author: Beasley, Presiding Judge. Birdsong, Presiding Judge,

text:
    A92A1930.
    VANDIVER v. THE STATE.
    (429 SE2d 318)
   Beasley, Presiding Judge.

Vandiver was convicted of driving under the influence of alcohol (OCGA § 40-6-391), driving with a suspended license (OCGA § 40-5-121), and driving with an open container (OCGA § 40-6-253). He appeals.

Deputy Sheriff Daniel testified that on December 7, 1991, while on duty in a patrol car, he encountered two vehicles parked on the side of the road at an intersection. One, a Cutlass owned by Vandiver, was partially in the roadway and Vandiver was standing at the passenger’s side. His wife Julie was inside in the passenger’s seat. Crystal Cherry was standing at the passenger’s side of the other vehicle, a limousine, and the passenger’s seat was occupied by a “Hispanic male.” Daniel radioed headquarters that he was going to investigate suspicious persons, turned his car around and returned to the intersection.

Observing that Vandiver held an open beer bottle, the deputy radioed for back-up help. When Officer Brumbalow arrived “two or three minutes” later, they approached Vandiver and asked for his driver’s license and proof of insurance. Although Daniel did not see Vandiver drink from the beer bottle, he detected an odor of alcoholic beverage on his breath and described him as “real talkative.” In the back seat of Vandiver’s car, he saw a still-cold empty beer bottle and two beer cases, one empty and the other containing three or four unopened bottles.

An alcosensor test of Vandiver’s breath was positive, so Daniel placed him in the back of the patrol car, ran a check on his driver’s license and called for a wrecker. He then took Vandiver to jail, where there was an Intoximeter 3000 machine and a qualified operator; he read the implied consent warning, but Vandiver refused to blow into the machine.

1. Appellant asserts that the court erred in allowing evidence of his refusal to take the state-administered blood alcohol test because the arresting officer failed without cause to read the implied consent warning at the time of his arrest as required by OCGA § 40-6-392 (a) (4). He relies upon Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983), in which the Supreme Court held that “where a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle [while] under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) . . . requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood. Under ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs. Further, where, in the ordinary situation, this advice is not given at the time of arrest, the state may not use the accused’s refusal to submit to the state-administered test to suspend his driver’s license under OCGA § 40-5-55 (c).” Perano did not address the admissibility, at the criminal trial, of a defendant’s refusal to take a breath test.

Nevertheless, Perano requires reversal. It construed OCGA § 40-6-392 (a) (4) narrowly, to mean almost literally what it said. The broader view of the two dissenters, which would have allowed the information to be given prior to the police request to take the intoximeter test, at a meaningful time in proximity to arrest was rejected. The Court ruled that failure to timely inform renders the state-administered test results inadmissible as evidence, where defendant took that test; it also precluded license suspension for refusal to take the state-administered test, where defendant refuses the test.

Although the Court did not address the effect of the failure on the admissibility of the refusal, under OCGA § 40-6-392 (d), in a prosecution for driving under the influence, it must follow that such is inadmissible also. If test results are inadmissible against defendant because of the invalid procedure, then so is the refusal inadmissible against him, because the refusal is justified. A defendant is not required to take the test if he has not been properly informed of his implied consent rights.

Vandiver was not informed at the time of his arrest, and there were no peculiar circumstances to warrant a delay. There were such peculiar circumstances in Perano, as we ruled on remittitur. Perano v. State, 167 Ga. App. 560 (1) (307 SE2d 64) (1983). In Vandiver’s case, however, the officer testified without contradiction that after defendant was arrested and put in the back seat of the patrol car, he ran a check on his driver’s license, called and waited for a wrecker to come and pick up defendant’s car, and then took him to jail before he gave the required information. He testified that there was no reason for its not being given earlier other than that it is their standard practice to wait until they get to the jail.

The refusal in this case, having been justified, was not subject to the evidentiary rule of subsection (d).

2. Appellant is entitled to a new trial, without that evidence. Even in its absence, he would not have been entitled to a directed verdict on either of the grounds he advances. See Wood v. Hamilton, 109 Ga. App. 608, 612 (7) (137 SE2d 61) (1964).

Judgment reversed. McMurray, P. J., Carley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur. Pope, C. J., and Birdsong, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

I dissent from the majority’s finding that we are bound by Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) to hold that under OCGA § 40-6-392 (a), evidence of appellant’s refusal to take a state-administered blood test was inadmissible because the officer failed to read the implied consent warning to him at the precise moment of his arrest.

1. The issue is controlled by OCGA § 40-6-392 (d), not by Perano. The legislature specifically gives the state the right to admit evidence of the “refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest.” (Emphasis supplied.) OCGA § 40-6-392 (d).

Perano did not address subsection (d) at all. It did not address admissibility of a defendant’s refusal to take a chemical test performed in accordance with § 40-6-392 (a) (1), that is, a test “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” Appellant was deemed to consent to this official chemical test by § 40-5-55 (a), and his refusal to take it is expressly made admissible by subsection (d) of § 40-6-392.

A state-administered chemical test pursuant to § 40-6-392 (a) (1) cannot properly be given at the precise moment of arrest on the roadway. Whatever the legislature meant by requiring that a defendant be advised of his right to an independent test “at the time of his arrest” in § 40-6-392 (a) (4), the reference in subsection (d) to the refusal of the defendant to permit a chemical analysis of his blood, breath, urine, or other bodily substance “to be made at the time of his arrest” (id.), is in another context, and necessarily refers to the time in proximity to his arrest when the State can properly administer the official test under § 40-6-392 (a) (1).

The defendant’s right to an additional test under § 40-6-392 (a) (3) is a right “in addition to” any chemical test administered at the direction of a law enforcement officer. The right arises when he permits a state-administered chemical test to be made under subsection (a) (1); such a test obviously can be administered only after he has been taken to the location where a test described by § 40-6-392 (a) (1) can properly be made. Advising him “at the moment of his arrest on the road” of his right to an additional test would give appellant no benefit, for he has that right only if he permits a chemical test “to be made” (id. at (d)) when it can properly be made.

Therefore, the full context of “the time of his arrest” in subsection (d) of § 40-6-392 refers to appellant’s refusal to permit a chemical analysis “to be made ... at the time of his arrest,” i.e., when he is asked to submit to it. It cannot possibly mean “at the precise moment of his arrest on the road,” because an approved state-administered chemical test of his “blood, breath, urine, or other bodily substance” usually cannot be given on the road. OCGA § 40-6-392 (d) allows admission in evidence of a defendant’s refusal to take the state-administered test when he is asked to submit to it, that is, when the police can properly administer it.

2. Under the majority’s construction, Perano obliterates the “implied consent” law, which the legislature provided so that any person operating a vehicle in the State of Georgia “shall be deemed to have given consent,” subject to OCGA § 40-6-392 to a chemical test to determine the alcóhol or drug content of his blood. OCGA § 40-5-55. This appellant refused to take the state-administered test for no reason that caused him any harm. Whatever the legislature meant in § 40-6-392 (a) (4) by saying that the arresting officer “at the time of arrest” shall advise the person arrested of his rights to an independent chemical test, it meant something different from subsection (d) of § 40-6-392 by providing that the defendant’s refusal to permit a “chemical analysis to be made ... at the time of his arrest” shall be admissible against him. The Staté’s chemical test cannot be “made” at the precise moment of arrest on the road. It can only be “made” when he is asked to submit to it.

Even if the results of the state test may be excluded under Perano in some cases, under § 40-6-392 (d) the admission of the defendant’s “refusal. . . to . . . permit” a chemical analysis is not a matter of judicial negotiation. That is, “the time of his arrest” referred to in subsection (d) is when the state’s chemical analysis can be made, and is a more broad proximal time of arrest, which includes his being taken to jail and asked to submit to the state test.

It is one thing to exclude the results of the state test when the defendant was not given a “meaningful” opportunity to have an independent test (Perano, supra) but it is quite another thing, and violates § 40-6-392 (d), to prohibit the state from its statutory right to admit his refusal to “permit a chemical analysis to be made ... at the time of his arrest.”

We note also that under OCGA § 40-6-392 (a) (3), even the “justifiable failure or inability” to obtain an [independent] test shall not preclude the admission of [results of the state test].” This language speaks strongly of the legislative intent on this subject. We do not think the legislature or Perano meant to let a defendant refuse to take the state test in violation of § 40-5-55, and then prevent the admission of his refusal expressly allowed by § 40-6-392 (d), when he was not prejudiced by a failure to tell him at the instant of his arrest on the road of his right to an independent test.

