text:
    A99A0298.
    ANDERSON v. THE STATE.
    (519 SE2d 463)
   Ruffin, Judge.

A jury found Charles Anderson guilty of ten counts of armed robbery, seven counts of aggravated assault, and two counts of kidnapping. Anderson appeals his conviction and the trial court’s denial of his motion for new trial, asserting numerous grounds. We affirm.

1. Anderson argues that the evidence was not sufficient to support a conviction as to 11 of the counts against him. On appeal, Anderson no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998). We neither determine the credibility of witnesses nor evaluate the accuracy of eyewitness identifications. Paul, supra; Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996).

The evidence showed that Anderson committed a series of robberies in the Buckhead area of Atlanta during a three-month period in the winter of 1994. On January 11, 1994, a large, African-American male with a light complexion who was wearing a brown jacket entered a Heavenly Ham store with a gun drawn and demanded money from Shawn Meade and Marilyn Fillingim, two employees behind the counter. When Meade explained that the money was in the back office, the man went with Meade and Fillingim to the office, where two more employees — Sara Hyatt and Lisa Hanrahan — were counting the day’s receipts. The man took the money, ordered the four employees to sit down and wait ten minutes, and then left the store. Although Fillingim did not testify and Hyatt was unable to identify the man, both Meade and Hanrahan positively identified Anderson as the perpetrator and also identified his jacket and gun, which were introduced into evidence. According to Hanrahan, Anderson was “very polite, as armed robbers go.”

On January 21, 1994, an African-American male with a light skin tone wearing a brown jacket entered the Cup & Saucer gift shop, pointed his gun at customer Paul Cahoon, and demanded money from Cahoon and employee Teresa Hess. Cahoon gave the man — whom he described as “polite” — $65 from his wallet, and Hess handed him money from the cash register. The man then ordered Cahoon and Hess to the back of the store, told them to wait 15 minutes, and left. Although Hess did not testify at trial, Cahoon, who identified Anderson from a pre-trial lineup, testified that Anderson was the man who committed the robbery and that he recognized Anderson’s jacket as the one he wore during the robbery.

On January 23, 1994, an African-American man wearing a blue jacket and knit cap approached Donald Waite with a gun while Waite was standing at a Bank South automatic teller machine and told him to withdraw $500. After Waite explained that he did not have that much money in his account, the man snatched the money Waite had already withdrawn from his hand, then ordered Waite to drive away without looking back. Although Waite could not positively identify Anderson in court, Waite’s description of the robber and his clothing matched Anderson’s appearance and clothing seized from Anderson’s apartment. Waite also recognized Anderson’s gun as the one used in the robbery. Finally, Waite described the robber’s demeanor as initially polite and calm but growing more aggressive as the robbery progressed.

On January 26, 1994, a light-complected African-American male robbed cigarette vendor Bruce Hosch as he emerged from servicing the cigarette machines at a Buckhead bar. The robber pulled a gun on Hosch, ordered him to “give it up,” grabbed two bags of money, and directed Hosch to get into his car and drive away. Hosch identified Anderson as the robber during a pre-trial photographic lineup and testified that he was “sure” of his identification.

On January 30, 1994, a tall, husky African-American male robbed Mason Shives at the same Bank South ATM where Donald Waite had been robbed a week earlier. After taking $110 from Shives, the robber asked Shives to withdraw another $100. Shives explained that he was a student and had no more money, after which the man returned some of Shives’ money and told Shives to drive away and not look back. Shives identified Anderson as the perpetrator in a pretrial lineup and again in court, stating that he was “certain” of his identification. Shives also positively identified Anderson’s gun as the one used to rob him.

On February 6, 1994, a light-skinned African-American male robbed Richard deMayo at gunpoint at an ATM in.DeKalb County, near the Brookhaven area. Afterward, the robber ordered deMayo to get into his car and drive away. Instead, deMayo followed the man in his car and used a cell phone to dial 911. DeKalb County police responded and chased the man down MARTA tracks, through a wooded area, and into an apartment complex on Peachtree Road in Fulton County where Andrea Largay was cleaning her car. The man ran toward Largay and demanded her car keys. She threw her keys to the ground and fled to call 911. The man could not start Largay’s car, so he jumped into the car of Naomi Matusow, an elderly resident of the complex who was driving by at the time, and told Matusow to drive away. Matusow did as the man ordered and finally persuaded him to exit the car at a nearby intersection.

Matusow, who was too frightened to look at her kidnapper during the incident, could not identify Anderson. However, both deMayo and Largay were able to identify Anderson. In addition, Matusow’s future husband, who was at the complex that day and saw Anderson’s confrontation with Largay, identified Anderson from a pre-trial photographic lineup.

On February 15, 1994, a man approached Gina Crusco, the manager of a Buckhead orthodontic office, as she was walking to the bank to make a deposit and demanded that she give him the deposit envelope. Although Crusco initially tried to ignore the man, she handed him the envelope after he pulled a gun, grabbed her arm, and turned her around. The robber would not let Crusco proceed to the bank but instead ordered her to walk back to her office without turning around. Crusco identified Anderson at a pre-trial hearing as the man who robbed her, and she identified him again at trial, testifying that she had “no doubt” he was the culprit. Crusco also recognized Anderson’s hat and jacket as clothing worn by the robber. Furthermore, a building janitor identified Anderson as the man he had seen the day before the robbery lurking about in shrubbery near the orthodontic office.

On February 21, 1994, a large, light-skinned African-American man approached the counter at an Oxford Book Store, showed clerk Tom Corley a gun, and demanded money. The man left after Corley complied, and Corley then called for help over the store’s loudspeaker. Corley told employee Greg Halliday what had happened, and Halliday ran after the robber. Halliday caught up with the man outside the store, where he was attempting to rob a customer. The man turned toward Halliday and, gesturing with his gun, told Halliday to go back in the store, which Halliday did. Corley could not identify Anderson, but he testified that Anderson’s gun resembled the one used in the robbery. Halliday identified Anderson both at a pre-trial lineup and in court.

On March 18,1994, a man described as “medium brown” entered Poppy’s, a clothing store in Buckhead, showed his gun to sales clerk Joan Bone, and asked for money. Upon learning that Bone did not have the key to the cash register, the man ordered her back to the manager’s office, where manager Peggy Horne and employee Kathy Roche were eating lunch. The man ordered all three women to the front of the store, where Horne opened the cash drawer and gave him money. The man left the store after telling the women to go into a dressing room and stay for five minutes. Horne identified Anderson at trial as “definitely the man” who robbed her. Roche did not testify at trial, but Bone identified Anderson as the perpetrator at a pretrial photographic lineup and again in court.

On March 28, 1994, a man approached Charles Pickett while he was withdrawing money at a First Union ATM in Buckhead, engaged Pickett in conversation, and then demanded the money Pickett had withdrawn. After seeing that the man had a gun, Pickett gave him the money, and the man then asked him to withdraw more. Pickett saw the robber look away and bolted, but fell in the parking lot. Pickett looked up to see the man standing over him with the gun. The man ordered Pickett to return to the teller, but walked away when Pickett screamed for help. Pickett identified Anderson as the robber both at a pre-trial lineup and in court.

On April 3, 1994, Atlanta Police Detective C. M. Long was parked in an unmarked car next to the Bank South ATM where Donald Waite and Mason Shives had been robbed. Long had reviewed the victims’ descriptions of the perpetrator in the string of Buckhead robberies, and he was watching the ATM and looking for a man who matched the descriptions. Long saw Anderson approach several pedestrians in the area. Anderson then approached Long’s car and offered to sell him a newspaper, at which point Long realized that Anderson matched the descriptions of the robber. Long did a pat-down search of Anderson and found a fake silver handgun with a white pearl handle, then arrested him.

At trial, the State introduced various articles of clothing, eyeglasses, and hats that were found either on Anderson’s person or at his residence and that matched the victims’ descriptions of clothing worn by the robber. The State also introduced a notebook found at Anderson’s residence that included writings such as “First Union Bank at closing time, Piedmont, woman in white car.” Finally, the State introduced evidence that Anderson had committed four earlier armed robberies — two in 1973 and two in 1983 — all at businesses in or near Buckhead.

Anderson challenges the sufficiency of the evidence as to the charges relating to Sara Hyatt, Tom Corley, Naomi Matusow, Peggy Horne, and Donald Waite on the grounds that these witnesses could not identify Anderson as the perpetrator. Other witnesses involved in the same incidents as Hyatt, Corley, Matusow, and Horne, however, were able to positively identify Anderson as the culprit. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. The fact that other witnesses were not able to identify Anderson goes only “to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” Samuels v. State, 223 Ga. App. 275, 276 (1) (477 SE2d 414) (1996). Because at least one witness was able to identify Anderson as the perpetrator with respect to each such robbery, the evidence was sufficient to support his convictions. Id.

Although Waite was not able to positively identify Anderson at trial, other evidence linked Anderson to the robbery of Waite. Waite was able to identify Anderson’s jacket, hat, and distinctive gun. Moreover, other witnesses positively identified Anderson as the perpetrator of other robberies that were part of a continuing crime spree over a short period of time in the same area, including one other robbery at the same ATM. Such similar transaction evidence serves to prove identity. Leaver v. State, 211 Ga. App. 876-877 (1) (440 SE2d 760) (1994). “The weight to be given this evidence . . . was within the sole province of the jury.” Id. The jury found Anderson guilty of the armed robbery of Waite, and we will not disturb its finding on appeal. Id.

