author: Ruffin, Judge.

text:
    A98A0674.
    COOK v. THE STATE.
    (503 SE2d 40)
   Ruffin, Judge.

A jury found Barry Craig Cook guilty of rape. Cook appeals from the judgment of conviction and denial of his motion for new trial. We affirm, for the following reasons:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Miller v. State, 230 Ga. App. 73 (495 SE2d 329) (1997). So viewed, the evidence in this case shows that the victim testified that she awoke to find Cook, her estranged ex-boyfriend, standing in her bedroom. Cook attempted to talk to the victim about reconciling their relationship, but the victim refused. A struggle then ensued. Cook forcibly removed the victim’s clothing, dragged her downstairs, threw her onto a bed and had sexual intercourse with her. The victim testified that she did not consent to sexual intercourse. After she was raped, the victim called her sister and told her to call the police. The victim’s sister called 911 while en route to the house where the rape occurred. The 911 operator in turn called the house and talked to the victim.

Investigator Angela Fedd responded to the. crime scene and obtained a statement from the victim. The victim told Officer Fedd that Cook broke into her house, entered her bedroom and raped her.

1. Cook contends that the trial court erred in excluding evidence about the victim’s proposed abortion because this evidence was the basis for the argument he had with the victim and consequently was relevant to explain why he went to the victim’s home, what caused the argument, and the reason Cook consoled the victim. Cook further contends that the emotional nature of the discussion about the victim’s plan to have an abortion was necessary to give the jury a picture of the highly emotional confrontation between the victim and the defendant which led to the consensual intercourse. Cook argues the court’s ruling “eviscerated” his sole defense.

At trial, Cook’s trial counsel objected to Fedd’s reference to Cook hitting the victim previously, arguing that the statement placed Cook’s character into evidence. The trial court found the reference was made inadvertently, and denied Cook’s motion for mistrial. However, the court gave the jury a curative instruction, but avoided repeating the statement that Cook hit the victim previously. At the close of the evidence, the court considered Cook’s proffered testimony that the victim told him that she was pregnant and had decided to have an abortion. Cook further stated that he went to the victim’s home to confront her about this decision, an argument ensued, and during the course of consoling the victim, they engaged in consensual intercourse. The trial court considered Cook’s proffer but did not allow its admission.

“ Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.’ [Cits.]” Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). However, irrelévant matters which improperly tend to reflect adversely on the victim’s character, which destroy a juror’s impartiality, or which only excite the passions of the jurors should not be admitted. Kennard v. State, 180 Ga. App. 522 (1) (349 SE2d 470) (1986). See Teasley v. State, 177 Ga. App. 554, 555 (2) (340 SE2d 32) (1986).

Cook acknowledges that the evidence complained of “is extremely emotional and divisive, and persons with divergent views often become heated over this subject.” The State agrees, stating that “abortion is one of the most inflammatory issues of our time.”

Here, the trial court allowed Cook to present evidence of the past sexual relationship between the parties pursuant to the Rape Shield Statute, OCGA § 24-2-3. The trial court also allowed evidence of the argument which preceded the rape, but excluded evidence of the substance of that argument, i.e., the victim’s decision to have an abortion. The trial court reasoned that “[a]n argument is an argument over whatever. . . .” Contrary to Cook’s assertion that he was denied an opportunity to present evidence of his sole defense, the trial court did not prohibit him from explaining his presence in the victim’s home or his subsequent act to console the victim, however the court did restrict his explanation from making any reference to the possibility of abortion. The evidence of the abortion only injected an “improper element of emotionalism.” Teasley, supra. Accordingly, the trial court properly ruled that the evidence of the substance of the argument, i.e., the victim’s proposed abortion, was irrelevant to the issue of consent.

2. Cook asserts that the trial court erred in denying his motion for mistrial after the officer testified that Cook previously hit the victim. In addition, Cook claims the statement was flagrantly prejudicial, and made more egregious by the prosecutor’s failure to instruct the officer of the pre-trial ruling limiting the officer’s testimony.

Decided May 29, 1998

Reconsideration denied June 8, 1998

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

We first note that the record fails to show that Cook raised a prosecutorial misconduct issue at trial. Thus, Cook has waived this issue on appeal. Johnson v. State, 258 Ga. 856, 858 (376 SE2d 356) (1989). Nor does the record show that the officer intentionally violated the court’s in-limine ruling by injecting this evidence. Under the circumstances of the instant case, “[t]he State’s alleged misconduct is not an issue, the controlling issue is whether a mistrial was essential to the preservation of defendant’s right to a fair trial. [Cit.]” Edwards v. State, 200 Ga. App. 580, 582 (1) (408 SE2d 802) (1991).

“A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ [Cit.]” White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

At trial, the officer testified that “[Cook] wasn’t doing anything to [the victim] and a conversation took place, because she was discussing him hitting her on another occasion.” Cook timely objected to the evidence and the trial court denied Cook’s motion for mistrial, but gave a curative instruction to the jury. Posey v. State, 152 Ga. App. 216, 217 (262 SE2d 541) (1979) relied on by Cook does not require a contrary result. In Posey, we found reversible error when voluntary and deliberate comments by police officers placed Posey’s character in issue. Here, unlike Posey, there is no evidence of deliberate misconduct. In light of the unintentional nature of the evidence, we cannot conclude that the trial court abused its discretion in denying Cook’s motion for mistrial. White, supra. See also McGee v. State, 267 Ga. 560, 565 (3) (480 SE2d 577) (1997).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A0018.
    In the Interest of S. U., a child.
    (503 SE2d 66)
   Ruffin, Judge.

On May 2, 1997, the juvenile court found 16-year-old S. U. delinquent for having committed the crime of burglary and sentenced him to probation and boot camp. However, the juvenile court suspended the boot camp sentence pending S. U.’s successful completion of probation. Subsequently, on May 19, 1997, the juvenile court adjudicated S. U. delinquent for having committed the crime of theft by taking. The juvenile court revoked the suspension of the boot camp sentence, and delayed sentencing on the theft by taking charge until S. U. completed boot camp.

S. U. appeals from the theft by taking conviction, asserting (1) that the juvenile court erred by denying him a continuance to allow his attorney more time to prepare for trial which in turn resulted in ineffective assistance of counsel; (2) that the court became a biased participant at trial by questioning a witness; and (3) that the juvenile court erred in failing to conduct a probation revocation hearing prior to activating the boot camp sentence on the burglary charge. We affirm.

1. S. U. maintains that the juvenile court erred in denying his motion for a continuance to provide his attorney more time to prepare for trial.

The evidence reveals that S. U. was charged with unlawfully taking plants valued at $170 from a nursery on April 12, 1997. The juvenile court appointed an attorney to represent S. U. on the charge. On the day of trial, however, the court-appointed attorney notified the court that S. U. had retained his own attorney. However, S. U.’s retained attorney was not present. The juvenile court postponed the trial until the next day, at which time S. U.’s retained attorney appeared and requested a continuance because he had just been retained and needed time to subpoena witnesses and speak with the district attorney.

The juvenile court judge pointed out that the case was ready for trial, that witnesses had been waiting to testify for two days and that the court had previously appointed an attorney for S. U. The juvenile court judge thus advised the newly retained attorney that “[y]ou can take the employment of the case but you’ll have to be ready to try the case. We’re going to try it today.”

Prior to the start of the trial, the juvenile court allowed S. U.’s attorney to speak with the district attorney about the charges. After the State presented its case, the juvenile court recessed until the next day, thereby allowing S. U.’s attorney time to subpoena witnesses. The attorney called seven witnesses on the following day of trial. After these witnesses testified, S. U.’s attorney noted that other witnesses he planned to call were not present. The juvenile court then recessed for the day, giving the attorney the weekend to locate the remaining witnesses. The defense rested after S. U.’s counsel called two witnesses on Monday morning when court reconvened. The juvenile court found S. U. had committed the theft and adjudicated him delinquent.

Regarding S. U.’s assertion that the juvenile court erred in denying him a continuance, we note that “ ‘[a] motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial court and a ruling denying such a motion will not be interfered with unless the court has abused its discretion in denying the motion.’ [Cit.]” Aleman v. State, 227 Ga. App. 607, 610 (2) (a) (489 SE2d 867) (1997).