3. Moreover, although the advice in Perano was not given at the moment of arrest, the evidence in Perano was held admissible. Thus, Perano does not create an absolute embargo on all evidence relative to the suspect’s condition if he was not advised at the moment of arrest on the road.

Although appellant was not advised of his right to an independent test at the moment he was taken into custody, he was properly advised prior to the police request to take the intoximeter test while he had an unfettered opportunity to have an independent test. This was a “meaningful” time, and “a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Id. at 707, 708. Even following Perano, the circumstances of this case do not warrant allowing defendant to refuse to take the state test merely because he was not told at the moment of his arrest that he could have an independent test. Such a result flies in the face of §§ 40-6-392 (d) and 40-5-55. The legislature may clarify the variable use of “time of arrest” in § 40-6-392 (a) (4) and in subsection (d), but Perano does not require us to suppress evidence specifically allowed by OCGA § 40-6-392 (d).

What we are talking about is a defendant’s unjustified refusal to take the test, and the majority has ruled that he may do so with impunity even though he was caused no harm or even inconvenience by not being told of this right until prior to being asked to submit to the state’s chemical test at the jail. But appellant was given the advice while he still had the opportunity to have an independent test made; he was not denied an independent test; and nothing prevented him from having an independent test made except his own refusal to permit state-administered “chemical analysis to be made ... at the time of arrest.” OCGA § 40-6-392 (d). In fact, in view of the known tendency of blood-alcohol content to diminish in time, a delay was in appellant’s favor.

Even construing the Code narrowly, as the majority says we must, we find no harm to appellant in the procedure in this case. The state is not trying to introduce prejudicial evidence which arose before appellant was given the proper advice; his refusal to take the state-administered test occurred after he was given the proper advice at a “meaningful” time and when he had suffered no prejudice. Under § 40-6-392 (d), the state has a statutory right to admit this evidence of his refusal. He should not be allowed to benefit from his refusal to take the state-administered test, on account of a non-prejudicial delay in advising him of his implied consent rights.

That a refusal to submit to the test may create an inference that the test would show the presence of alcohol, see Givens v. State, 199 Ga. App. 709 (405 SE2d 898); Mendoza v. State, 196 Ga. App. 627, 629 (2) (396 SE2d 576); Shults v. State, 195 Ga. App. 525, 528 (3) (394 SE2d 573); Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801). This was evidence which, in view of the public’s interest in the use of our highways by intoxicated drivers, the state ought to be allowed to introduce. The state should be permitted to show that the driver who had already failed a field test (alcosensor) refused to take the police-administered test when he was advised of his rights at a “meaningful” time, especially when he was not harmed by the procedure used. The balance of policy interests in such a situation does not weigh in appellant’s favor, especially when he had already failed the field test for illegal intoxication and driving under the influence.

I conclude that under proper interpretation of OCGA § 40-6-392 (d), the state is expressly allowed to admit evidence of appellant’s refusal to permit a chemical test to be made when he is arrested, i.e., at the proximal time of arrest when he is asked to submit to it.

I respectfully dissent. I am authorized to state that Chief Judge Pope joins in this dissent.

Decided March 16, 1993.

Cook, Noell, Tolley & Wiggins, Morton M. Wiggins III, for appellant.

Donald E. Moore, Solicitor, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A1935.
    WILKS v. PIGGLY WIGGLY SOUTHERN, INC. et al.
    (429 SE2d 322)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of appellee Piggly Wiggly Southern, Inc.’s motion for summary judgment.

Viewed in a light favorable to appellant, the evidence shows that at approximately 11:00 p.m., after completing a purchase at appellee’s grocery store, appellant walked out the front door, past two men who were loitering near the door. The store is part of a strip mall. After appellant left appellee’s premises, he walked past two other stores to the end of the mall and around the corner 20 or 25 yards beyond the building into an unlit vacant area where he was mugged by the men. Appellant brought the instant action against appellee and its lessor, alleging negligent maintenance of the lighting on the premises and negligence in failing to provide adequate security. Appellee moved for summary judgment. The trial court entered a default judgment against the lessor for failure to file defensive pleadings and granted appellee’s motion for summary judgment. In his sole enumeration of error, appellant contends the trial court erred in granting summary judgment where appellee had specific knowledge of prior criminal attacks on the premises, attackers loitered on appellee’s premises waiting for victims and attackers followed appellant from appellee’s premises to an adjacent location and assaulted him.

“ ‘In order “(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)” [Cits.]’ [Cit.] A defendant is entitled to summary judgment if he produces evidence conclusively establishing facts which negate one or more essential elements of the plaintiff’s action. [Cit.]” (Indention omitted.) Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 596 (402 SE2d 346) (1991).

OCGA § 51-3-1 provides that “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” In Elmore of Em bry Hills v. Porcher, 124 Ga. App. 418 (183 SE2d 923) (1971), wherein plaintiff fell on a shopping center sidewalk immediately in front of a vacant area, this court held that the tenants in the shopping center were not liable because “each owner or occupier is responsible for keeping the sidewalk immediately in front of and adjacent to his store in safe condition, and that the responsibility for . . . those stretches of pavement that are not in front of the premises of any owner or occupier, must be borne by the owner and operator of the shopping center, provided he has retained control of same.” Id. at 420. Appellee presented unrebutted evidence establishing that it was not the owner or in control of the area in which appellant was attacked nor was it responsible for maintaining the lighting in the area. See Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). Granting appellee’s motion for summary judgment, the trial court held that the assault did not occur on the “premises and approaches” of property controlled by appellee and that there was no evidence of affirmative acts taken by appellee in the area where the assault occurred which demonstrated appellee’s control over the subject area or the premises immediately contiguous to the subject area.

However, in Elmore, the court also stated, “[t]hat is not to say . . . that an occupier would not be liable for an obstruction that he creates or maintains, whether directly in front of his building or not.” Elmore, supra. “If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Appellant relies on evidence that shows that two or three months before his assault, another of appellee’s customers was the victim of a purse snatching in the parking lot in front of the store and that the attackers had been loitering around the telephones in front of the store, pretending to use the telephone but actually were watching for victims. Based on appellee’s knowledge of the prior assault, appellant contends appellee knew there was a substantial risk to its customers at night and failed to exercise reasonable care to provide adequate security to protect its customers. Citing McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130) (1983), appellee contends that because appellant’s assault occurred off its premises and the purse snatching took place in the parking lot, the two incidents are not sufficiently similar, and evidence of the purse snatching is irrelevant in the instant case and does not illustrate appellee’s knowledge of a dangerous condition or its failure to protect its customers against the type of assault suffered by appellant. We disagree because in both instances, the attackers were permitted to loiter on appellee’s premises, lying in wait for their victims. Appellant, having been induced to come to appellee’s premises for a lawful purpose, was owed a duty to be protected from the known dangers posed by loiterers after dark on appellee’s premises. Moreover, the assistant store manager’s testimony demonstrates that appellee’s employees appreciated the hazards of allowing individuals to loiter on its premises after dark and had begun to take steps to prevent such conduct and injury to its customers in the future.

Decided March 16, 1993.

Underwood & Mathis, Billy C. Mathis, Jr., for appellant.

Hodges, Erwin, Hedrick & Kraselsky, William H. Hedrick, David W. Orlowski, for appellees.

“To avoid entry of summary judgment in a premises liability case, plaintiffs . . . must come forward with facts from which a reasonable jury could conclude that the owner or occupier failed to take reasonable steps to protect against injury. [Cit.]” Haskins, supra at 493-494 (2). The assistant store manager testified that after the purse snatching, appellee’s employees began to stop people from loitering around the pay phones; that they understood that these individuals were tarrying on the premises to watch and wait for victims; and that after dark, more “bag help” was stationed in the parking lot. However, appellant’s testimony is evidence that individuals continued to loiter at appellee’s doorway after dark, since the imposition of appellee’s safety precautions, and certainly raises a question about the efficacy and reasonableness of those precautions. Thus, there is at least a jury question as to whether these steps taken by appellee were reasonable to protect its customers against injury because despite appellee’s efforts, persons continued to loiter on the premises after dark and appellant was attacked by two such persons.

In addition, we are not persuaded by appellee’s contention that appellant had superior knowledge of the danger because he testified that upon seeing his attackers, he had a “gut feeling” they were “up to something” whereas its employees were not aware that people were loitering in front of the store on the night of appellant’s assault. Appellant’s “gut feeling” does not constitute knowledge of the previous attack or the fact that individuals loitered at the entrance of the store to stalk victims.