Next, Anderson argues that there was insufficient evidence to support his convictions of aggravated assault against Andrea Largay and Greg Halliday. A person commits assault when he “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20. A person commits aggravated assault when he commits assault “(1) [w]ith intent to . . . rob” or “(2) [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a). Largay testified that she felt “alarm” and “fear” when Anderson ran toward her, demanded her car keys, and attempted to drive away in her car. This testimony was sufficient to permit the jury to conclude that Anderson assaulted Largay with the intent to rob her. See OCGA § 16-5-21 (a) (1). Halliday testified that Anderson “turned his full attention to [Halliday],” “gestured] with his gun,” and ordered him to return to the book store, which Halliday did. This evidence authorized a finding that Anderson assaulted Halliday with a deadly weapon. See OCGA § 16-5-21 (a) (2); Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981) (victim’s apprehension “may be inferred by the conduct of the victim such as when he retreats to secure his safety”). That Anderson’s gun was a toy replica is of no import, because Halliday reasonably believed that it was real. Mitchell v. State, 222 Ga. App. 866, 867 (1) (476 SE2d 639) (1996).

Anderson also challenges the sufficiency of the evidence supporting his conviction for the armed robbery of Mason Shives, arguing there was no evidence that Anderson used a handgun to intimidate Shives. Pursuant to OCGA § 16-8-41, “[a] person commits the offense of armed robbery when, with intent to commit theft, he . . . takes [the] property of another from the person ... by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” The mere fact that a person has a weapon is insufficient to establish armed robbery. Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974). Rather, the weapon must be used to facilitate the theft. Oliver v. State, 232 Ga. App. 816, 817 (1) (503 SE2d 28) (1998). Here, Shives testified that he gave Anderson the money after Anderson revealed a gun in his waistband and told Shives that his life was not worth losing over $100. Thus, the jury could conclude that the gun had the “desired forceful effect of assisting to accomplish the robbery.” Id. Thus, this is sufficient to constitute the offense of armed robbery. Id. at 818.

Anderson next contends that the evidence was insufficient to show he kidnapped Gina Crusco because she did not testify that she was abducted or stolen away. OCGA § 16-5-40 defines kidnapping as “abduct [ing] or steal [ing] away any person without lawful authority or warrant and holding] such person against [her] will.” Although there is an asportation element to this crime, “ ‘only the slightest movement of the victim is required to establish that element.’ ” Estes v. State, 234 Ga. App. 150 (505 SE2d 840) (1998). According to Crusco, Anderson would not let her walk to the bank, but took her arm and “turned [her] around the other way,” telling her to walk back to her office. This evidence is sufficient for a jury to find Anderson guilty of kidnapping beyond a reasonable doubt. Id.

Finally, Anderson argues that there was no evidence that he committed aggravated assault against Marilyn Fillingim and Kathy Roche, neither of whom testified at trial. The victim’s state of mind may be proved by circumstantial evidence, however, and may be inferred by the victim’s conduct. Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993); Hurt, supra. Fillingim’s co-worker Shawn Meade testified that Anderson pointed a gun at Fillingim and Meade and demanded money; that he directed them at gunpoint to the back of the store; and that he ordered them to sit on the floor and wait for him to leave. Similarly, Roche’s co-worker Joan Bone testified that Anderson ordered the Poppy’s employees, including Roche, to the front of the store at gunpoint, waited to receive money from the cash register, and then ordered the women to wait in a dressing room for five minutes. Both Fillingim and Roche complied with Anderson’s orders. Under these circumstances, there was sufficient evidence for the jury to conclude that Fillingim and Roche had a reasonable apprehension of receiving immediate, violent injury. Id.; State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996) (presence of deadly weapon “would normally place a victim in reasonable apprehension of being injured violently”).

2. Anderson argues that the trial court erred in allowing him to proceed pro se. We disagree. While a defendant has a right to counsel in any prosecution which could result in imprisonment, “the accused also has a fundamental right to represent himself in a . . . criminal trial when he voluntarily and intelligently elects to do so.” (Punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 195 (275 SE2d 49) (1981). Before deciding that a defendant has voluntarily and intelligently waived his right to counsel, the trial court must establish that the defendant is aware of the dangers and disadvantages of self-representation and is making his choice “with eyes open.” Callahan v. State, 175 Ga. App. 303, 305 (333 SE2d 179) (1985). Whether the defendant’s waiver of counsel is competent depends “upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused.” (Punctuation omitted.) Reviere v. State, 231 Ga. App. 329, 330 (1) (498 SE2d 332) (1998).

The record clearly establishes that Anderson knowingly and intelligently waived his right to counsel. Anderson repeatedly told the trial court that he wanted to fire his court-appointed counsel and proceed pro se. Upon inquiry from the trial court, Anderson indicated that he had studied law in prison, that he was familiar with the rules of evidence, that he had seen the indictment against him, and that he was aware of the sentences he could receive if found guilty. The trial judge told Anderson that he thought it was “unwise” for Anderson to represent himself and that he felt Anderson was not as familiar with the law and court procedure as a “trained lawyer,” and the judge strongly urged Anderson not to represent himself. After Anderson insisted on representing himself, the trial court directed his court-appointed counsel to remain in the courtroom as a “technical advisor” available to assist Anderson upon request. When Anderson voluntarily left the courtroom during part of the trial, the trial court ordered court-appointed counsel to take a more active role and make objections to preserve Anderson’s rights. Finally, despite his advisory status, counsel — and not Anderson — argued Anderson’s motions for directed verdict at the close of trial. Under these circumstances, the trial court did not err in permitting Anderson to proceed pro se. Reviere, supra.

3. In two enumerations of error, Anderson claims that the trial court violated his constitutional rights by allowing the trial to proceed when he was not present. Specifically, Anderson contends that the trial court prevented him from presenting a defense and denied him the right to cross-examine a key prosecution witness. These contentions lack merit.

Three times during trial proceedings, Anderson, who was in the custody of the sheriff, demanded to be taken back to his cell. The trial court allowed Anderson to leave the courtroom and told him that he had the right to return at any time. It appears from the record that when Anderson asked to return, his request was honored. As a result of Anderson’s absences, he was not present during voir dire or for the examination of an important State witness, Detective Currence. Anderson thus failed to exercise his right to cross-examine Detective Currence, who was excused after testifying and was not called back when Anderson presented his case.

“[A] defendant has a right to be present at his trial, but [he] may waive that right.” Lonchar v. State, 258 Ga. 447, 452 (2) (a) (369 SE2d 749) (1988). A defendant waives that right if he voluntarily absents himself from the proceedings. Manus v. State, 180 Ga. App. 658, 659 (1) (350 SE2d 41) (1986); Croy v. State, 168 Ga. App. 241 (1) (308 SE2d 568) (1983). Because Anderson’s absences from the courtroom were voluntary, Anderson waived his right to be present and to cross-examine Detective Currence.

4. Anderson also asserts that the trial court hampered his right to present a defense by refusing to allow him to present evidence of other armed robberies that occurred in Buckhead following Anderson’s arrest and incarceration. As the Supreme Court recently stated,

a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must . . . show that the other person has recently committed a crime of the same or similar nature.

(Citation and punctuation omitted.) Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998). “Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992). In this case, Anderson attempted to question Detective Long about other robberies in Buckhead. The trial court sustained the State’s objection to the line of questioning unless Anderson could demonstrate a connection between the robberies and those with which Anderson was charged. Anderson made no attempt to establish a connection. In fact, Anderson’s questioning of Long makes clear that Anderson was simply trying to establish that other robberies occurred in Buckhead after he was arrested. Accordingly, the trial court did not err in refusing to admit the evidence. Azizi v. State, 270 Ga. 709 (512 SE2d 622) (1999).

5. Anderson contends the trial court erred in denying his motion to suppress evidence of the pre-trial lineup at which six of the nine participating witnesses identified Anderson. According to Anderson, the lineup was so suggestive that evidence of it should have been excluded. We use a two-part test in determining whether evidence of pre-trial identification should be excluded: “The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.” (Punctuation omitted.) Odim v. State, 228 Ga. App. 158, 159 (2) (491 SE2d 218) (1997). Out of the 18 witnesses who testified, 14 identified Anderson as the perpetrator. Of those fourteen, six identified Anderson from the pre-trial lineup. All six of these witnesses also positively identified Anderson in court. The remaining eight witnesses based their identification of Anderson either on his in-court appearance or on a photographic lineup. Pretermitting whether the physical lineup was suggestive, the fact that eight witnesses identified Anderson through other means than the physical lineup indicates that there was no “ ‘irreparable misidentification.’ ” Id. Moreover, Anderson’s failure to object to the in-court identifications or the admission of evidence of the photographic lineup renders harmless any error that may have been associated with admitting evidence of the physical lineup. Evans v. State, 177 Ga. App. 820, 821 (1) (b) (341 SE2d 483) (1986); Davis v. State, 176 Ga. App. 650 (337 SE2d 431) (1985).

6. Anderson argues that the trial court erred in admitting into evidence the notebook recovered from his residence because the State never demonstrated the notebook’s probative value. We disagree. The admission of evidence is a matter which rests largely within the discretion of the trial court. Bierria v. State, 232 Ga. App. 622, 626 (7) (502 SE2d 542) (1998). Unless the potential for prejudice substantially outweighs probative value, Georgia law favors the admission of relevant evidence, no matter how slight its probative value. Id. The notebook at issue contained what appeared to be Anderson’s notes from surveying potential robbery locations. The probative value of such evidence is clear, and the trial court did not abuse its discretion in admitting it.

