author: Miller, Judge.

text:
    A02A0499.
    BOGAN v. THE STATE.
    (565 SE2d 588)
   Miller, Judge.

William Thomas Bogan appeals from his conviction on two counts of aggravated stalking. On appeal he contends that (1) the evidence was insufficient to sustain the convictions, (2) the trial court erred by admitting evidence of a similar transaction, and (3) his trial counsel was ineffective. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that Bogan was arrested for family violence and battery following a domestic dispute with his girlfriend. As a condition of his bond, Bogan was instructed to have no further contact with the victim. A subsequent bond was issued on February 20, 1998, in connection with a stalking charge, again with the condition that Bogan not have contact with the victim.

In violation of this condition, on February 22 Bogan waited for the victim at her home, and when she arrived, he yelled at her and then hit her. He also pulled the victim’s hair. Bogan then fled once the victim’s daughter called the police. However, Bogan returned later that same evening and tried to climb into the victim’s house through the living room window. Bogan fled once again when the victim screamed and said that she was calling 911.

Five days later, Bogan was arrested for stalking the victim at her job. He was later charged with two counts of aggravated stalking arising out of the February 22 incidents. The State gave notice it would introduce the job stalking incident as a similar transaction in the stalking trial here involving the February 22 incidents, and this evidence was admitted over defense counsel’s argument at trial that the incident was not sufficiently similar. Defense counsel did not request at trial that the court tell the jury, at the time that the similar transaction was introduced, the purpose for which it was being admitted.

The jury found Bogan guilty of two counts of aggravated stalking. Following the denial of Bogan’s motion for new trial, in which he argued that his trial counsel was ineffective, Bogan appeals.

1. Bogan argues that the evidence was insufficient to sustain his convictions for aggravated stalking. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

OCGA § 16-5-91 (a). “[T]he term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety . . . and which serves no legitimate purpose.” OCGA § 16-5-90 (a) (1).

Here, Bogan violated a condition of his bond by contacting his former girlfriend on two occasions on the same day. On the first occasion, he verbally and physically abused the victim, and on the second, he tried to climb through a window of the victim’s home, causing her to scream and threaten to call 911. This evidence of Bogan contacting the victim in violation of his bond conditions and of his harassing and intimidating her sufficed to sustain the convictions. OCGA § 16-5-91 (a); see Hooper v. State, 223 Ga. App. 515, 517 (2) (478 SE2d 606) (1996).

2. Bogan further contends that the trial court erred by admitting evidence of the February 27,1998 stalking incident at the victim’s job as a similar transaction. We disagree.

Absent an abuse of discretion, after the court conducts a similar transaction hearing that complies with Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), the trial court’s decision to admit similar transaction evidence will not be disturbed. Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). Similar transactions need not be identical to the offense being tried but must show sufficient similarity or connection between the independent incidents and the offense at issue. Id. at 847 (1).

On February 27, Bogan, once again in violation of his bond conditions, contacted the victim. He called her three times at her office, and each time she refused to meet him. He then went to her office and waited for her in the parking lot, just as he had waited for her at her home five days earlier. The victim, who saw Bogan in the parking lot outside of her office, was afraid and intimidated by his phone calls and uninvited appearance. The February 27 incident could indicate Bogan’s course of conduct in stalking the victim, and we hold that the trial court did not abuse its discretion in admitting this similar transaction. See Jones v. State, 239 Ga. App. 733, 734 (1) (521 SE2d 883) (1999).

To the extent that Bogan argues in his brief that the trial court erred by failing to instruct the jury, at the time that this evidence was introduced, as to the purpose for which the transaction was admitted, his failure to request this instruction at trial waives the issue here. See State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998).

3. Bogan also urges that his trial counsel was ineffective because (a) he failed to object to the introduction of the similar transaction evidence, (b) he failed to object to the introduction of alleged character evidence, and (c) he failed to call a witness to counter the State’s similar transaction evidence. We find no merit to these contentions.

To prove ineffective assistance, Bogan was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993). Evidence supported the trial court’s finding that Bogan did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

(a) The record belies Bogan’s assertion that his trial counsel did not object to the introduction of the similar transaction evidence. At trial, counsel did oppose the introduction of this evidence. Further, as we held in Division 2, the admission of this similar transaction evidence was proper. “Trial counsel’s failure to pursue a futile objection does not constitute ineffective assistance.” Massingill v. State, 240 Ga. App. 690, 691 (2) (b) (524 SE2d 746) (1999).

(b) Trial counsel testified that he made a tactical decision not to object or ask for a curative instruction regarding evidence of Bogan’s cocaine use because he did not want to draw unnecessary attention to the issue. Tactical decisions regarding what objections to make do not amount to ineffective assistance. See Cunningham v. State, 244 Ga. App. 231, 234 (3) (535 SE2d 262) (2000). We hold that evidence supports a finding that Bogan has failed to show ineffective assistance here.

Decided May 16, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

(c) Trial counsel testified that Bogan never asked him to call any alleged witness to counter the similar transaction evidence. Nor did this alleged witness appear at the motion for new trial hearing to indicate how his testimony would have been useful. See Turner v. State, 253 Ga. App. 760, 763-764 (6) (560 SE2d 539) (2002). Moreover, Bogan himself testified that any alleged witness who was not called would not have testified regarding the similar transaction. Evidence supports the conclusion that Bogan has failed to show deficient performance or harm from counsel’s actions. See Webb v. State, 249 Ga. App. 214, 217 (2) (547 SE2d 767) (2001).

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A02A0557.
    ROGERS v. THE STATE.
    (565 SE2d 583)
   Miller, Judge.

Jabar Rogers appeals from his convictions for robbery and armed robbery. On appeal he contends that (1) the evidence was insufficient to sustain the convictions and (2) a photo identification that took place at the scene of the armed robbery was improper. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that when Georgia Wallace arrived at her home with a friend late one night, she discovered Rogers standing in the doorway. Wallace’s front porch lights were on, as well as the lights inside her home, and she was able to get a good look at him. Wallace yelled at him to leave. Rogers then snatched Wallace’s cigarette case, which resembled a wallet, and ran away.

Later that same night, Carey Hobbs and others were leaving a pub where he worked that was located within a mile of Wallace’s home. After closing the pub for the night, Hobbs was carrying a money bag, which contained between $4,000 and $5,000. As Hobbs and his companions entered the pub’s parking lot, Rogers’s co-defendant rushed toward them while firing a gun and ordering them to give him whatever they had. Rogers was standing nearby, also carrying a gun. As Hobbs ran away from the co-defendant, Rogers fired his gun at Hobbs. The co-defendant overtook Hobbs, grabbed the money bag, and gave it to Rogers. Rogers ran away from the scene with the money bag still in hand, and the co-defendant attempted to escape in Rogers’s car.

Hobbs chased Rogers, and at one point during the chase Rogers’s bandanna fell from his head. As Rogers turned around to retrieve his bandanna, Hobbs viewed his face and hairstyle.

The police stopped the co-defendant in Rogers’s car about a block away from the pub. Upon searching the car, the police found Rogers’s wallet, which contained his driver’s license. The police then showed the driver’s license to Hobbs, who identified the man on the license as the same man who shot at him and whom he chased. At trial this identification was admitted without objection from Rogers. Rogers’s co-defendant gave a statement to police implicating Rogers and identified Rogers at trial as the other man who robbed Hobbs. Wallace and her friend also identified Rogers at trial as the man who stole Wallace’s cigarette case.

The jury found Rogers guilty of robbery, armed robbery, and false report of a crime. Rogers appeals from his convictions for robbery and armed robbery.

1. Rogers contends that the evidence was insufficient to sustain his convictions for robbery and armed robbery. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) A person can be found guilty of robbery “when, with [the] intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” OCGA § 16-8-40 (a) (3).

Wallace and her friend testified that Rogers was in Wallace’s doorway, and Wallace had her finger in his face, when Rogers snatched Wallace’s cigarette case. The evidence sufficed for the jury to conclude that Rogers snatched the cigarette case from Wallace’s person or immediate presence, justifying a guilty verdict for robbery. OCGA § 16-8-40 (a) (3); see also Lawson v. State, 224 Ga. App. 645-646 (1) (481 SE2d 856) (1997) (“ ‘In order to prove a case of robbery by suddenly taking or carrying away the property of another without his consent, it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it. . . .’ [Cit.]”).

Decided May 16, 2002.

John R. Mobley II, for appellant.

J. Gray Conger, District Attorney, Michele C. Ivey, Assistant District Attorney, for appellee.

(b) Armed robbery occurs when a person commits a robbery “by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a).

The evidence reveals that Rogers fired a gun at Hobbs and took a bag from him containing $4,000 to $5,000. Hobbs, who viewed Rogers’s face and hairstyle as Rogers turned to face him while running away, identified him at the scene of the crime by looking at Rogers’s driver’s license. He also identified Rogers at trial. All of this evidence corroborated Rogers’s co-defendant’s testimony that Rogers was the man who participated in robbing Hobbs at gunpoint. The evidence was sufficient to sustain the conviction. See House v. State, 237 Ga. App. 504, 505 (1) (515 SE2d 652) (1999).