“ ‘[T]his is a case where a jury must rule on the question of negligence and diligence. . . . What a reasonable and prudent man under similar circumstances (could and) would have done in the exercise of ordinary care (for the protection of [appellant]) is for a jury to answer.’ [Cit.]” Shell Oil Co. v. Diehl, 205 Ga. App. 367, 369 (2) (422 SE2d 63) (1992). Accordingly, the trial court erred in granting appellee’s motion for summary judgment.

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


text:
    A92A1945.
    LYBERGER et al. v. ROBINSON et al.
    (429 SE2d 324)
   Cooper, Judge.

Appellants, purchasers of certain real property, brought this action against appellees Pamela S. Robinson and Aiken & Ward, attorneys, for professional negligence in connection with the sale of said real property. Appellees filed a motion for summary judgment which the trial court granted on the ground that no attorney-client relationship existed between the parties. This appeal followed. Although appellants enumerate as error the trial court’s ruling as to the absence of an attorney-client relationship, we will first address appellees’ argument raised in their motion for summary judgment and on appeal that appellant’s complaint is barred by their failure to comply with OCGA § 9-11-9.1.

The sale at issue closed on March 29, 1988, and appellants filed their initial complaint against appellees for professional negligence on December 20, 1988, but did not file with the complaint an affidavit of an expert as required by OCGA § 9-11-9.1. Appellees raised this defect as an affirmative defense in their initial responsive pleading. On March 13, 1989, appellants amended the complaint but still failed to attach an expert’s affidavit. Thereafter appellants voluntarily dismissed the complaint. On March 23, 1990, appellants re-filed the complaint, yet again, without the requisite expert affidavit, and appellees again asserted appellants’ failure as an affirmative defense. On June 12, 1990, appellants amended the second complaint and attached the affidavit of an expert dated June 12, 1990. (Although this pleading does not appear in the appellate record, it is referenced in appellees’ recitation of the facts.) However, on September 27, 1990, appellants moved to voluntarily dismiss the second action. Finally, on March 21, 1991, appellants filed a third complaint, this time attaching the June 12, 1990 affidavit. In their responsive pleading, appellees averred that the complaint should be dismissed based on appellants’ failure to support the complaint and substantially similar complaints with affidavits pursuant to OCGA § 9-11-9.1. In their motion for summary judgment, appellees argued further that the failure to file an expert’s affidavit represented a nonamendable defect which precluded the third action.

“Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the [affidavit] ‘was the result of a mistake,’ and unless such failure was ‘the result of a mistake,’ such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation.” Foskey v. Foster, 199 Ga. App. 205 (404 SE2d 303) (1991). “The renewal statute is available only where the original action was a ‘valid suit’ [cit.]; if a complaint is dismissed for a defect that is nonamendable, there is no ‘valid suit’ to be renewed.” Id. at 206. In the instant case, appellants did not have an expert’s affidavit when the initial complaint was filed. The affidavit, first filed with the amended complaint in the second action, was dated after the expiration of the statute of limitation. There is no evidence that the failure to file the affidavit with the initial complaint was the result of a mistake or neglect, and appellees raised this defect in each of their initial responsive pleadings. See OCGA § 9-11-9.1 (f). Therefore, appellants were not entitled to renew the complaint after the expiration of the statute of limitation. Accord Austin v. Greenberg Farrow Architects, 201 Ga. App. 448 (411 SE2d 346) (1991).

Decided March 16, 1993.

Charles J. Durrance, for appellants.

Arnall, Golden & Gregory, Karen B. Bragman, B. Ida Patterson, for appellees.

Based on the foregoing, we need not address the question of the existence of an attorney-client relationship, even though the trial court granted appellees’ motion on that ground. A judgment right for any reason must be affirmed. Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (2) (403 SE2d 893) (1991).

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


author: Pope, Chief Judge.

text:
    A92A1980.
    KNIGHT v. THE STATE.
    (429 SE2d 326)
   Pope, Chief Judge.

Defendant Robert Wayne Knight was charged with two counts of child molestation and one count of aggravated child molestation, and convicted on all counts. The victims in this case were defendant’s stepdaughter and stepson, who were approximately four and two years of age, respectively, when the crimes occurred. Defendant appeals following the denial of his motion and amended motion for new trial.

1. Defendant contends the trial court erred by allowing Sudie Hoffman, a licensed therapist who testified as an expert witness for the State, to testify concerning whether the child’s fear of the defendant appeared genuine, arguing that such testimony impermissibly allowed the witness to give her opinion concerning the child’s veracity and credibility. The record shows that the State asked the witness the following question: “[B]ased on your observations of the child’s demeanor, that is, what you were able to observe about her physical action, can you testify as to whether or not the fear that she expressed [about a weekend visitation with her mother] . . . appeared genuine.” The witness responded in the affirmative, that the fear appeared genuine to her.

We find no error. Here the witness was asked, in essence, if the victim appeared to be afraid based on observable physical criteria. The witness was not asked to express an opinion as to whether she found credible or believable the victim’s statements concerning the acts of molestation attributed to the defendant, and at no time during her testimony did she express such an opinion. Cf. Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991); State v. Oliver, 188 Ga. App. 47 (372 SE2d 256) (1988). As we recognized in State v. Oliver, it is permissible for the witness to “express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” (Emphasis supplied.) Id. at 51. “[The State] was not attempting to elicit a direct opinion on the ultimate issue of whether the victim had been molested. [Cits.] . . . [The State] was simply attempting to elicit testimony as to whether the victim had exhibited . . . behavior [or observable physical acts] which [showed she was afraid]. . . . Testimony merely as to whether the victim did or did not exhibit this . . . behavior would not invade the province of the jury, for the question of whether, notwithstanding her behavior, the victim was or was not molested would remain exclusively for jury resolution. The testimony would simply be available for the jury to accept or reject for consideration in its determination of the ultimate issue.” Hall v. State, 201 Ga. App. 626, 627 (2) (411 SE2d 777) (1991).

Moreover, even if we were to construe the witness’ testimony as improper bolstering, we hold that “in the context of the evidence as a whole, it is highly probable that the testimony in question did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).” Remine v. State, 203 Ga. App. 30, 31 (2) (416 SE2d 326) (1992). Consequently, this enumeration is without merit.

2. Defendant next contends the trial court erred by allowing Hoffman to testify that the female victim told her that during visits her mother would whisper threats to her concerning what would happen to her if she told anyone it was the defendant who molested her and that to avoid being hurt she should disclose her natural father as the molester. We find no error. Immediately preceding this testimony the witness testified, without objection, that the victim’s mother, who the evidence showed was a party to the acts of molestation perpetrated upon her young children by their stepfather, held her daughter down and choked her and that “they” burned the victim with a cigarette to prevent her from disclosing the molestation. Moreover, another witness also testified about the whispered threats, and no objection was made to that testimony. “ ‘Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.’ [Cit.]” Ardeneaux v. State, 197 Ga. App. 640, 641 (2) (399 SE2d 258) (1990). See also Kelly v. State, 197 Ga. App. 811 (3) (399 SE2d 568) (1990). This enumeration is without merit.

3. In his third enumeration of error, defendant argues the trial court erred in admitting photographs showing burn marks made on the female victim because the State failed to give notice of its intent to introduce evidence of independent crimes as required by Uniform Superior Court Rules 31.1 and 31.3. We first note that the evidence is somewhat unclear as to whether the victim’s mother or the mother and defendant, acting in concert, burned the victim, with the testimony indicating the victim disclosed to one witness that “they” burned her but disclosed on another occasion that her mother burned her with the cigarette. However, assuming the defendant was a party to this criminal act, we find, for the reasons stated below, that the trial court did not err in admitting the photographs of the victim’s burns. As discussed in Division 2, testimony concerning the burns was admitted at trial, both before and after the admission of the photographs, without objection. Thus the evidence complained of was merely cumulative of direct unobjected-to testimony about the victim’s burns. See Kelly, 197 Ga. App. at 814 (3); Ardeneaux, 197 Ga. App. at 640 (2). Moreover, the State is not required to provide notice of intent to introduce evidence of independent crimes when the defendant places his character in evidence at trial, such as was done in the case at bar. See Kelly, 197 Ga. App. at 815 (7) (a); Sidwell v. State, 185 Ga. App. 138 (1) (363 SE2d 603) (1987).