7. Anderson contends that the trial court erred in denying his motion to suppress evidence of four of his prior armed robberies, which he claims were too remote in time and were not linked to him. The prior robberies occurred in 1973 and 1983 — 22 years and 12 years, respectively, before trial. Evidence of a defendant’s prior criminal acts is admissible “if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Punctuation omitted.) Rich v. State, 254 Ga. 11, 13 (1) (325 SE2d 761) (1985). “The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985) (19-year lapse did not bar admissibility). Thus, the age of the prior incidents does not bar their admission. Moreover, in this case, the lapses between the crimes are explained by Anderson’s incarceration during the intervening years. See Moore v. State, 207 Ga. App. 412, 416 (1) (b) (427 SE2d 779) (1993). To the extent that Anderson claims error based upon the State’s failure to link him to the similar transactions, he never objected on this ground. Accordingly, he has waived this issue and cannot raise it on appeal. Newman v. State, 233 Ga. App. 794, 795 (2) (504 SE2d 476) (1998). In any event, we note that Anderson essentially admitted at trial that he committed the prior crimes.

8. Anderson asserts that the trial court improperly denied his motion for severance of the offenses charged. “An abuse of discretion standard applies when reviewing denial of a motion to sever the trial of separate offenses.” Agony v. State, 226 Ga. App. 330 (1) (486 SE2d 625) (1997). Offenses may be joined for trial

[w]here . . . the similarity of the offenses reaches the level of a pattern which shows a common scheme, plan or a modus operandi so strikingly similar that the totality of the facts unerringly demonstrates and designates the defendant as the common perpetrator.

(Punctuation omitted.) Sabo v. State, 226 Ga. App. 106 (1) (485 SE2d 591) (1997). There is no abuse of discretion in denying severance “ ‘[w]here the evidence of one crime would be admissible in the trial of the other crime.’ ” Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992). Further, the transactions need not be identical in every respect to justify a denial of severance. See id. (refusing to sever cocaine sale and marijuana possession charges).

Decided June 11, 1999

Reconsideration denied July 8, 1999 — Cert. applied for.

Monique D. Moyse, for appellant.

Paul L. Howard, Jr., District Attorney, for appellee.

The ten robberies that form the basis of the charges against Anderson were remarkably similar in many respects and can be seen as one. continuous crime spree. All ten robberies occurred during a three-month period at locations in close proximity both to each other and to MARTA bus stops. The robber wore similar clothing in all incidents and often attempted to disguise his face with a hat, glasses, or sweater pulled up over his mouth. The robber invariably began the crimes behaving politely, earning himself the appellation “Gentleman Bandit,” but he grew aggressive if challenged. He would approach the victims at either a Buckhead business or ATM, pointing or holding a gun, and would demand money. After getting the money, he would order ATM victims to drive away and not look back, and he would direct store victims to wait at the back for a brief period before leaving. The only incidents that do not fit this pattern are those involving Andrea Largay and Naomi Matusow. However, the charges relating to those incidents arose from Anderson’s bungled robbery of Richard deMayo at an ATM — an incident which did fit the pattern — and, thus, severance was not required. See Langston v. State, 195 Ga. App. 873 (1) (395 SE2d 74) (1990). In light of these similarities, the trial court did not abuse its discretion in denying Anderson’s motion to sever.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       The gun Anderson used in the string of robberies was a toy pistol. Nevertheless, the victims who saw the gun testified that they believed it was real. It is immaterial for our analysis whether the gun was a toy. See page 871, infra.

       Anderson was not charged in this case with the robbery of deMayo, presumably because the incident occurred in DeKalb County.

       Anderson acquiesced to appointed counsel’s role as technical advisor.

       A MARTA bus card was found on Anderson’s person when he was arrested.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A99A0666, A99A0667.
    BRIGHT v. THE STATE (two cases).
    (520 SE2d 48)
   Andrews, Judge.

Dudley Glen Bright appeals from denial of his motions for new trial after his convictions of seven counts of kidnapping, three counts of aggravated assault, one count each of motor vehicle theft, robbery, armed robbery, and misdemeanor escape (Case No. A99A0666) and three counts of aggravated sodomy, two counts of child molestation, and one count of aggravated child molestation (Case No. A99A0667). The two cases are consolidated for purposes of appeal.

Case No. A99A0667

1. Bright’s fifth enumeration, that the trial court erred in denying his motions for directed verdict at the close of the State’s case and the close of all the evidence, challenges the legal sufficiency of the evidence and will be considered first. OCGA § 17-9-1; Martin v. State, 219 Ga. App. 277, 278 (1) (464 SE2d 872) (1995); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

Viewed in the light most favorable to the jury’s verdict, Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998), the evidence was that Bright was the first cousin of Philip Adams who had brought Bright to live with him, his wife and two children so that Bright could get his life in order. Bright and Adams also began an exotic snake breeding business, which they conducted in a building behind the residence, referred to as the snake house. In addition to the Adams children, Matthew, age two, and K. A., age seven, Mrs. Adams’ niece, H. L., age ten, was staying with the Adams family during the summer of 1996.

The house had two bedrooms upstairs, occupied by Mr. and Mrs. Adams and their children and H. L. Bright slept on a hide-a-bed sofa in the living room downstairs.

On September 6, 1996, Mrs. Adams had allowed K. A. and H. L. to stay up late and watch television in the living room with Bright. Bright assured Mrs. Adams it was okay with him and he would be with them. Around midnight, when the girls had not come to bed, Mrs. Adams went to check on them and found K. A. asleep on the floor and H. L. sitting in Bright’s lap, wearing only the large T-shirt in which she slept. Both H. L. and Bright acted surprised.

The next morning, Mrs. Adams asked H. L. what they had been doing, and she initially said nothing. Asked if Bright touched her anywhere, H. L. said that he had touched her on her private between her legs. H. L. also said that Bright had improperly touched K. A. in her presence, and K. A. confirmed this.

K. A. and H. L. were initially interviewed by Officer O’Brien on September 7 and indicated that Bright had only touched them with his hand on their privates. On September 16, Department of Family & Children Services supervisor Dooley interviewed K. A. again, with Officer O’Brien present and her parents watching from behind a one-way mirror. During that interview, K. A. said that Bright touched her and H. L. on their privates while they were under a tent formed by a blanket while they sat on the couch watching television. This sometimes happened when K. A.’s parents were also in the room, but could not see due to the blanket. Additionally, K. A. revealed that Bright had made her suck his private, both in the house on the sofa and in the snake house when only she, he, and H. L. were present. When she did this, “water” came out of his private. On at least one occasion, Bright also licked her private.

K. A. did not tell her parents any of this because Bright had told her not to and she was afraid of him.

H. L. testified that Bright repeatedly touched her private part with his hand while she, he, and K. A. were on the sofa. She also witnessed Bright put his mouth on K. A.’s private part and saw him place his penis in K. A.’s mouth. She also did not tell about these events because Bright told her not to.

Bright’s argument that the element of force was not adequately shown with regard to the aggravated sodomy counts, based on State v. Collins, 270 Ga. 42 (508 SE2d 390) (1998), is without merit. That case dealt with forcible rape and:

[a]lthough the State must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent, the Supreme Court has distinguished forcible rape from other sexual offenses and made clear that no such proof is required to obtain a conviction for aggravated sodomy against a victim under the age of consent. State v. Collins, [supra]; Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987).

Brewer v. State, 236 Ga. App. 546, 547 (2) (512 SE2d 30) (1999).

Therefore, there was no error and the evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Bright contends that his statement, given to Georgia Bureau of Investigation Agent White after he was taken into custody following the events at issue in Case No. A99A0666, was improperly admitted because he was “hearing impaired” and had not been provided with a qualified interpreter pursuant to OCGA § 24-9-103.

Although there was some evidence that Bright had a minor hearing deficit, there was no evidence that he was hearing impaired so as to qualify for an interpreter. OCGA § 24-9-101 (3) defines “hearing impaired person” as one whose “hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.”

While Bright presented testimony of the superior court judge who had conducted one of his initial hearings, he testified only that Bright told him he was having trouble hearing the judge. Once the judge raised his voice from the bench, there was no further problem.

Officer O’Brien first interviewed Bright on September 7, and Bright never indicated any difficulty hearing during the interview which was conducted in a normal conversational tone. GBI Agent White interviewed Bright twice on September 10 and 11. Although he was aware that Bright said he had trouble hearing, he orally advised Bright of his rights in a normal conversational tone, and Bright indicated he understood them. No repeating was required. Bright possessed a driver’s license with no restrictions and maintained several jobs with no apparent difficulties.

There was no error in admitting the statement.

3. Bright contends that the trial court’s jury instruction on aggravated sodomy was error because it improperly alleviated the State’s obligation to prove the element of force.

This argument has previously been considered and rejected by this Court. Brewer, supra.

4. Bright contends that the trial court’s denial of his motion for mistrial during the testimony of Mrs. Adams was error.

The motion was made after the following exchange during Mrs. Adams’ direct examination by the prosecutor:

Q. Have you had occasion to talk with [H. L.] on other occasions and as to her truthfulness or her ability to speak to you about things?
A. Oh, yes. She knows that she could talk to me about anything, I’ve always been close to her and her sister.
Q. Had you ever had any reason prior to this date to disbelieve or to question [H. L.] when she would tell you something?
A. No, because she’s always told me the truth.

(Emphasis supplied.)