2. Rogers argues that the driver’s license identification of him on the night of the robbery was improper. However, Rogers failed to object to the admission of this identification at trial and has therefore presented nothing for this court to review. See Anthony v. State, 236 Ga. App. 257, 258 (1) (511 SE2d 612) (1999).

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A02A0001.
    SHAW-BAKER v. GEICO AUTO INSURANCE et al.
    (565 SE2d 598)
   Pope, Presiding Judge.

Stacey Shaw-Baker presented a complaint to the Ware County Superior Court for filing. The superior court judge reviewed the pleading and dismissed it under OCGA § 9-15-2 (b), concluding that the pleading showed a complete absence of justiciable law or fact. Here, proceeding pro se, Shaw-Baker appeals, and for the following reasons, we reverse.

Shaw-Baker’s pro se complaint, which listed herself and her daughter, Chenique Shaw, as plaintiffs, alleged that Aleta Larger, presumably while driving, hit Chenique, who was riding her bicycle. Shaw-Baker alleged that the accident occurred at the intersection of Albany Avenue and McDonald Street and that Larger had insurance with GEICO. The complaint listed the addresses of Larger and GEICO. Then Shaw-Baker claimed that her daughter and her entire family had suffered damages and property loss because of the accident. The complaint further alleged that “but for” Larger’s violation of traffic laws and negligence, the accident would not have happened. Shaw-Baker then outlined the specific damages she claimed they had incurred from the incident and prayed for specific relief. She also demanded a jury trial, and she and Chenique signed the complaint. She' also filed a pauper’s affidavit and attached to the complaint a page of the accident report and a page of a medical report.

The trial court dismissed the action, and Shaw-Baker filed this appeal, claiming that in three different manners, this decision was erroneous.

OCGA § 9-15-2 (d), which pertains to pro se plaintiffs, provides:

[w]hen a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading. If the judge does not so find, then the judge shall enter an order allowing filing and shall return the pleading to the clerk for filing as in other cases. An order denying filing shall be appealable in the same manner as an order dismissing an action.

In interpreting this statute, this court has concluded that:

[w]hen examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity[;] it is necessary only to place the defendant on notice of the claim against him.

(Citations and punctuation omitted.) Hawkins v. Rice, 203 Ga. App. 537 (417 SE2d 174) (1992). “Only if the pleading is completely devoid of any justiciable issue of law or fact may the court deny filing. See Yizar v. Ault, 265 Ga. 708 [(1)] (462 SE2d 141) [(1995)].” Gamble v. Diamond “D” Auto Sales, 221 Ga. App. 688 (1) (472 SE2d 446) (1996). See also Gamble v. Ware County Bd. of Ed., 253 Ga. App. 819 (561 SE2d 837) (2002).

Decided May 17, 2002.

Judge Houston, pro hac vice.

Stacey Shaw-Baker, pro se.

In her complaint, Shaw-Baker alleges that she and her daughter were injured by the negligence of Larger and Larger’s insurer, GEICO. Construed favorably to Shaw-Baker, we cannot conclude that this complaint should be barred. Although we express no view as to the merits of Shaw-Baker’s complaint, we find that the action presented a justiciable issue of law or fact and the trial court erred in prohibiting her from filing it.

Judgment reversed.

Barnes and Phipps, JJ, concur.


text:
    A02A0247.
    RONOKE v. THE STATE.
    (565 SE2d 594)
   Miller, Judge.

Brian Ronoke appeals his convictions of trafficking in cocaine and possession of a firearm during the commission of a crime. He contends that the trial court erred when it denied his motion for a mistrial based on a discovery violation. Discerning no error, we affirm.

Before trial, Ronoke elected to have the reciprocal discovery provisions of OCGA § 17-16-1 et seq. apply to his case. During the State’s case, a narcotics agent testified that, during the first meeting for the controlled drug buy for which Ronoke was being tried, the agent observed Ronoke with a firearm under his shirt in the waistband of his pants and that the same was true at the second meeting. Additionally, the agent was asked on cross-examination whether he had written a report on the incident for which Ronoke was being tried. He responded, “I wrote a supplemental with the suspects!’] names, the vehicle, the date, and a very short statement.” Later that day, the State rested and the defense began its case. The following day began with the prosecutor informing the court and opposing counsel that the previous evening he had discovered a further portion of this report in a file that had been brought to him that day. Ronoke’s counsel stated he was not going to ask for a mistrial but that he thought he was going to have to recall the agent. The court eventually granted this request.

Following the weekend, and with the recalled agent present to testify, Ronoke moved for a mistrial, which the court denied. Ronoke then requested the court to inform the jury that the discovery he had been given was incomplete until “the middle of the trial.” The court stated it would make a decision on that request after the agent testified, and Ronoke again moved for a mistrial, this time on the ground that the court had postponed its decision. The court responded, “All right. It will so reflect. The court. . . will take it in consideration on the instructions.”

The recalled agent testified that he was aware that the document given the defense before trial portrayed only the first half of the complete report given the defense mid-trial. He explained that he wrote the first half of the report immediately after the incident for which Ronoke was being tried, that “[a]fter all the details were done, I wrote [the remainder of] the report,” and that he did not know how the two halves became separated. He further testified that he had not remembered, when he was on the stand during the previous week, that there was more to his report than the incomplete portion, and he testified that he had not used the second half to refresh his recollection before his first testimony. Additionally, he admitted that he had not included anything in either portion of his report about his having observed Ronoke with a firearm at the first meeting, but stated that he remembered that fact independently. Both the first half version of the report and the full report were then admitted into evidence at Ronoke’s behest.

Finally, the agent testified that, with the exception of mistakenly reversing the sequence of two details, the second half of the report did not contain anything that he had not remembered when he testified during the previous week. Ronoke then rested and renewed his motion for a mistrial, requesting that if the motion were again denied, the court instruct the jury on the situation. The court refused curative instructions because it “believe [d] that [the matter has] been sufficiently explained to . . . the jury” and denied the motion for mistrial.

OCGA § 17-16-6 provides in part that if the State fails to comply with its obligations under the reciprocal discovery provisions of OCGA § 17-16-1 et seq.,

the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

(Emphasis supplied.)

With respect to the prejudice and bad faith clause, Ronoke does not explain how the claimed error in denying his motions for a mistrial prejudiced him; and, considering the agent’s testimony both originally and on recall, we likewise discern no prejudice. See Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996) (“[Defendant made no showing that he was prejudiced as a result of the State’s failure to make the bloody knife available to him prior to trial.”). In any event, the record before us contains no indication of bad faith, and Ronoke does not argue that that element was present in the situation. See Felder v. State, 270 Ga. 641, 645 (6) (514 SE2d 416) (1999) (“[T]he evidence would be inadmissible only if [the defendant] could show both prejudice and bad faith. OCGA § 17-16-6; [cit.].”). Thus, a mistrial, which would have been the equivalent of prohibiting the State from introducing or presenting the undisclosed evidence or witness, was not authorized by this clause.

Decided May 17, 2002.

Mary Erickson, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Dana J. Norman, Assistant District Attorneys, for appellee.

The question then becomes whether the court abused its discretion by not declaring a mistrial under the authority that such an order would have been “just under the circumstances.” We hold that, in view of the remedial actions the court took, its denial of Ronoke’s motions for a mistrial was not an abuse of discretion. As we stated in Arnold v. State, 253 Ga. App. 307, 310 (2) (560 SE2d 33) (2002): “[OCGA § 17-16-6] does not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Rather, it vests the trial court with discretion to fashion an appropriate remedy for the violation.” (Punctuation and footnotes omitted.)

Judgment affirmed.

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


text:
    A02A0670.
    RIVERS v. THE STATE.
    (565 SE2d 596)
   Miller, Judge.

Darius Rivers appeals from his convictions on two counts of aggravated battery, based on evidence that he repeatedly struck his ex-girlfriend in the face, dislodging a large portion of one of her teeth. He contends on appeal that the evidence at trial was insufficient to sustain the convictions, arguing that the evidence does not support a finding that he deprived his ex-girlfriend of a “member” of her body or rendered a “member” of her body useless. In this case of first impression in Georgia, the primary issue that we must decide is whether a tooth constitutes a “member” for purposes of aggravated battery. We find that a tooth does indeed constitute a “member” for purposes of aggravated battery and affirm the convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence reveals that Rivers repeatedly hit his ex-girlfriend in the face, causing a large portion of one of her teeth to become dislodged from her mouth. For at least three days after the attack, the victim was unable to eat or drink on the side of her mouth where the tooth was damaged, and she has since had ongoing problems with the damaged side of her mouth.