We find no evidence supporting S. U.’s argument that the juvenile court abused its discretion in denying a continuance. “Mere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses. [Cit.]” Scroggins v. State, 198 Ga. App. 29, 37 (2) (401 SE2d 13) (1990).

The instant case was not intricate or convoluted; the only question was whether S. U. stole the plants. The State called only two witnesses in its case-in-chief: the owner of the nursery and an eyewitness who saw S. U. and other juveniles standing next to a truck loaded with plants on the nursery property at night when the nursery was closed. S. U.’s defense was that the evidence merely proved his presence on the nursery property; there was no evidence showing that he took plants from the nursery.

In addition to the straightforward nature of the State’s case and S. U.’s defense, S. U. “has not suggested any evidence or witness or any matter whatsoever which he could have produced in defense if he had had more ‘time to prepare.’ ” Id.; see also Roland v. State, 266 Ga. 545 (3) (468 SE2d 378) (1996). In response to defense counsel’s request for time to speak with the district attorney and subpoena witnesses, the court allowed defense counsel time to speak with the district attorney and postponed the trial, thereby providing counsel time to locate witnesses. Other than simply stating that his attorney needed more time to prepare, S. U. has not shown this Court what evidence he would have produced if given more time. Accordingly, the trial court did not abuse its discretion in denying the motion for continuance. Aleman, supra; Scroggins, supra.

2. We also reject S. U.’s claim that as a result of the juvenile court’s denial of his motion for continuance, his counsel was ineffective because he had no time to prepare for trial.

“A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [Cit.]” Stephens v. State, 224 Ga. App. 184, 185 (3) (480 SE2d 235) (1997).

In the instant case, S. U. has not “pointed to any specific instances at trial where he contends that, due to lack of preparation, his counsel’s performance fell below an objective standard of reasonableness. Besides his bare assertion that he received ineffective assistance due to the denial of his motion for continuance, he does not support his argument by pointing to even a single act or omission of his counsel at trial which he contends was deficient and resulted directly from the denial of his motion. No deficient performance having been shown, [S. U.’s] ineffective assistance claim must fail. . . .” Aleman, supra at 611.

3. S. U. asserts that the trial court “committed reversible error by ceasing to be a [sic] impartial fact finder and became a bias participant.” In support of this allegation, S. U. refers to a question the juvenile court judge asked the State eyewitness during his testimony.

The eyewitness testified that he saw S. U., two other juveniles, and a man standing near a truck on the grounds of the nursery around 10:00 to 10:30 p.m. on April 12, 1997. According to the witness, the truck was loaded with plants from the nursery. Following this testimony, the juvenile court judge asked the witness, “[a]nd there was [sic] three or four people, one of which was this gentleman here; is that correct?” The witness responded affirmatively.

S. U. maintains that the trial court, by asking the question, violated OCGA § 17-8-57, which provides in part that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

The evidence shows that S. U. did not object to the juvenile court judge’s question, and thus he failed to preserve the alleged error for appellate review. See Lawson v. State, 224 Ga. App. 645 (2) (481 SE2d 856) (1997).

Even if S. U. had preserved this issue for appeal, we find that OCGA § 17-8-57 is not applicable here. OCGA § 17-8-57 “is limited to remarks made before the jury[, tit.]” and here the juvenile court was acting as the factfinder; there was no jury. Dukes v. State, 186 Ga. App. 773, 774 (3) (369 SE2d 257) (1988). See also Morton v. State, 132 Ga. App. 329, 330 (1) (208 SE2d 134) (1974) (“The reason for [OCGA § 17-8-57] prohibiting the judge from intimating his opinion as to what has been proved is to keep the jury from being influenced, not to keep the judge from making up his own mind.”). Accordingly, the juvenile court did not err.

4. S. U. asserts that the juvenile court “committed reversible error by denying [him] a violation of probation hearing before activating [the] suspended boot camp sentence[.]”

A juvenile has the right to a hearing and notice thereof prior to revocation of the juvenile’s probation. See OCGA § 15-11-42 (b)-(d); T. S. I. v. State of Ga., 139 Ga. App. 775 (1) (229 SE2d 553) (1976). Even assuming these rights extend to juveniles faced with revocation of a suspended sentence, it is clear that in the instant case neither S. U. nor his attorney objected when the juvenile court proceeded to revoke S. U.’s suspended sentence without providing notice and holding a separate hearing. “We must therefore assume that ‘due notice’ was in fact received by [S. U.] or that, in any event, the general appearance of [S. U.] by his counsel constituted a waiver of any irregularity therein.” Waters v. State, 80 Ga. App. 105, 106 (1) (55 SE2d 677) (1949). “From the facts of this record, it seems apparent that [S. U.] waived any objection to any lack of notice or formality of hearing.” Rainwater v. State, 127 Ga. App. 406, 408 (193 SE2d 889) (1972). As S. U. failed to timely preserve any objection to the juvenile court’s procedures, there is nothing remaining for this Court to consider. See In the Interest of D. L. S., 224 Ga. App. 660, 661 (2) (482 SE2d 418) (1997) (“ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.’ [Cit.]”).

Decided June 8, 1998.

Gabel Law Firm, Thomas E. Stewart, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Thomas R. McBerry, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, J, and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A98A0671.
    INGRAM v. THE STATE.
    (503 SE2d 70)
   Smith, Judge.

Alex Ingram was convicted on two charges of aggravated battery and one charge of aggravated assault. His motion for new trial was denied and he appeals, raising as error the admission of testimony concerning a prior incident between one of the victims and himself. We find no error and affirm.

Evidence was presented that on July 2, 1996, Smith, Ingram’s former girlfriend, drove to Ingram’s house. She testified that she had spent all of her money repairing the windows Ingram had broken out in her car and that she needed money from him for food for her children. Ingram had told her to come get the money. After she arrived at Ingram’s house, drove him to the store to buy some beer, and returned to his driveway, her car overheated. Ingram began pouring water into the radiator while Smith waited inside the car.

Meanwhile, Hicks walked past the car, said “hello” to Smith and Ingram, and walked into his mother’s house. Ingram, too, walked into his own house. A short time later, Hicks returned to the car where Smith was sitting and asked for a cigarette. Ingram ran out of his house toward Hicks, and a fight between the two men ensued. After Hicks ran-away, Ingram threatened to kill him, and Smith tried to calm Ingram down by driving him down the street. When Smith stopped at a stop sign, Ingram stabbed her several times, injuring her severely.

Ingram raises no contention concerning the evidence surrounding the July 2, 1996 incident but complains that the trial court erroneously admitted evidence of a prior incident involving Smith and him. The trial court permitted the State to introduce evidence that Ingram visited Smith at her friend’s home on June 19, 1996. Ingram, who had been drinking, accused Smith of having a relationship with another man. This precipitated an argument and then a physical fight between Smith and Ingram. Smith eventually pushed Ingram out of the house. Once outside, while cursing and yelling, “I’m going to get her,” Ingram used a chair to beat on Smith’s car and break out the windows. Afterwards, but before the July 2 incident, Ingram called Smith “all the time.” He once called her workplace and threatened to “blow the building up” if Smith were not called to the telephone. Evidence of another altercation on February 24, 1996 was also admitted. On that date, Smith was driving her car, and Ingram, who had been drinking, was a passenger. Accusing Smith of seeing another man, Ingram struck her in the face several times. The trial court admitted evidence concerning this incident as a similar transaction. Ingram does not appeal this ruling but complains only of the court’s admission of evidence concerning damage to Smith’s car during the June incident.

At trial, Ingram sought to introduce evidence of the June incident as a prior difficulty between himself and Smith, insofar as he claimed that she stabbed him with a knife. But he also asked the court to exclude testimony concerning the damage he caused to Ingram’s car during that incident. He claimed, as he does here, that the automobile damage involved a distinct crime that would interject his character into the trial. The court admitted testimony concerning the entire June 1996 incident, finding that the altercation constituted a prior difficulty as well as a similar transaction, and the damage to Smith’s car constituted part of the res gestae. We find no error.