4. Defendant argues “[t]he trial court erred in not providing additional opportunity to develop more evidence” after defendant was provided, during the trial, with a page from the case record of the White County Department of Family & Children Services containing information concerning a referral DFCS had received about molestation of the victim by a party other than the defendant. However, the record shows defendant never requested the trial court to provide him with more time to investigate the report. Moreover, the record also shows defendant was aware prior to trial that an allegation against the person named in the DFCS report had been made, although the defendant may not have been aware of the identity of the person who allegedly made the call to DFCS until the report was provided to him at trial. Defendant acknowledged at trial that the identity of persons making such referrals is usually confidential. In any event, the person identified in the report as having made the referral was present at trial, and in response to defendant’s questioning outside the presence of the jury, denied that she contacted DFCS. The caseworker who investigated the call was also present at trial, but could only remember that she visited the home of the person identified in the report as having molested the child. Because defendant was aware of the allegations prior to trial, and in light of the fact that both the person who allegedly made the report and the caseworker who investigated the report were present at trial and were questioned by the defendant, we fail to see how the outcome of defendant’s trial would have been different if he had been given more time to investigate after the report was provided to him at trial.

Lastly, although defendant also argues that the trial court erred in refusing to admit the page of the report into evidence at trial, such issue was not raised by defendant in his enumerations of error to this court. “ ‘[E] numerations [of error] may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. (Cit.)’ [Cit.]” Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991).

5. We have previously rejected defendant’s contention that the refusal of a guardian to allow a defendant access to a minor child for a pre-trial interview interferes with the defendant’s right to effective cross-examination of the witness at trial. Sosebee v. State, 190 Ga. App. 746 (3) (380 SE2d 464), cert. denied, 493 U. S. 933 (110 SC 323, 107 LE2d 313) (1989); see also Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987); Aguilar v. State, 202 Ga. App. 62 (413 SE2d 245) (1991). Likewise, defendant does not have a right to conduct a pre-trial interview with the victim in a child abuse case in order to make an “effective election” as to whether he will request the court to call the child as a witness under the procedure outlined in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). Moreover, although defense counsel stated at trial that the reason he was not requesting that the court call the children under Sosebee was because he had not been allowed to interview the children prior to trial, he did not suggest that the trial court had erred by failing to remedy this lack of opportunity or otherwise invoke a ruling from the court on this matter. “ ‘[I]ssues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.’ [Cits.]” Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989). This enumeration of error is without merit.

6. The medical records of defendant’s wife showing that she had been treated for condylomata (venereal warts) were introduced into evidence at trial. Other evidence showed that the male victim in this case had been diagnosed and treated for condylomata after warts were discovered in his rectal area. Defendant, conceding that Georgia has no physician-patient privilege that would prevent disclosure of these records, urges that his wife’s federal constitutional privacy rights were violated by the introduction of these records into evidence at trial. Defendant, however, has no standing to assert a privacy right in the records or property of another. We find this enumeration to be without merit.

Decided March 16, 1993.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, for appellant.

C. David Turk III, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed. Johnson, J., concurs. Carley, P. J., concurs in judgment only.


text:
    A92A2239.
    CARLTON MANUFACTURING, INC. v. BAUER.
    (429 SE2d 329)
   Pope, Chief Judge.

Plaintiff Carlton Manufacturing, Inc. sold a division of the corporation engaged in furniture manufacturing, called Madison House, to Madison House Acquisition, Inc. (“Madison House”). In exchange, plaintiff received a promissory note in the amount of $290,000 and a security interest in the inventory of Madison House. As part of the transaction, defendant Steven K. Bauer, president of Madison House Acquisition, Inc., signed a personal guaranty for the note. Upon the alleged default of Madison House on the note, plaintiff attempted to repossess the collateral but plaintiff’s action was stayed when Madison House filed a petition for relief in bankruptcy.

In the bankruptcy case, Madison House entered into a stipulation with plaintiff and the bankruptcy trustee to terminate the stay so plaintiff could repossess and sell the collateral that secured the note. The stipulation contained the conclusion that, due to inadequate provisions for security at the premises where the inventory was stored, it should be abandoned by the trustee and possession given to plaintiff so plaintiff could pursue “any and all actions available at non-bankruptcy law” and “any supplemental action or process required by non-bankruptcy law to protect the [plaintiff’s right] to make a deficiency claim against the estate, including but not limited to confirmation of a foreclosure proceeding or making of appropriate notice to the debtor or Trustee of intent to sale [sic] in [a] commercially reasonable fashion. . . .” The stipulation was approved and made an order of the bankruptcy court.

On the same day the bankruptcy court’s order was entered, plaintiff filed an action against defendant and the successor in interest to the principal debtor seeking judgment on the promissory note. Plaintiff took possession of the inventory and gave notice to the debtor and the trustee that the goods would be sold at public or private sale. The inventory, including raw materials and finished goods, was sold at private sale to various purchasers including plaintiff, leaving an alleged deficiency which plaintiff sought to recover from defendant guarantor and the debtor. The trial court issued an order granting plaintiff’s motion for summary judgment against the debtor but no written order was issued on its motion for summary judgment against the defendant guarantor. Instead, the trial court granted summary judgment to defendant. The trial court concluded that the facts did not show the sale of the collateral was commercially reasonable and further showed that plaintiff failed to give defendant notice of the sale, as required by OCGA § 11-9-504 (3). Thus, the trial court concluded that the presumption arose that the value of the collateral was equal to the indebtedness and determined that plaintiff was barred from recovering a deficiency judgment against defendant because plaintiff failed to rebut the presumption. Plaintiff appeals.

1. Plaintiff first argues the sale was commercially reasonable as a matter of law. OCGA § 11-9-507 (2) provides in pertinent part: “A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable. . . .” Plaintiff argues the bankruptcy court order approving the stipulation by which plaintiff was given authority to repossess and sell the inventory serves as approval of the plaintiff’s disposition pursuant to OCGA § 11-9-507 (2). The stipulated order, however, merely authorized plaintiff to conduct a commercially reasonable sale; it did not declare the manner in which plaintiff ultimately conducted the sale to be commercially reasonable. In fact, it did not stipulate the procedure or manner by which the sale should be conducted. By its terms, the order merely authorized plaintiff to repossess and sell the collateral in a manner consistent with non-bankruptcy law; it did not deem the manner later chosen by plaintiff to be in accordance with the requirements of the Georgia Commercial Code. Therefore, the order cannot reasonably be interpreted as advance judicial approval of the sale as contemplated in OCGA § 11-9-507 (2). See In re Appalachian Pocahontas Coal Co., 31 B.R. 579 (S.D. W. Va. 1983) (in which a federal court held that a stipulation entered as an order which, similarly to the order at issue in this case, permitted certain secured property to be sold by the creditor “did not constitute judicial approval giving rise to a conclusive presumption of commercial reasonableness”).

2. Plaintiff also argues that even if the sale was not judicially approved so as to be deemed commercially reasonable as a matter of law, the facts of the record show it was nevertheless commercially reasonable as a matter of fact. We disagree. “When the reasonableness of the sale [of repossessed goods pursuant to OCGA § 11-9-504 (3)] is challenged, the seller of the collateral has the burden of proving that the sale was reasonable. A secured creditor who fails to meet this burden is barred from recovering any deficiency between the sale price and the debt.” Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752, 753 (334 SE2d 352) (1985). To meet its burden, plaintiff presented evidence of the bids it solicited from several potential purchasers for certain goods and for other goods it merely presented evidence of the price actually obtained from the purchasers. Such evidence is insufficient to establish the commercial reasonableness of the price received. See Walker v. Modnar Corp., 194 Ga. App. 68 (389 SE2d 558) (1989); Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752 at (1); Zohbe v. First Nat. Bank of Cobb County, 162 Ga. App. 604 (1) (292 SE2d 444) (1982).

Moreover, plaintiff, the secured party, was the purchaser of certain raw materials from the debtor’s inventory. Pursuant to OCGA § 11-9-504 (3), the secured party is permitted to buy at a private sale “if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations.” No showing was made that the inventory purchased by plaintiff met this criteria. In a similar case, this court held repossessed furniture is not a type of goods sold in a recognized market nor a type subject to widely standard price quotations. Luxurest Furniture Mfg. Co. v. Furniture Warehouse Sales, 132 Ga. App. 661 (1) (209 SE2d 63) (1974), rev’d on other grounds 233 Ga. 934 (214 SE2d 373) (1975). Likewise, we hold that furniture manufacturing supplies and inventory are not the type of collateral that a secured party is permitted to buy at a private sale pursuant to OCGA § 11-9-504 (3). Thus, the trial court did not err in concluding that the presumption arose that the value of the collateral equals the indebtedness and in holding the plaintiff failed to present evidence sufficient to rebut that presumption.