The indictment charged Rivers with two counts of aggravated battery, one for hitting the victim and “depriving [her] of a member of her body, to wit: a lower back tooth,” and one for hitting the victim and “rendering useless a member of [her] body, to wit: a lower back tooth. . . .” Rivers was found guilty on both counts, and he now appeals. In his sole enumeration of error, Rivers contends that the evidence was insufficient to sustain the convictions. Under OCGA § 16-5-24 (a), a person is guilty of aggravated battery “when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”

We hold, consistent with the holdings of several jurisdictions that have addressed this precise issue, that the evidence is sufficient to sustain a conviction for aggravated battery when the bodily member that is lost or rendered useless in the battery is a tooth. See State v. Bridgeforth, 357 NW2d 393, 394 (2) (Minn. App. 1984) (interpreting statute similar to Georgia’s aggravated battery statute, court held that “the loss of a tooth is a permanent loss of the function of a bodily member”); McBeath v. State, 739 S2d 451, 455 (Miss. App. 1999) (tooth was a “member” and loss of tooth constituted “serious bodily injury,” where such term was defined as “ ‘bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ’ ”); State v. Bogenreif, 465 NW2d 777, 781 (S.D. 1991) (evidence of loss of permanent teeth, coupled with cut lip and scarring, constituted “‘serious bodily injury,’” defined as “ ‘such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health or limb’ ”); Lenzy v. State, 689 SW2d 305, 310 (Tex. App. 1985) (tooth is member of body); cf. Jenkins v. State, 59 Md. App. 612, 617 (477 A2d 791) (1984) (“[C]ommon law mayhem consisted of depriving the victim of the ‘fighting members’ of his body — his arms, legs, eyes, fingers, hands, or teeth — thus rendering him less able to defend himself.”), rev’d in part on other grounds, 307 Md. 501 (515 A2d 465) (1986). Indeed, “[s]everal courts have considered the issue and have held that loss of a tooth is a serious bodily injury. [Cits.]” McBeath, supra, 739 S2d at 455.

Decided May 17, 2002.

Charles W. Wrinkle, for appellant.

Further, this court has already held that fingers and ears are “members” for purposes of aggravated battery. See Ganas v. State, 245 Ga. App. 645, 647 (1) (c) (537 SE2d 758) (2000); Drayton v. State, 167 Ga. App. 477 (1) (306 SE2d 731) (1983). Since teeth, like fingers and ears, are separate, definable parts that may be separated from the body, we hold that they are “members” for purposes of aggravated battery. See Lenzy, supra, 689 SW2d at 310 (interpreting statute with similar language to Georgia’s aggravated battery statute, court held that “[c]ommon usage as well as the [Black’s Law Dictionary definition] leads us to hold that teeth are separate, definable parts of the body sufficient to bring them [within] the statutory term ‘bodily member or organ’ ”).

The evidence revealed that Rivers repeatedly hit the victim in the face, causing a large portion of one of her teeth to come out and resulting in the victim’s inability to use the side of her mouth where the tooth was damaged for several days. The evidence supports a finding that Rivers had every intention of causing the victim great bodily harm by hitting her with such force. “Depriving” the victim of a member of her body “may refer to the loss of the use of the member.” (Footnote omitted.) Ganas, supra, 245 Ga. App. at 647 (1) (c). “Rendering [a] member useless,” even temporarily, may be sufficient for such member to be considered rendered useless under the aggravated battery statute. Id. at 647 (1) (b). The evidence reveals that the victim was deprived of the use of her tooth and that the tooth was rendered useless, and the evidence was therefore sufficient to sustain the convictions. See Childers v. State, 228 Ga. App. 214, 215-216 (3) (491 SE2d 456) (1997).

Judgment affirmed.

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

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.


author: Mikell, Judge.

text:
    A02A0287.
    CREED v. THE STATE.
    (565 SE2d 480)
   Mikell, Judge.

Buford Lee Creed was convicted of one count of aggravated child molestation and three counts of child molestation for sexually abusing his niece. The court sentenced him to ten years confinement. Creed appeals the court’s denial of his motion for new trial, arguing that he was denied a competent jury and the effective assistance of counsel, that the court did not follow proper procedure in polling the jury, and that the trial judge improperly expressed an opinion on the case. We disagree and affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that Creed’s abuse of his niece, J. W., began when the victim was nine years old and continued until she was fourteen, when she reported the abuse to her parents. The evidence further shows that J. W. spent a significant amount of time with her uncle over the years. J. W. testified that when she was nine, Creed began the practice of putting his hand under her shirt and rubbing her chest and that this behavior went on for approximately one year. According to J. W., Creed resumed touching her when she was in the seventh grade. J. W. testified that Creed put his hands inside her shirt and fondled her chest on numerous occasions in his truck, in his home, and in her parents’ home. Creed often kissed the victim, putting his tongue inside her mouth. J. W. testified that she would normally just “sit there” when Creed touched and kissed her, because she was afraid of him. J. W.’s testimony revealed that Creed began purchasing alcohol and cigarettes for her and her friends, and that he would often touch her on nights that he bought her alcohol.

Creed’s molestation of J. W. progressed when the victim was in the eighth grade. Once when J. W. was staying at Creed’s home, he came into her bedroom, removed her pants and panties, and licked her “private parts.” J. W. testified that on another occasion when she was riding with Creed in his truck, Creed pulled over, kissed her, removed her pants and undergarments, and “licked [her] private parts.” J. W. described other incidents in which Creed penetrated her by putting his fingers inside her “private parts.” She estimated that he penetrated her with his fingers on between six and eight occasions and testified that the incidents normally occurred in his truck. According to J. W., she did not report Creed’s behavior to her parents because she loved her uncle and did not want him to get into trouble.

The record also reveals that J. W. told three friends about the abuse. According to K. B., a close friend of J. W, J. W. asked her to keep the abuse a secret and occasionally begged K. B. to spend the night at Creed’s home with her so that J. W. would not be alone with her uncle. Another friend, H. U., testified that during the summer after the girls were in the eighth grade, J. W. told H. U. that Creed “molested her, that he went down her pants and up her shirt and kissed her.” Additionally, B. M., J. W.’s former boyfriend, testified that J. W. told him on several occasions that Creed “felt on her breasts and went down her pants and felt on her private area and stuff.” The record shows that B. M. attempted to convince J. W. to report the abuse, but she insisted that it be kept a secret. B. M. further testified that he and J. W. did not engage in sexual intercourse and that he never touched her private area.

J. W.’s parents discovered Creed’s sexual abuse of their daughter in September 1999. The evidence shows that when J. W. was in the ninth grade, she and her friends had a “pool party” at Creed’s home while he and his wife were out of town. Creed’s wife became upset because the children left trash on the premises, and she contacted K. B.’s mother to complain. K. B.’s mother testified that she confronted her daughter and that K. B. responded that “there’s a lot of things that goes [sic] on over there that you’re not aware of that I need to talk to you about.” K. B. then informed her mother of Creed’s sexual abuse of J. W. K. B.’s mother told her daughter that if J. W. did not report the abuse to her parents, then she would. J. W. told her mother about Creed’s actions the next day. J. W.’s parents contacted the authorities, who conducted an investigation and ultimately arrested Creed.

Dr. Suzanne Schuessler, a pediatrician who examined J. W. immediately after the abuse was reported, testified that J. W. exhibited physical signs of sexual abuse. According to Dr. Schuessler, she performed a pelvic examination on J. W. which revealed a tear in the opening of the vagina “at the five o’clock position” and a fleshy mass that was possibly scar tissue. The doctor testified that a tear in that position was significant because it was usually caused by vaginal penetration by someone other than the victim. Dr. Schuessler further testified that J. W. explained that Creed touched her and that he “was sticking his finger in [her].” When asked by the doctor, J. W. denied having any prior sexual activity with boyfriends or male acquaintances other than Creed. Dr. Schuessler confirmed that J. W.’s description of the abuse was consistent with her physical findings.

1. First, Creed argues that the trial court erroneously commented on the evidence and expressed its opinion in violation of OCGA § 17-8-57. Specifically, Creed contends that the court expressed an opinion in the course of an exchange with defense counsel. During the defendant’s cross-examination of J. W., the state objected three times to the relevance of a line of questioning concerning the pool party J. W. and her friends had at Creed’s home. The court gave the defense some latitude and expressly overruled the first two objections. Eventually, after the state’s third objection, the trial judge urged defense counsel to move on:

THE COURT: Mr. Thomas, where are you going with all of this? You’ve just been going over and over this same thing.
MR. THOMAS: I’m going to get to the truth, Your Honor.
THE COURT: About what? About a pool party? There are no charges related to a pool party, Mr. Thomas. Move on if you would and try to get to something that’s relevant to the case.
MR. THOMAS: Your Honor, Ms. Kirby [the prosecutor] says that this lady’s telling the truth. I want to find out if she is honest or not. And to do that, I have to ask questions, and that’s what I’m doing is asking questions.
THE COURT: I have overruled three relevancy objections, and we are still on the same subject. Now, I don’t mind giving you a lot of latitude; you’ve got a client who’s charged with very serious offenses, and I want to give you all the latitude I can give you, but you just keep asking the same questions over and over about the same subject matter. Let’s try to move on.

Contrary to Creed’s argument, we conclude that the colloquy between the trial judge and defense counsel did not constitute a violation of OCGA § 17-8-57. Under that statute, it is error for a judge to “express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

Unlike the judge in Paul v. State, 272 Ga. 845, 846 (1) (537 SE2d 58) (2000), who “intimated his opinion as to the credibility of witnesses and the guilt of the defendant,” the trial judge in this case did not comment on the evidence or the guilt of the defendant. Instead, the court inquired as to the direction defense counsel was going with a particular line of questioning and encouraged counsel to move forward. There is no indication in the record that the court expressed an opinion as to the sufficiency of the evidence or the guilt of the defendant.

