbalanced at times. See, for example, Johnson v. State, 209 Ga. App. 395 (433 SE2d 638) (1993). In Johnson, the State produced a scientific report only two days before trial, contrary to the ten days required under OCGA § 17-7-211. The defendant did exactly what this court has indicated must be done in such a situation, i.e., ask for a continuance. The defendant quite reasonably requested one day’s recess, but the trial court merely granted a one-hour continuance, which action was affirmed by the majority of this court.

Decided August 20, 1993

Reconsideration denied September 8, 1993

John C. Swearingen, Jr., for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

By comparison, it is difficult to argue that a level playing field exists when only a one-hour continuance is granted where the defendant has a statutorily created right to ten days’ notice on the one hand, while four days’ notice to the State is not deemed reasonable, where the State is only entitled to reasonable notice. We require the defendant to seek a continuance where the State fails to meet its statutorily imposed duty of ten days’ notice, while we preclude the defendant’s use of his evidence when the trial court determines the four days’ notice was not reasonable.

We shift the burden to the defendant to show harm by the State’s failure to follow the law in order to even obtain a continuance, while the State has no similar burden. Further, we do not provide for the exclusion of the State’s evidence upon its failure to comply with the law as we do upon a failure of the defendant to give “reasonable” notice. Why do we not require the State to seek a continuance as we do the defendant? How is it proper to impose a burden on the defendant for a failure by the State without a reciprocal responsibility? We seem to impose a strict compliance standard on the defendant, who is the only party at risk in a criminal trial and is presumed to be innocent at that stage of the prosecution, while only holding the State, with all its resources, to a substantial compliance standard. In matters of procedure, it would seem justice would be more appropriately served by reversing these requirements if we are unwilling to simply require equal compliance from each of the parties. “Like the sun, the law shines on all who are in the same place with equal warmth and splendor,” Boland v. Klink, 63 Ga. 448, 453 (1879), or at least it should.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A1683.
    DIACONESCU et al. v. HETTLER et al.
    (435 SE2d 489)
   McMurray, Presiding Judge.

Georgeta Diaconescu and Iordan Diaconescu brought an action against James R. Hettler and Miriam A. Hettler under theories of negligent hiring and retention of an employee and respondeat superior, alleging Georgeta Diaconescu was shot and wounded by the Hettlers’ servant, agent and employee, Murphy Munsey. The Hettlers denied the material allegations of the complaint and filed a motion for summary judgment.

Murphy Munsey was a homeless day-laborer who began performing home-maintenance for the Hettlers in the fall of 1988. Munsey worked on an hourly basis and appeared at the Hettlers home every two or three weeks looking for work. (The Hettlers were unable to contact Munsey as he had no telephone and he lived out of his vehicle.) Munsey was reliable and the Hettlers found him to be diligent, honest and trustworthy.

In May 1991, the Hettlers allowed Munsey to park his van on their property while they were vacationing in Florida. A few months later, the Hettlers informed Munsey that they would be in England for two weeks in August and that he could park on their property during their absence. The Hettlers asked Munsey to perform certain maintenance work while they were away from home and they gave Munsey access to their garage and outdoor facilities. (Munsey did not have access to the Hettlers’ living quarters.)

On August 19, 1991, Munsey parked in the Hettlers’ driveway and, at about 8:00 that evening, he discharged a high powered rifle from the Hettlers’ property and wounded Georgeta Diaconescu as she sat in a neighbor’s garage. Munsey took refuge in the Hettlers’ garage and later shot and killed a law enforcement officer who responded to the incident. Munsey refused to surrender to police and the stand-off resulted in Munsey’s death. The next day, James R. Hettler informed Detective Wallace J. Cooper of the Fulton County Police Department that Munsey had worked as a handyman for the Hettlers for the past two or three years; that Munsey had permission to be on their property and that Munsey was watching their home while the Hettlers were out of town.

The trial court granted the Hettlers’ motion for summary judgment. This appeal followed. Held:

1. The Hettlers contend they did not hire Munsey to “watch” their home and they challenge any testimony that James R. Hettler stated or reported to others that Munsey was “hired ... to watch” their home. The Hettlers argue that such out-of-court statements constitute inadmissible hearsay. This argument is without merit. James R. Hettler’s out-of-court statements regarding Munsey’s employment status are admissions of a party and are thus admissible to prove the truth of the matters asserted in any such out-of-court statements. Mulherin v. Globe Oil Co., 173 Ga. App. 790, 791 (2) (328 SE2d 406).

2. The Diaconescues contend the trial court erred in granting summary judgment on the issue of negligent selection and retention of a dangerous employee.

“An employer’s liability' for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities, Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (298 SE2d 600) (1982); Southern Bell Tel. &c. Co. v. Sharara, [167 Ga. App. 665 (1), 666 (307 SE2d 129)], and there was no evidence of such knowledge in [the case sub judice].” Odom v. Hubeny, Inc., 179 Ga. App. 250, 252 (2) (345 SE2d 886). Specifically, the Hettlers testified that they were not aware of Munsey’s criminal record or prior mental instability; that Munsey never showed signs of violent or criminal behavior and that they did not know Munsey had access to firearms. Nonetheless, the Diaconescues argue that the Hettlers had a duty to investigate Munsey’s past before they employed Munsey to perform security services. This argument is without merit.

In C. K. Security Systems v. Hartford Accident &c. Co., 137 Ga. App. 159, 161 (2) (223 SE2d 453), it was held that a security service offering the use of its employees to patrol premises for the purpose of protecting persons and property “may have been duty bound to exercise a greater amount of care to ascertain [whether] its employees were [fit to perform the security services offered].” C. K. Security Systems, 137 Ga. App. 159, 161 (2), supra. In the case sub judice, there is no proof that the Hettlers are a security service offering the use of employees to patrol premises for the purpose of protecting persons and property. Further, the Hettlers testified that they did not hire Munsey to protect their home. The evidence reveals that the Hettlers merely hired Munsey to “watch” their home (i.e., maintain a presence on their premises) while they were out of town. Consequently, since no actionable negligence was shown by the fact that the Hettlers did not investigate Munsey’s history and since the Hettlers’ denial of any previous violent or criminal episodes is uncontroverted, the trial court did not err in granting the Hettlers’ motion for summary judgment with regard to negligent hiring and retention of a dangerous employee. See Odom v u. Hubeny, Inc., 179 Ga. App. 250, 252 (2), supra.

3. The Diaconescues contend the trial court erred in granting summary judgment on the issue of respondeat superior, arguing that genuine issues of material fact remain as to whether Munsey was acting within the scope of his employment at the time of the shooting.

“Under the theory of respondeat superior, an employer is liable for a tort committed by his employee only where the injury is inflicted in the course of the employment and not because of some private and personal act of the employee. McCranie v. Langdale Ford Co., 176 Ga. App. 281 (335 SE2d 667) (1985); Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665[, supra].” Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (1), supra. In the case sub judice, the undisputed evidence reveals that Munsey was not hired as a security agent charged with protecting the Hettlers’ property. The evidence shows that Munsey was simply asked to “watch” the Hettlers’ property while they were out of town. There is no proof that discharging a firearm was related to this purported work-related activity. Thus, the trial court did not err in granting summary judgment on the issue of respondeat superior. See Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119 (1) (421 SE2d 284).