3. Our Supreme Court has held that “if a creditor fails to give notice or conducts an unreasonable sale, the presumption is raised that the value of the collateral is equal to the indebtedness.” (Emphasis supplied.) Emmons v. Burkett, 256 Ga. 855, 857 (353 SE2d 908) (1987). A second ground for the trial court’s grant of summary judgment to defendant was its conclusion that plaintiff failed to notify defendant of the sale as required by OCGA § 11-9-504 (3). Having already concluded that the trial court’s judgment is sustainable based on the lack of commercial reasonableness of the sale, it is unnecessary for us to address the argument that plaintiff was not required to notify the defendant. We note, however, that the requirement of notice to the debtor has also been extended to a guarantor. See Business Dev. Corp. of Ga. v. Contestabile, 261 Ga. 886 (413 SE2d 447) (1992).

Decided March 16, 1993.

Thomas P. Stamps, Heidi Hughes, for appellant.

Alston & Bird, Peter M. Degnan, Lori P. Hughes, for appellee.

Moreover, we reject plaintiff’s argument that the circumstances of this case place it within the exception to the requirement for notice where “collateral is perishable or threatens to decline speedily in value. . . .” OCGA § 11-9-504 (3). The record shows the stipulated order approving the trustee’s abandonment of the collateral acknowledged that evidence was presented showing the collateral was at risk due to a lack of security at the place where the debtor was keeping it. These facts, however, do not create an exception to the notification requirement. Once the trustee abandoned the collateral it was surrendered to the possession and control of the plaintiff and it was plaintiff’s duty to provide for its security until it could be sold. See OCGA §§ 11-9-207; 11-9-501 (2). Moreover, “[n]othing in the nature of the [furniture manufacturing inventory] suggests any urgency in disposing of it.” Rock Rapids State Bank v. Gray, 366 NW2d 570, 573 (Iowa 1985). The record does not show notice was given to defendant guarantor but shows plaintiff gave the principal debtor ten days notice of the sale; therefore it is reasonable to conclude such notice could have been given to defendant.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


text:
    A92A2377.
    MURPHY v. BLUE BIRD BODY COMPANY.
    (429 SE2d 530)
   Pope, Chief Judge.

Plaintiff James P. Murphy appeals the trial court’s grant of summary judgment in favor of defendant Blue Bird Body Company (“Blue Bird”).

Blue Bird entered into a contract with defendant Applied Coating Technologies, Inc. (“ACT”) whereby ACT agreed to install a paint finishing system at Blue Bird’s LaFayette Plant (R. 631-36). One of the components of the system installed by ACT was a suction fan. After the system became operational, employees of Blue Bird noticed the fan was noisy and contacted the president of ACT, defendant Michael Jenkins, to request that he repair the fan. Jenkins hired plaintiff to come to the Blue Bird plant on a Saturday, while the plant was not in operation, to repair the fan.

Jenkins met plaintiff at the plant and let him inside using a key provided for Jenkins’ use during the installation of the paint finishing system. Although plaintiff testified he saw two Blue Bird employees outside the plant when he was waiting for Jenkins to arrive, neither Jenkins nor plaintiff observed Blue Bird employees inside the plant while they worked on the fan. Plaintiff first examined an area of the fan accessible by stairs. Plaintiff then determined he also needed to examine the outside of the fan, which was not accessible by stairs. He asked Jenkins for a ladder to use to reach the outside of the fan. Jenkins offered instead to get a forklift and a basket for plaintiff to use to reach the outside of the fan. Jenkins then retrieved a forklift and parts basket owned by Blue Bird. Plaintiff entered the parts basket with the tools he needed and Jenkins used the forklift to lift plaintiff to the outside area of the fan. Although Jenkins and plaintiff offer different theories or explanations about why the parts basket fell from the forklift, it is undisputed that the basket was not attached in any manner to the forklift and while plaintiff was working on the fan, the basket fell from the forklift and plaintiff was injured when he fell from the basket.

Plaintiff filed suit against Jenkins, ACT and Blue Bird seeking compensation for his injuries. Jenkins and ACT also filed cross-claims against Blue Bird. Blue Bird moved for summary judgment on all claims asserted against it in plaintiff’s complaint and the cross-claims. The trial court granted that motion. Plaintiff appeals the grant of summary judgment to Blue Bird on plaintiff’s complaint.

1. Plaintiff contends the superior court erred in granting summary judgment to Blue Bird because genuine issues of material fact remain concerning whether Blue Bird owed a duty to the plaintiff.

When deciding what duties, if any, Blue Bird owed to plaintiff, it is first necessary to examine the relationship between Blue Bird and plaintiff. That relationship hinges in part on the relationship between Blue Bird and ACT and its president, Jenkins. Although plaintiff does not argue Jenkins was an employee of Blue Bird, plaintiff insists that Jenkins was controlled by Blue Bird. In Moss v. Central of Ga. R. Co., 135 Ga. App. 904 (219 SE2d 593) (1975), cert. denied, 425 U. S. 907 (96 SC 1501, 47 LE2d 758) (1976), this court, citing with approval the Restatement of Agency 2d, § 220 (2), set forth ten factors that should be considered when deciding whether one acting for another is an independent contractor or an employee. Those factors include: “(1) the extent of control which, by agreement, the employer may exercise over the details of the work; (2) whether or not the one employed is engaged in a distinct occupation or business; (3) whether or not the work to be performed is usually done under the direction of the employer or by a specialist who needs no supervision; (4) the skill required in the particular occupation; (5) whether the employer supplies the tools and the place of work for the one employed; (6) the length of time for which the person is employed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work to be performed is a part of the regular business of the employer; (9) whether or not the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.” Id. at 906.

Applying these factors to the undisputed facts of this case, we hold ACT was an independent contractor employed by Blue Bird and ACT’s president, Jenkins, acted as an independent contractor in employing plaintiff to repair the fan. Blue Bird hired ACT and Jenkins for the limited purpose of installing a paint finishing system. The only evidence of any control exercised by Blue Bird is Jenkins’ testimony that Blue Bird insisted ACT’s installation of the system not interrupt production. For that reason, Jenkins and the crew he employed to install the system usually began work after Blue Bird stopped its operations at the plant and stopped working when the production shift began. Blue Bird employees were generally not present during the installation and did not exercise control over the details of installing the system. The contract between the parties did not give Blue Bird the right to control the manner of installation. The installation of a paint finishing system is not the regular business of Blue Bird. ACT’s principal, Jenkins, had experience installing such systems and all evidence indicates Blue Bird properly relied upon his expertise in installing the system. Neither Jenkins nor any member of the installation crew was ever on Blue Bird’s payroll, and ACT was paid a lump sum for the system and its installation. Although there is evidence that Blue Bird lent certain tools and equipment to Jenkins to use for the installation, Jenkins and his crew provided most of the tools needed for the installation. The parties did not contract for Blue Bird to supply tools to Jenkins and tools were lent to Jenkins by Blue Bird only after Jenkins was unable to procure them elsewhere in a reasonable time. Thus, all evidence shows Blue Bird allowed Jenkins to use certain equipment as an accommodation rather than as a contractual right.

2. Plaintiff argues that even if ACT and Jenkins were independent contractors of Blue Bird, this case falls outside the general rule that landowners are not responsible for the negligence of their independent contractors. “It is, of course, the rule that the employer of an independent contractor owes the contractor’s employees [or one hired by an independent contractor] the ubiquitous duty of not imperiling their lives by [its] own affirmative acts of negligence. [Cits.] It is also the general rule that the independent contractor’s employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. [Cits.] As stated in [OCGA § 51-2-4]: ‘The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.’ It should be noted, however, that under the statutory law of Georgia, . . . there are recognized exceptions to this general rule. [Cits.]” (Indentions omitted.) United States v. Aretz, 248 Ga. 19, 24-25 (280 SE2d 345) (1981).

The exceptions to that general rule of no liability are codified at OCGA § 51-2-5. Plaintiff relies upon the exception established by subsection (5) of that Code section which provides: “An employer is liable for the negligence of a contractor: ... (5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference. . . .” Particularly, plaintiff argues his injury is traceable to Blue Bird’s interference which occurred when Blue Bird agreed to supply Jenkins with the use of a forklift and the forklift supplied to Jenkins was defective in that adequate warnings were not maintained on the forklift.