Furthermore, in Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996), the Supreme Court expressly stated that “the rule which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proved, OCGA § 17-8-57, does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” (Citations and punctuation omitted.) In addition, it is well settled that “[r]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citations and punctuation omitted.) Johnson v. State, 234 Ga. App. 58, 59 (1) (506 SE2d 212) (1998). See also Cammon v. State, 269 Ga. 470, 475 (9) (500 SE2d 329) (1998); Waldrip v. State, 267 Ga. 739, 751 (20) (482 SE2d 299) (1997); Dickerson v. State, 241 Ga. App. 593, 595-596 (3) (526 SE2d 443) (1999).

Finally, at the close of the trial, the judge charged the jury as follows:

[B]y no ruling or comment which I may have made during the course of this trial have I intended to express any opinion whatsoever about the facts of the case, the credibility of any witness, or the guilt or innocence of this Defendant, as these are solely matters in your province to decide. My only interest in the case has been to see that it be tried fairly and in accordance with the law, and that you be enabled, insofar as humanly possible, to arrive at a verdict which speaks the truth and which does justice under the law.

Accordingly, we find no error. See Hunt v. State, 247 Ga. App. 464, 469 (5) (542 SE2d 591) (2000).

2. Next, in two related errors, Creed argues that the court erred in failing to follow the proper procedure for polling the jury and in denying his motion for a new trial, because the Troup County Board of Jury Commissioners failed to “compile, maintain, and revise a trial jury list of upright and intelligent citizens of the County to serve as trial jurors” as required by OCGA § 15-12-40 (a) (1). Specifically, Creed contends that juror Ruby Rosser was incompetent to serve because she did not meet the intelligence requirement of the statute. See Sullivan v. State, 225 Ga. 301, 304-305 (4) (168 SE2d 133) (1969), vacated on other grounds, 229 Ga. 731 (194 SE2d 410) (1972). We disagree and affirm.

(a) First, the transcript reveals that the trial court polled the jury after publishing the verdict. When the judge questioned Rosser, the following exchange took place:

THE COURT: Ms. Rosser, was that your verdict in the jury — Well, did you hear the verdict as I read it?
MS. ROSSER: Yes, sir. (Brief pause.)
THE COURT: Ms. Rosser, are you okay? (Brief pause.) Well, let me just let Ms. Rosser be there for a minute. I’ll go with other jurors if I could.

After polling the other members of the jury, who expressed their agreement with the published verdict, the trial judge returned to Rosser.

THE COURT: Ms. Rosser, I’m going to need to get you to respond one way or another to these questions. You’ve already indicated that you heard the verdict as I read it. Was that your verdict in the jury room? (Brief pause.)
MS. ROSSER: My daddy’s gone.

At that time, the court asked the jury to return to the jury room so that Rosser could compose herself. The defense moved for a mistrial, and the court denied the motion. When the jurors returned a few minutes later, the court proceeded as follows:

THE COURT: Let me ask if any of you that I polled earlier would now have a different response to any of the questions I asked about whether the verdict, as I read it, was your verdict, whether it was freely and voluntarily made, and whether it’s still your verdict. Would any juror have a different response than you responded earlier, and, if so, raise your hand.

None of the jurors raised their hand. Next, the court addressed Rosser.

THE COURT: And now, we are down to Ms. Rosser, and I need to ask you, Ms. Rosser. You indicated that you heard the verdict as I read it. Was that your verdict in the jury room?
MS. ROSSER: Yes, sir.
THE COURT: Is it still your verdict?
MS. ROSSER: Yes, sir.

Creed argues that the court erred by not rejecting the verdict and ordering the jury to deliberate further after Rosser’s initial response. He relies on Walker v. State, 159 Ga. App. 50 (282 SE2d 697) (1981), in which this Court held that when a juror announced that he was “not sure” that the published verdict was his verdict, the trial court should not receive the verdict, and the jury should retire for further deliberation.

We find no error. Unlike in Walker, supra, in the case sub judice, Rosser did not indicate that the verdict was not unanimous. Rather, she initially failed to respond to the court’s question at all. After given a chance to compose herself, Rosser expressly stated that the published verdict was her verdict in the jury room and that it was still her verdict. Furthermore, the court inquired of the jury if anyone had a different response to the questions asked when they were polled.

(b) We also find no error in the court’s denial of Creed’s motion for new trial based on his argument that Rosser was incompetent to serve on the jury. At the hearing on his motion for new trial, Creed called juror John Stone to testify about Rosser’s behavior during the trial and subsequent jury deliberations. Stone testified that in his opinion, Rosser was “kind of a radical person,” and that she seemed worried on occasion and mumbled things that he could not understand. He further testified that Rosser became emotional and cried on approximately three occasions during their jury service. In addition to describing her emotional behavior, however, Stone testified that he believed that Rosser understood the facts of the case.

The state submitted the affidavits of four jurors, including the foreperson, who swore that the verdict was unanimous, that Rosser appeared to be mentally competent and participated in the deliberations, and that she freely arrived at her verdict. The affidavits were offered pursuant to OCGA § 17-9-41, which provides that affidavits of jurors “may be taken to sustain but not to impeach their verdict.” After hearing the testimony and reviewing the affidavits, the trial court determined that Rosser had been competent to serve on the jury and denied the motion for new trial.

Based on the record, we conclude that the trial court did not err in denying the motion on this ground. In Sullivan, supra, 225 Ga. at 305 (4), the Supreme Court recognized that “[a]n intelligent person is one possessed of ordinary information and reasoning faculty. No particular degree of intelligence is required by this statute.” Creed has failed to demonstrate that Rosser was not an intelligent juror as contemplated by OCGA § 15-12-40 (a) (1).

3. Finally, Creed argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel. He raises a number of alleged deficiencies in his trial counsel’s performance. “To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies.” Hardegree v. State, 230 Ga. App. 111, 113 (4) (495 SE2d 347) (1998). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 193 (2) (506 SE2d 237) (1998). Bearing these principles in mind, we find no merit to Creed’s claims.

(a) Creed has provided a list of 78 objections he believes his trial counsel failed to raise at trial, most of which are objections to leading questions. However, Creed failed to offer any evidence or argument to demonstrate how he was prejudiced by his counsel not objecting in those instances. “Absent a showing of prejudice, inquiry into counsel’s alleged deficiency is unnecessary.” Hardegree, supra at 113 (4). See also Silcox v. State, 241 Ga. App. 845, 846 (c) (528 SE2d 271) (2000).

Furthermore, it is quite possible that Creed’s trial counsel elected not to object to the form of the state’s questions as a matter of strategy. “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Punctuation omitted.) Williams, supra. “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999). See also Aleman v. State, 227 Ga. App. 607, 612 (3) (489 SE2d 867) (1997). Thus, we reject Creed’s claim of ineffective assistance of counsel on this ground.

(b) Creed contends his counsel was deficient for not objecting to the court’s allegedly improper expression of its opinion of the case. We held in Division 1 that the court did not err in explaining its ruling on the state’s relevancy objection. Therefore, any objection to the court’s explanation would have been overruled, and Creed cannot show prejudice. See Hardegree, supra at 113 (4).

(c) Next, Creed contends that his counsel was deficient for “failing] to raise the issue of the state’s non-compliance with the discovery statute.” Creed does not elaborate on how the state failed to comply, nor does he explain how he was prejudiced by this alleged noncompliance. Therefore, this argument presents nothing for our review. Court of Appeals Rule 27 (c) (2).

(d) Creed argues that his counsel rendered ineffective assistance by failing to impeach the victim with prior inconsistent statements. This argument has no merit, because Creed has failed to produce any evidence of such alleged inconsistent statements. See Lewis v. State, 249 Ga. App. 812, 816 (5) (c) (549 SE2d 732) (2001).

(e) Finally, Creed contends that his counsel failed to communicate with him concerning plea negotiations. Both of Creed’s lawyers testified at the hearing on his motion for new trial that they discussed all of the state’s plea offers with Creed and that he was not interested in accepting them. Creed failed to rebut this testimony. Accordingly, we find no error.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Decided April 17, 2002

Reconsideration denied May 20, 2002.

Kenneth L. Gordon, Franklin H. Thornton, for appellant.

Peter J. Skandalakis, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.


text:
    A02A0814.
    CODE v. THE STATE.
    (565 SE2d 477)
   Mikell, Judge.

Joseph Sonny Code a/k/a Robert Jones appeals his convictions of aggravated battery, theft by shoplifting, and giving a false name. Code contends that the evidence was insufficient to support his convictions, that his trial counsel was ineffective, and that the trial court erred by failing to give his requested charges on self-defense and on battery. Finding no error, we affirm.

1. When reviewing a criminal conviction, we view the evidence in the light most favorable to the verdict and do not weigh the evidence nor judge the witnesses’ credibility. The question is whether under the evidence presented a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

So viewed, the evidence shows that on January 14, 2000, a loss prevention employee of K-mart, David Messer, was returning from lunch and noticed that the rear door to the garden center was “busted open.” On that day, the garden center was closed for remodeling, and the doors had been bolted shut. Messer started investigating and saw Code loading merchandise into a wheelbarrow. After filling the vehicle with four VCRs and 92 DVDs, Code picked up two VCRs and proceeded outside the center onto the sidewalk, where he encountered Messer.