Decided August 23, 1993

Reconsideration denied September 8, 1993

John K. Dunlap, Patricia D. O’Kelley, for appellants.

Bovis, Kyle & Burch, Steven J. Kyle, Charles M. McDaniel, Jr., for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A93A1690.
    CENTENNIAL LIFE INSURANCE COMPANY v. SMITH. SEGALL v. CENTENNIAL LIFE INSURANCE COMPANY.
    A93A1691.
    (435 SE2d 498)
   Blackburn, Judge.

This is an appeal and cross-appeal from the trial court’s order granting appellee Sandra Smith’s motion for summary judgment and denying cross-appellant Terry Segall’s motion for summary judgment. The underlying action, sounding in fraud, was brought by Centennial Life Insurance Company (Centennial) against Segall, Smith, and Se-gall & Sons, Inc. d/b/a Segall Associates (Segall & Sons), the defendants therein. Essentially, Centennial, and its predecessor in interest, paid benefits of $49,904.28 to health care providers based on claims submitted by or on behalf of Smith. Subsequent to its payment of these benefits, Centennial became aware of facts indicating that Smith was not a proper insured. In its complaint, Centennial contends that it was defrauded by the defendants, who acted jointly and severally to misappropriate the $49,904.28 in medical claims. On appeal, Centennial asserts that issues of fact remain which preclude the award of summary judgment to either Smith or Segall. We agree.

“In order to prevail on a motion for summary judgment [pursuant to OCGA § 9-11-56], a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. . . .” (Citations and punctuation omitted.) Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 560 (417 SE2d 373) (1992). Furthermore, “the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the nonexistence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.” (Citations and punctuation omitted.) Mackinnon v. Hodge, 204 Ga. App. 539 (420 SE2d 341) (1992).

In order to prevail on its cause of action for fraud, Centennial must prove the following: “(1) a false representation by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from action; (4) justifiable reliance by the plaintiff; and (5) damages. [Cit.]” Wiederhold v. Smith, 203 Ga. App. 877, 878 (418 SE2d 141) (1992). Therefore, in order for Smith and Segall to prevail on their respective motions for summary judgment, they must show that no genuine issue of material fact exists as to, at least, one of the elements of fraud, and that as a matter of law, Centennial is unable to prove all the required elements.

1. Smith claims that as to Centennial’s case against her, the first element is missing, i.e., that she made a false representation to Centennial. She contends that she did not sign the enrollment form to obtain insurance and that she does not recall signing any claim forms, regarding her emergency surgery. Smith asserts the evidence is uncontested as to this issue because a handwriting expert deposed that the signatures on the contested forms were not Smith’s signatures. Smith argues that because Centennial put forth no expert testimony disputing her expert, there is no issue of material fact as to this issue. We cannot agree. If Centennial’s cause of action required the testimony of an expert in order to make a prima facie case, it would be necessary for Centennial, in order to survive Smith’s motion for summary judgment, to produce the testimony of an expert disputing the opinion of Smith’s expert. See Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978). However, in the case sub judice, to establish proof of handwriting, expert testimony is not required. In fact, any witness who “knows or would recognize the handwriting [is] competent to testify as to his belief.” OCGA § 24-7-6. Furthermore, “a jury is always free to reject expert opinion testimony and substitute their own knowledge and experience.” (Citation and punctuation omitted.) Hill v. All Seasons Florist, 201 Ga. App. 870, 872 (412 SE2d 619) (1991).

Moreover, even if Smith were able to conclusively establish that she did not actually sign the insurance enrollment card or claim forms, summary judgment in her favor would not be proper. Smith could have participated in a scheme to defraud Centennial even if she did not sign the forms in question. Therefore, this is an issue properly resolved by the jury.

Next, Smith asserts that Centennial is unable to prove its justifiable reliance. Smith argues that Centennial’s lawsuit against its predecessor in interest proves that Centennial did not rely upon any statements or representations made by any defendant in the case. However, Smith is unable to point to any evidence in the record which supports her contention. On' motion for summary judgment, “the burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him.” (Citation and punctuation omitted.) Stubbs, supra at 560. In the present case, the burden never shifted to Centennial to come forward with additional evidence supporting its claim of justifiable reliance because Smith failed to produce evidence showing that she was entitled to judgment as a matter of law. Therefore, this issue should also be determined by the jury.

Smith did not attempt to dispute any other elements of Centennial’s cause of action for fraud. Therefore, due to Smith’s inability to pierce the allegations of Centennial’s complaint with undisputed evidence, the trial court’s award of summary judgment to Smith was improper. See Mackinnon, supra and Stubbs, supra.

2. In Segall’s cross-appeal, he asserts that the trial court erred in failing to grant his motion for summary judgment. Segall contends that the undisputed facts show that, as a matter of law, Centennial could not have relied upon any representations made by him when making payments to medical providers based on Smith’s claims. In its complaint, Centennial alleged that on January 23, 1990, Segall signed a sworn statement in which he represented that Smith had worked for Segall & Sons an average of 30 hours per week from June 9, 1988 through January 21, 1989. Segall admits to signing a statement to that effect and he admits that he was aware that the statements were false. However, he contends that Centennial could not have detrimentally relied upon his statement because Centennial and its predecessor in interest made the $49,904.28 in payments to Smith’s medical providers prior to his January 23, 1990 statement.

The undisputed facts also show that in May 1987, while Terry Segall was the Chief Executive Officer of Segall & Sons, the company purchased group health insurance through Hárold Becker, an independent insurance agent. Several facts surrounding the purchase of this insurance are disputed. Becker deposed that Segall & Sons represented to him that the group health plan was to be for employees of the company and that Smith was a full-time employee of Segall & Sons. Segall testified that he informed Becker that the health plan was to be for former employees of Segall & Sons. Therefore, the representations made by Segall in procuring the insurance are disputed. As issues of fact remain with regard to Centennial’s claims against Segall, summary judgment on behalf of Segall was correctly denied by the trial court.

Decided August 24, 1993

Reconsideration denied September 8, 1993

Saveli & Williams, John C. Parker, Michael A. Ryder, Brian J. Buckelew, for Centennial Life Ins. Co.

Portman & Felser, Barnard M. Portman, Victor J. Tetreault, Robert P. Phillips III, for Smith and Segall.

Judgment affirmed in Case No. A93A1691. Judgment reversed in Case No. A93A1690.

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


author: Andrews, Judge.

text:
    A93A1098.
    METTS v. THE STATE.
    (435 SE2d 525)
   Andrews, Judge.