The evidence shows Blue Bird allowed Jenkins to use forklifts during the installation process. Jenkins originally asked to borrow a forklift for the limited purpose of unloading materials. Although there is evidence that Blue Bird knew Jenkins continued to use forklifts during the installation process, there is no evidence any Blue Bird employee ever witnessed Jenkins or other members of the installation crew lifting anyone using a forklift or that Blue Bird ever authorized use of their forklifts for that purpose. No one employed by Blue Bird knew or had reason to know that Jenkins would use a forklift owned by Blue Bird to lift plaintiff for repair work. No Blue Bird personnel was present at the time of the accident. Jenkins testified during his deposition, “I never told Blue Bird that I would need their assistance or make them aware that they would need anything to elevate anybody to fix the fan.” Although Jenkins testified that Blue Bird personnel had general knowledge that someone would be coming on the date of plaintiff’s accident to repair the fan, Jenkins testified he assumed the fan could be repaired by accessing the inside portion that could be reached by stairs; therefore, there is no reason to believe Blue Bird would anticipate Jenkins would need to lift plaintiff.

Furthermore, there is no evidence that Blue Bird designated which forklift Jenkins should use to lift plaintiff. Jenkins testified that initially Blue Bird designated one forklift for his use during the installation process, but that Blue Bird’s other forklifts were used during the installation process as they became available. In fact, Jenkins testified he must have personally used at least one forklift other than the one in question during the installation process.

The undisputed evidence shows that on the day of plaintiff’s accident, Jenkins made an independent decision that a forklift should be used to lift plaintiff to the outside of the fan. He then went to the area where Blue Bird kept its forklifts charged and chose a forklift to use for that purpose. Plaintiff’s argument that Blue Bird interfered by designating which forklift Jenkins should use and that his injuries are traceable to that interference must fail.

3. Plaintiff contends Blue Bird breached its duty to plaintiff to keep the premises safe. It is well-settled that an owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. Amear v. Hall, 164 Ga. App. 163, 166 (2) (296 SE2d 611) (1982). Accordingly, an owner who has either actual or constructive knowledge of defects or dangers on the premises has a duty to warn others coming on the premises who do not have knowledge of the defects and/or dangers and who through the exercise of ordinary care would not discover them. Id. Liability does not extend from ownership alone, but only from the breach of this duty. Id.

In this case, however, plaintiff does not contend and the record does not reflect that the premises were unsafe, at most he contends the forklift in question which was located on the premises, was allegedly unsafe or used in an unsafe manner. The forklift in question was not a part of the premises or a fixture thereto. Accordingly, plaintiff’s argument that Blue Bird breached its duty to plaintiff to keep the premises safe must fail under the facts of this case.

4. Plaintiff next argues that Blue Bird breached its duty to provide safe equipment; specifically, plaintiff argues Blue Bird failed to provide a safe forklift to Jenkins. Plaintiff bases this argument on the Restatement of Torts 2d, § 388, which provides: “One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.”

Plaintiff’s reliance on § 388 is misplaced under the facts of this case. This argument must fail for many of the same reasons we refused, in Division 2, to hold Blue Bird interfered with Jenkins’ work and that plaintiff’s injuries are traceable to such interference. Construing the evidence in the light most favorable to plaintiff, the evidence shows no one employed by Blue Bird knew or had reason to know that Jenkins would use a forklift owned by Blue Bird to lift plaintiff. No Blue Bird personnel was present at the time of the accident. Although Jenkins testified that Blue Bird personnel had general knowledge that someone would be coming on the date of plaintiff’s accident to fix the fan, Jenkins testified he assumed the fan could be repaired by accessing the inside portion that could be reached by stairs. Jenkins originally asked to borrow a forklift for the limited purpose of unloading materials. Although there is evidence that Blue Bird knew Jenkins continued to use forklifts during the installation process, there is no evidence any Blue Bird employee ever witnessed Jenkins or other members of the installation crew lifting anyone using a forklift or that Blue Bird ever authorized use of their forklifts for that purpose. With regard to the day of the accident, Jenkins testified during his deposition, “I never told Blue Bird that I would need their assistance or [made] them aware that they would need anything to elevate anybody to fix the fan.” Because plaintiff failed to show Blue Bird supplied the forklift for the purpose for which Jenkins used it in this case, or had any knowledge that Jenkins would use the forklift for this purpose, plaintiff’s reliance on § 388 of the Restatement is misplaced. See Dupree v. Keller Indus., 199 Ga. App. 138 (2) (404 SE2d 291) (1991).

5. Plaintiff also contends Blue Bird breached its duty of reasonable care by failing to warn plaintiff of the danger of being lifted by the forklift. Plaintiff asserts that if Blue Bird had maintained adequate warnings on the forklift against the danger of riding on a forklift, he would have realized the danger and not allowed Jenkins to lift him using the forklift. In support of this argument, plaintiff offered the affidavit of a human factors psychologist, who opined that if appropriate warnings had been provided to the plaintiff or to the operator the accident could have been avoided.

The evidence shows that the forklift used to lift plaintiff had at least two warning labels on it. One was located inside the operator’s cage. That warning label contained the following pertinent language: “USE COMMON SENSE: Never transport people on any part of the truck. To lift people use secured safety platform. Allow no one under or near lift mechanism. . . .” Jenkins testified he remembered seeing this warning label but did not read it. In fact, Jenkins testified that during the installation process he had used a forklift without incident in the same manner as he was using it when plaintiff was injured.

There was also evidence that although the forklift in question originally had a warning label posted on the mast concerning people riding on the tines, that warning had become obliterated by the use of a chain on the forklift. Plaintiff testified he did not observe a warning on the forklift.

Sutton v. Sutton, 145 Ga. App. 22 (243 SE2d 310) (1978) is the only case cited by plaintiff in the section of his brief concerning Blue Bird’s alleged duty to warn. That case is cited as authority for the general rule that “an owner or occupier of land is liable to invitees for injuries they sustain as a result of his failure to warn them of dangers which he was aware of, or in the exercise of reasonable care should have known. [Cits.]” Id. at 24-25. In Sutton, this court held a father had a duty to warn the plaintiff, his son, of the dangerous nature of a bull, which the father had knowledge of because earlier in the day, before he enlisted the aid of the plaintiff to capture the bull, the bull had charged another son. Id. at 25-26.

Unlike the Sutton case, there is no evidence that Blue Bird was aware of or should have been aware that Jenkins would use the forklift in an improper manner. There is no evidence that Blue Bird personnel ever observed Jenkins or any of his crew using the forklift to lift people. Even though Jenkins testified that during the installation process crew members used forklifts to lift other members of the crew on a daily basis, the great majority of the installation work was done at a time that no Blue Bird employees were present in the plant. A warning label was located inside the forklift in question which warned the operator of this specific danger, but Jenkins testified he did not read it. Under the facts of this case, we hold Blue Bird did not owe plaintiff a duty to warn him of the dangers of being lifted in an unsecured basket on a forklift because this was not a danger Blue Bird was aware of or had reason to anticipate.

6. Finally, plaintiff argues Blue Bird breached its duty to plaintiff as an invitee on the premises to select a competent operator of the forklift. Essentially, plaintiff argues Blue Bird breached a duty to plaintiff by negligently entrusting a forklift to Jenkins. “Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inéxperience, or his physical or mental condition, or his known habit of recklessness.” (Citations and punctuation omitted.) Viau v. Fred Dean, Inc., 203 Ga. App. 801, 803 (418 SE2d 604) (1992). Contrary to plaintiff’s assertions otherwise, Blue Bird’s liability to plaintiff cannot be premised on Blue Bird’s failure to inquire about Jenkins’ experience using forklifts. See Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990). The evidence is undisputed that Blue Bird had no knowledge of Jenkins’ training or experience with forklifts. There is also no evidence that anyone from Blue Bird ever noticed Jenkins or any member of the installation crew using a forklift in an unsafe manner.

Decided March 16, 1993.

Sweat & Giese, David R. Sweat, Jeffrey A. Johnson, for appellant.

Plaintiff argues that the standard applied in negligent hiring cases, rather than that applied in negligent entrustment cases, should be applicable in this case. We do not agree. In support of this argument plaintiff relies upon our decision in Cherry v. Kelly Services, 171 Ga. App. 235 (319 SE2d 463) (1984). In that case, we noted “[t]he standard in negligent hiring cases is whether ‘the hirer knew, or in the exercise of ordinary care should have known, that the servant was incompetent and that the incompetency resulted in damage to the party to whom the servant was hired.’ ” (Citations and emphasis omitted.) Id. at 236 (2). In Cherry, the employee of a temporary agency was entrusted with a vehicle while employed by a client of the temporary agency. The temporary agency, although it did not have knowledge of the employee’s history of reckless driving, had knowledge of one of the employee’s traffic violations. Therefore, we held a question of fact remained concerning whether the temporary agency should have inquired further. Id.