Messer identified himself as a loss control employee and asked Code to produce a receipt for the merchandise. According to Messer, Code claimed he found the VCRs on the sidewalk. Messer replied that he had observed Code steal them. At that moment, a car pulled up behind Messer, and Code made a beeline for it. Messer grabbed Code’s arm and told him to stop. Code, however, dropped the VCRs and hit Messer across the face, knocking him unconscious and breaking his jaw in two places. Messer underwent four corrective surgeries, and his jaw was wired shut for eight weeks. He testified that his mouth and jaw were rendered useless for three months, and he continues to suffer neck and jaw problems.

Pursuant to OCGA § 16-5-24 (a), “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” In this case, as in Ellis v. State, evidence that Code struck Messer in the face with enough force that Messer suffered a broken jaw is sufficient to support Code’s conviction of aggravated battery. In addition, Messer’s testimony, coupled with the testimony of an investigating officer that the merchandise Code took was valued at $2,862.37, amply supports Code’s conviction of felony theft by shoplifting under OCGA § 16-8-14. Finally, Code’s brief fails to challenge his conviction of giving a false name; his appeal of that conviction is therefore abandoned under Court of Appeals Rule 27 (c) (2).

2. Code also enumerates as error the denial of his motion for new trial on the ground of ineffective assistance of counsel. However, the transcript of the hearing on the motion was specifically omitted from the record on appeal. Accordingly, we are unable to address this enumeration because we have no transcript to review. “Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.”

3. In his third enumerated error, Code contends that the trial court erred in refusing to give his written request to charge on the offense of misdemeanor battery, OCGA § 16-5-23.1, as a lesser included offense of aggravated battery. OCGA § 16-5-23.1 (a) provides that “[a] person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” “[Vjisible bodily harm” is defined in subsection (b) as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to,. . . substantially swollen lips or other facial or body parts.” Instead of charging on this offense, the trial court charged the lesser included offense of simple battery. After the court charged the jury, defense counsel objected, contending that the testimony of the investigating officer that she observed swelling on Messer’s face after the incident justified charging the jury on OCGA § 16-5-23.1.

“As a general rule, a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” However, a trial court does not err in refusing to charge a lesser included offense when the evidence does not reasonably raise the issue that the defendant may be guilty only of the lesser crime. Messer testified without contradiction that after the attack, his mouth and jaw were rendered useless for three months, during which time he survived by ingesting liquid nutrition through a straw inserted between a gap in his teeth. Mes-ser lost 20 pounds during that period. The evidence would not reasonably allow a finding that Code was guilty of the lesser included offense of battery, OCGA § 16-5-23.1, as opposed to aggravated battery. Accordingly, the trial court did not err in refusing to give the requested charge.

4. Finally, Code argues that the trial court erred in refusing to give his written request to charge on the affirmative defense of justification. An affirmative defense is one in which the defendant admits the act but seeks to justify, excuse, or mitigate it. The defendant must admit the crime before he can raise the defense. In addition, even if justification is a defendant’s sole defense, it is not error to refuse the charge if there is no evidence to support it. In this case, Code offered no evidence at trial. He made two statements to police, one shortly after he was apprehended and another after he was advised of his Miranda rights. Contrary to Code’s argument, these statements provide no evidence of justification for the aggravated battery.

In his pre-arrest statement, Code claimed that “some guy” had grabbed him at K-mart and would not let him leave. Code then punched the man. Code did not admit to taking any items from the store. In his custodial statement, Code claimed that as he exited Kmart, he saw a wheelbarrow full of merchandise sitting on the sidewalk. As he was trying to return the items to the store, a “white guy” with “an attitude” approached him. Code claimed that “he and the white guy got into a verbal argument” and Code struck the male in the face with his fist. Code then got into his car and left. Later, Code stated that the “white guy had pushed him in the chest.”

Code’s statements did not warrant a jury instruction on justification as a defense to the aggravated battery charge. “In order to be entitled to a charge on self-defense, appellant must show that he reasonably believed that the imminent use of unlawful force was to be perpetrated against him.” A loss prevention employee’s attempted detention of a shoplifter would not constitute “imminent use of unlawful force.” Accordingly, since Code did not state that “he reasonably believed that the imminent use of unlawful force was to be perpetrated upon him” when he struck the victim, the trial court correctly ruled that it was not required to charge on justification.

Decided April 3, 2002

Reconsideration dismissed May 20, 2002.

Arleen Evans, for appellant.

Joseph Code, pro se.

William T. McBroom III, District Attorney, Robert H. English, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

        Davis v. State, 244 Ga. App. 708, 709 (1) (536 SE2d 596) (2000).

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

       245 Ga. App. 807 (539 SE2d 184) (2000).

       (Citation and punctuation omitted.) Early v. State, 218 Ga. App. 869, 871 (2) (463 SE2d 706) (1995).

        Taylor v. State, 232 Ga. App. 825, 826 (4) (502 SE2d 540) (1998).

        Plunkett v. State, 244 Ga. App. 504, 505 (535 SE2d 852) (2000).

       See generally McKissic v. State, 201 Ga. App. 525 (411 SE2d 516) (1991).

        Brown v. State, 267 Ga. 350, 351 (478 SE2d 129) (1996); see OCGA § 16-1-3 (1).

        Hightower v. State, 224 Ga. App. 703, 705 (2) (481 SE2d 867) (1997).

        Alexis v. State, 273 Ga. 423, 426 (4) (541 SE2d 636) (2001); see also Porter v. State, 272 Ga. 533, 534 (3) (531 SE2d 97) (2000).

        Alexis, supra; OCGA § 16-3-21 (a).

       See, e.g., Loden v. State, 199 Ga. App. 683, 687 (1) (406 SE2d 103) (1991); Hoover v. State, 198 Ga. App. 481, 482 (4) (402 SE2d 92) (1991).

        Alexis, supra; Yaeger v. State, 274 Ga. 216, 218 (2) (a) (552 SE2d 809) (2001).


author: Eldridge, Judge.

text:
    A02A1054.
    PATRICK v. FLOYD MEDICAL CENTER et al.
    (565 SE2d 491)
   Eldridge, Judge.

The bylaws of appellee-defendant Floyd Medical Center (“Hospital”) conferred authority to govern the Hospital upon appellee-defendant Hospital Authority of Floyd County (“Hospital Authority”). Likewise under the bylaws, the Hospital Authority delegated its governance responsibility to appellee-defendant Floyd Healthcare Management, Inc. (“Floyd Healthcare”).

The Hospital’s bylaws further established procedures by which any doctor might apply for staff privileges at the Hospital. These required applicant doctors to make application in writing; to provide necessary supporting information; and to participate in a peer review process triggered by the submission of the doctor’s application. Peer review required that applicants be appraised by the department in which staff privileges were sought; that such appraisals be reported to the Hospital’s Executive Committee; and that the Executive Committee make a further recommendation to Floyd Healthcare in its capacity as the Hospital’s governing body. In the event of a recommendation to deny staff privileges, Floyd Healthcare’s management agreement with the Hospital required that its Chief Executive Officer give the applicant doctor notice thereof together with notice of the right to a due process hearing before a panel of five physicians as to such proposed action. Finally, the Hospital’s bylaws afforded applicants a right of appeal from an adverse decision of the panel to Floyd Healthcare’s board of directors.

In May 1995, appellant-plaintiff Ronald D. Patrick, M.D., submitted his written application to practice general surgery at the Hospital. Under Hospital bylaws, Dr. Patrick was granted temporary staff privileges subject to the peer review process. Dr. Patrick submitted to a 100 percent review of his medical charts and case files over a period of approximately six months by the Surgery Quality Assurance Committee (“SQAC”) of the Hospital’s Department of Surgery.

On May 15, 1996, after conducting an internal chart review of the records of 101 of Dr. Patrick’s patients and considering the findings as to seven of the files made by an independent peer review firm assisted by a board-certified surgeon, the Greeley Company, the SQAC voted to recommend that Dr. Patrick’s application for staff privileges be denied. The SQAC forwarded its recommendation to the Department of Surgery on May 21, 1996. After voting to accept the SQAC’s recommendation, the Department of Surgery transmitted its recommendation to such effect to the Executive Committee. The Executive Committee adopted the recommendation of the Department of Surgery. On July 11, 1996, duly given notice of the adverse action proposed by the Executive Committee, Dr. Patrick requested a due process hearing thereon.' Following the hearing, the Hearing Panel concurred in the findings of the Executive Committee and further recommended that Dr. Patrick’s application for staff privileges be denied. On this, Dr. Patrick sought appellate review of the Hearing Panel’s decision before Floyd Healthcare’s board of directors.