Antonio Metts appeals from the judgment entered on his convictions by a jury on a four-count indictment charging him with aggravated sodomy (Count 1); aggravated child molestation (Count 2); child molestation (Count 3); and sexual battery (Count 4). After the jury returned a verdict of guilty on all four counts, the trial court merged Count 2 with Count 1 and Count 4 with Count 3, and entered judgment of conviction and sentence only on Counts 1 and 3.

1. Metts claims the evidence was insufficient to support the convictions. The victim, a ten-year-old boy, testified and described in de: tail the acts constituting aggravated sodomy and other molestation performed on him forcefully and against his will by Metts as alleged in the indictment. Other witnesses testified that the victim told them about Metts’ actions. Although Metts denied the charges, on appeal the evidence is examined in a light favorable to the verdict, and all conflicts resolved in favor of the verdict. Self v. State, 208 Ga. App. 447, 448 (431 SE2d 126) (1993). The evidence was sufficient for a rational trier of fact to find Metts guilty beyond a reasonable doubt of the offenses for which he was convicted and sentenced. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Metts claims the trial court erred in failing, without request, to charge the jury on his accident defense to Counts 3 and 4 of the indictment. The trial court merged Count 4 alleging sexual battery by physical contact with intimate body parts with Count 3, in which the State alleged that Metts was guilty of child molestation by placing his hand on the victim’s penis with the intent to arouse and satisfy his own sexual desires. Evidence showed that Metts and the victim both lived at the victim’s grandmother’s house, and slept in the same bed. The victim testified that Metts touched his penis by placing his hand on the outside of his pajamas. While Metts denied he intentionally touched the victim in the manner alleged, he did not claim the touching did not occur. Rather, he testified that while sleeping in the same bed with the victim, he may have unintentionally touched him.

Decided September 8, 1993.

Antje R. Kingma, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Anne G. Maseth, Assistant District Attorneys, for appellee.

“The essence of the defense of accident is that the defendant’s act is not intentional.” (Citation and punctuation omitted.) Watson v. State, 199 Ga. App. 825, 826 (406 SE2d 509) (1991); OCGA § 16-2-2. The record reflects that accident was the entire thrust of Metts’ defense to the allegations of Count 3. See Jones v. State, 161 Ga. App. 610, 611-612 (288 SE2d 788) (1982). Even without request, when the defendant’s sole defense is accident, the trial court must give appropriate instructions on this principle to call the defense to the jury’s attention, and enable the jury to intelligently consider it. Harris v. State, 145 Ga. App. 675 (244 SE2d 620) (1978); Jones, supra at 612; Owens v. State, 173 Ga. App. 309, 312-313 (326 SE2d 509) (1985).

Metts’ conviction and concurrent sentence for child molestation on Count 3 must be reversed. The conviction and sentence for aggravated sodomy on Count 1 is affirmed.

Judgment affirmed in part and reversed in part.

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


text:
    A93A1327.
    STONE v. THE STATE.
    (435 SE2d 527)
   Andrews, Judge.

Stone was convicted of one count of terroristic threats and two counts of obstruction of a law enforcement officer. In his sole enumeration of error, Stone contends that the trial court erred in denying his motion for a directed verdict of acquittal since the State presented no evidence of corroboration of the threat as required under OCGA § 16-11-37 (a).

At trial, Officer Seckinger testified that on September 4, 1991, just after midnight, he responded to a report of a domestic problem at a trailer park. When Seckinger arrived at the designated address, he found a woman, Mrs. Stone, sobbing, in front of the residence and clothes strewn in the yard. Upon Seckinger’s arrival, appellant Stone came out of the trailer and demanded that Seckinger leave. Seckinger testified that Stone was loud and abusive and yelled some obscenities.

Seckinger, who was joined by Officer Crawford, attempted several times to calm Stone and when these efforts failed decided to arrest Stone for disorderly conduct. Seckinger attempted to arrest Stone and a struggle ensued, during which Seckinger was bruised. Crawford, and Seckinger were unable to restrain Stone and Seckinger called for a backup unit. Officer Tuft responded to the call and upon Tuft’s arrival, Stone ceased struggling. Stone was placed in Crawford’s vehicle and taken to jail. Officer Tuft testified and corroborated the testimony regarding Stone’s behavior before he entered the police vehicle.

Officer Crawford also testified. He confirmed Seckinger’s description of Stone angrily yelling and cursing. Crawford stated that during the struggle his uniform shirt pocket was torn off and his watch and wedding ring were lost. Crawford testified that by himself he drove Stone to jail. During that trip, Stone told Crawford several times that he would kill Crawford when he got off duty. Those threats formed the basis of the conviction at issue here.

Stone claims that his conviction for terroristic threats must be reversed since Crawford’s testimony regarding those threats was uncorroborated. We disagree.

OCGA § 16-11-37 (a) provides that no person shall be convicted of committing the offense of a terroristic threat on the uncorroborated testimony of the party to whom the threat is communicated. “As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted.) Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980); Moss v. State, 148 Ga. App. 459 (1) (251 SE2d 374) (1978); see also Mitchell v. State, 187 Ga. App. 40 (1) (369 SE2d 487) (1988); compare Hanvey v. State, 186 Ga. App. 690 (1) (368 SE2d 357) (1988).

There was testimony that Stone was angry and violent and had behaved in a hostile manner to the officers. Further, there was testimony that Stone was verbally abusive to the officers. Contrary to Stone’s arguments, there was corroborating evidence, despite the fact that the particular threat was not overheard, and the denial of Stone’s motion was proper. See Ellis v. State, 176 Ga. App. 384 (3) (336 SE2d 281) (1985).

Decided September 8, 1993.

Evelyn P. Luton, for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A93A1685.
    THE STATE v. LITZ.
    (435 SE2d 724)
   Johnson, Judge.

After a preliminary hearing, the magistrate court ordered that the arrest warrant for Robert Litz on a charge of simple battery against his wife be dismissed. Thereafter, the State filed a simple battery accusation against Litz based on the same charge. The trial court dismissed the accusation, finding that because the arrest warrant for Litz was dismissed by the magistrate court “there was no warrant upon which to base the accusation . . . any accusation drawn on a warrant that has been dismissed is invalid.” The State appeals, arguing that the trial court erred in dismissing the accusation.

The trial court’s ruling is erroneous because there is no requirement that a misdemeanor accusation be based on an arrest warrant. In fact, in all misdemeanor cases the defendant may be tried upon an accusation framed and signed by the prosecuting attorney and the accusation does not have to be supported by an affidavit unless the accusation is to be used as the basis for the issuance of an arrest warrant. OCGA § 17-7-71 (a); State v. Scoggins, 196 Ga. App. 781 (397 SE2d 50) (1990); Shults v. State, 195 Ga. App. 525, 526-527 (1) (394 SE2d 573) (1990). Here, the accusation was framed and signed by the solicitor and did not have to be supported by an affidavit because there is no evidence that the State is attempting to use the accusation as the basis for the issuance of an arrest warrant. The accusation complies with OCGA § 17-7-71 (a), and is not invalid simply because the prior arrest warrant was dismissed.