In Cherry, the employee was hired by the temporary agency to work with the agency’s clients. In this case, however, Blue Bird hired an independent contractor, ACT, to install a system as a turn key operation. ACT’s president, Jenkins, had little contact with Blue Bird employees, as no Blue Bird employees worked with Jenkins in installing the system. Jenkins employed all persons who worked with him in installing the system. Jenkins also hired plaintiff to repair the fan. Clearly Blue Bird breached no duty owed to plaintiff by hiring ACT.

The evidence adduced in support of Blue Bird’s motion for summary judgment pierced plaintiff’s pleadings and plaintiff failed to come forward with specific facts establishing how Blue Bird breached any duty owed to plaintiff to establish the existence of a genuine issue of material fact for jury resolution. The trial court, therefore, correctly granted summary judgment in favor of Blue Bird on plaintiff’s claims.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., Thomas W. Rhodes, Cheryl 0. Thorpe, Stacey, Sanders & McAlpine, James M. Sanders, for appellee.

       The argument that adequate warnings were not maintained on the forklift will be discussed in Division 5 of this decision.


author: Carley, Presiding Judge.

text:
    A92A2436.
    MARTIN v. THE STATE
    (429 SE2d 332)
   Carley, Presiding Judge.

Appellant was indicted for two counts of selling cocaine. In a second indictment, he was charged with another count of selling cocaine. In yet a third indictment, he was charged with aggravated assault and possession of a firearm during the commission of certain crimes. Appellant entered into plea bargain negotiations as to all the offenses charged in the three indictments. An agreement was reached whereby he would plead guilty to only one of the two counts of selling cocaine charged in the first indictment and to the one count of selling cocaine charged in the second indictment and, as to one of those offenses, would receive the mandatory life sentence specified by OCGA § 16-13-30 (d). In return, the State would drop all the remaining charges against him. A hearing was held wherein the trial court accepted the guilty pleas and, without objection from appellant, imposed a five-year sentence as to one of the offenses of selling cocaine and a life sentence as to the other. Appellant filed a timely notice of appeal and enumerates as error only the trial court’s imposition of the life sentence for one of the two offenses.

Appellant’s sole contention on appeal is that the instant case is controlled by State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494) (1991). In Sears, the defendant was brought to trial before a jury on one indictment charging him with two counts of selling controlled substances. He was found guilty of both counts and the trial court imposed concurrent 30-year sentences. On appeal, the State urged that the defendant should have been sentenced to life for one of the offenses. In rejecting the State’s contention, we held: “Obviously, neither of Sears’ instant convictions can serve as the predicate for the imposition of a life sentence as to the other. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), Sears’ two instant convictions were neither final nor convictions. . . . ‘The conviction must be final before it can be included in (the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)).’ [Cit.]” (Emphasis in original.) State v. Sears, supra at 355 (8). Since appellant’s two instant convictions for selling cocaine were neither final nor convictions prior to the hearing wherein his guilty pleas were accepted, he urges that neither can serve as the predicate for the imposition of a life sentence as to the other.

The holding in Sears was based upon the applicability of OCGA § 17-10-2 (a), which provides, in relevant part, “that only such evidence in aggravation as the [S]tate has made known to the defendant prior to his trial shall be admissible [at the pre-sentence hearing].” (Emphasis supplied.) Thus, OCGA § 17-10-2 (a) is applicable and the State is bound by its pre-trial notice requirements in cases wherein sentence is to be imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender. See Edwards v. State, 260 Ga. 121, 122 (1) (390 SE2d 580) (1990); Mays v. State, 262 Ga. 90 (1) (414 SE2d 481) (1992); State v. Sears, supra. Obviously, where a trial is held on a multi-count indictment, the State cannot satisfy its pretrial notice requirement by relying upon any count thereof in aggravation of the punishment for any other count thereof. In the instant case, however, no pre-sentence hearing was held after a trial on a multi-count indictment. The trial court imposed sentences after conducting a guilty plea hearing wherein appellant pled guilty as to two counts on two separate indictments. By its terms, OCGA § 17-10-2 (a) is not made expressly applicable to sentences imposed in the context of guilty plea hearings. Accordingly, appellant’s reliance upon Sears as controlling authority in the instant case would appear to be misplaced.

However, even assuming the applicability of OCGA § 17-10-2 (a) in the context of guilty plea hearings generally, appellant’s sentences were nevertheless imposed pursuant to a plea bargain agreement. Such an “agreement may be considered as a contract. . . .” State v. Hanson, 249 Ga. 739, 746 (3) (295 SE2d 297) (1982). Plea bargain negotiations can serve the same purpose as the giving of notice under OCGA § 17-10-2 (a). That statute does not require written notice, only “clear notice.” Graham v. State, 171 Ga. App. 242, 256 (17) (319 SE2d 484) (1984). When plea bargain negotiations are conducted, the defendant can be given “clear notice” of what the State intends to rely upon in aggravation of sentencing at the guilty plea hearing. In the instant case, appellant clearly knew that, if he accepted the State’s offer and pled guilty to the two offenses, the State intended to seek imposition of the mandatory life sentence for one of those offenses. Appellant also knew that, if he rejected the State’s offer, he could then be tried separately on the three indictments, in which case, he faced the possibility of not only a life sentence for one of the three counts of selling cocaine, but also the possibility of enhanced sentences for all the other offenses as well. He elected to accept the State’s offer and a contract was thereby created.

Despite his agreement with the State, appellant apparently urges that, immediately after he had pled guilty to the first of the two offenses, the State was nevertheless then required to renotify him that his now final conviction as to that offense would serve as the predicate for a life sentence on the second offense to which he was about to plead guilty. However, the giving of such formal renotification immediately prior to the guilty plea on the second offense would obviously be superfluous, since there was no “defect” in the predicate offense to which appellant had only just moments before pled guilty with the assistance of counsel. See Herring v. State, 238 Ga. 288, 290 (4) (232 SE2d 826) (1977). Moreover, at that point, it was not merely the State’s intent to seek a life sentence as to the second offense. It was also appellant’s intent to receive such a life sentence, as evidenced by his prior acceptance of the State’s offer and failure to object when the trial court pronounced a life sentence. OCGA § 17-10-2 (a) requires prior notification of the conviction or convictions upon which the State will subsequently rely for enhanced punishment. It does not require subsequent renotification of the conviction or convictions for which the defendant has already contracted to receive enhanced punishment.

Decided March 16, 1993.

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, J. Wade Padgett, Assistant District Attorneys, for appellee.

Appellant agreed to enter, at one hearing, a guilty plea as to both the predicate offense and the offense for which a life sentence would be mandated under OCGA § 16-13-30 (d). The State, in turn, agreed to dismiss all other charges pending against appellant on the three indictments. “The parties made a bargain. There is no evidence in the record that [the State] failed to live up to [its] part of the bargain.” State v. Hanson, supra at 746 (3). Having accepted the benefit of the bargain with the State and secured the dismissal of all other charges pending against him on the three indictments, it is appellant who now seeks to avoid living up to his part of the bargain. This he cannot do. “ ‘[Pjublic policy and the great ends of justice . . . require that the arrangement between the public prosecutor and the (defendant) be carried out[.]’ ” State v. Hanson, supra at 745 (3).

Judgments affirmed. Pope, C. J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A92A1965.
    POTTS v. THE STATE.
    (429 SE2d 526)
   Blackburn, Judge.

The defendant, John Christopher Potts, was convicted by a jury of three counts of child molestation and sentenced to ten years’ imprisonment with four years’ probation on each count, to serve concurrently. On appeal, the defendant asserts that the trial court erred in denying his motion for new trial.

At trial, one of the victims, the ten-year-old daughter of the defendant’s former girl friend, testified that during the school year of 1991, the defendant pulled down her panties and put his finger in her vagina. On that evening, she went into the bedroom where the defendant and her mother were sleeping and got into the bed with them because she was afraid. However, the defendant was not charged as a result of this incident.

On or about July 13 and 14, 1991, while this victim was visiting the home of the defendant’s sister, the defendant got into the bed where the victim and the defendant’s daughter had been sleeping, and pulled down her panties. The victim immediately moved the defendant’s hand. The next day, she informed her mother of this incident and later that day, reported the incident to the police department.