“While it is true that the prosecutor may not introduce matters that place the defendant’s character in issue by showing that he has committed another, wholly independent crime, there is an exception where evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime.” (Citations and punctuation omitted.) Schubert v. State, 160 Ga. App. 227 (1) (286 SE2d 514) (1981). See also Vick v. State, 211 Ga. App. 735, 737 (2) (440 SE2d 508) (1994); Owen v. State, 202 Ga. App. 833, 835 (3) (a) (415 SE2d 537) (1992).

In this case, evidence concerning the property damage to Smith’s car was admissible to show a course of conduct leading toward the July 2 stabbing of Smith. Ingram’s violent attack on the car was an extension of an altercation between himself and Smith. The entire incident, including Ingram’s resulting angry outburst in which he broke the windows in Smith’s car while threatening to “get her,” along with evidence concerning Ingram’s actions in February 1996, demonstrated a pattern of conduct whereby Ingram became jealously enraged; it represented conduct leading up to the violent crime of July 2. Furthermore, evidence concerning the damage to Smith’s car was relevant to show why she drove to Ingram’s house on July 2, or as the State argues, why she remained in “harm’s way.” She needed money to purchase food, as she had spent all of her money repairing the damage to her car caused by Ingram. Testimony concerning the damage Ingram caused to Smith’s car clearly was admissible as part of the res gestae, and “such evidence is not rendered inadmissible despite the fact that the character of the accused is incidentally implicated. [Cit.]” Galbreath v. State, 213 Ga. App. 80, 84 (3) (443 SE2d 664) (1994). Moreover, even assuming the trial court should not have admitted the evidence, any error would have been harmless given the overwhelming evidence of Ingram’s guilt.

Sessions v. State, 207 Ga. App. 609 (428 SE2d 652) (1993), relied upon by Ingram, is distinguishable. There, we concluded that the trial court properly admitted evidence of similar crimes. But we also held that the court erroneously permitted witnesses testifying about these transactions to testify about other crimes committed by defendant either during commission of the similar crimes or apprehension for the crimes. We concluded that such “testimony revealed additional criminal acts which were unrelated and irrelevant to the crimes for which defendant was being tried, and that only that portion of the witnesses’ testimony pertaining to the previous similar crimes was admissible at trial.” (Citations and footnote omitted.) Id. at 610. Here, testimony concerning the property damage to Smith’s car was not unrelated and irrelevant to the crime for which Ingram was being tried. Ingram’s conduct in damaging the car was part of a pattern of violence against Smith and also was relevant to explain Smith’s presence on Ingram’s property.

Decided June 8, 1998.

Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Lawrence Delan, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

We need not reach Ingram’s contention that the June 19 damage to Smith’s car was erroneously admitted as a similar transaction. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it [may] not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose.” (Citation and punctuation omitted.) Buttles v. State, 229 Ga. App. 300, 303 (494 SE2d 73) (1997).

Judgment affirmed.

Birdsong, P. J, and Johnson, J., concur.

       Ingram was acquitted of one charge of aggravated assault.

       Ingram accused Smith of cutting him during this incident, and Smith was cited for aggravated assault.


author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A98A0052.
    LANCASTER v. USAA CASUALTY INSURANCE COMPANY.
    (502 SE2d 752)
   Andrews, Chief Judge.

Suzanne Lancaster, insured by USAA Casualty Insurance Company (USAA), appeals from the trial court’s judgment in favor of USAA in her suit for bad faith cancellation of benefits. The matter was heard by the court sitting without a jury.

1. “ Tn a bench trial the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.’ (Citations and punctuation omitted.) Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (394 SE2d 411) (1990). However, the court’s judgment in a non-jury trial will be reversed where it is apparent that it rests on erroneous reasoning or an erroneous legal theory. Scott v. Purser Truck Sales, 198 Ga. App. 611, 612 (402 SE2d 354) (1991); [cit.].” CRS Sirrine v. Dravo Corp., 213 Ga. App. 710, 721 (4) (445 SE2d 782) (1994).

2. Viewed with all inferences in favor of the judgment, the evidence was that Lancaster was involved in an automobile accident on July 10, 1993, in which her vehicle sustained a glancing blow from the rear. She was taken to an emergency room complaining of head, neck and back pain. The emergency room doctor diagnosed muscle strain and recommended she see a neurologist, which she did. Her neurologist, Dr. Lesch, treated her until November 1993, when, according to Lancaster, she suffered unusual swelling which Dr. Lesch did not know how to treat and he referred her to a rheumatologist at Emory.

Lancaster testified that she had been diagnosed by Emory physicians in 1988 with fibromyalgia, a form of rheumatoid arthritis, which had been controlled with medication until the accident. Lancaster also testified that, after being referred back to Emory by Dr. Lesch, her rheumatologist treated her with muscle relaxers and antiinflammatories and referred her to a psychiatrist for depression from the fibromyalgia, as well as an internist, and a cardiologist. No reasons appear in the record or transcript for the latter two referrals.

USAA’s policy had medical coverage up to $50,000 and lost wages coverage of up to $2,000 a month for two years. USAA paid medicals of $11,595 and lost wages of $14,988 before stopping the payments in August 1994, after obtaining an independent medical examination by neurologist Dr. David Cohen in May 1994. The independent medical exam was requested because it appeared that Lancaster was not getting any better with the treatment being received and the adjuster felt a second opinion would be useful to both parties. A neurologist was chosen for the independent exam because the adjuster believed Lancaster was mainly being treated by a neurologist at that time.

Dr. Cohen was chosen by Florida Medical Specialists, an independent entity used by USAA for medical exams, to do the exam after Lancaster objected that the first neurologist chosen was located inconveniently for her. Dr. Cohen was provided with Dr. Lesch’s records as well as the accident report and the emergency room records. He performed an examination of Lancaster and concluded that “[i]n my field of speciality, no further neurological treatment is reasonable or necessary . . . relative to the accident in question[,]” and that “the patient is able to work in a full time job without restrictions or limitations . . . [and] this patient has reached maximal medical benefit in my speciality and I do not feel that further treatment is necessary.”

Based on his report, USAA ceased paying benefits on August 11, 1994.

3. “ As a matter of law, bad faith penalties [and attorney fees] under [OCGA § 33-4-6] are not awardable if an insurer has a reasonable and probable cause for refusing to pay a claim. The advice of an independent medical examiner that the treatment furnished a claimant is not in fact necessary [treatment for injuries arising from the accident covered by the insurance policy], unless patently wrong based on facts timely brought to the insurer’s attention, provides a reasonable basis for an insurer’s denial of a claim for payment for such treatment.’ Haezebrouck v. State Farm Mut. Auto. Ins. Co., 216 Ga. App. 809, 811 (455 SE2d 842) (1995); Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212-213 (322 SE2d 510) (1984).” (Emphasis supplied.) Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 351 (3) (491 SE2d 830) (1997).

Here, since USAA obtained the opinion of Dr. Cohen that no further neurological treatment was needed, it was incumbent upon Lancaster to show the court, by a preponderance of evidence, that this opinion was patently wrong and that the worsening of her fibromyalgia was attributable to the accident. This she contends she did by virtue of her own testimony and the introduction of her continuing medical bills pursuant to OCGA § 24-7-9 and Hutcheson v. Daniels, 224 Ga. App. 560, 561 (1) (481 SE2d 567) (1997).

(a) While there are situations, such as Hutcheson, where we have concluded that expert testimony was not necessary to prove causation of an injury because of the short lapse of time between automobile accidents and treatment for a neck injury or carpal tunnel which the plaintiffs attributed to the accident, this is not such a situation. Hutcheson involved the onset of previously unexperienced carpal tunnel pain within days of an accident and resulting treatment. There, as in Madden v. Solomon, 196 Ga. App. 512, 513 (1) (396 SE2d 245) (1990) (physical precedent) (neck injury manifested within hours of collision) and Jordan v. Smoot, 191 Ga. App. 74 (1) (380 SE2d 714) (1989) (head, neck and back pain shortly after collision), we found that a lay jury could conclude there was a causal connection as a matter of common sense based on the plaintiff’s testimony and medical bills. Here, the issue is not the neck, back and knee pain which Lancaster initially suffered, but aggravation of another condition, fibromyalgia.