At this point, Bright’s motion for mistrial was made, contending that this was an improper attempt to get the witness to give an opinion about the truthfulness of the complaining victim. Although the trial court denied the motion, the jury was instructed to disregard the comment.

Bright is correct that a witness’ credibility may not be bolstered by “the opinion of another, even an expert, as to whether the witness is telling the truth. . . . Credibility of a witness is ... a matter solely within the province of the jury. OCGA § 24-9-80.” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988). See also Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989).

Pretermitting the issue of whether Bright’s motion was timely, since the initial question regarding truthfulness was not objected to, and assuming without deciding that the objected to question was an improper attempt to bolster the credibility of H. L., we find no reversible error. “ ‘[E]ven if we were to construe the witness’ testimony as improper bolstering, we hold that in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict.’ (Punctuation omitted.) [Cit.]” Brooks v. State, 232 Ga. App. 115, 120 (18) (501 SE2d 286) (1998).

Bright’s own statement indicated that he did not contest that he had touched both victims on their vaginas, which was the only touching of H. L. with which he was charged. Compare Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995).

Therefore, there was no error in denial of the motion for mistrial. 5. Bright’s remaining enumeration is that the trial court erred in refusing to excuse a juror.

During voir dire, the jury was asked if anybody knew K. A.’s parents, Philip or Trudy Adams. Juror Dyer did not respond affirmatively to that question, but the next morning he reported that during the previous evening, he had realized that he had not previously known her, but had had some incidental contact with Mrs. Adams when she came to pick up a prize at his radio station during the previous year or so. He assured the court and parties that he could set that aside and be fair and impartial.

Bright’s counsel argued that, had he known this, he would have used a peremptory strike on the juror and asked that he be excused.

In order for a defendant to secure a new trial in the situation in which defense counsel lacked an item of information which objectively counsel should have obtained from a juror on voir dire, the defendant must show that the juror on voir dire failed to honestly answer a material question and that a correct response would have been a valid basis for challenge for cause. Isaacs v. State, 259 Ga. 717, 740 (44) (e) (386 SE2d 316) (1989). Accord Stiles v. State, 264 Ga. 446, 448 (3) (448 SE2d 172) (1994); Gardiner v. State, 264 Ga. 329, 333 (3) (444 SE2d 300) (1994); Poole v. State, 262 Ga. 668, 669 (2) (424 SE2d 275) (1993). See also Gainesville Radiology Group v. Hummel, 263 Ga. 91 (428 SE2d 786) (1993).

Royal v. State, 266 Ga. 165, 166-167 (465 SE2d 662) (1996).

This Bright has failed to do. Merely knowing a witness does not disqualify a juror absent a finding that it creates a fixed and definite bias in the juror’s mind, an element completely lacking here. Wright v. State, 233 Ga. App. 358, 361 (2) (504 SE2d 261) (1998).

Case No. A99A0666

The events at issue in this case began the day of Bright’s first appearance hearing on the child molestation charges involved in Case No. A99A0667.

6. In his sixth enumeration of error, Bright challenges the legal sufficiency of the evidence by claiming error in denial of his motion for directed verdict, Martin, supra, and this enumeration is considered first. His argument is directed at the kidnapping charges and that is all we consider. Bright was convicted of kidnapping H. L., Henderson and her two children, and Mrs. Adams and her two children. While Bright acknowledged at trial that he held Henderson and Mrs. Adams against their will, he disputed that he kidnapped the children.

Viewed in the light most favorable to the jury’s verdict, the evidence was that Bright was brought to magistrate’s court on September 9, 1996, by Deputy Price, who was unarmed. After the hearing, Price attempted to handcuff Bright for transport, whereupon Bright snatched his arms away, turned over a table, and knocked Price down. Chief Sheriff’s Deputy King had come into court looking for another officer and was standing near the judge’s bench when Bright lunged at him, hit him with his fist, and took his nine millimeter Berretta service automatic. Bright pointed the gun at Price who was near the door and told him to move or he would shoot. Bright then ran out the door, barefooted and wearing his orange jail jumpsuit.

Anderson, the judge’s secretary, fled into the judge’s office, from which she watched Bright pointing the gun at a woman about 30 feet away. Kleiwer and her three small children were walking near the courthouse when she saw a barefooted man in an orange jumpsuit running toward her with a gun. Bright approached her, pointed the gun at her and said he did not want to hurt her, but wanted her car. She gave him her car keys, and he left in her car.

Philip Adams had been called by Bright from the jail earlier that day and requested to put his house up for Bright’s bail. When he refused, Bright told him he “would be a target.” Adams was home that afternoon and saw Bright pull up wearing the jumpsuit around 3:30 p.m. and was aware that something was wrong. He went outside to meet Bright and noticed the gun. Adams told Bright to get his belongings and leave, whereupon Bright cocked the gun and discharged a bullet into the ground. Bright then pointed the gun at him, and they walked into the house, where Bright told him that he had said he was a target and “I’m going to do you right here.”

Adams asked Bright to take him outside, because his wife and children as well as other children were in the house. As they stepped outside, Adams was walking behind Bright, and Adams saw an opportunity and fled. He heard Bright yell “stop” and heard a shot. The shot entered the side of the house behind him. Adams encountered officers who had been dispatched pursuant to Bright’s escape, and the home was surrounded and put under surveillance by the officers.

Henderson, Mrs. Adams’ sister-in-law, had arrived at the Adams house earlier to pick up her two-year-old son, Dillon, who stayed with Mrs. Adams. Henderson had her four-year-old, Ricky, Jr., with her. She was talking to Mrs. Adams when she saw Bright drive up and come toward the house. She heard Mrs. Adams tell Mr. Adams to get rid of him, and she went into the kitchen and called 911 on the portable phone.

Henderson was standing in the living room, still with the telephone, when the bullet hit the side of the house, shattering the window and showering her with glass.

Mrs. Adams, K. A., Matthew, H. L., Henderson and her two children all went upstairs into one of the bedrooms and shut the door. Henderson held the door shut while Mrs. Adams and the children hid in a closet. Henderson heard Bright come up the stairs and felt him pull on the bedroom door. She managed to pull it shut again, but Bright told her she had better open it and she did. At that point, Bright took the phone, grabbed her and put the gun to her head while holding her by her blouse. He directed Mrs. Adams and the children to come out of the closet and go downstairs. He continued holding Henderson with the gun to her head, and they started downstairs after the others. As H. L., K. A., and Ricky, Jr. approached the front door, one of them opened it and they all three ran as Henderson and Mrs. Adams encouraged them.

Bright then forced the two women, each holding her infant child, to walk one in front of him and one behind, shielding him as they went to the snake house, which he felt was less susceptible to sniper attack. Later, they returned to the house in the same fashion. After eight hours of hostage negotiations, Bright released the remaining two women and children and was taken into custody.

Bright’s argument that the evidence was insufficient on the three counts of kidnapping H. L., K. A., and Ricky, Jr. is tenuous at best. The evidence was legally sufficient. Jackson v. Virginia, supra; Cosby v. State, 234 Ga. App. 723, 724 (2) (507 SE2d 551) (1998).

7. Bright’s first enumeration contends the court erred in not allowing him to go behind the child molestation warrant pursuant to which he was arrested and challenge the existence of probable cause. If there were no probable cause, Bright contends he was improperly convicted of misdemeanor escape.

Such an argument, however, is made moot by our conclusion in Case No. A99A0667 that there was legally sufficient evidence of those charges.

8. The second enumeration is that the trial court erred in denying Bright’s motion for mistrial based on the prosecutor’s opening statement in which he alluded to the child molestation charges.

Not only was no objection made by Bright at the time of this allusion, leaving this claimed error not properly preserved for our review, Wilson v. State, 259 Ga. 55, 57 (4) (376 SE2d 676) (1989), but Bright also repeatedly referred to the child molestation charges. We do not recognize induced error. “Asserted prejudice based upon induced error is impermissible. [Cits.] Sharp v. State, 183 Ga. App. 641, 643 (3) (360 SE2d 50) (1987).” (Punctuation omitted.) Martin v. State, 235 Ga. App. 844, 845 (2) (510 SE2d 602) (1998).

9. In his third enumeration, Bright objects to a portion of the trial court’s instruction to the jury on aggravated assault, contending that it alleviated the State’s obligation to prove that Bright had the intention to commit injury. The objected-to portion of the charge follows:

You must determine from the evidence in this case whether or not a firearm was pointed at anyone. If the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred.

(Emphasis supplied by Bright.)

Such an argument, however, ignores the portion of the charge immediately preceding the objected-to paragraph, which states that:

To constitute an assault, actual injury to the other person need not be shown [;] it is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person coupled with the apparent ability to commit that injury. . . .

(Emphasis supplied.)

Even assuming that the objected-to paragraph could be said to be confusing when taken out of context, that is not the standard.

“Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.” (Citations and punctuation omitted.) Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

Pickstock v. State, 235 Ga. App. 451, 452 (1) (509 SE2d 717) (1998).

There was no error.

10. Bright’s fourth enumeration urges error in the trial court’s refusal to give three of his requested charges to the jury, all of which dealt with the defense of justification.

Bright argues that such a defense was supported by evidence that he was afraid of being killed by the officers after he took the women and children hostage and that he had been wrongfully accused of the child molestation charges and wanted the truth of his innocence known.

Because of our conclusions in Case No. A99A0667, supra, we need not further address these latter two claims.