Upon the board’s denial of his application for staff membership, Dr. Patrick filed suit in the United States District Court for the Northern District of Georgia. Finding Dr. Patrick’s complaint failed to state a cause of action for relief under 42 USC § 1983, the district court granted summary judgment to the Hospital, declined to exercise its supplemental jurisdiction over Dr. Patrick’s state action claims, and dismissed them without prejudice. Thereafter, Dr. Patrick sued the Hospital in the Superior Court of Floyd County seeking damages, punitive damages, and bad faith litigation costs under OCGA § 13-6-11, alleging violations of OCGA § 31-7-7, the Hospital’s bylaws, and the Health Care Quality Improvement Act (the “Act”), 42 USC § 11101 et seq. (Count 1); tortious interference with business relationships (Count 2); defamation (Count 3); violations of the Uniform Deceptive Trade Practices Act (Count 4); and intentional infliction of emotional distress (Count 5). This appeal follows the superior court’s grant of partial summary judgment for the Hospital as to Counts 1 and 2 upon the finding that the Hospital was entitled to immunity under the Act and Georgia law. See 42 USC § 11111 (a) (1); OCGA § 31-7-132.

Dr. Patrick appeals, contending that the grant of summary judgment was error: (1) as based upon the ten-volume transcript of the proceedings before the Hearing Panel, a transcript filed “[w]ithout affidavit or other authentication” and containing inadmissible evidence; (2) as shielding the Hospital from the equitable claims of Count 1 of his complaint under the Act, a statute limited to providing immunity from monetary damages; (3) as predicated upon the finding that the peer review process in issue met the prerequisites for immunity under the Act and OCGA §§ 31-7-132 and 31-7-141. Finding Dr. Patrick’s claims of error to be without merit, we affirm. Held4.

1. A certified copy of a court transcript is one of the items a trial court is authorized to examine on motion for summary judgment to determine if there exists a genuine issue of material fact to be tried. Abalene Pest Control Svc. v. Orkin Exterminating Co., 196 Ga. App. 463, 465 (3) (395 SE2d 867) (1990). There is no reason why it should be otherwise as to other legal proceedings where, as here, there is a certified legal transcript.

While evidence on motion for summary judgment may typically be by affidavit, that is not the exclusive method for presenting sworn testimony. Nor is the accessibility of a witness to testify ... a concern on motion for summary judgment where by statute none of the evidence needs to be established by live testimony. See OCGA § 9-11-56 (c), (e), (f).

(Citation omitted.) Id. at 466 (3). Moreover, even should such transcript include inadmissible evidence as Dr. Patrick argues, the presumption of regularity requires that we assume trial court rulings to be supported by competent evidence of record, absent evidence to the contrary. Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991). Dr. Patrick points to no consideration of such evidence. We find none. Quite to the contrary, by its order granting the Hospital partial summary judgment, the superior court noted the applicability of the rules of evidence on summary judgment, see Wheat v. Montgomery, 130 Ga. App. 202, 204 (5) (202 SE2d 664) (1973) (rules as to admissibility of evidence applicable on motion for summary judgment), expressly stating that it did not consider certain of the affidavits submitted in opposition to summary judgment insofar as these contained hearsay and conclusory statements indicating bias motivating the peer review process. Under these circumstances, we conclude that this claim of error is without merit.

2. Dr. Patrick correctly argues that the immunity afforded by the Act is limited to monetary damages and does not extend to equitable relief, Chalal v. Northwest Med. Center, 147 FSupp.2d 1160, 1184 (VIII) (N.D. Ala. 2000); Imperial v. Suburban Hosp. Assn., 37 F3d 1026, 1031 (4th Cir. 1994); Manion v. Evans, 986 F2d 1036, 1040-1041 (6th Cir. 1993); Decker v. IHC Hosps., 982 F2d 433, 436 (10th Cir. 1992), cert, denied, IHC Hosps. v. Decker, 509 U. S. 924 (113 SC 3041, 125 LE2d 727) (1993). However, although Count 1 of Dr. Patrick’s complaint, in effect, seeks injunctive relief in the nature of reinstatement of staff privileges, nothing of record shows that he moved the superior court for an injunction or otherwise pursued injunctive relief as surviving his claim for monetary damages. Under these circumstances, to the extent that Count 1 sought equitable relief in the nature of an injunction requiring the reinstatement of Dr. Patrick’s staff privileges, it was abandoned. Id.; Imperial v. Suburban Hosp. Assn., supra at 1031. While the superior court granted the Hospital summary judgment as to Count 1 of Dr. Patrick’s complaint upon immunity afforded by the Act alone, “[a] grant of summary judgment must be affirmed if it is right for any reason.” (Citation and punctuation omitted.) Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (1) (543 SE2d 760) (2000). Accordingly, we conclude this claim of error to be without merit.

3. By his third and fourth enumerations of error, Dr. Patrick contends that the superior court erred in granting the Hospital summary judgment in that jury questions exist as to the Hospital’s entitlement to immunity in the peer review process under 42 USC § 11112 (a) (1) through (4) of the Act and OCGA §§ 31-7-132 and 31-7-141. We disagree.

(a) Hospital immunity under the Act. To ensure meaningful compliance with the professional review system established by the Act, “Congress found it essential to provide qualified immunity from damages actions for hospitals, doctors, and others who participate [therein]. See 42 USC § 11101; H.R. Rep. 903, at 6385.” Imperial v. Suburban Hosp. Assn., supra at 1028 (I). As relevant, entitlement to immunity under the Act is conditioned as follows:

For purposes of the protection set forth in [42 USC § 11111 (a)], a professional review action must be taken — (1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 USC § 11112 (a).

On appeal from the grant of summary judgment, our charge is to ascertain whether the trial court properly determined that the movant established the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. OCGA § 9-11-56 (c); Davenport v. Northeast Ga. Med. Center, 247 Ga. App. 179, 180 (542 SE2d 525) (2000). Because there is a rebuttable presumption of immunity under the Act, the “burden of proof on summary judgment [shifts] to the physician to show that the professional review action failed to meet the due process and fairness requirements set forth in 42 USC § 11112 (a). Bryan [v. James E. Holmes Regional Med. Center, 33 F3d 1318,1332, n. 25 (11th Cir. 1994)].” (Emphasis in original.) Chalal v. Northwest Med. Center, supra at 1171-1172 (II).

Specifically as to the [Act], we determine whether “a reasonable jury, viewing the facts in the light best for [Dr. Patrick], might conclude that he has shown, by a preponderance of the evidence, that the [H]ospital’s actions are outside the scope of § 11112 (a).” Austin v. McNamara, 979 F2d 728, 734 (9th Cir. 1992); Bryan v. James E. Holmes Regional Med. Center, [supra at 1332-1333 (III)].

(Punctuation omitted.) Davenport v. Northeast Ga. Med. Center, supra; Chalal v. Northwest Med. Center, supra at 1171-1172; South Fulton Med. Center v. Jaya Prakash, 237 Ga. App. 396, 397 (514 SE2d 233) (1999).

(i) First, Dr. Patrick argues the Hospital’s professional review action was not taken in the reasonable belief that it was in furtherance of quality health care. We disagree. A professional review action is taken in the reasonable belief that it is in furtherance of quality health care if on the evidence then before them, the reviewers “would reasonably have concluded that their action would restrict incompetent behavior or would protect patients.” (Citations and punctuation omitted.) Bryan v. James E. Holmes Regional Med. Center, supra at 1335 (III) (C) (1). “The Act does not require that the professional review result in an actual improvement, of the quality of health care. Our focus is on the reasonableness of the peer reviewers’ belief that they were furthering [the] quality [of] health care.” (Citations and punctuation omitted.) Davenport v. Northeast Ga. Med. Center, supra at 185 (1) (a).

Pertinently, the record shows that the SQAC unanimously recommended that Dr. Patrick be denied staff privileges upon chart reviews of patient case files performed internally and externally by the Greeley Company, finding that Dr. Patrick had exhibited “clearly incorrect” clinical judgment in two cases, one ending in the death of a patient. As to the death case, the Greeley Company found, in particular, that the preoperative and intraoperative judgment exhibited by Dr. Patrick “[was] a major deviation from the accepted standard of practice for this condition.” The recommendation of the SQAC was affirmed unanimously, in turn, by the Department of Surgery and the Executive Committee. Thereafter, the Hearing Panel convened at Dr. Patrick’s request unanimously affirmed the recommendation of the Executive Committee, finding that it “[was] unable to be assured that any patient treated by Dr. Patrick in [the Hospital] will be given a high quality of medical care.” Finally, Floyd Healthcare’s board of directors was unanimous in denying Dr. Patrick’s appeal from the Hearing Panel’s decision.

While Dr. Patrick variously argues, as he did below, that the adverse action taken against him was motivated by bias rather than concern for patient care, he introduced no competent evidence that such bias was determinative of the peer review process. In any event, claims of bias are irrelevant to the reasonableness standards of 42 USC § 11112 (a) of the Act. “[W]e [have] adopt[ed] an objective standard of reasonableness in this context.” Davenport v. Northeast Ga. Med. Center, supra at 186 (2); Bryan v. James E. Holmes Regional Med. Center, supra at 1335; South Fulton Med. Center v. Jaya Prakash, supra at 399 (1). Accordingly, we conclude that Dr. Patrick failed to .provide sufficient evidence to permit a jury to find by a preponderance of the evidence that he had overcome the presumption that the Hospital’s action on his application for staff membership and privileges was based on a reasonable belief that it would further quality care for patients.