Moreover, “[a] dismissal of charges based upon lack of probable cause does not bar the subsequent indictment and trial óf a defendant on the same charges. The decision of the committing court settles nothing as to the guilt or innocence of the defendant.” (Citations and punctuation omitted.) Boyce v. State, 184 Ga. App. 578 (1) (362 SE2d 229) (1987). In the instant case, it is not clear that the magistrate actually made a finding of lack of probable cause. Nonetheless, even if we assume that the magistrate dismissed the charges due to lack of probable cause, the State still is not barred from subsequently accusing and trying him on the same charge. The trial court erred in dismissing the accusation.

Decided September 8, 1993.

Gerald N. Blaney, Jr., Solicitor, for appellant.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellee.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1660.
    McELROY et al. v. CODY.
    (435 SE2d 618)
   Blackburn, Judge.

The plaintiffs-appellants commenced this action against the appellee, James Cody, seeking damages for personal injuries and the wrongful death of their father, who was struck and killed by a motor vehicle driven by an individual who had been furnished alcoholic beverage while a guest at Cody’s house. The trial court granted summary judgment for Cody, and this appeal followed.

On November 2, 1989, Cody entertained a few friends at his house from mid-afternoon until shortly before midnight. During that seven or eight-hour period, Cody and his guests cooked and ate, played cards, and generally socialized. Cody provided alcoholic beverages to his guests, one of which was Porter Weaver, a former chief deputy with the Rockdale County Sheriff’s Department and a former lieutenant colonel with the Georgia State Patrol.

Weaver left the gathering around 11:30 p.m., and he was next seen around 3:30 a.m. the following morning, when a Rockdale County deputy sheriff observed Weaver in his motor vehicle parked in the lot of a convenience store. The deputy sheriff had known Weaver for several years, and found him to be nervous and extremely intoxicated at this time. He also noticed that the front end of the vehicle was damaged, with fresh blood on the windshield. The deputy sheriff suspected that Weaver may have hit a deer, and checked the area for such but found nothing. He drove by the convenience store one other time before his shift ended, and Weaver remained in his vehicle.

Sometime after Weaver left Cody’s house, his vehicle struck and killed the plaintiffs’ father, whose body eventually was found by a road crew on November 13, 1989. In an affidavit submitted in support of his motion for summary judgment, Cody stated that Weaver had one beer and one mixed drink during the seven to eight-hour period that he was present at Cody’s house. Cody further stated that when he furnished that alcoholic beverage, Weaver was not noticeably intoxicated and showed no sign of being intoxicated, either through his speech, conduct, or otherwise, and that Weaver also was not noticeably intoxicated when he left Cody’s house. There is no evidence that Weaver did or did not consume any other alcoholic beverage after he left Cody’s house.

OCGA § 51-1-40 (b) provides, in part, that “[a] person . . . who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such . . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.” The determinative issue presented by this appeal is whether the evidence of record demonstrated that Cody had furnished alcohol to a noticeably intoxicated Weaver.

“Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. ‘(I)f this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.’ Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979).” Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (366 SE2d 156) (1988).

In the instant case, Cody’s affidavit stating that Weaver was not in a state of noticeable intoxication during the seven to eight-hour gathering at Cody’s house on November 2, 1989, and that Weaver was not noticeably intoxicated when he left the house, constituted direct and positive evidence on the determinative issue. In response to that evidence, the plaintiffs relied upon the deposition testimony of the deputy sheriff who observed and conversed with Weaver in the convenience store parking lot approximately four hours after Weaver left Cody’s house. The deputy sheriff’s observation that Weaver was extremely intoxicated constituted circumstantial evidence that Weaver may have been intoxicated four hours earlier, but it certainly did not demand such a finding.

“In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Citation and punctuation omitted.) Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979). In the instant case, the circumstantial evidence provided by the deputy sheriff’s deposition was insufficient to contradict Cody’s direct and positive evidence regarding the dispositive issue of whether Weaver was noticeably intoxicated at the time Cody furnished the alcoholic beverage, and the trial court thus properly granted summary judgment for Cody.

Decided August 23, 1993

Reconsideration denied September 9, 1993

Darel C. Mitchell, for appellants.

Swift, Currie, McGhee & Hiers, L. Bruce Hedrick, Jr., for appellee.

Judgment affirmed.

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


text:
    A93A1699.
    DURHAM v. TWIGGS COUNTY BOARD OF COMMISSIONERS et al.
    (435 SE2d 688)
   Blackburn, Judge.

This is an appeal from the Twiggs County Superior Court’s affirmance of the denial of a claim for workers’ compensation. We also affirm.

The appellant, Bobby Durham, was employed as an equipment operator with the Twiggs County Board of Commissioners. On June 1, 1988, while Durham was operating a tractor with a bush hog, his right foot was struck by a rock thrown by the mower blade. He wrapped a handkerchief around the injured area of his foot and continued to work.

Durham did not seek medical care until July 11, 1988, when he went to his personal physician, Dr. Frank Pechel, complaining of a cut on the back of his right foot with an ulceration around the heel area. He saw Dr. Pechel again on August 29, 1988, for complaints of aching in his legs and feet, and on December 28, 1988 for a blood pressure check, but did not thereafter return to Dr. Pechel’s office until September 12, 1989. When Dr. Pechel examined Durham in September 1989, he recorded complaints of swelling, aching, and ulceration on Durham’s left foot. He eventually referred Durham to Dr. Bruce Innes, a vascular surgeon who had previously treated Durham in 1987 for peripheral vascular disease in both legs.

When Dr. Innes examined Durham on October 2, 1989, he observed two ischemic ulcers on the top part of Durham’s right foot. An aortogram revealed occlusive vascular disease, and on October 4, 1989, Durham underwent a popliteal bypass graft to improve the circulation to his right lower extremity. Unfortunately, the bypass graft was unsuccessful, and ultimately it became necessary to amputate Durham’s right leg below the knee.

In a deposition taken on January 24, 1992, Dr. Innes recalled Durham giving a medical history of having sustained an injury at work, and that the ulcer on his right foot was part of that injury. He responded affirmatively when asked whether the June 1, 1988, incident of a rock striking Durham’s right ankle could have played some part in the ultimate amputation. However, Dr. Innes also testified that he did not think that the June 1988 cut, for which Durham was treated once, was related to the two ischemic ulcers he observed over a year later on the dorsum of Durham’s right foot.

Durham actually continued to work until October 27, 1989. He did not file his workers’ compensation claim until April 2, 1990. At the hearing before the Administrative Law Judge (ALJ), Durham testified that the rock struck his foot just below his ankle, on the outer side of his right foot. On cross-examination, however, he acknowledged having previously testified in a deposition that the rock struck his Achilles tendon. He also admitted that prior to seeing Dr. Pechel in September 1989, his original injury had healed for about five months.