Regarding his fear of being killed, although his argument is unclear, Bright apparently urges that his fear of the police could justify his kidnapping the seven innocent women and children. Since Bright was not charged with any offenses against the police who surrounded the house during the standoff, the justification must be in connection with the kidnapping. None of the cases cited by Bright indicates that such a scenario merits the giving of the justification charge, and we find none. Compare Nelson v. State, 213 Ga. App. 641, 642 (2) (445 SE2d 543) (1994).

Additionally, the appropriateness of the defense of justification is determined by a reasonable man standard.

The fears of the slayer that will justify a homicide must be the fears of a reasonable man, and if the defendant is an unusually timid man, or lacking in courage, and committed the homicide under circumstances that would not generate fears in a hypothetical reasonable man, he would not be justified.

Decided June 25, 1999

Reconsideration denied July 8, 1999 — Cert. applied for.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

Bivins v. State, 200 Ga. 729, 733 (1) (38 SE2d 273) (1946).

The same rationale applies to claimed justification for kidnapping in the present situation, and we conclude that Bright’s fears were not reasonable.

There was no error in not giving the requested charges. Compare Jones v. State, 220 Ga. App. 784 (470 SE2d 326) (1996).

11. Finally, Bright claims error in the trial court’s refusal to give his requested charge on reckless conduct, which he contends is a lesser included offense of his aggravated assault against Philip Adams.

OCGA § 16-5-60 (b) defines reckless conduct, in pertinent part, as that conduct by which a person consciously disregards “a substantial and unjustifiable risk that his act. . . will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .”

As acknowledged by Bright, the crime is a species of criminal negligence. In order for such a charge to be appropriate, however, it must be reasonably raised by the evidence at trial. Martin v. State, 268 Ga. 682, 685 (6) (492 SE2d 225) (1997). Here, the evidence was that, either Bright had threatened to kill Mr. Adams and intentionally discharged his gun at him when he ran, or Bright, as he testified, “deliberately shot into the window” above Adams’ head, intending to scare him, neither of which was negligent. Bright was either guilty of aggravated assault or not under the evidence. Morris v. State, 228 Ga. App. 90 (491 SE2d 190) (1997).

Judgments affirmed.

McMurray, P. J., and Ruffin, J., concur.

       Bright was also convicted of seven counts of false imprisonment regarding the same seven victims of the kidnapping. The false imprisonment charges were merged with the kidnapping convictions.

       In Case No. A99A0667, Bright was convicted of the following: Count 1, aggravated sodomy on K. A. by placing his mouth on her vagina; Counts 2 and 3, aggravated sodomy by placing his penis in K. A.’s mouth on two occasions; Count 4, child molestation by fondling K. A.’s vagina; Count 5, child molestation by fondling H. L.’s vagina; and Count 6, aggravated child molestation by placing his mouth on K. A.’s vagina in the presence of H. L. All acts were alleged to have occurred between March 1,1996 and September 7, 1996, except for Count 5, alleged between August 1 and September 7, 1996.

       Bright had earlier gone into the snake house and gotten some of his clothes, which he had put on over his jumpsuit.


author: Ruffin, Judge.

text:
    A99A0102.
    JAILLETT v. GEORGIA TELEVISION COMPANY.
    (520 SE2d 721)
   Ruffin, Judge.

Richard Jaillett d/b/a Ace & A Heating and Air Conditioning sued Georgia Television Company d/b/a WSB-TV (WSB), alleging that WSB made false and defamatory statements about Jaillett’s air conditioning business during a television newscast. The trial court granted WSB’s motion for summary judgment, and Jaillett appeals. We affirm.

In moving for summary judgment,

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. The nonmoving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Stange v. Cox Enterprises, 211 Ga. App. 731, 732 (1) (440 SE2d 503) (1994).

In the summer of 1993, David and Harriet Dillard called Ace & A after their air conditioner broke down. Rodney McKay, an Ace & A repairman, came to their house and, after inspecting the unit, told Mrs. Dillard that the fan was not working. After further inspecting the compressor, McKay told Mrs. Dillard that the entire air conditioning unit needed to be replaced, and that she would be wasting her money just to replace the fan. He gave her a written quote of $285 to replace the fan motor alone (less the $32.95 paid for the service call), and a separate quote of $1,225 to replace the entire unit. Mr. Dillard arranged for another company, Ace Fireplace, to provide a second opinion. The Ace Fireplace repairman determined that the unit’s quick start capacitor had burned out and that several wires to the fan motor had burned. He successfully repaired the unit for $113.90 by replacing the capacitor and rewiring the burned wires. The air conditioner was still working properly two years later.

After unsuccessfully trying to obtain a refund of the service call charge from Ace & A, Mr. Dillard sent copies of his correspondence with Ace & A to the Better Business Bureau and to WSB’s consumer affairs department. WSB’s consumer action reporter, Patrick Crosby, contacted the Dillards to see if he could interview them for a consumer affairs report on air conditioning repairs. Crosby conducted on-camera interviews with both Mrs. Dillard and Jaillett for use in the report.

The broadcast in question aired in July 1993. Anchorman Don Farmer introduced the segment by stating that “[o]ur consumer reporter Patrick Crosby says the quick fix can be a quick ripoff.” Crosby, sitting at the anchor desk, replied,

No doubt about it, Don. You probably can’t get extremely quick service today. Many air conditioning specialists, as you would imagine are overwhelmed with calls, from desperate, and already testy customers. See this little coil, it blew out in a central air unit at the Dillards [’] house in Peachtree Corners. Should they have had to pay over twelve hundred dollars for a whole new unit? I don’t think so.

WSB then played a taped report, as follows:

Patrick Crosby: The house was roasting for David and Harriett Dillard in Peachtree Corners. The contractor’s man from Ace & A Air Conditioning had said that it was bad news, they needed a whole new unit. . . about twelve hundred dollars. A second opinion confirmed that was not correct.
Harriett Dillard: He said it was obvious the fan’s not working and then he said we need to check and see if your compressor’s okay and he brings the hose out and sprays it, and at that time, I was thinking this guy’s probably taking me as an idiot.
Richard Jaillett: I think it’s just a man working 14-16 hours a day made an honest mistake, and he got his money back.
Harriett Dillard: I say get a second estimate which is what we did and found out we were getting ripped off.
Patrick Crosby: So what do you do when the air just goes?

The taped report then cut to the offices of another air conditioning company, Estes Heating & Air:

Patrick Crosby: The first thing everybody’s doing is calling. Here at Estes, 200 calls a day for 28 service vehicles. Estes and others are simply so busy right now, it’s going to take a few days just to get to you.
Tommy Estes: There are an awful lot of one man operators around and they tend to promise you the world and not be able to perform.
Patrick Crosby: But since most people don’t know the compressor and other workings of a central air unit, reputable dealers say there are some things you can check on your own, before you call.

The segment then concluded with Estes and Crosby advising consumers with air conditioning problems to check their air filters, make sure that their units are actually turned on, and check to see if a circuit breaker is off.

We have previously held that

[d]efamation via a radio or television broadcast (or a “defamacast,” as it has become generally known) includes elements of both libel under OCGA § 51-5-1, and slander under OCGA § 51-5-4. Libel is a “false and malicious defamation of another . . . tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. According to OCGA § 51-5-4 (a) (3), slander or oral defamation includes, inter alia, “[m]aking charges against another in reference to his trade, office or profession, calculated to injure him therein.”

(Citations omitted.) Strange v. Henderson, 223 Ga. App. 218, 219 (477 SE2d 330) (1996). “To be actionable, a communication must be both false and malicious,” Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 441 (425 SE2d 676) (1992), and the burden of proving a statement’s falsity is on the plaintiff. See Cox Enterprises v. Thrasher, 264 Ga. 235, 236 (1) (442 SE2d 740) (1994); Blomberg v. Cox Enterprises, 228 Ga. App. 178, 179 (1) (491 SE2d 430) (1997). In determining whether a statement is false,

[d]efamation law overlooks minor inaccuracies and concentrates upon substantial truth. ... [A] statement is not considered false unless it would have a different effect on the mind of the viewer from that which the pleaded truth would have produced.

(Citation and punctuation omitted.) Brewer v. Rogers, 211 Ga. App. 343, 347 (2) (a) (439 SE2d 77) (1993). “[M]inor factual errors which do not go to the substance, the gist, the sting of [a] story” do not render a communication false for defamation purposes. (Punctuation omitted.) Stange, supra at 735.

Jaillett contends that the broadcast was false and defamatory in three ways. First, he contends that the broadcast falsely represented that Ace & A told Mrs. Dillard she had to have a new unit. Second, he contends that the report falsely described Ace & A as a “one man” operation. Third, he contends that the broadcast was defamatory because Farmer and Mrs. Dillard used the term “rip off.”

With respect to the first of these contentions, Jaillett points to the fact that the broadcast failed to mention that the Ace & A repairman, McKay, gave Mrs. Dillard a separate quote for replacing the fan motor, in addition to the quote for replacing the entire unit..However, this fact does not alter the truth of the gist of the story — i.e., that McKay incorrectly told Mrs. Dillard the entire unit needed to be replaced. Although McKay gave Mrs. Dillard a quote for replacing the fan motor, the evidence is uncontradicted that he told Mrs. Dillard the entire unit needed to be replaced and she would be wasting her money by fixing only the fan motor. It is also undisputed that the unit was in fact repaired for substantially less cost by another company, without having to replace the entire unit or the fan motor. Although the broadcast may not have told the “whole truth,” the failure to mention the quote for replacing the fan motor alone did not render the broadcast substantially false. See Jim Walter Homes v. Strickland, 185 Ga. App. 306, 309 (1) (363 SE2d 834) (1987) (“ ‘an omission of information from a statement admittedly published will not support an action for libel’ ”). “As long as facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth.” (Punctuation omitted.) Blomberg, supra, 228 Ga. at 179 (1).