(ii) Second, the record shows that Floyd Healthcare’s board of directors took its final action on Dr. Patrick’s appeal from the decision of the Hearing Panel “after a reasonable effort to obtain the facts of the matter.” 42 USC § 11112 (a) (2). In particular, the board acted to deny Dr. Patrick’s application for medical staff membership upon the oral and written presentations of the parties to the board, as well as the ten-volume transcript and record of proceedings before the Hearing Panel. As indicated in Division 3 (a) (i) above, the board took its action denying Dr. Patrick’s application for staff membership upon a substantial record at four levels, inclusive of review and analysis provided by an external peer review firm. Although Dr. Patrick argues that he was subjected to inordinate delay in the peer review process, he introduced no evidence showing that the Hospital’s efforts to obtain the facts before denying his application for staff membership were unreasonable. To the contrary, the superior court aptly described the extensive record as reflecting a “careful look at the [care] rendered [Dr. Patrick’s] patients by the peer review panel, and by an outside professional group, as well as several days of testimony on behalf of, and contrary to Dr. Patrick’s position.”

(iii) Third, Dr. Patrick’s application for staff membership was denied only “after adequate notice and hearing procedures [were] afforded to [him] or after such other procedures as [were] fair to [him] under the circumstances.” 42 USC § 11112 (a) (3). Section 11112 (b) sets forth the “safe harbor” conditions which health care entities must satisfy in this regard. Section 11112 (b) is as follows:

A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a) (3) [of this section] with respect to a physician if the following conditions are met (or are waived voluntarily by the physician):
(1) Notice of proposed action. The physician has been given notice stating — (A) (i) that a professional review action has been proposed to be taken against the physician, (ii) reasons for the proposed action, (B) (i) that the physician has the right to request a hearing on the proposed action, (ii) any time limit (of not less than 30 days) within which to request such a hearing, and (C) a summary of the rights in the hearing under paragraph (3).
(2) Notice of hearing. If a hearing is requested on a timely basis under paragraph (1) (B), the physician involved must be given notice stating — (A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and (B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.
(3) Conduct of hearing and notice. If a hearing is requested on a timely basis under paragraph (1) (b) — (A) subject to subparagraph (B), the hearing shall be held (as determined by the health care entity) — (i) before an arbitrator mutually acceptable to the physician and the health care entity, (ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved, or (iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved; (B) the right to the hearing may be forfeited if the physician fails, without good cause, to appear; (C) in the hearing the physician has the right — (i) to representation by an attorney or other person of the physician’s choice, (ii) to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof, (iii) to call, examine, and cross-examine witnesses, (iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and (v) to submit a written statement at the close of the hearing; and (D) upon completion of the hearing, the physician involved has the right — (i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and (ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.

Chalal v. Northwest Med. Center, supra at 1173-1174.

While Dr. Patrick asserts that the Hospital failed to follow applicable notice procedures, he does not support this aspect of the instant claim of error by reference to the record, citation of authority, or argument, thus abandoning the same. See Court of Appeals Rule 27 (c). Otherwise, Dr. Patrick challenges the fairness of the Hearing Panel for its refusal to hear his claims of bias and as composed of three doctors as in “economic competition with him or subject to influence by such competitors.”

Physicians subject to peer review under the Act undeniably are afforded the right to a hearing before a panel of individuals not in direct economic competition with them, 42 USC § 11112 (b) (3) (A) (iii). However, inasmuch as Dr. Patrick stops short of the claim that the composition of his Hearing Panel was improper as including individuals in “direct” economic competition with him, he fails to state a claim of error in this regard. Even were the contrary true, Dr. Patrick concedes that the panel members complained of, although practicing doctors, were not surgeons. Consequently, the absence of direct economic competition is demonstrated on the face of the record, foreclosing possible error in any event. We interpret statutory language for its plain meaning so long as doing so does not result in the absurd or impractical. McDaniel v. Elliott, 269 Ga. 262, 264 (1) (497 SE2d 786) (1998). In light of the foregoing and our disposition of Division 3 (a) (i) as to Dr. Patrick’s claims of bias, we conclude that no reasonable jury could conclude that the Hospital had failed to provide Dr. Patrick adequate procedures.

(iv) Fourth, there is no issue that the board denied Dr. Patrick’s application for staff membership “in the reasonable belief that the action was warranted by the facts known.” 42 USC § 11112 (a) (4). The record certainly shows that the board had a factual basis for its action. Dr. Patrick does not dispute that the incidents upon which he was denied staff membership occurred; at the close of his testimony before the Hearing Panel, he indicated that he had no problem with the hearing he had been given, having earlier conceded that a doctor’s breach of the standard of care directly resulting in a patient’s death could constitute a basis upon which a hospital might deny staff membership and privileges to an applicant doctor.

The [Act] grants broad discretion to hospitals with regard to staff privileges decisions, and our role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding the [grant,] renewal or termination of medical staff privileges. Bryan [v. James E. Holmes Regional Med. Center, supra at 1337 (III) (C) (4)].

(Punctuation omitted.) Davenport v. Northeast Ga. Med. Center, supra at 186 (1) (c). Again we find that no reasonable jury could conclude that Dr. Patrick, by a preponderance of the evidence, established that Floyd Healthcare’s board of directors failed to act in the “reasonable belief that the [denial of staff privileges to Dr. Patrick] was warranted by the facts known after . . . reasonable effort to obtain [the] facts” under § 11112 (a) (4). 42 USC § 11112 (a) (4).

(b) Hospital immunity under OCGA §§ 31-7-132 and 31-7-141. Here we must address the question of preemption, noting that the Act and OCGA § 31-7-132 (a) are in conflict as to the relevance of evidence of bias in the peer review process. While evidence of bias is irrelevant to the question of reasonableness under 42 USC § 11112 (a) of the Act, Austin v. McNamara, supra; Bryan v. James E. Holmes Regional Med. Center, supra at 1335; South Fulton Med. Center v. Jaya Prakash, supra at 399 (1); Davenport v. Northeast Ga. Med. Center, supra at 186 (2), the reverse obtains under OCGA § 31-7-132 in that it provides immunity from civil liability “unless [the health care provider or employee thereof] was motivated by malice toward any person affected by such activity.” (Emphasis supplied.) OCGA § 31-7-132 (a).

The Act, without exception, provides that its limitation on damages arising out of professional review actions shall apply to all professional review bodies meeting the reasonableness standards of 42 USC § 11112 (a), inclusive of state professional review actions commenced on or after October 14, 1989. 42 USC § 11111 (a), (c). In light of this, we conclude that to the extent that peer reviewer immunity under OCGA § 31-7-132 (a) is conditioned upon the absence of motivating malice, it is preempted by the Act. See Lanier Collection Agency &c. v. Mackey, 256 Ga. 499, 501 (3) (350 SE2d 439) (1986) (Georgia statute preempted by federal law unless the federal law provides an exception). Although the superior court granted summary judgment to the Hospital upon the finding that Georgia law in this regard to be in accord with federal law, we nonetheless affirm. See Costrini v. Hansen Architects, supra (summary judgment right for any reason must be affirmed). In light of the foregoing, the grant of summary judgment to the Hospital under OCGA § 31-7-132 was not error.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Decided April 30, 2002

Reconsideration denied May 20,2002

Robert H. Hishon, James G. Killough, for appellant.

Smith, Shaw & Maddox, David F. Guldenschuh, for appellees.

       In general, OCGA § 31-7-7 establishes time constraints and procedures to ensure timely, nondiscriminatory action upon doctor applications for staff privileges by public hospitals.

       Congress passed the Act in 1986 for the purpose of improving the quality of medical care
      by restricting the ability of physicians who have been found to be incompetent from repeating this malpractice by moving from state to state without discovery of such finding. See 42 USC § 11101; H.R. Rep. No. 903, 99th Cong. 2d Sess. (1986), reprinted in 1986 USCCAN 6384-6391. Toward this end, the Act establishes a national reporting system “to follow bad doctors from place to place,” id. at 6385, and provides immunity from damages for persons participating in professional review activities. Under the national reporting system, insurance companies are required to report medical malpractice payments to the Secretary of Health and Human Services, 42 USC § 11131; boards of medical examiners are required to report sanctions imposed against physicians, 42 USC § 11132; and health care entities are required to report adverse professional review information, 42 USC § 11133. The Act also imposes a duty on hospitals to obtain information reported about any physician who applies for hospital privileges or employment, and to update such information every two years after hospital privileges are granted. 42 USC § 11135.

        Imperial v. Suburban Hosp. Assn., supra at 1028 (I); see also South Fulton Med. Center v. Jaya Prakash, 237 Ga. App. 396, 397 (514 SE2d 233) (1999), citing Bryan v. James E. Holmes Regional Med. Center, 33 F3d 1318, 1322 (11th Cir. 1994) (Act designed to prompt “frank” exchange of information between professionals in peer review proceedings by providing immunity from reprisal by civil lawsuit).

       Subject to meeting all standards set out by 42 USC § 11112 (a) of the Act, § 11111 (a) provides immunity from liability in damages to individuals and entities taking part in professional review actions.