Considering the medical evidence adduced and Durham’s inconsistent. testimony regarding the location of the injury, the ALJ concluded that although Durham had established the occurrence of a work-related injury on June 1, 1988, that injury was unrelated to the health condition that disabled him in late October 1989 and led to the partial amputation of his right leg. Rather, the ischemic ulcers on the top of Durham’s right foot were attributable to his chronic peripheral vascular disease. For that reason, the ALJ denied Durham’s claim on the grounds that it was not timely filed within one year of the date of the actual work injury on June 1, 1988, as required under OCGA § 34-9-82 (a), and the Appellate Division of the State Board of Workers’ Compensation adopted that decision.

It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board. Gasses v. Professional Plumbing Co., 204 Ga. App. 69 (418 SE2d 424) (1992); Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684 (420 SE2d 366) (1992). In the instant case, the deposition testimony of Dr. Innes regarding the lack of relationship between Durham’s June 1988 foot injury and the ischemic ulcers on the top of his right foot that eventually necessitated the amputation, and Durham’s own inconsistent testimony regarding the site of the injury, constitute the “any evidence” needed to support the Board’s findings.

Durham misplaces his reliance upon the line of cases holding that where an employee continues to work after a work-related injury, until he is forced to cease work because of the aggravation of the original injury, the statute of limitation runs from the date the employee was forced to cease work. See Jarrell v. American Home Assur., 149 Ga. App. 761 (256 SE2d 123) (1979). Such a fictional new accident date may not be assigned in this case, because the Board found that Durham’s cessation of work was due to a health condition unrelated to his original work injury, and there was evidence supporting that finding.

Decided August 24, 1993

Reconsideration denied September 9, 1993

Waymon S. Harrell, Carl A. Veline, Jr., for appellant.

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

Judgment affirmed.

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


text:
    A93A0981.
    DUCK v. THE STATE.
    (435 SE2d 725)
   Johnson, Judge.

Wesley Ray Duck was convicted of aggravated child molestation and cruelty to children. He was sentenced to serve 20 years for aggravated child molestation, 20 years probation for cruelty to children, and ordered to pay a $5,000 fine as a condition of his probation. Duck appeals his convictions, the denial of his motion for a new trial, and his sentences.

1. Duck contends that the State failed to prove guilt beyond a reasonable doubt and that the evidence was close enough to warrant a retrial. We disagree.

“On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict.” Hall v. State, 196 Ga. App. 523, 524 (396 SE2d 271) (1990). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In this case, three witnesses saw Duck, the victim’s father, molest the victim on at least three different occasions. The victim testified that Duck touched her in her “private parts” and that he put his penis in her mouth. The victim’s stepmother saw Duck and the victim sleeping together with Duck’s penis in the victim’s mouth. The victim’s 12-year-old brother saw Duck standing by the victim’s bed with his pants down while pulling the victim’s head toward his penis. Both the victim and her stepmother heard Duck threaten to physically harm the victim if she told anyone about the molestation. The psychiatrist who evaluated and treated the victim concluded that the victim exhibited behavior consistent with a child who had been sexually abused. Having carefully considered this and the rest of the record, we find that the evidence presented was sufficient beyond any reasonable doubt to enable a rational trier of fact to convict Duck of aggravated child molestation and cruelty to children.

2. Duck also contends that the trial court erred in not allowing him to ask the State’s expert witness, a psychiatrist, about other possible causes of the victim’s behavior and injuries. Specifically, Duck argues that he should have been allowed to ask the psychiatrist about molestation allegedly committed by another person and whether it could have been the cause of the victim having symptoms of post-traumatic stress disorder and child abuse accommodation syndrome. Without articulating a reason, the trial court ruled that the line of questioning was impermissible.

“[E]vidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” (Citation omitted.) Hall, supra at 525 (2). However, one purpose for which such evidence of prior molestations is admissible is to show other possible causes of behavior by the victim, consistent with the child sexual abuse syndrome. Rouse v. State, 204 Ga. App. 845, 846 (1) (420 SE2d 779) (1992); Hall, supra.

In his brief, Duck states that his intended purpose for soliciting testimony regarding molestation by others was to suggest other possible causes of the victim’s behavior and injuries. If in fact that was Duck’s purpose, Duck should have been allowed to ask questions regarding other possible causes of the victim’s behavior. However, where the appellant was allowed a thorough and sifting cross-examination of the witness, and the disallowed questions were posed to and answered by other witnesses, the appellant was not harmed by the court’s ruling. Moore v. State, 251 Ga. 499, 502 (2) (a) (307 SE2d 476) (1983). Furthermore, the scope of cross-examination is not unlimited, but rests largely within the discretion of the trial court, and its discretion will not be disturbed on appeal unless it has been abused. Id. Duck’s attorney was allowed to ask the psychiatrist questions regarding other possible causes of the victim’s stress, including whether the molestation could have been committed by someone else. In addition, Duck was allowed to ask the same and similar questions regarding the other alleged molester when he cross-examined the victim and the victim’s stepmother. The trial court did not abuse its discretion in restricting Duck’s cross-examination of the psychiatrist.

3. Duck also contends that the trial court erred in allowing one of the State’s witnesses to testify as to statements the victim made during juvenile court proceedings. We disagree.

“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” OCGA § 24-3-16 (the Child Hearsay Statute). The victim in this case was six-and-one-half years old at the time she made the statement. Her statement was made under oath to the district attorney in a deprivation proceeding in juvenile court approximately four months before Duck’s trial. Duck and his attorney were present at the time. The district attorney to whom the statement was made testified at the trial, in part reading directly from the transcript and in part testifying from memory. The juvenile court statement was consistent with the victim’s trial testimony and with other statements she made to witnesses. Considering all of the circumstances surrounding the statement, we find that there was sufficient indicia of reliability for the statement to be admissible. See Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991). Furthermore, if defense counsel had the opportunity to confront and cross-examine the witness who made the out-of-court statement, the statement was admissible. Calloway v. State, 199 Ga. App. 272, 273 (2) (404 SE2d 811) (1991). Here, the victim took the stand and testified. Duck had the opportunity to and did, in fact, cross-examine the witness who made the out-of-court statement. Thus, the statement was properly admitted.

4. Duck also argues that the trial court erred in refusing to give his requested charge on sexual battery as a lesser included offense of child molestation. We recently decided this issue adversely to Duck.

“As a matter of law, a crime is included in another if it is shown that it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6 (2). Sexual battery does not differ from child molestation in the manner set forth in OCGA § 16-1-6 (2). The crimes of child molestation and sexual battery have different elements and protect different classifications of victims. Accordingly, the offense of sexual battery is not included in the offense of child molestation as a matter of law.” (Citations and punctuation omitted.) Teasley v. State, 207 Ga. App. 719 (2) (429 SE2d 127) (1993).