The present situation is more similar to that in Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987). There, a former college football player sued the college several years after leaving, contending that his continuing medical problems were attributable to injuries suffered while playing for the college. Although his medical bills were admissible under OCGA § 24-7-9 without having the person submitting the bill testify and without having to produce an expert to show the charges were reasonable and necessary, Eberhart, supra, “OCGA § 24-7-9 is only a statutory rule of evidence regarding the admission of medical bills. It does not purport to obviate a plaintiff’s further satisfaction of the evidentiary obligation to demonstrate the liability of the defendant for the damages being sought. Notwithstanding the admission into evidence of medical bills, a plaintiff must still prove that his injury is within the coverage of the policy of insurance under which a recovery is sought. [Cit.]” Id. at 518.

While Dr. Cohen did not dispute that Lancaster had fibromyalgia or that an automobile accident might cause fibromyalgia to flare, that alone does not suffice to prove the causation required to tie the accident to Lancaster’s continuing problems and treatment by physicians other than a neurologist. Compare Wright v. Millines, 217 Ga. App. 464 (458 SE2d 488) (1995) (referring physician’s testimony that he referred patient to an orthopedist provided causal link between injuries and orthopedic surgery). Here, the connection between flaring fibromyalgia and the accident is not the type of common sense deduction that lay factfinders have been found competent to make. Eberhart, supra at 518.

(b) There is also another evidentiary barrier to Lancaster’s claim — hearsay. While Lancaster could testify to her physical condition and the treatment she obtained for it, the only link between the accident and this continuing treatment was Lancaster’s testimony concerning Dr. Lesch’s statements to her that he did not know what caused her swelling and that he was referring her to Emory for further treatment by a rheumatologist.

“ ‘[Hjearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.’ Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862) (1938).” White Missionary Baptist Church v. Trustees of First Baptist Church &c., 268 Ga. 668, 669 (1) (492 SE2d 661) (1997). Therefore, we do not consider the hearsay statements repeated by Lancaster regarding what doctors told her about the diagnosis and causation of her condition and the referrals made by these doctors. Compare Southern Medical Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (2) (454 SE2d 180) (1995) with Cox v. Rewis, 207 Ga. App. 832, 833 (429 SE2d 314) (1993).

4. Under these circumstances, the trial court’s conclusions that Lancaster had not carried her burden of proof and that USAA’s defense of an independent medical examination as the basis for refusing continued payment was reasonable as a matter of law are affirmed. Neal v. Superior Ins. Co., 208 Ga. App. 827 (432 SE2d 253) (1993).

Judgment affirmed.

Blackburn, J., concurs and concurs specially. Eldridge, J., concurs in the judgment only.

Blackburn, Judge,

concurring and concurring specially.

I fully concur with the analysis and holding of the majority in this case. While I do not question the holdings of the trial judge or the opinion of Dr. Cohen in this matter, I write separately to point out a systemic problem in the general use of “independent” experts in the litigation process. This problem, while not limited thereto, is greatest where insurance companies use “independent” medical experts’ opinions to deny or limit payment of claims. The inherent weakness of this process is that the insurance company which controls the flow of business to the “independent” medical services provider has a financial interest in the negative finding of such provider.

Where companies are established for the sole purpose of selecting or providing medical experts for insurance companies, either individually or as an industry, they can by no means be deemed to be independent, unless a major portion of their income is derived from providing medical services or expert testimony on behalf of plaintiffs. Where essentially all of a company’s business comes from a single insurance company, from the insurance industry, from providing defense services to the medical profession, or some combination thereof, such companies clearly have a financial interest in providing opinions which are favorable to healthcare or insurance company defendants. If they did not do so, they would soon find themselves without business, as the parties who retain them are advocates seeking partisan advantage. It is not the responsibility of parties to advocate or pay for the production of evidence which will benefit their opponent. It is only natural that defendants and plaintiffs alike will employ only those who support their position under our existing system of expert selection. Parties are free to shop any number of potential experts until they locate one who supports their position. The factfinder is rarely aware of the numerous experts who may have rejected the advocated position. Where the parties are totally free to select and employ an expert, the term “independent expert” becomes an oxymoron. The law has long recognized the natural allegiance one generally has to the one from whom payment is received. In addition, experts are not exempt from normal human frailties, and their position might be affected by the amount of the fee received for services rendered.

Truth is the province of the trial judge and the jury. It is in the search for truth and justice that the trial court has great discretion in the control of a case. It would seem an appropriate function of the trial judge to inquire into the “independence” of any company which provides or selects “independent” expert services or opinions, be they for plaintiffs or defendants. In the event such inquiry results in a determination of bias in favor of either party by the trial judge, such judge could limit or exclude such evidence, allow the use of another expert under rules imposed by the trial court, or consider such bias in the judge’s evaluation of such evidence or charge the jury that it is free to do so where the matter is submitted to a jury.

Decided May 22, 1998

Reconsideration denied June 9, 1998.

In considering whether the involved service or expert is “independent” or biased, the trial court could consider the above-listed factors as well as the amount of the fee received. If the subject service does not get a significant portion of its business from both plaintiffs and defendants, such condition would authorize a presumption of bias and dependence and authorize the trial court to act.

It is important that trial courts be fair in the exercise of their discretion and in limiting evidence. Except in the most egregious of cases the trial court should seek to permit the parties to select replacement experts who are truly independent, unbiased experts or services, where bias is found. Such issue must be timely raised by the party asserting expert bias so as not to unduly delay the trial of such case or to result in injustice.

As to those services which do not directly provide expert opinions to either plaintiffs or defendants, but rather select those who do, the trial court could consider whether such services are provided generally to plaintiffs and defendants or insurance companies. Where a company essentially limits its searches to finding experts for one side or the other, the court can conclude that such experts are not independent, and are inclined to render opinions which are consistent with their client’s position. The trial court would be free to consider such presumptive bias, whether or not any direct bias by the selected expert can be shown. The trial court can also consider the fees charged by the service or expert, any contingent interest in the subject litigation, the volume of business derived by such providers from either party or the industry of which they are a part.

The trial courts have inherent authority to exercise their discretion in the area of “independent” experts under the existing laws of Georgia, and I would encourage them to fully exercise such authority in appropriate cases.

Donald J. Sharp, for appellant.

Saveli & Williams, John C. Parker, for appellee.

       Lancaster had served as an emergency medical technician for three years and was performing abbreviated physical examinations for life insurance applicants at the time of the wreck.

       USAA paid the expenses incurred in treatment by Dr. Lesch.


text:
    A98A0566.
    DANIELS v. GORDON et al.
    (503 SE2d 72)
   Ruffin, Judge.

Jace Daniels, a minor, claimed that while he was a student at the Macon County Middle School, his teacher, Mary Haigler, physically restrained and choked him, thereby causing him physical and emotional injuries. Jace’s father, Edward Daniels, sued Haigler and the school principal, Dale Gordon, on his son’s behalf. Gordon and Haigler both argued that they were entitled to official immunity. The trial court granted the defendants’ motion for summary judgment, and Daniels appeals. We affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Daniels asserted in his complaint and brief in opposition to defendants’ motion for summary judgment that in October .1996 while Jace was enrolled in Haigler’s class, he was improperly and intentionally disciplined by Haigler. According to Daniels, “Jace was physically-restrained and choked, experiencing pain and suffering, along with humiliation, in front of his classmates. . . .” Jace received medical treatment for neck pain which allegedly arose from the incident. Daniels submitted the affidavit of Dr. Crystal Brown who examined Jace in December 1996. Dr. Brown stated that Jace had soreness in the neck area with muscle spasm, for which she prescribed therapy and medication.

Daniels maintained, inter alia, that Haigler’s actions constituted a violation of Georgia law governing corporal punishment, OCGA § 20-2-730 et seq. Daniels also averred in his complaint that Gordon was “charged with the responsibility for disseminating school rules and enforcing school policy” but had taken no action against Haigler for disciplining Jace. However, Daniels failed to cite to any affidavits, depositions or other evidence to substantiate his assertions that Haigler choked Jace as opposed to merely grasping his face, that Jace’s injuries were caused by the alleged choking incident, or that Gordon failed in his responsibilities concerning enforcement of school policy.