The defendant’s eleven-year-old daughter testified that during that same time period, the defendant got into the bed where she and the ten-year-old victim had been sleeping and rubbed her buttocks as well as other parts of her body. He put his finger in her rectum and got on top of her back while she was lying on her stomach. This victim pushed the defendant off her back and went upstairs to the bathroom. The next day, she discussed the incident with the ten-year-old victim who had informed her that the defendant had touched her also. The defendant’s daughter discussed this incident with her mother on the next day and they reported it to the police department. The defendant had touched her vagina before in 1987 and stopped when his female roommate entered the room.

The mother of the ten-year-old victim testified that her daughter informed her of the July 1991 incident the day after it occurred. She picked up her daughter from the home of the defendant’s sister and took her to the police station. The victim informed her that the defendant had put his hand in her rectum. The mother was aware of the 1987 incident during which the defendant touched her daughter’s vagina.

Detective Lisa Sikes of the Gwinnett County Police Department testified that on July 14, 1991, she obtained a statement from the defendant and the victims. In his statement, the defendant asserted that he had been drinking on July 13, 1991, and woke up the next morning in the bed where the victims had been sleeping. He did not remember how he wound up in the bed with the victims. The 11-year-old victim indicated in her statement that the defendant put his finger in her rectum and laid on top of her while she was lying on her stomach. This victim also stated that the defendant rubbed her buttocks as well as other parts of her body. She also mentioned the 1987 incident. In her statement, the ten-year-old victim noted that the defendant pulled down her panties and touched her chest.

During the trial, the defendant testified that he did not remember what happened between the time that he headed downstairs where the victims were sleeping on or about July 13, 1991, and the time that he woke up the next morning in their bed. He did not remember putting his finger in his daughter’s rectum or pulling down the panties of the ten-year-old victim.

1. In his first enumeration of error, the defendant contends that the trial court erred in charging the jury that the immoral and indecent acts could be performed with the intent to arouse or satisfy the sexual desires of either the child or the person when the indictment only asserts that the acts were done with the intent to arouse the accused. The defendant asserts that this error committed by the trial judge warranted a new trial. We disagree.

“In criminal prosecutions the court’s instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial. [Cits.]” Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978). However, “ ‘[i]t is not usually cause for new trial that an entire Code section is given. . . . [Cits.]’ ” Slack v. State, 159 Ga. App. 185, 188 (2) (283 SE2d 64) (1981). “[A] charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict. [Cits.]” Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621) (1983); see also Slack, supra at 188. Further, in such event, any error is not harmful if “the trial judge confined the elements of the crime to those charged in the indictment.” Searcy, supra at 235 (1). In the case sub judice, the trial judge charged the jury with the definition of child molestation as contained in OCGA § 16-6-4, but subsequently instructed the jury that the defendant’s guilt must be based upon the offenses set forth in the indictment. Accordingly, we find that the trial court did not err in denying the defendant’s motion for new trial on this ground.

2. In his second enumeration, the defendant contends that the trial court erred in failing to grant his motion for directed verdict as to Count 2 because the evidence was insufficient to support the verdict. We disagree.

“Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence. . . .” OCGA § 17-9-1 (a). “A motion for a directed verdict. . . under [this section] addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” Williams v. State, 162 Ga. App. 350, 351 (291 SE2d.425) (1982). “On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

In this appeal, the evidence presented by the prosecution shows that the defendant pulled down the panties of the ten-year-old victim, although the defendant testified that he did not remember what happened after he descended the stairs in the direction of where the victims were sleeping due to his alcohol consumption. The defendant did not specifically deny that the incidents took place as the victims testified. “The question of witness credibility ... is for the jury. [Cit.] . . . [T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991). The jury resolved the conflict in the evidence against the defendant and this court may not substitute its judgment for that of the jury. We have reviewed the evidence in the light most favorable to the prosecution and conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

, 3. In his third enumeration, the defendant asserts as error the trihl court’s addendum to the probationary portion of the sentence prohibiting the defendant’s contact with any child under the age of 16. However, the trial court only limited the defendant from having contact with children under 16 years of age in volunteer activities and seeking employment which requires regular contact with children under 16.

“The imposition of terms of probation is within the trial court’s discretion. [Cit.]” Hardman v. Hardman, 185 Ga. App. 519, 521 (5) (364 SE2d 645) (1988), rev’d on other grounds in Pender v. Witcher, 196 Ga. App. 856 (397 SE2d 193) (1990). In Hardman this court found that the trial court did not abuse its discretion in limiting the defendant’s unsupervised contact with females under age 14 as a condition of probation for child molestation. Considering the nature of the crime committed by this defendant and the age of the victims involved, we find no abuse of discretion in this condition imposed by the trial court.

4. In his fourth enumeration of error, the defendant contends that the trial court erred in ordering restitution without holding a restitution hearing. We agree.

OCGA §§ 17-14-8 through 17-14-10 “ ‘contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof. (Cit.)’ (Emphasis supplied.) [Cit.]” Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270) (1982). “In the absence of a pre-sentence hearing wherein the parameters of the above-cited Code sections are considered by the trial court, a sentence imposing restitution cannot stand. [Cit.]” Thompson v. State, 186 Ga. App. 471, 474 (4) (367 SE2d 320) (1988).

In the case sub judice, no such hearing was conducted and no written findings were made by the trial court with regard to restitution. Consequently, as this court held in Thompson, supra, that portion of defendant’s probationary sentence which imposes reimbursement for psychological counseling of the victims must be vacated and the case remanded to the trial court with direction that a hearing on the issue of restitution be made in accordance with the above-referenced Code sections.

5. The defendant contends that the trial court erred in considering a sentence improperly before it in the sentencing portion of the trial. The defendant asserts that the trial court erred in considering a sentence from the State of Kentucky which was similar to a first offender sentence and subject to discharge. This enumeration is without merit.

During a pre-sentence hearing, the trial judge can hear additional evidence on aggravation of punishment including the record of any prior criminal convictions and pleas of guilty or nolo contendere. OCGA § 17-10-2. In this case, the trial court considered the defendant’s guilty pleas entered in the State of Kentucky to one count of trafficking in a controlled substance and four counts of illegal possession of a controlled substance. Although the judgment of seven years’ imprisonment to the trafficking charge and ninety days’ imprisonment to one count of possession of a controlled substance was withheld, the defendant was sentenced to five years of probation and has not shown that the sentence was discharged. We conclude that the trial court’s consideration of the guilty pleas and the probated sentence was proper.

6. The defendant asserts that the trial court erred in allowing hearsay evidence during pre-sentencing concerning whether his prior conviction in Kentucky was given first offender status. We disagree.

In this case, the trial judge permitted the prosecutor to discuss the contents of an affidavit obtained from a district attorney in Kentucky as to whether the defendant’s prior conviction would be under a first offender type program similar to the one in this state. The information was provided by the prosecutor after the defendant raised the possibility that the conviction was under a first offender plan in Kentucky. “Assuming [arguendo that] the testimony [is] hearsay, . . . we conclude that its admission, under the facts of this case, was harmless error. . . . [I]n order to justify a new trial or reversal, the trial court’s ruling must be both erroneous and harmful to the appellant. [Cits.]” Glass v. State, 235 Ga. 17, 19 (2) (218 SE2d 776) (1975). The appellant has not shown that he has been harmed by the admission of this evidence. On the contrary, the trial court was inclined to sentence the defendant to imprisonment before the Kentucky sentence was considered. Consequently, this enumeration is without error.

Decided March 3, 1993

Reconsideration denied March 17, 1993

Moore & Davidson, W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

7. Lastly, the defendant contends that it was error for the trial court to deny his motion for new trial because the state failed to give him potentially exculpatory information. Specifically, he asserts that the prosecution failed to give him the name of his former roommate who was not called by or interviewed as a witness for the prosecution. This individual walked into the room during the 1987 incident. We find that this enumeration is also without merit.

On November 15, 1991, the defendant made a general request for anything exculpatory in nature. “In response to this type of request, the prosecutor must disclose evidence which creates a reasonable doubt of guilt which did not otherwise exist. [Cits.]” Radford v. State, 251 Ga. 50, 52 (4) (302 SE2d 555) (1983). The defendant has not shown that the testimony that would have been elicited from his former roommate would have created a reasonable doubt as to his guilt of the 1987 charge and merely speculates that any testimony elicited from this witness would have been exculpatory in nature. The defendant has not substantiated his assertion that the state had possession of any information which would have exonerated him of the 1987 molestation charge. Accordingly, the trial court did not err in denying the defendant’s motion for new trial on this ground.

Judgment affirmed as to conviction; judgment affirmed as to sentence but vacated only as it relates to restitution and case remanded for hearing as directed in Division 4. McMurray, P. J., and Cooper, J., concur.