Sexual battery is not a lesser included offense of child molestation as a matter of fact, either. As we held in Teas ley, “[a] crime is included within another charged crime as a matter of fact if it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. Where the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense.” (Citations and punctuation omitted.) Id. at 720. Here, the indictment specifically provided that the indecent act was committed upon “a child under the age of 14 years.” As with the child molestation statute, the indictment was narrowly drawn to pertain only to a crime against a child. See OCGA § 16-6-4 (a). Similarly, the evidence adduced at trial proved the crime of child molestation rather than sexual battery. Because the charge of sexual battery was not authorized as a matter of law or fact, the trial court did not err in refusing to give the charge.

Decided September 9, 1993.

Greene & Greene, Barry B. Greene, for appellant.

T. Joseph Campbell, District Attorney, Brett W. Ladd, D. Scott Smith, Assistant District Attorneys, for appellee.

5. Duck also contends that the trial court erred in relying upon the new sentencing guidelines set forth in OCGA § 42-9-45 (f), which were not in effect at the time the crimes were committed. Imposition of these guidelines, Duck argues, violated the prohibition against ex post facto laws and resulted in his receiving an unduly harsh sentence. This argument is without merit.

The statutes which were in effect at the time the crimes were committed provide that a person convicted of aggravated child molestation shall serve from two to thirty years for the crime, and that a person convicted of cruelty to children shall serve from one to twenty years. OCGA §§ 16-6-4 (d); 16-5-70 (c). The court may also require the payment of a fine as a condition precedent to probation. OCGA § 42-8-34 (e). Duck was sentenced to 20 years for aggravated child molestation, 20 years probation for cruelty to children, and ordered to pay a fine as a condition of his probation. Duck’s sentences and fine were within the statutory parameters in effect at the time the crimes were committed. Therefore, the issue of whether the trial court improperly relied upon the newer guidelines set forth in OCGA § 42-9-45 (f) is irrelevant.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       At trial, Duck stated that the purpose for soliciting the testimony was to discredit the stepmother’s testimony.


text:
    A93A1152.
    CHUNN v. THE STATE.
    (435 SE2d 728)
   Johnson, Judge.

Homer Chunn appeals from his conviction of possessing cocaine with intent to distribute.

1. Chunn complains that the trial court erred in allowing a police officer to give hearsay testimony which placed his character in issue. The officer, in response to cross-examination by Chunn’s attorney about the circumstances surrounding Chunn’s arrest, testified that Chunn offered to provide the police with information about other drug dealers in exchange for lenient treatment on the current offense. The officer stated that Chunn was arrested and charged with the instant offense only after he failed to provide any of the promised information. When Chunn’s attorney asked whether Chunn was unable to provide the information, the officer replied, “I don’t believe he was unable. I just think he was unwilling.” The trial court allowed the officer to explain that the reason he believes Chunn was unwilling, rather than unable, to provide the information is that several people have told him that Chunn continued selling drugs even after the current offense. Chunn objects to the court’s ruling allowing this explanation.

“Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. [Cit.]” Matthews v. State, 194 Ga. App. 386, 387 (2) (a) (390 SE2d 873) (1990). Only in rare instances does an investigating officer need to explain his conduct. Glass v. State, 171 Ga. App. 156, 157 (319 SE2d 60) (1984). Chunn’s own cross-examination of the officer in the present case made this one of those rare instances; his questioning of the officer made the circumstances surrounding his arrest relevant and in need of explanation. The officer’s testimony explaining the circumstances leading to Chunn’s arrest was authorized as original evidence. Aaron v. State, 203 Ga. App. 658, 659 (1) (418 SE2d 66) (1992); Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (1990).

Chunn’s further argument that the officer’s testimony impermissibly placed his character in issue was not properly reserved for appellate review as no such objection was made at trial. The record shows that Chunn’s only objections at trial were that the testimony was hearsay, irrelevant and prejudicial. “No ‘character’ objection was made.” Felker v. State, 252 Ga. 351, 364 (1) (e) (314 SE2d 621) (1984). This court cannot consider issues and grounds for objection which were not raised in the trial court. Lewis v. State, 205 Ga. App. 29, 30 (1) (421 SE2d 339) (1992). Even if such an objection were properly before us, it is without merit as the officer’s testimony was not inadmissible simply because it may have incidentally placed Chunn’s character in issue. Frazier v. State, 257 Ga. 690, 698 (16) (362 SE2d 351) (1987); Dawson v. State, 205 Ga. App. 394, 396 (2) (422 SE2d 280) (1992). Moreover, in light of the officer’s testimony that he clearly observed Chunn make three separate drug sales, it is more than highly probable that admission of the challenged evidence did not contribute to the verdict. Dawson v. State, supra at 395 (2).

2. Chunn, who is black, asserts that the trial court erred in denying his challenge to the State’s use of peremptory strikes to remove four black males from the jury pool. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The preliminary issue of whether Chunn established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). We therefore need only address the sufficiency of the prosecutor’s explanations for the exercise of the four peremptory strikes of black males. “The prosecutor’s explanations must be strong enough to overcome the prima facie case.” (Emphasis in original. Citation and punctuation omitted.) Kelly v. State, 209 Ga. App. 789 (1) (b) (434 SE2d 743) (1993.)

“[T]he exercise of a peremptory challenge may not be based on either the race of the juror or racial stereotypes held by the party. [Cit.]” Congdon v. State, 262 Ga. 683, 685 (424 SE2d 630) (1993). “In order for the State to carry its Batson burden, the prosecutor [must] explain his striking of the jurors at issue by articulating a racially-neutral reason related to the particular case. [Cit.]” Lewis v. State, 262 Ga. at 680 (2). Here, the prosecutor explained that one of the black males was struck because his son had been charged with a crime. The prosecutor’s concern that such a juror might be biased against the State in the instant case is legitimate and his explanation as to the exercise of this peremptory challenge is racially neutral. “ ‘A reasonable suspicion about a prospective juror’s impartiality that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike.’ ” Davis v. State, 263 Ga. 5, 8 (10) (426 SE2d 844) (1993); see also Batton v. State, 260 Ga. 127, 129 (2) (391 SE2d 914) (1990).

The prosecutor’s explanations for striking the other three black males, however, are insufficient. The prosecutor told the trial court that it struck Demetrick McWhorter, Harold Moton and Darryl Sinkfield simply because they are students. The prosecutor also noted that Sinkfield had been a Marine. Although these explanations appear to be nonracial, they are nonetheless inadequate because the prosecutor made no attempt to explain how being a student or a former Marine is related to this particular case. The explanation of the use of a peremptory challenge must be related to the case to be tried. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). “Standing alone, the prosecutor’s explanation [s] [have] the appearance of . . . those reflect(ing) certain stereotypical attitudes as to particular groups.” (Citation and punctuation omitted.) Kelly v. State, supra at 792. “Any such explanations should be given additional scrutiny by the trial court before they are found acceptable.” Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992). It appears from the transcript that the trial court failed to give any additional scrutiny to the State’s inadequate explanations before finding them acceptable.

Decided September 9, 1993.

Shandor S. Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, William F. Riley, Jr., Assistant District Attorneys, for appellee.