In contrast, the defendants cited Haigler’s affidavit. Haigler stated that she has ten years of teaching experience. On the day of the incident Jace was in a class of 26 students, which Haigler said “created a special problem as far as discipline, because it was difficult to isolate a disruptive student physically from the other students.” According to Haigler, Jace was a “perennial problem in the class, misbehaving and disrupting other students. He sang, made noises, and passed gas. He often refused to work on assignments, and otherwise refused to follow directions.” Haigler said that on the day of the incident, Jace was misbehaving as usual. She “admonished him several times, to no avail.” The computers in Haigler’s class shut down, and while she was trying to get them back on line, Jace was creating problems and another student complained about him. According to Haigler, Jace ignored her attempts to get him to behave. She said that “after I got the computers back on-line, I asked Jace to sit down as he was standing next to my desk. He did not, and in fact would not even look at me. I reached up to his face (he is taller than me), [sic] grasped his face with my thumbs on his cheek bones and my fingers splayed across his cheeks and turned his head to face me. I then told him to listen to me. My intention was to get his attention and I did not intend this as discipline. He did not indicate at the time that this caused any physical injury.”

The defendants also submitted the affidavit of the emergency room physician who treated Jace the day after the incident. This physician said that his examination did not reveal any visible injury. He continued, noting that there were no bruises, inflammation or abrasions. The x-rays of Jace’s neck were normal, as were the neurological examination results.

1. We find that Haigler’s actions in this case did not amount to corporal punishment such that the provisions of OCGA § 20-2-730 et seq. would apply. “Corporal punishment plainly means physical, as opposed to pecuniary, punishment. [Cit.]” Simmons v. Vancouver School Dist. No. 37, 704 P2d 648, 653 (Wash. App. 1985). Black’s Law Dictionary (5th ed.) also defines the term as “any kind of punishment of or inflicted on the body.” To “punish” means “subjecting someone to loss of freedom or money or to physical pain for wrongdoing.” American Heritage Dictionary (2nd college ed.).

While paddling and spanking are not the only methods of corporal punishment, not all physical contact instigated by an educator amounts to corporal punishment. A Florida appellate court has determined that a teacher’s duty to keep good order in the classroom “necessarily implies the power to the teacher to use reasonable physical force not amounting to corporal punishment to do so. Without such reasonably implied power, the requirement to keep good order would be meaningless.” (Punctuation omitted.) Williams v. Cotton, 346 S2d 1039, 1041 (Fla. App. 1977). Moreover, it has been held that touching a student in order to remove a pencil from his hand cannot be considered corporal punishment. Harris v. Commonwealth Secretary of Ed., 372 A2d 953, 957 (Pa. 1977).

In this case, Haigler’s actions were instituted to regain control and supervise the classroom. See Wright v. Ashe, 220 Ga. App. 91, 93-94 (469 SE2d 268) (1996). Haigler’s uncontroverted testimony established that her grasping of Jace’s face was meant to get Jace’s attention and not to punish. Accordingly, Daniels’ corporal punishment argument fails, and we do not reach the issue of whether Haigler and Gordon complied with the requirements for inflicting corporal punishment under OCGA § 20-2-730 et seq.

2. Moreover, we conclude that Haigler and Gordon were entitled to official immunity, which extends to employees of school districts. Coffee County School Dist. v. Snipes, 216 Ga. App. 293 (454 SE2d 149) (1995). “Official immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. [Cit.] In other words, public agents can only be sued in their official capacities if they (1) negligently perform a ministerial duty, or (2) act with actual malice or actual intent to cause injury while performing a discretionary function. See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991).” Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995). More specifically, “[t]he Georgia courts have consistently held that making decisions regarding the means used to supervise school children is a discretionary function of the school principal. [Cits.] Additionally, the general task imposed on teachers to monitor, supervise, and control students has also been held to be a discretionary action which is protected by the doctrine of official immunity. [Cits.]” Wright, supra at 93-94.

In this instance, Haigler was simply fulfilling her discretionary tasks of monitoring, supervising and controlling the students in her class when she grasped Jace’s face to get his attention. Wright, supra. Accordingly, no liability could attach to her actions unless she acted with actual malice. Teston, supra. As there is no evidence whatsoever of actual malice, Daniels’ suit against Haigler fails as a matter of law, and the trial court properly granted her summary judgment. See Lau’s Corp., supra.

Decided June 9, 1998.

Melvyn J. Williams, for appellant.

Chambless, Higdon & Carson, Mary M. Katz, for appellees.

As for the claims against Gordon, Daniels has failed to show what school policies Gordon failed to distribute to the teachers or what school policy Gordon failed to enforce. Accordingly, Daniels has not presented any viable claim against Gordon. Furthermore, even if Daniels had presented evidence showing Gordon acted inappropriately in performing his functions regarding the means to be used to supervise students, Daniels has not shown that Gordon’s actions were ministerial in nature or that Gordon acted with actual malice in the performance of discretionary acts such that Gordon would not be immune from suit. See Teston, supra. Therefore, the trial court properly granted summary judgment to Gordon.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A98A1161.
    DARTY v. THE STATE.
    (503 SE2d 76)
   Blackburn, Judge.

Rick Darty appeals his conviction of theft by shoplifting following a jury trial. Darty contends the evidence was insufficient to support the verdict and the trial court erred in refusing to give his requested charge on mistake of fact. We disagree and affirm.

On appeal we view the evidence in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence. We neither weigh the evidence nor determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Rather, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the record reveals the following pertinent facts:

Shortly after 6:00 p.m. on June 15,1996, a Macy’s security guard observed a woman remove a pair of shorts from the Tommy Hilfiger section of the store. The guard thought the woman’s behavior was suspicious, so he followed her to the Levi’s section of the store, where she left the shorts on a shelf and walked away. The guard then observed Darty pick up the shorts, walk to another section of the store, and conceal them in his paper Macy’s shopping bag. There is no evidence that Darty received this paper bag from his companion. Neither Darty nor the woman went by a cash register after Darty picked up the shorts. Moments later, Darty rejoined the woman in another area of the store where she handed him a plastic bag containing merchandise she had paid for. Darty then immediately left the store. When the security guard identified himself to Darty in the parking lot, Darty said: “Shit, I guess I f- — d up.” Darty had in his paper Macy’s shopping bag $282 worth of Tommy Hilfiger and I.N.C. merchandise for which he had no receipt, including the pair of shorts he had put in the bag. The jury was also shown a videotape of Darty’s and the woman’s activities in the Tommy Hilfiger section of the store. Darty presented no evidence.

1. Darty argues that the evidence was insufficient to prove he intended to shoplift. Whether “the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” (Punctuation omitted.) Parham v. State, 218 Ga. App. 42, 43 (1) (460 SE2d 78) (1995). The evidence, as set forth above, was sufficient for a rational trier of fact to find Darty guilty beyond a reasonable doubt of theft by shoplifting. Id.; see also Agony v. State, 226 Ga. App. 330 (2) (486 SE2d 625) (1997).

2. Darty argues the trial court erred in refusing to give his requested charge on his sole defense of mistake of fact. ‘While a trial court is required to charge on a criminal defendant’s sole defense of mistake of fact even absent a request to do so, such a charge is not required where, as here, it is not authorized by the evidence. A mistake of fact is defined as ‘a misapprehension of fact which, if true, would have justified the act or omission.’ OCGA § 16-3-5.” (Citations and punctuation omitted.) Turner v. State, 210 Ga. App. 303, 304 (1) (436 SE2d 229) (1993). Mistake of fact is a defense to the extent ignorance of some fact negates the mental state required to establish a material element of the crime. Jones v. State, 263 Ga. 835, 839 (2) (439 SE2d 645) (1994).

Darty asserts that his claimed misapprehension of fact was his belief that the merchandise in his possession had already been paid for by his companion. Darty presented no evidence of his state of mind from which a jury could draw this inference. Since it is Darty’s responsibility to produce evidence supporting the affirmative defense of mistake of fact, he may not rely on the evidence adduced in the state’s case unless “the state’s evidence raises the issue invoking the alleged defense.” OCGA § 16-1-3 (1); see Cheesman v. State, 230 Ga. App. 525, 528 (6) (497 SE2d 40) (1998); see also OCGA §§ 16-3-5; 16-3-28. The state’s evidence did not raise the issue of mistake of fact.