Jaillett also contends that the broadcast falsely characterized Ace & A as a “one man operation.” Pretermitting whether such a characterization is defamatory, it is clear that the phrase was not directed at Jaillett or his business. The phrase was not used until after the segment dealing with Ace & A had concluded, when Crosby began discussing what people should do if they experience air conditioning problems. At that point, Tommy Estes stated that “[t]here are an awful lot of one man operators around and they tend to promise you the world and not be able to perform.” There is no indication that Estes was referring to Jaillett or Ace & A. Indeed, as Jaillett points out in his brief, Crosby had referred earlier in the broadcast to “the contractor’s man from Ace & A Air Conditioning,” indicating that Ace & A was not a one man operation, and Jaillett himself was shown stating that his repairman had made a mistake. Moreover, Estes’ statement that one man operators “tend to promise you the world and not be able to perform” does not correspond to the complaint against Ace & A — i.e., that it failed to accurately diagnose the relatively simple problem with the Dillards’ air conditioner. Thus, it is apparent that the reference to “one man operators,” even if disparaging, was not a reference to Ace & A.

Finally, Jaillett contends that the broadcast was defamatory because both Farmer and Mrs. Dillard used the term “rip off,” which he contends was disparaging. WSB contends that this term constitutes a mere statement of opinion or rhetorical hyperbole, and thus cannot form the basis of a defamation claim. We have previously held that

[t]here is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’ [To say otherwise would] ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact.” Milkovich v. Lorain Journal Co., [497 U. S. 1] (110 SC 2695, 111 LE2d 1) [(1990)]. . . . The pivotal questions are whether [the challenged] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.

Eidson v. Berry, 202 Ga. App. 587-588 (415 SE2d 16) (1992).

The requirement that, to be actionable, a statement of opinion must imply an assertion of objective facts about the plaintiff

unquestionably excludes from defamation liability not only statements of rhetorical hyperbole . . . but also statements clearly recognizable as pure opinion because their factual premises are revealed. . . . Both types of assertions have an identical impact on readers — neither reasonably appearing factual — and hence are protected equally under the principles espoused in Milkovich.

Phantom Touring v. Affiliated Publications, 953 F2d 724, 731, n. 13 (1st Cir. 1992). If an opinion is based upon facts already disclosed in the communication, the expression of the opinion implies nothing other than the speaker’s subjective interpretation of the facts. Thus, the Restatement notes that “a statement of [opinion] is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” (Emphasis supplied.) Restatement (Second) of Torts, § 566, p. 170.

If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of facts that are not defamatory, he is not subject to liability for the factual statement — nor for the expression of opinion, so long as it does not reasonably indicate an assertion of the existence of other, defamatory, facts that would justify the forming of the opinion.

Id. at p. 175, Comment c. See also Nat. Assn. of Govt. Employees v. Central Broadcasting Corp., 379 Mass. 220, 227 (396 NE2d 996) (1979) (“[A] state of affairs in which opinion is recognizable as such because its factual ingredient is known or assumed, presents a clear case for full First Amendment protection including freedom from civil liability.”); Potomac Valve & Fitting v. Crawford Fitting Co., 829 F2d 1280, 1290 (4th Cir. 1987); Dunlap v. Wayne, 105 Wash.2d 529, 540 (716 P2d 842) (1986); NBC Subsidiary v. The Living Will Center, 879 P2d 6, 12 (Colo. 1994); Hotchner v. Castillo-Puche, 551 F2d 910, 913 (2nd Cir. 1977).

To say that a person has been “ripped off” could mean simply that the person has gotten a bad deal, or it could mean that he has been the victim of dishonest or shady practices by another. We do not doubt that, in certain contexts, use of the term “rip off” might imply that the speaker is aware of undisclosed facts showing that the plaintiff has acted dishonestly. In this case, however, nothing in the broadcast suggests to the viewer that either WSB or Mrs. Dillard was aware of any defamatory facts other than those disclosed in the broadcast — i.e., that the Ace & A repairman had incorrectly told Mrs. Dillard she needed to replace the air conditioning unit. There is no implication that either WSB or Mrs. Dillard was aware of any additional facts showing that Ace & A had intentionally misdiagnosed the problem with the air conditioner. Indeed, the only suggestion of a reason for the misdiagnosis was Jaillett’s statement that the repairman “made an honest mistake” due to working long hours. Accordingly, a reasonable viewer would not have concluded that, by using the term “rip off,” WSB and Mrs. Dillard were implying that they were aware of any additional defamatory facts not disclosed in the broadcast.

Because Jaillett failed to produce evidence creating a jury issue as to whether the broadcast was false and defamatory, the trial court did not err in granting WSB’s motion for summary judgment on this claim.

Jaillett contends that, in addition to his defamation claim, he has an independent claim for invasion of privacy because of publicity casting his business in a false light. The tort of invasion of privacy was first recognized in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905), and is based upon the defendant’s violation of the plaintiff’s right “to be let alone.” Id. at 197; Brewer, supra at 350 (3). However, Pavesich recognized that

Decided July 8, 1999 — Cert. applied for.

David S. Walker, Jr., for appellant.

Dow, Lohnes & Albertson, James W. Kimmell, Jr., Peter C. Can-field, Sean R. Smith, Cynthia L. Counts, for appellee.

[t]he right of privacy . . . like every other right that rests in the individual, may be waived by him . . . provided the effect of his waiver will not be such as to bring before the public those matters of a purely private nature which express law or public policy demands shall be kept private. . . . [A]ny person who engages in any pursuit or occupation or calling which calls for the approval or patronage of the public submits his private life to examination by those to whom he addresses his call, to any extent that may be necessary to determine whether it is wise and proper and expedient to accord to him the approval or patronage which he seeks.

Pavesich, supra at 199-200.

In this case, any publicity from WSB’s broadcast related solely to the operation of Jaillett’s business. Accordingly, the broadcast did not violate Jaillett’s right to be let alone, and the trial court did not err in granting summary judgment on this claim. S & W Seafoods Co. v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233, 237 (4) (390 SE2d 228) (1990).

Judgment affirmed.

McMurray, P. J, and Andrews, P. J., concur.

       We note that Jaillett’s appellate brief fails to comply with this Court’s rules, in that the statement of facts section does not provide record citations supporting relevant facts, and in that the argument section does not track the issues raised in his enumerations. Moreover, Jaillett did not file separate enumerations until after his brief was filed. Nevertheless, WSB’s motion to dismiss this appeal for failure to timely file separate enumerations of error is denied, and we shall address the issues raised in Jaillett’s enumerations to the extent that they are supported in his brief. See Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (393 SE2d 728) (1990).

       Although Jaillett apparently took McKay’s deposition, he did not file it with the trial court, despite WSB’s request that he do so. In his appellate brief, Jaillett does not contest Mrs. Dillard’s account of what McKay told her, but simply states that she did not have to buy a new unit because she was given two written estimates.


author: Pope, Presiding Judge.

text:
    A99A0115.
    CREWS et al. v. ROGER WAHL, C.P.A., P.C.
    (520 SE2d 727)
   Pope, Presiding Judge.

Roger Wahl was the sole shareholder of Roger Wahl, C.P.A., P.C., and worked there from the time it opened until March 1993, when Wahl was being investigated for federal income tax evasion. Wahl subsequently pled guilty to the charges. On August 16, 1993, the Wahl firm sold its client files, client contracts, customer lists, computer software and computer records to Serotta, Maddocks & Devanny, a competing accounting firm.

On the afternoon of the sale, Earl J. Maddocks, one of the principals in the Serotta firm, went to the Wahl firm’s offices to tell the remaining Wahl firm employees, who are the defendants in this action, about the sale and to pick up the Wahl firm’s customer list. Although Maddocks told the defendants they could remain in their current employment, David Crews, the other CPA at the Wahl firm and one of the defendants, decided he would start his own accounting firm. He and some of the other defendants then drafted a letter announcing the formation of the new business, enclosing a release for customers to sign giving Crews access to their financial records. Crews and the others began preparing envelopes for the mailing, using the Wahl firm’s customer lists.

Due to printing problems, the defendants were unable to provide Maddocks with a complete list of the Wahl firm’s customers until the next day, August 17, 1993. Crews also told Maddocks that he had decided to start his own firm and that he was using the Wahl firm’s customer lists to send out a mailing. Maddocks raised no objection. Within a week, the remaining defendants tendered their resignations and went to work with Crews.

The Wahl firm subsequently conducted an audit and determined that computer hardware and software containing customer records were missing from its office. On September 9, 1993, the firm filed a complaint asserting conversion and violations of the Georgia Trade Secrets Act and alleging the defendants had misappropriated trade secrets consisting of “financial data, financial plans, product plans, and a list of actual customers.”

In addition to the customer list, which he used for his mailing, David Crews testified that when he left the Wahl firm on August 17, 1993, he took the contents of his desk, including computer backup tapes containing files with all of the firm’s customer financial information. Crews also admitted taking postage, envelopes, a briefcase and several calculators, and admitted using the Wahl firm’s copier and fax machine to send out his letters. His sister, Diane Crews, admitted taking a calculator. The other defendants who testified denied taking anything other than their own personal belongings. On September 30, 1993, Crews’ attorney returned the materials Crews had taken, along with software and other items taken from the Wahl firm’s office, which had come into his possession.