While the trial court’s findings are entitled to great deference, “rubber stamp approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ensure that no citizen is disqualified from jury service because of his race.” (Citations and punctuation omitted.) Gamble, supra at 327 (5). Since the trial court did not require the State to fully explain its use of the peremptory challenges as to McWhorter, Moton and Sinkfield, we remand the case in order to permit the prosecutor to do so and to allow the trial court to make findings under Batson. Should the trial court determine that the State has not fulfilled its burden to provide racially neutral reasons related to this particular case, a new trial is in order. Should the trial court determine that no Batson violation occurred, Chiinn’s conviction will remain in effect. Either party may file a notice of appeal from the trial court’s ruling made on remand. Lewis v. State, 262 Ga. at 681 (2).

Case remanded with direction.

McMurray, P. J., and Blackburn, J., concur.

       The State also used four peremptory challenges to strike three white males and one white female.


author: Smith, Judge.

text:
    A93A1449.
    PETERS v. THE STATE.
    (435 SE2d 731)
   Smith, Judge.

Following an automobile accident, Alphonso Ezihuo Peters was charged with giving a false name to a law enforcement officer, OCGA § 16-10-25; giving a false date of birth to a law enforcement officer, OCGA § 16-10-25; and no proof of insurance, OCGA § 40-6-10 (a) (l)-(3). Pursuant to a negotiated plea, an order of nolle prosequi was entered on the false name charge and Peters pled nolo contendere on March 13, 1991, on the other two charges. He was sentenced to 12 months probation and a fine. On January 19, 1993, while incarcerated in federal prison on unrelated charges, Peters instituted this action by filing a writ of error coram nobis, later clarified as being a motion to vacate the judgment, in which he sought to set aside his plea of nolo contendere. The trial court granted the State’s motion to. dismiss the action, and Peters filed this pro se appeal.

1. The gist of Peters’ contention is that his plea of nolo contendere should be vacated because he was not represented by counsel at the plea hearing and he never knowingly or voluntarily waived his right to counsel. We find no' merit in this enumeration.

Entry of a plea of nolo contendere “ ‘constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.’ [Cit.]” Kirby v. State, 170 Ga. App. 11, 12 (1) (316 SE2d 23) (1984). Before allowing a defendant to enter such a plea, a trial court must determine that the plea is voluntary and that the defendant understands the nature of the charges and the consequences of the plea, and knowingly waives his constitutional rights. Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). When a defendant challenges the validity of his prior guilty or nolo plea, the State has the burden of establishing the validity of the waiver. Bowens v. State, 194 Ga. App. 391 (2) (390 SE2d 634) (1990). The waiver of constitutional rights in connection with a guilty or nolo plea may not be presumed from a silent record. See Boykin v. Alabama, 395 U. S. 238, 243 (89 SC 1709, 23 LE2d 274) (1969). The State may meet its burden either by showing on the record of the plea hearing that the defendant was cognizant of the rights he was waiving and the possible consequences of his plea, or by filling a silent record by the use of extrinsic evidence showing affirmatively that the plea was knowing and voluntary. Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989).

Although no transcript of the plea hearing has been included, the record on appeal is not silent in this regard. It includes a document captioned “Defendant’s Plea Statement,” a printed form with blanks filled in and signed both by Peters and the trial judge. The document recites that the defendant was entering the plea freely and voluntarily; that he understood the nature of the charges and the consequences of his plea, including the maximum and minimum sentences possible as expressly set forth in the document; that he was aware of the expressly stated rights he was waiving, including the right to the assistance of counsel. It also recites that “the Court, after inquiry” (emphasis supplied) was satisfied, inter alia, that Peters understood the nature of the charges and the consequences of the plea, and that the plea was being entered voluntarily. The document indicates that the State met its burden, and Peters has offered no evidence, other than the bare allegations in his brief, to the contrary.

Decided September 9, 1993.

Alphonso E. Peters, pro se.

Gerald N. Blaney, Jr., Solicitor, Deborah M. Perlis, Richard E. Thomas, Assistant Solicitors, for appellee.

Moreover, the court was not required to appoint an attorney to represent Peters in this case. Although the Sixth Amendment to the United States Constitution guarantees an indigent’s right to appointed counsel in any case in which the defendant risks possible imprisonment upon a finding of guilt, Argersinger v. Hamlin, 407 U. S. 25, 37 (92 SC 2006, 32 LE2d 530) (1972), our Supreme Court has held that the right to appointed counsel in misdemeanor cases arises only when a defendant is actually sentenced to a term of imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). The record affirmatively discloses that Peters was not imprisoned as a result of his plea. Even if, as Peters argues, a later sentence imposed for a different offense was enhanced because of this conviction, such adverse effects do not require that his plea or the sentence in issue be vacated. Even when the probated sentence causes revocation of the defendant’s probation on a prior offense, failure to appoint counsel does not constitute reversible error. Sams v. State, 162 Ga. App. 118, 119 (1) (290 SE2d 321) (1982).

2. Peters also contends that when he was arrested, the police failed to advise him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) before he made statements to them. We cannot consider this contention because he has not supported his allegation by reference to the record. Our examination of the record discloses no evidence whatsoever regarding the circumstances of his arrest. Error must be shown affirmatively by the record, and not by mere recitations in a brief. Standridge v. State, 196 Ga. App. 697, 698 (3) (396 SE2d 804) (1990).

Even assuming Peters’ allegation is true, Peters must show harm as well as error to warrant reversal. Byrd v. State, 182 Ga. App. 284, 285 (1) (355 SE2d 666) (1987). No harm can be shown, since no trial took place and no statements were entered into evidence. Rather, Peters agreed to a negotiated plea.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1518.
    LEA v. AMERICAN HOME EQUITIES, INC. et al.
    (435 SE2d 734)
   Johnson, Judge.

Ann Lea rode the elevator in her apartment building down two floors to get her mail and put her newspapers in a recycling bin located in the garage. When she got off the elevator she noticed that the indoor/outdoor carpeting in the hallway was soaking wet. She saw a small cardboard sign which had been posted warning her to “Watch your step.” She deposited her newspapers and got her mail. She crossed the wet carpet again and entered the elevator, slipping on the marble floor. Lea filed this lawsuit to recover damages for injuries she sustained as a result of the fall. The trial court granted summary judgment in favor of defendants American Home Equities, Inc., and Lenox South, Ltd., owners and managers of the apartment building. Lea appeals.

1. Lea asserts that the lower court erred in granting defendants’ motion for summary judgment because they had superior knowledge of the specific risk of danger confronting Lea.

The record establishes that the water on the carpet was the result of a cleaning process which had been undertaken as a result of a spill of hydraulic oil which had occurred in the elevator service room on the garage level. Lea argues that the defendants had superior knowledge of the oil spill, and that oil was the specific risk to which she was exposed. There is evidence in the record that some of the oil seeped out of the elevator room onto the carpet immediately adjacent thereto. There is no evidence, however, that any of the oil extended to the area which Lea traversed in walking from the elevators to the garage and back again. It would be mere speculation to assume that the spilled oil played any part in her fall. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” (Citations and punctuation omitted.) Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244, 245 (361 SE2d 236) (1987). The specific risk to which Lea was exposed was not oil, but the water remaining in the carpet after cleaning and Lea admits in her deposition that she was aware of the condition of the carpet: “It was very obvious, the carpet was wet — squishy wet.”