The state’s evidence showed that the stolen merchandise was recovered from the paper bag Darty was carrying and not from the plastic bag his companion gave him before he left the store. Although Darty and his companion had shopped apart for some time, it does not logically follow under the evidence adduced that Darty formed a subjective belief that his companion had paid for merchandise found in a paper bag which had never left Darty’s possession. Similarly, Darty’s statement to the security guard when he was caught with the stolen merchandise was such that the jury could have inferred guilt. Darty offered no other evidence authorizing a different inference. There was no evidence sufficient to raise the issue of mistake of fact. Consequently, the trial court did not err in refusing to give the charge.

Decided June 9, 1998.

Thomas J. Killeen, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.


author: Beasley, Judge.

text:
    A98A0543.
    OLIVER v. THE STATE.
    (503 SE2d 28)
   Beasley, Judge.

Arlene Oliver was indicted for armed robbery (OCGA § 16-8-41), possession of a knife during commission of a crime (OCGA § 16-11-106), and giving a false name and date of birth to a law enforcement officer (OCGA § 16-10-25). The latter charge was nolle prossed. The jury found her guilty of armed robbery but mentally ill and acquitted her of the knife charge.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]”

So viewed, the evidence shows that while 70-year-old Carolyn Ussery was carrying groceries to her car after shopping, Oliver approached from behind, grabbed Mrs. Ussery and demanded her purse. Initially Mrs. Ussery resisted and during the struggle her purse slipped off her shoulder and down to the ground. She looked down and saw Oliver holding a knife in her rib cage “and went limp.” After Oliver took the purse and fled, Mrs. Ussery discovered a severe laceration on her finger.

1. Oliver contends the court erred in refusing to grant her motion for directed verdict for armed robbery because “there was no evidence that Ms. Oliver used the knife to effectuate the taking of the victim’s purse.” She argues that the victim’s statement to police and trial testimony were inconsistent in that her statement did not show the knife was used during the robbery whereas her trial testimony did.

A directed verdict of acquittal is authorized only 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. . . .” The standard of review for denial of a motion for such a verdict and for reviewing sufficiency of evidence to support a conviction is the same: whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Armed robbery occurs “when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” The offensive weapon must be used “as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person” which must “either precede or be contemporaneous with, and not subsequent to, the taking.” “The question is whether the defendant’s acts created a ‘reasonable apprehension on the part of the victim that an offensive weapon was being used.’ ” The element of “use” is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery. A weapon, including a concealed weapon, “may be used in a taking as an instrument of constructive force to intimidate the victim by placing her in fear of personal injury. [Cit.]”

In both Mrs. Ussery’s statement to police and during her testimony she related that she saw the knife before the purse was taken. Her testimony differs only in that she said the knife was in her rib cage and when she saw it she went limp. Oliver herself told one of the detectives that she used the knife because she thought it would make the victim cooperate. She also told a doctor she used a knife.

The armed robbery conviction stands because “the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim.”

2. Failure to give three of Oliver’s proposed jury instructions is enumerated as error.

Each asserted error must be set out as a separate enumerated error. OCGA § 5-6-40. “When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” (Citation omitted.) Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991). Despite the inept format which deviates from the law prescribing organization of a brief we will address each subpart of the enumeration.

“On the trial of all cases it is the duty of the judge to charge the jury the principles of law applicable to all issues raised by the pleadings and the evidence, even without a request for such an instruction. [Cits.]”

The first instance is the court’s refusal to charge on robbery and on theft by taking, as lesser included offenses of armed robbery. Oliver contends that other than insanity her sole defense is that although she had a knife in her hand when she took Ussery’s purse, she did not use it to commit the robbery.

The rule regarding a charge on a lesser included offense is that “a written request. . . must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” Such a charge is not required where the uncontradicted evidence shows completion of armed robbery.

Holland v. State analyzed the question of charging a lesser included offense and affirmed rejection of a charge of simple possession. Where the body of evidence would factually support a legal alternative crime of which defendant could be guilty, a charge on the lesser included offense is required. But that is only when that body of evidence includes countervailing evidence of the lesser included offense. There was no evidentiary alternative as to whether Holland grew or manufactured marijuana: either he did or he did not.

State v. Alvarado involved an evidentiary alternative which necessitated the lesser included charge. The evidence presented an issue of fact as to whether the defendant actually or constructively possessed cocaine. “At the time of the charge against him conviction of the offense of trafficking required proof of actual, as opposed to constructive, possession.” Actual possession justified a charge on trafficking. Constructive possession justified a charge on possession.

There is no evidentiary alternative in Oliver’s case. Mrs. Ussery’s statement to police, the version of the facts upon which Oliver relies, shows that Ussery saw the knife before Oliver took the purse. The show of force preceded the taking, Mrs. Ussery had a reasonable apprehension the knife was being used, she saw it, and the knife was a concomitant to the taking. There was no alternative crime to armed robbery based on the evidence most favorable to Oliver. As in Hopkins v. State, “[n]o evidence was presented that the robbery was committed without the use of a [weapon].” The uncontradicted evidence “showed completion of the offense of armed robbery.” The same reasoning holds true for robbery and theft by taking.

The fact that Oliver was acquitted of possession of a knife during the commission of a crime does not compel a different conclusion. Since Georgia abandoned the inconsistent verdict rule in criminal cases, the jury is free to compromise on the verdict.

The second instance is the omission of the charge: “In an armed robbery case, the State must prove beyond a reasonable doubt that the taking was accomplished by concomitant use of an offensive weapon. Therefore, where a weapon, although present, was not used to take the victim’s property, an armed robbery has not been perpetrated.” Oliver cites Dixon v. Hopper.

The court charged in the words of the armed robbery statute and added: “An offensive weapon is any object, device, or instrument which, when used offensively against a person, is likely to, or gives the appearance of being likely to, or actually does result in death or serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence.”

The full bench decision in Studdard v. State quotes from the Supreme Court of Georgia opinion in Hicks v. State which explains the term “use of an offensive weapon” as “concomitant” to a taking. “The language of the Code section ‘clearly contemplates that the offensive weapon be used as a concomitant. . . .’ ” The language of the statute itself, quoted in the charge as given, is sufficient to convey this meaning.

Dixon v. Hopper is not on point because Dixon’s victim never saw a weapon.

3. (a) Oliver contends her statement to police after her arrest should have been suppressed because it resulted from an illegal stop. A witness to the robbery recorded the license number of the getaway car and gave it to police. Two days later, an officer stopped the same car driven by Oliver in what the trial court found was an illegal stop. Oliver gave a false name and date of birth to the officer, and he discovered two knives during the subsequent car search. He was about to let Oliver go when he decided to check her license plate number through the Georgia and National Crime Information Centers (GCIC and NCIC). It erroneously showed the car was stolen. The officer arrested Oliver for theft by receiving. It was later determined that the car was not stolen but that Oliver was wanted for armed robbery. At the station, after waiving her Miranda rights, Oliver confessed to the crime and indicated intentional use of the knife. The statement was read into evidence at trial by the detective who recorded it.

Ruffin v. State focuses on “the issue whether a valid outstanding arrest warrant which is discovered in the course of a routine check during an unlawful Terry stop sufficiently attenuates the connection between the illegal stop and a subsequent search incident to an arrest pursuant to the warrant so as to render contraband found in that search admissible into evidence.” The court reasoned that “discovery of the valid outstanding warrant attenuated the connection between the illegal stop and the search that revealed the evidence within the meaning of Wong Sun[ v. United States,] thereby rendering that evidence admissible. To hold otherwise would effectively render the outstanding warrant invalid because of police conduct unrelated to its issuance, and would immunize appellant from arrest for past conduct already properly determined to constitute probable cause for [her] arrest. . . . Since the warrant was valid, appellant’s arrest pursuant thereto was lawful, and [she] was lawfully searched incident to that arrest.” “[E]ven if evidence would not have been discovered but for the illegal police conduct, if the derivative evidence has only an attenuated link to the illegality, it need not be suppressed.”

Oliver was arrested as a result of information that the car was stolen, not as a result of the illegal stop. The fact that the information was inaccurate and the issue of whether an arrest based on such information is valid was neither argued in appellant’s brief nor supported by citation of authority and therefore poses no question for our resolution.