On August 6, 1996, the Wahl firm was administratively dissolved by the Secretary of State. The case subsequently proceeded to trial and the Wahl firm was awarded a judgment in the amount of $265,000.

1. The defendants contend the trial judge erred in denying their motion for directed verdict on the ground the Wahl firm lacked capacity to pursue its claims. They assert that after the firm was dissolved, it was prohibited from continuing its lawsuit because there was no evidence that this proceeding was necessary to wind up the business and affairs of the firm.

An administratively-dissolved corporation retains its corporate existence, but is prohibited from carrying on any business “except that necessary to wind up and liquidate its business and affairs.” OCGA § 14-2-1421 (c). Those actions deemed necessary to wind up and liquidate a corporation’s business and affairs include collecting assets, disposing of property, discharging liabilities, distributing remaining property among shareholders, and “[d]oing every other act necessary to wind up and liquidate its business and affairs.” OCGA § 14-2-1405 (5).

The question of whether an administratively-dissolved corporation lacks capacity to pursue a particular course of action must be decided on a case-by-case basis. Gas Pump v. General Cinema Beverages &c. Co., 263 Ga. 583, 584 (2) (436 SE2d 207) (1993). And contrary to the defendants’ argument, we find our decision in Exclusive Prop. v. Jones, 218 Ga. App. 229 (460 SE2d 562) (1995) is not controlling of the facts in this case. In that case, we affirmed the grant of summary judgment to the defendant in a legal malpractice case after the corporate plaintiff was administratively dissolved while the action was pending. Id. at 230 (1). We expressly limited our decision to the facts in that case, where there was no evidence the corporate plaintiff had taken any action to wind up its affairs and the corporation never contended that the lawsuit was a necessary part of liquidating its business. Id.

In contrast, the Wahl firm was clearly in the process of concluding its business. It had sold its primary corporate assets to the Serotta firm, and there was evidence at trial that a short time earlier, Wahl had been declared mentally incompetent and his wife had been appointed his guardian. Some months later he pled guilty to tax fraud. Thus, there was virtually no possibility that Wahl would ever operate his accounting business again.

This lawsuit, filed within a few weeks after the sale contract was signed, sought to reclaim possession of certain corporate assets the Wahl firm alleged defendants had misappropriated. The collection of corporate assets is one of the enumerated activities a dissolved corporation is entitled to pursue. OCGA § 14-2-1405. Moreover, many of the assets at issue were the subject of the sale contract with the Serotta firm, and thus any misappropriation of those assets clearly had the potential to affect the sale. Under these circumstances, we find the lawsuit was necessary to wind up and liquidate the business and affairs of the Wahl firm, and there was no error in denying the defendants’ motion for directed verdict on this ground.

2. The defendants also contend the trial court erred in denying their motion for directed verdict on the ground that the Wahl firm had sold its trade secrets to the Serotta firm prior to their alleged misappropriation by defendants.

The sale between the two firms closed on the morning of August 16, 1993, with the signing of the sale contract. Under the contract, the Serotta firm was buying

[a]ll client files and contracts, both open and closed, all client lists, both open and closed, including all computer records (both hard copies and floppy disks) and computer software relating thereto and all information on the computer hardware relating thereto.

The contract provided that the Serotta firm took possession of these assets at closing.

Under the plain terms of the sale contract, therefore, the Serotta firm owned the customer lists, computer software and customer files at the time they were removed from the Wahl firm’s offices. However, in Georgia, the ownership of an accountant’s working papers is controlled by statute. Under OCGA § 43-3-32 (a):

All statements, records, schedules, working papers, computer printouts, computer tapes, and memoranda made by a certified public accountant or public accountant incident to, or in the course of, professional service to clients . . ., except reports submitted ... to a client, shall be and remain the property of such certified public accountant or public accountant and his or her partners, fellow shareholders, or fellow members of the firm, in the absence of an express agreement between such certified public accountant or public accountant and the client to the contrary. No such statement, record, schedule, working paper, or memorandum shall be sold, transferred, or bequeathed, without the consent of the client or his personal representative or his assignee, to anyone other than one or more surviving partners, fellow shareholders, or fellow members of the firm of such certified public accountant or public accountant.

(Emphasis supplied.) Under this provision, absent an agreement with the client to the contrary, an accountant retains ownership of all of his working papers, but may not transfer ownership in any statement, record, schedule, working paper or memorandum without the client’s consent.

The Wahl firm contends that this statute makes its sale contract with the Serotta firm an executory agreement only. Although the contract states the Serotta firm took possession of its customer lists and other documents, the Wahl firm argues the contract did not become binding until the clients consented to the transfer of their records to the Serotta firm. And because no clients had consented at the time the defendants used the mailing list and took other information, the Wahl firm asserts it still owned that information.

While we agree that the sale from one accounting firm to another of any information covered by OCGA § 43-3-32 (a) is subject to a condition that the client consent to the transfer, we do not agree that the statute applies to all client information in the possession of an accountant. We find that the transfer of the Wahl firm’s customer list to the Serotta firm is not governed by OCGA § 43-3-32 (a) because there is no indication that the statute was intended to apply to such lists.

The interpretation of statutes is a question of law for the court. Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383 (1) (499 SE2d 157) (1998). “It is axiomatic that in interpreting a plain and unambiguous enactment we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context.” Id.; OCGA § 1-3-1 (b). However, “[s]tatutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987).

As an initial matter, we note the statute does not make reference to client lists.

Thus, the venerable principles of statutory construction, expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) are applicable. [Cit.]

Pruitt Corp. v. Strahley, 270 Ga. 430, 431 (510 SE2d 821) (1999). The application of these principles supports the conclusion that the legislature did not intend to require client consent for the transfer of a firm’s client list.

This interpretation is further supported by an examination of the purposes behind the statute. See OCGA § 1-3-1 (a) (In statutory interpretation, court “shall look diligently for the intention of the General Assembly.”) While this provision vests the ownership of an accountant’s working papers in the accountant, it provides that client information contained in such documents may not be relinquished by sale or transfer of the documents without the client’s consent. The clear intent of such a provision is to preserve the accountant’s proprietary interest in his own work product, while at the same time giving the client the final say over the transfer of any confidential information provided during the preparation of such materials.

The legislative intent behind OCGA § 43-3-32 (a) has not previously been discussed by the Georgia appellate courts, but the Ohio Court of Appeals has construed a virtually identical provision under Ohio law. The court explained the reasoning behind such a statute:

Based upon the reasonable expectations of the parties involved, and the public policy against such action, a duty is imposed by law upon an accountant not to wrongfully disclose information given him in confidence by his client. The preservation of a client’s confidential information is not a mere ethical duty, it is a legal duty as well. The unauthorized disclosure of any secrets or other confidential information obtained during the professional association of an accountant and his client will give rise to an action for breach of contract.

Wagenheim v. Alexander Grant & Co., 19 Ohio App. 3d 7, 12 (482 NE2d 955) (1983).

We agree the intent of such a provision is to protect confidential information provided by a client to his accountant, but its protections do not extend to all client information. The uncodified preamble to the Public Accountancy Act, of which OCGA § 43-3-32 is a part, states that the law is being enacted “to provide for confidentiality of certain papers and communications.” (Emphasis supplied.) Ga. L. 1977, pp. 1063-1064. Thus, it is reasonable to conclude the legislature did not intend that all information communicated between an accountant and a client is to be considered confidential. The Wahl firm’s customer list does not contain any client secrets or confidences. It is merely a list of the names and addresses of those individuals and corporations for whom the Wahl firm has provided accounting services. Accordingly, the list does not fall within the purposes of OCGA § 43-3-32 (a).

This interpretation is supported by reviewing the statute as a whole. Subsection (b) of the statute sets forth Georgia’s accountant/ client privilege, and the two subsections of the statute must be read together as furthering the same goal of client confidentiality. See Ernst & Ernst v. Underwriters Nat. Assurance Co., 178 Ind. App. 77 (382 NE2d 897) (1978) (holding that a virtually identical provision of Indiana law “supports and reinforces” the intent behind the state’s accountant-client privilege).

In discussing the accountant-client privilege, the Supreme Court of Georgia has approved an analogy between that privilege and the attorney-client privilege due to the similarity between the two. Gearhart v. Etheridge, 232 Ga. 638, 641 (208 SE2d 460) (1974). It is well-settled that the fact of an attorney’s employment and the name of the person employing him is not privileged. Fowler v. Sheridan, 157 Ga. 271, 275 (2) (121 SE 308) (1924); Parrott v. State, 206 Ga. App. 829, 835-836 (6) (427 SE2d 276) (1992). The basis for this rule was admirably explained in the case of In re Shargel, 742 F2d 61, 63 (2nd Cir. 1984):

Absent special circumstances, disclosure of the identity of the client and fee information stand on a footing different from communications intended by a client to explain a problem to a lawyer in order to obtain legal advice. ... [A] general rule requiring disclosure of the fact of consultation does not place attorneys in the professional dilemma of cautioning against disclosure and rendering perhaps ill-informed advice or learning all the details and perhaps increasing the perils to the client of disclosure.
Where no such dilemma is created for the lawyer, information is not protected by the privilege even though the client may strongly fear the effects of disclosure, including incrimination.

We believe this distinction holds true for the accountant and his client as well. A general rule that the identity of an accountant’s clients is not confidential will not affect the quality of service an accountant provides or unduly prejudice the client.