       Nonetheless, we find no issue as to the adequacy of notice. Dr. Patrick was given timely written notice of his right to a due process hearing before the Hearing Panel upon the Executive Committee’s action recommending that he be denied staff privileges. The Hearing Panel was thereafter convened at his request. At the hearing, he received full rights of representation, cross-examination, and confrontation. Further given notice of his right to do so, Dr. Patrick submitted a written brief to Floyd Healthcare’s board of directors, through counsel, for its consideration upon his appeal from the Hearing Panel’s decision. Moreover, “the [Act] neither requires that the notice set forth reasons for the proposed action in a formal and precise manner nor mandates that the reasons be limited in number and scope or always he restated in the same terms.” Davenport v. Northeast Ga. Med. Center, supra at 180.


author: Andrews, Presiding Judge.

text:
    A02A0176.
    CONTINENTAL INSURANCE COMPANY v. EQUITY RESIDENTIAL PROPERTIES TRUST.
    (565 SE2d 603)
   Andrews, Presiding Judge.

Equity Residential Properties Trust (Equity) sued its insurer, the Continental Insurance Company (Continental), claiming Continental breached the terms of the insurance policy issued to Equity and failed to pay amounts due under the policy. Relying on an arbitration agreement in the policy, Continental moved to compel arbitration of the dispute and for a stay of the suit. The Fulton County Superior Court denied the motion finding that OCGA § 9-9-2 (c) (3) of the Georgia Arbitration Code invalidated the arbitration agreement in the insurance policy. Continental brought this interlocutory appeal.

We conclude that, despite a choice of law provision in the policy applying Illinois law, the trial court correctly applied Georgia law set forth in OCGA § 9-9-2 (c) (3) which prohibits arbitration of this insurance dispute. The trial court also correctly concluded that the McCar-ran-Ferguson Act (MFA) (15 USC § 1011 et seq.) barred the Federal Arbitration Act (FAA) (9 USC § 1 et seq.) from preempting the anti-arbitration provisions of § 9-9-2 (c) (3). Accordingly, we affirm.

The insurance policy issued by Continental to Equity contained an agreement to arbitrate all disputes arising out of or related to the policy and a clause indicating that the policy is governed by the laws of the state of Illinois, the principal address of Equity. This choice of law, however, does not control the procedural law applicable in the forum state. The rule of lex fori dictates that Georgia courts will apply Georgia law governing procedural or remedial matters. Simmons Co. v. Deutsche Financial Svcs. Corp., 243 Ga. App. 85, 87 (532 SE2d 436) (2000). The Georgia Arbitration Code (GAC) (OCGA § 9-9-1 et seq.) is a body of procedural law setting forth the public policy of this State with respect to the enforcement of agreements to arbitrate. Weyant v. MacIntyre, 211 Ga. App. 281, 282-283 (438 SE2d 640) (1993). As then-Judge Cardozo explained in describing the New York arbitration laws: “Arbitration is a form of procedure whereby differences may be settled. It is not a definition of the rights and wrongs out of which differences grow.” Berkovitz v. Arbib & Houlberg, Inc., 230 N.Y. 261, 270 (1) (130 NE 288) (1921). Moreover, as set forth below, OCGA § 9-9-2 (c) (3) establishes the public policy of Georgia that insureds shall not be compelled by the terms of an insurance contract written by the insurer to give up their common law right to access to the courts to resolve disputes arising under the contract. See Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 367-368 (460 SE2d 880) (1995); Weyant, 211 Ga. App. at 282. Georgia courts will not enforce a contractual provision choosing the law of another state where to do so would contravene the public policy of Georgia. Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (238 SE2d 368) (1977). As the procedural law and public policy of Georgia, the provisions of the GAC apply in this case.

The GAC provides in OCGA § 9-9-2 (c) (3) that:

(c) This part shall apply to all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate disputes can be enforced, except the following, to which this part shall not apply ... (3) Any contract of insurance, as defined in paragraph (1) of Code Section 33-1-2; provided, however, that nothing in this paragraph shall impair or prohibit the enforcement of or in any way invalidate an arbitration clause or provision in a contract between insurance companies.

This provision invalidates arbitration agreements in insurance contracts as defined in OCGA § 33-1-2, with the exception that it does not prohibit enforcement of arbitration agreements in contracts between insurance companies. Since the arbitration agreement between Continental and Equity is contained in an insurance contract as contemplated by OCGA § 9-9-2 (c) (3), and is not part of a contract between insurance companies, it is unenforceable under the provisions of OCGA § 9-9-2 (c) (3).

Nevertheless, because it is undisputed that the insurance contract containing the arbitration agreement involves interstate commerce, the effect of the FAA on the agreement must be considered. “Under the FAA, written agreements to arbitrate contained in contracts involving interstate commerce are valid and enforceable in federal and state courts. Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (115 SC 834, 130 LE2d 753) (1995).” Simmons Co., 243 Ga. App. at 86. Accordingly, “[t]he FAA preempts state laws that undermine enforcement of private arbitration agreements.” Id. at 88 (1). States may invalidate arbitration agreements subject to the FAA under contract defenses that apply generally to all contracts including those involving arbitration, but they may not invalidate those agreements under laws applicable only to arbitration provisions. Doctor’s Assoc. v. Casarotto, 517 U. S. 681, 686-687 (116 SC 1652, 134 LE2d 902) (1996). In other words, the FAA prohibits states from singling out arbitration agreements for suspect status, instead requiring that such agreements be placed “upon the same footing as other contracts.” (Citation and punctuation omitted.) Id. at 687 (II). Because the GAC is a state law that singles out and invalidates the arbitration agreement between Continental and Equity, the FAA would ordinarily preempt it and require enforcement of the agreement.

In this case, however, the MFA bars the FAA from preempting the Georgia law. Under the MFA, “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance.” 15 USC § 1012 (b). Since the FAA does not specifically relate to the business of insurance, the MFA creates an exception to the usual rule of FAA preemption of state statutes, but only for statutes enacted “for the purpose of regulating the business of insurance.” U S. Dept, of Treasury v. Fabe, 508 U. S. 491, 499-508 (113 SC 2202,124 LE2d 449) (1993); Bankers Ins. Co. v. Taylor, 267 Ga. 134, 135 (475 SE2d 619) (1996). Accordingly, the dispositive issue is whether OCGA § 9-9-2 (c) (3) of the GAC is a law enacted for the purpose of regulating the business of insurance.

In Securities & Exchange Comm. v. Nat. Securities, 393 U. S. 453, 460 (89 SC 564, 21 LE2d 668) (1969), the Supreme Court held that state statutes aimed at protecting or regulating the relationship between the insured and the insurer, whether directly or indirectly, are laws regulating the business of insurance within the meaning of the MFA. Furthermore, laws enacted for the purpose of regulating the business of insurance necessarily encompass more than just the “business of insurance,” but consist of laws that possess the “end, intention, or aim” of adjusting, managing, or controlling the business of insurance. Fabe, 508 U. S. at 505. Finally, the Supreme Court has discussed three characteristics relevant to determining whether a particular practice is part of the “business of insurance” within the meaning of the MFA:

first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. [But] [n]one of these criteria is necessarily determinative in itself. . . .

Decided May 20, 2002

Drew, Eckl & Farnham, Stevan A. Miller, Richard I. Metzger, Pursley, Howell, Lowery & Meeks, Jo L. Meeks, Eric N. Van De Water, Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Weener, Mason & Nathan, William P. Mason, Brian J. Harris, for appellant.

Holland & Knight, Jeffrey Y. Lewis, Fred R. Slotkin, Jr., for appellee.

(Emphasis omitted.) Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129 (II) (102 SC 3002, 73 LE2d 647) (1982).

Applying these standards, we conclude that OCGA § 9-9-2 (c) (3) of the GAC is a law enacted for the purpose of regulating the business of insurance within the meaning of the MFA. By invalidating arbitration agreements in insurance contracts, this section is aimed, if not directly then indirectly, at regulating the relationship between the insured and the insurer in disputed insurance claims. In so doing, it is limited to the insurance industry, integral to the policy relationship between the insured and the insurer, and has the effect of transferring or spreading risk by preserving the possibility of a jury verdict (as opposed to compelled arbitration) to resolve the claim. In this context, the anti-arbitration provision of § 9-9-2 (c) (3) is a law that possesses the “end, intention, or aim” of adjusting, managing or controlling the business of insurance. See Standard Security Life Ins. Co. &c. v. West, 267 F3d 821 (8th Cir. 2001). As a law enacted for the purpose of regulating the business of insurance, § 9-9-2 (c) (3) is exempted by the MFA from the preemptive effect of the FAA.

Because OCGA § 9-9-2 (c) (3) invalidated the arbitration agreement in the insurance policy, the trial court did not err by denying Continental’s motion seeking to compel arbitration and stay the suit.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       Although portions of the FAA have been classified as “substantive” rather than “procedural” based on congressional intent to exercise control over arbitration in interstate commerce under the Commerce Clause (Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24 (103 SC 927, 74 LE2d 765) (1983); Southland Corp. v. Keating, 465 U. S. 1, 12-15 (104 SC 852, 79 LE2d 1) (1984)), that does not alter the procedural character of the GAC.