In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of a foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is uncontroverted that Lea knew of the condition of the carpet and that she saw the warning sign which had been posted in the hallway. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Lea also stated in her deposition that she retraced her route knowing the carpet was wet and entered the elevator even though she was aware that the marble floor in the elevator was slick. Under these circumstances it appears that Lea had equal knowledge of the specific risks which she faced in choosing to return to her apartment by the same route she had just taken to the garage.

Decided September 9, 1993.

Goodman & Goodman, Barry Goodman, for appellant.

Ware & Associates, Robin P. Lourie, Suzanne T. Fink, Bentley, Karesh & Seacrest, Gary L. Seacrest, for appellees.

2. In her second and final enumeration of error, Lea contends that the lower court erred in granting defendants’ motion for summary judgment because she had no reasonable alternative route to return to her apartment. This assertion is not supported by the facts of this case which indicate that Lea knew of three other routes back to her apartment but found them less desirable. She could have walked up two flights of stairs, she could have walked up one flight to the lobby and then caught the elevator, or she could have walked outside the garage and around the building and into the lobby. Where a plaintiff is not required to traverse a route upon which a known hazard exists, but chooses to do so, she can be deemed to have voluntarily assumed the risk of injury. See Powell v. Woodridge Condo. Assn., 206 Ga. App. 176, 178 (424 SE2d 855) (1992); Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 160 (335 SE2d 408) (1985). The route taken was not one of necessity and the trial court did not err in entering summary judgment in favor of the defendants.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1553.
    HIGHTOWER v. THE STATE.
    (436 SE2d 31)
   Johnson, Judge.

Ricardel Hightower was convicted of sale of cocaine and sentenced to life imprisonment. He appeals.

Hightower contends that the trial court erred in sentencing him to life imprisonment under OCGA § 16-13-30 (d) because the State did not notify him of its intention to seek a life sentence. Hightower relies on the notice requirement of OCGA § 17-10-2 (a), which “provides that before sentencing, the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions . . . , provided that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible. The notice requirement of OCGA § 17-10-2 (a) applies to mandatory life sentences imposed under OCGA § 16-13-30 (d).” (Emphasis supplied.) (Citations and punctuation omitted.) Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992). Hightower’s argument that OCGA § 17-10-2 (a) requires the State to notify the defendant of its intention to seek a life sentence is without merit. The statute does not require that the State notify the defendant of the sentence it intends to seek; rather, the statute simply requires that the State notify the defendant of the evidence it intends to use in aggravation of sentencing.

At the sentencing hearing, the district attorney explained to the court that Hightower was served with notification that his prior conviction for possession of cocaine with intent to distribute would be introduced in the sentencing hearing as evidence in aggravation. Moreover, the record indicates that the State provided Hightower with written notice that it intended to present evidence of his prior conviction as a similar transaction at trial. Defense counsel conceded that he was aware of the prior conviction and did not dispute that the State had notified him of the conviction before the trial. The purpose of the notification requirement of OCGA § 17-10-2 (a) is to allow the defendant to “examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial. Although a written notification of the State’s intent to prosecute as a recidivist is preferable, it is not required as long as the notification is clear.” (Citations and punctuation omitted.) Moss, supra at 312 (5). Under the circumstances of this case, the trial court did not err in finding that the defendant received adequate notice that he faced treatment as a recidivist under OCGA § 16-13-30 (d).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided September 9, 1993.

Robert M. Beauchamp, for appellant.

Britt R. Priddy, District Attorney, David E. Perry, Assistant District Attorney, for appellee.


text:
    A93A1667.
    MILLS v. THE STATE.
    (435 SE2d 736)
   Blackburn, Judge.

The appellant, Jesse Mills, was convicted of burglary and sentenced to 20 years’ imprisonment. His sole contention on appeal is that the trial court erred in admitting into evidence an inculpatory statement he made following his arrest.

Around midnight on June 5, 1992, Dovie Hass was awakened by a noise at her back screen door. After she looked out a window and saw Mills walk from her garage down her driveway, she called a neighbor and asked her to call the police. The police came to her house but found nothing. Shortly afterwards, however, Mills returned to the house and tried to enter the window to Hass’s laundry room. Hass then unlocked her back door and fired a shot from her pistol, and Mills ran away. Hass called the police, and one of the officers dispatched in response to her call picked up Mills on a street that ran behind Hass’s home. This officer transported Mills to Hass’s house, and Hass positively identified him as the intruder.

Around 3:30 p.m. the following afternoon, Special Agent Charles Jackson of the Georgia Bureau of Investigation advised Mills of his Miranda rights and initiated an interrogation. About one hour later, Special Agent Don Davis completed the interview and obtained a statement from Mills in which he acknowledged trying to break into Hass’s house in order to steal something to trade for liquor.

During a Jackson-Denno hearing, Agent Jackson testified that after he advised Mills of his rights, Mills agreed to discuss the matter of the burglary at the Hass residence but denied any responsibility. When Agent Davis took over the interview and confronted Mills with the physical findings at the scene, Mills gave the inculpatory statement. Both agents testified that Mills talked normally, did not appear to be under the influence of alcohol, and never asked that the interview be terminated. Agent Davis noted that at one point in time, Mills became uncomfortable sitting in the chair and got up to walk around the room for a minute, but then sat back down until the interview was completed. On cross-examination, Agent Davis acknowledged telling Mills that he would note Mills’s claim of a drinking problem in his report and that possibly Mills could get some counseling for the problem.

Decided September 9, 1993.

Collier, Hunt & Gamble, Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Mills testified that he had not slept well in the holding cell the night before, and that he was suffering from a hangover during the interview. He admitted that he had been advised of and understood his rights, and that he had agreed to the interview without an attorney. However, he claimed that eventually he requested to end the interview because his back was hurting, but Agent Davis refused. He also stated that Agent Davis had assured him that the charge against him was only criminal trespass and that Mills would receive help for his alcohol problem if he admitted the crime, which had influenced his decision to give the statement.

On appeal, Mills contends that his inculpatory statement was involuntarily given, and that the trial court thus erred in admitting it into evidence. However, the evidence regarding the circumstances and voluntariness of Mills’s statement was conflicting, and a trial court’s findings as to factual determinations and credibility relating to the admissibility of a defendant’s statement will be upheld on appeal unless they are clearly erroneous. Hickson v. State, 205 Ga. App. 874 (424 SE2d 68) (1992); McDaniel v. State, 204 Ga. App. 753 (1) (420 SE2d 636) (1992). Under the facts presented in the instant case, the trial court’s findings were not clearly erroneous, and we thus find no error in the admission of Mills’s statement.

Judgment affirmed.

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