Accordingly, we hold that the requirement under OCGA § 43-3-32 (a) that a client consent to the transfer of his accountant’s working papers does not apply to an accounting firm’s client list.

In this case, because there was no condition precedent to the Wahl firm’s transfer of its customer list to the Serotta firm, the Serotta firm owned the customer list as of the closing on the morning of August 16, 1993. Thus, the Wahl firm had no ownership interest in the list at the time of the alleged misappropriation. Therefore, we reverse the trial court’s denial of the defendants’ motion for directed verdict as it related to any claims regarding the client list.

We cannot say as a matter of law, however, that the remaining documents at issue, including the computer back-up tapes and the software, do not fall within the provisions of OCGA § 43-3-32 (a). The evidence showed those documents contained confidential client information, and the transfer of such information to the Serotta firm thus required client consent. Accordingly, the defendants were not entitled to a directed verdict as to those documents on the ground stated.

3. The defendants also assert that the evidence was insufficient to support either the jury’s verdict or the award of damages. We have held that the jury erroneously considered claims relating to the Wahl firm’s client list. Because the jury issued a summary verdict finding in favor of the Wahl firm and granting lump sum damages in the amount of $265,000, we cannot determine which items, if any, other than the client list the jury found had been converted or misappropriated. Because we do not know the jury’s findings, we cannot determine if there was sufficient evidence to support such findings. And because the damages were not apportioned among the various items, we cannot determine which of the damages are attributable to the customer list and which, if any, are attributable to other items. Therefore, our reversal of the trial court’s denial of the directed verdict as it relates to the customer list necessitates a new trial on the remaining claims. See Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 96 (5) (406 SE2d 502) (1991).

4. The defendants also assert a number of enumerations alleging errors in the jury charge. Because these issues are likely to recur on remand, we will address them. See Howell v. Styles, 221 Ga. App. 781, 785 (5) (472 SE2d 548) (1996).

(a) The defendants contend the trial court erred in charging the jury pursuant to OCGA § 11-2-722 of the Uniform Commercial Code. We agree.

To determine whether a sales contract is governed by the UCC, “we must look to the primary or overall purpose of the transaction.” Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778, 779 (1) (409 SE2d 567) (1991). When the predominant element is the furnishing of services, the contract is viewed as a service contract and the UCC does not apply. Southern Tank & Equipment Co. v. Zartic, Inc., 221 Ga. App. 503, 504 (471 SE2d 587) (1996). Accountants are in the business of supplying services to their clients. The sale contract in this case was structured to allow the Serotta firm to continue servicing the Wahl firm’s accounts (subject to the clients’ consent), and the principal consideration was the Serotta firm’s payment to the Wahl firm of a percentage of the fees generated from those accounts. Thus, the furnishing of services was the predominant element of the contract. And assuming, without deciding, that the customer list fell within the definition of goods under the UCC, as the Wahl firm argues, the list would be incidental to the main intent of the contract: continuing service to the Wahl firm’s clients. Accordingly, it was error to charge the jury in accordance with the UCC. See Mail Concepts, 200 Ga. App. at 780 (1). Cf. Prof. Marketing Distrib. v. Feldman Assoc., 202 Ga. App. 338, 339 (1) (414 SE2d 666) (1991).

(b) The defendants next argue it was error to charge the jury with language from OCGA § 16-8-13, the statute setting forth criminal penalties for theft of a trade secret. That statute specifically states that it will not affect the provisions of the Code “pertaining to civil offenses and remedies involving the misappropriation of a trade secret.” OCGA § 16-8-13 (e) (2). Because the statute by its terms is inapplicable to this case, we find it was error to include language from OCGA § 16-8-13 in the jury charge.

(c) The defendants also contend it was error to charge the jury on the law of fiduciary duty because the Wahl firm dismissed Count 3 of its complaint, which asserted a claim for breach of fiduciary duty. The defendants do not contend that the charges contained incorrect statements of the law, but simply that the law was inapplicable to the facts of this case. However, the Wahl firm correctly notes that the misappropriation of a trade secret can result from the breach of a confidential relationship. OCGA § 10-1-761 (1). And we find no error in those portions of the court’s charge (the Wahl firm’s requests to charge nos. 15 and 16) defining the principal/agent relationship as such a charge could be relevant to the elements of the plaintiff’s case.

Nevertheless, by dismissing its claim for breach of fiduciary duty, the Wahl firm elected not to proceed under the common law of fiduciary duty, but rather to limit its recovery to the remedy under the Georgia Trade Secrets Act. We have held under that act, in the absence of a covenant to the contrary, a departing employee has the right to take with him and make use of all the knowledge he obtained so long as no property of the employer is taken. Wolff v. Protege Sys., 234 Ga. App. 251, 253 (1) (c) (506 SE2d 429) (1998). Moreover, any of the defendants who were C.P.A.’s or public accountants had a right to copies of all of the working papers and other materials prepared by them. Singer v. Habif Arogeti & Wynne, 250 Ga. 376, 379 (3) (297 SE2d 473) (1982); OCGA § 42-3-32 (a). While the trial court charged the jury on these principles of law, the court also charged under general agency law that an agent may not make a profit for himself “out of the relationship or out of knowledge obtained from the relationship” with his principal. These conflicting charges could have been confusing to the jury. A jury charge “that could confuse the jury as to the contentions of the parties and the real issues in the case” can be grounds for a new trial. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 257 (4) (b) (461 SE2d 877) (1995), modified on other grounds, 267 Ga. 226 (476 SE2d 565) (1996). Therefore, we hold it was error to give that portion of the charge under general fiduciary law set out in the Wahl firm’s request to charge no. 17.

(d) The defendants further assert error in the trial court’s instruction stating that “[a]n employee owes a duty of loyalty, faithful service and regard for an employer’s interest.” They argue that this charge, taken from our decision in Lane Co. v. Taylor, 174 Ga. App. 356, 362 (5) (330 SE2d 112) (1985), represents an incomplete statement of the law and was not adjusted to the facts of this case. As we find this to be an accurate statement of the law, we find no error.

(e) The trial court also charged the jury in accordance with OCGA § 51-12-30 and prior case law that one who procures an injury to another can be a joint wrongdoer and can be subject to liability. However, the charge omits the word “maliciously,” which appears in the statute; liability is imposed upon a person who “maliciously procures” a wrong. OCGA § 51-12-30. The use of the term “maliciously” is construed liberally under this provision, and does not require personal ill will or animosity, only any unauthorized interference without legal justification or excuse. Nager v. Lad’n Dad Slacks, 148 Ga. App. 401, 404 (3) (251 SE2d 330) (1978). While we find the better practice may be to track the language of the statute, while providing a definition of the term “malicious” in this context, we cannot say that the charge as given was an erroneous statement of the law. We note however, that defendants did not raise and we do not address the applicability of this charge under the facts of this case.

Decided July 8, 1999.

Daniel & Lowe, Neal K. Daniel, Garrett & Gilliard, Michael C. Garrett, Chamberlain, Hrdlicka, White, Williams & Martin, John W. Sognier, for appellants.

Dunstan, Dunstan & Cleary, James R. Dunstan, Johnston, Wilkin & Williams, Wendell E. Johnston, Jr., William J. Williams, for appellee.

Judgment reversed and remanded.

Smith and Eldridge, JJ., concur.

       The defendants are David Crews, Terry Liebowitz, Miriam Powell, Becky L. Grubb, Christina L. Martin, Margaret M. Childers and Diane L. Crews.

       The testimony showed some of these materials may have been inadvertently taken when a computer specialist, who leased space from the Wahl firm, hired movers to pack up and move his office.

       We reject the Wahl firm’s contention the defendants waived their right to assert this ground by failing to plead it as a specific negative averment in their answers. While the Wahl firm characterizes this ground as a lack of capacity defense, it is instead an assertion that the Wahl firm failed to prove an essential element of its claim: ownership of the trade secrets it claims were misappropriated. See Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 134 (5) (498 SE2d 537) (1998) (to recover on misappropriation claim, plaintiff must establish property right or protectable interest in work product).

       While a client list may be subject to confidential treatment under the Georgia Trade Secrets Act, the information itself is not inherently confidential. “[C]ustomers are not trade secrets.” Wolff v. Protege Sys., 234 Ga. App. 251, 253 (1) (c) (506 SE2d 429) (1998), quoting, Textile Rubber &c. Co. v. Shook, 243 Ga. 587, 592 (1) (b) (255 SE2d 705) (1979). Confidentiality is afforded only where the customer list is not generally known or ascertainable from other sources and was the subject of reasonable efforts to maintain its secrecy. See OCGA § 10-1-761 (4). Even assuming the Wahl firm’s customer list was a trade secret, this in and of itself does not render the document subject to the provisions of OCGA § 43-3-32 (a).

       Moreover, any proposed construction of a statute “must not result in unreasonable consequences and must square with common sense and sound reasoning.” (Citations and punctuation omitted.) Monticello, Ltd., 231 Ga. App. at 384 (1). Our conclusion has the practical effect of allowing one firm to purchase another firm’s client list and then use that list to contact the clients and obtain the requisite consent for the transfer of any confidential files.

       We note, however, that the Supreme Court of Georgia has held, and the trial court charged the jury, that under OCGA § 43-3-32 (a), a departing accountant can “properly copy records, statements, working papers, and other materials ‘prepared’ by him, but that he could not properly copy for his own use such materials ‘made’ by other accountants” of the firm. Singer v. Habif, Arogeti & Wynne, 250 Ga. 376, 379 (3) (297 SE2d 473) (1982).