As for Oliver’s argument, for the same reasons given in Ruffin, the arrest based on the stolen car report sufficiently attenuates the connection between the illegal stop and the subsequent confession to permit admittance of the evidence.

(b) Oliver also contends her statement should have been suppressed because her psychosis prevented her from voluntarily, knowingly and intelligently waiving her Miranda rights.

“A mere showing that a person who confessed to a crime may have suffered from some mental disability is not a sufficient basis on which to exclude the statement. [Cits.] . . . The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by appellate courts unless clearly erroneous. [Cits.]” “Even highly disturbed and psychotic persons are capable of periods of understanding and lucidity.”

At the Jackson-Denno hearing, the court heard testimony from the detective who took Oliver’s statement and from a defense psychiatrist. The detective testified that during the interview he was not in uniform, did not have a weapon on his person, did not threaten her and did not offer her anything in exchange for making a statement. He informed her of her Miranda rights, asked if she understood them and had her initial each one indicating she understood. Oliver did not ask any questions or convey she did not understand. She then signed the waiver of her rights indicating she was willing to make a statement. Thereafter, she spoke about the incident and the detective wrote what she said.

He also testified about Oliver’s demeanor when she gave her statement. He said she was crying off and on but that while he was reading her rights she was attentive, coherent, and not apparently under the influence of drugs or alcohol; that during preliminary questioning her responses were appropriate and coherent; and that she expressed sorrow and remorse.

The defense psychiatrist who interviewed Oliver for two hours at the DeKalb County jail, and reviewed her medical records and other related materials, testified that Oliver suffered from moderate to severe recurrent major depression and has a history of auditory and visual hallucinations. In his opinion Oliver was psychotic, severely depressed and suffering hallucinations at the time she was interviewed by the detective and could not knowingly and intelligently waive her rights. He thought her condition might have prevented her from acting to protect herself in terms of waiving her rights at the time of her confession.

On cross-examination, the psychiatrist conceded he did not discuss with Oliver her interview with the police and she never told him she did not understand her rights. He did not ask her whether she was in fact suffering from hallucinations at the time of her statement. He did not know any of the circumstances surrounding Oliver giving her statement and he had not talked with the interrogating detective. He conceded that to the extent Oliver’s statement showed her to be feeling guilty and remorseful, her feelings were consistent with those of a rational person. He acknowledged that Oliver is intelligent and educated.

The court stated, “I think the evidence shows that she did understand what was going on and made some intelligent decisions and asked some intelligent questions, more so than most I hear about in court. So I’m going to find from a preponderance of the evidence that she was advised of each of her Miranda rights, that she understood them and she voluntarily waived them, and that she thereafter gave her statement freely and voluntarily without any hope of benefit or fear of injury.” This finding of fact and legal conclusion was not reversible error.

4. The last enumeration of error is the admittance of certain testimony regarding Oliver’s demeanor in court and on several occasions out of court. There being three parts to this enumeration, it suffers from the same deficiency as noted in Division 2, supra. In this instance the multiplicity, resulted in a mixed and overlapping presentation. We have chosen to address each contention as deciphered.

The first issue is whether the targeted testimony of Deputy Sheriff Locklear and Detective Blenk was an improper comment on Oliver’s right to remain silent. Despite her several references to the transcript, no objection was made on this basis at trial. The references are to objections that testimony was leading or improper rebuttal or given by a witness not qualified as an expert or not relevant. None of these even remotely raise the issue now presented for scrutiny. It must be raised and ruled on; otherwise there is no decision of the trial court for us to determine was legally right or wrong.

The second barrier to admissibility urged is that Deputy Sheriff Locklear’s and Detective Blenk’s testimony about Oliver’s in-court demeanor was improper rebuttal evidence. It was improper, Oliver contends, because her primary defense was insanity at the time of the commission of the act and her evidence related only to that, not to her in-court demeanor or to her demeanor at various times after arrest.

Detective Blenk did not testify in rebuttal but only in the State’s case-in-chief. As to Locklear, the State called her to rebut the testimony of defendant’s expert witness concerning her demeanor when he interviewed her at the jáil. The doctor had testified that her demeanor in the courtroom was consistent with her demeanor at the jail. His medical evaluation was based in part on his observation of her behavior at that time. Locklear’s testimony showed her to be relatively normal in jail. It was proper rebuttal evidence as it was within the scope of defendant’s evidence.

Decided May 27, 1998

Reconsideration denied June 10, 1998

Davis, Zipperman, Kirschenbaum & Lotito, Seth D. Kirschenbaum, Paul A. Griffin, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth

The only objection made when Locklear was asked about Oliver’s courtroom demeanor was that it was a leading question. There was no objection on the basis that this particular testimony would constitute improper rebuttal evidence. Thus, any objection to this evidence on that ground was waived. Further yet, the Supreme Court of Georgia pointed out in a recent case that “Georgia law has long recognized the critical role a party’s demeanor and appearance plays in a jury’s consideration of a case,” and the Court stated that “the demeanor at trial of a criminal defendant is of probative value with respect to the defense of insanity.” Witness Locklear’s characterization of Oliver’s in-court demeanor gave the jury a comparative context in which to measure her description of Oliver’s behavior in jail, for the jury could judge the accuracy of the current characterization based on their own observation.

The final effort to show inadmissibility is directed to Oliver’s demeanor in jail, which evidence Oliver contends improperly placed her character in issue. Again, no such objection was made in the trial court, so the point falls by the wayside. Moreover, it was Oliver and not the State who first presented evidence of her demeanor in jail. She elicited this information as a basis for Dr. Leader’s opinion concerning her mental state and capacities. Thus she cannot complain when one of the State’s witnesses addressed the same subject.

“The admission of evidence is discretionary with the trial court, and this court will not interfere with that court’s ruling absent abuse.” Williams v. Terry, 197 Ga. App. 209 (1) (398 SE2d 239) (1990). It is discretionary because the object of all legal investigation is the discovery of the truth, OCGA § 24-1-2, and were the decision to admit evidence rigidly confined, it would disserve the object sought to be achieved. Oliver’s mental condition at the time of the encounter with Mrs. Ussery was a focus of dispute, and Oliver’s circumstances thereafter, including her appearance and behavior at trial, shed light on her defense of insanity.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

G. Macnamara, Carol M. Kayser, Assistant District Attorneys, for appellee.

        Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 17-9-1 (a).

        Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423) (1987), citing Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

        Jackson v. Virginia, supra; Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

       OCGA § 16-8-41.

        Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974).

       (Punctuation omitted.) Lowery v. State, 209 Ga. App. 5, 6 (1) (432 SE2d 576) (1993), quoting Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983); Wynn v. State, 228 Ga. App. 124, 125-126 (1) (491 SE2d 149) (1997) (armed robbery upheld when theft of the van came after victim threatened with screwdriver); compare Hicks v. State, supra, 232 Ga. at 403 (holding that defendant was not guilty of armed robbery when his theft of victim’s property preceded any show of force).

        Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990), quoting Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989).

       See Maddox v. State, 174 Ga. App. 728, 729-730 (1) (330 SE2d 911) (1985).

        Ramey v. State, 206 Ga. App. 308, 309 (425 SE2d 385) (1992).

        Francis v. State, 266 Ga. 69, 70 (463 SE2d 859) (1995).

        Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320) (1959). Accord Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165) (1994).

        State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

        Kirkland v. State, 173 Ga. App. 687 (327 SE2d 808) (1985); Mallory v. State, 166 Ga. App. 812 (2) (305 SE2d 656) (1983).

       205 Ga. App. 695, 696-698 (5) (423 SE2d 694) (1992).

       Supra, 260 Ga. 563.

       Id.

       Id.

        Lowery v. State, supra, 209 Ga. App. at 6 (1).

        Johnson v. State, 195 Ga. App. at 57 (1) (a).

        Hicks v. State, supra, 232 Ga. at 403. See also Maddox v. State, 174 Ga. App. at 729-730 (1) (pointing the gun at victim not required to show armed robbery).

       227 Ga. App. 567 (489 SE2d 368) (1997).

        Kirkland v. State, 173 Ga. App. at 687 (2). See also Mallory v. State, supra, 166 Ga. App. at 814 (2) (all the evidence proved the greater offense of armed robbery).

        Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

        Travitt v. State, 228 Ga. App. 711 (492 SE2d 574) (1997): see Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996) (“it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts”).

       407 FSupp. 58, 64 (M.D. Ga. 1976), overruled on other grounds, Jarrell v. Balkcom, 735 F2d 1242 (11th Cir. 1984).

       185 Ga. App. 319, 320-321 (2) (363 SE2d 837) (1987).

        Hicks v. State, supra, 232 Ga. at 403.

        Studdard v. State, 185 Ga. App. at 320-321 (2), quoting Hicks v. State, 232 Ga. at 403.

        Studdard v. State, supra.

       Id. 407 FSupp. at 64.

       201 Ga. App. 792, 794 (2) (a) (412 SE2d 850) (1991).

       371 U. S. 471, 487-488 (III) (83 SC 407, 9 LE2d 441) (1963).

       Id. at 794-795 (2) (a).

       Id. at 793 (2) (a).

       Court of Appeals Rule 27 (c) (2). Bragg v. State, 226 Ga. App. 588 (1) (487 SE2d 137) (1997). Compare Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (material inquiry is whether facts within officer’s knowledge at time of arrest constituted reasonably trustworthy information sufficient to authorize prudent person to believe defendant committed an offense); Paxton v. State, 160 Ga. App. 19 (285 SE2d 741) (1981) (“ ‘NCIC printouts [regarding stolen car] are reliable enough to form the basis of the reasonable belief which is needed to establish probable cause for arrest.’ [Cit.]”).

        Marlowe v. State, 187 Ga. App. 255, 257 (370 SE2d 20) (1988).

        Harris v. State, 256 Ga. 350, 353 (4) (349 SE2d 374) (1986).

        Butler v. State, 172 Ga. App. 405, 406-407 (1) (323 SE2d 628) (1984); Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224) (1958).

       See Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d 886) (1993).

        Butler v. State, supra.

        Lawrence v. State, 265 Ga. 310, 316 (3) (b) (454 SE2d 446) (1995).


author: McMurray, Presiding Judge.

text:
    A98A0763.
    TAYLOR v. THE STATE.
    (502 SE2d 540)
   McMurray, Presiding Judge.

Tony Taylor appeals his conviction and sentence for aggravated assault. Held:

The evidence, construed in favor of the verdict, shows the following: During the evening of August 30, 1995, defendant Tony Taylor drove to the apartment of an acquaintance, Debra Green. He parked his car in a high school parking lot 100 yards from her apartment and walked down a dirt path to her kitchen door. When Green opened the door in response to defendant’s knock, defendant said “ ‘Let me in, I have a gun’ and then he pulled out the gun.” She tried to slam the door, but defendant forced his way into her home. She screamed and tried to fight defendant. He said: “ ‘Shut up, shut up, I’m going to shoot you in the head.’ ” Green, however, resisted, screaming continuously. She pushed defendant’s arm and hand away. When she did so, he shot her in the hand. Defendant picked her up, carried her to the hall, and laid her down on the floor. Although defendant was standing over her, straddling her, Green continued to fight and even managed to get his pistol. When defendant realized she had his pistol, he panicked and backed away. Green, who did not realize she had the pistol, took advantage of the opportunity, threw the pistol to the side and escaped. She ran to a neighbor’s home and called the police.

Police found evidence inside Green’s home consistent with her account of the assault: spots of blood on her kitchen floor at the threshold and on the interior side of her door, a bullet lodged in the floor at the threshold, the doormat kicked aside, one house slipper by the door and one in the hallway, and depressions in Green’s vacuumed hallway carpet. Police also recovered from the apartment a .22 caliber pistol with the name “Tony Taylor” on it and defendant’s car keys. His pistol held five live rounds and one spent shell casing. The police found his car in the high school parking lot, locked, and with a pistol holster on the front seat.

When the police went to defendant’s house, he opened the door and held his arms out. His shirt had blood stains on it. He had an odor “of what [the officer] believed to be alcoholic beverages. . . .” Two and a half hours after the incident, police administered two Intoxilyzer 5000 breath tests to defendant. The test results indicated that he had a blood alcohol concentration between .256 and .270. In a statement given the next morning, defendant claimed he was fleeing from attackers and went to Green’s home to use the telephone to call police. He claimed he shot her accidentally.

1. Defendant contends the evidence adduced at trial was insufficient to support a conviction for aggravated assault because the State failed to prove Green was in reasonable apprehension of physical harm. However, Green’s testimony that she continuously fought her armed attacker while screaming “Help me, God, help me Jesus, help me God, help me,” is palpable evidence of reasonable apprehension of physical harm. The evidence was sufficient to persuade a rational trier of fact of defendant’s guilt of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant enumerates as error the trial court’s admission of the Intoxilyzer test results, arguing the results were not relevant and that the State failed to lay a proper foundation for their admission. First, defendant did not object to the evidence on relevance grounds. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citation and punctuation omitted.) Hill v. State, 224 Ga. App. 208, 209-210 (2) (480 SE2d 256) (1997). Second, although defendant did make a foundation objection, he abandoned it after the State laid a foundation for the introduction of the test results. The objection, therefore, is waived. E.g., Hunt v. State, 166 Ga. App. 524, 525 (3) (304 SE2d 576) (1983).

3. The trial court did not err in giving the State’s requested charge on voluntary intoxication. The arresting officer testified that defendant had an odor “of what [the officer] believed to be alcoholic beverages. . . .” Within two and a half hours of the assault, defendant registered a blood alcohol concentration between .256 and .270. The jury could infer from this evidence that defendant was intoxicated at the time of the assault. The charge, therefore, was warranted by the evidence. Hamilton v. State, 179 Ga. App. 434, 436 (6) (346 SE2d 881) (1986).

4. The trial court did not err in failing to give a charge on reckless conduct. “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.” (Citations and punctuation omitted.) Rhodes v. State, 221 Ga. App. 792, 795 (7) (470 SE2d 790) (1996). Here, however, defendant made no written or oral request to charge on reckless conduct. “[T]he failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request.” (Citations and punctuation omitted.) Henry v. State, 265 Ga. 732, 737 (6), 738 (462 SE2d 737) (1995).

Decided May 21, 1998

Reconsideration denied June 10, 1998

5. During closing argument, the State argued that defendant may have intended to rape Green. Defendant contends the court erred in permitting this argument. However, because defendant did not interpose an objection, any error is waived. Stell v. State, 210 Ga. App. 662, 664 (6) (436 SE2d 806) (1993). Moreover, the argument was not objectionable. “[Cjounsel may draw from the evidence properly before the factfinder ‘any inference apparently reasonable and legitimate.’ ” (Citation omitted.) Morgan v. State, 267 Ga. 203, 204 (1) (476 SE2d 747) (1996). Defendant carried Green away from the door and laid her down on the carpeted floor, then climbed over her body, straddling her. The prosecutor could infer from this evidence an intent to rape.

6. Defendant further contends that his trial counsel was ineffective for reasons involving trial tactics — failing to request a charge or object to the charge as given or failing to object to evidence or argument. “Judicial review of counsel’s performance should be highly deferential with substantial latitude given trial counsel in deciding trial strategy.” Lakes v. State, 266 Ga. 389 (2) (467 SE2d 566) (1996). Trial counsel appeared at the hearing on the motion for new trial and testified regarding his own effectiveness. After hearing from trial counsel, the trial court, who presided at defendant’s trial and witnessed trial counsel’s performance, found no basis for holding that defendant had been denied effective assistance. Having reviewed the transcript of the hearing on the motion for new trial, we conclude that defendant failed to meet his burden of showing any deficiency in his trial counsel’s performance which prejudiced the defense. See id.

7. In his final enumeration of error, defendant argues the trial court erred in sentencing defendant to ten years imprisonment based upon the court’s allegedly inaccurate recollection that defendant pointed a gun at Green’s head. However, whether the court’s recollection is inaccurate is irrelevant under these circumstances. The evidence supports a conviction for aggravated assault. The sentence was within the statutory limits set by OCGA § 16-5-21 (b). “We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should he addressed to the sentence review panel as provided in OCGA § 17-10-6.” (Citation omitted.) Winn v. State, 215 Ga. App. 120 (2) (449 SE2d 667) (1994).

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.

Lloyd D. Murray & Associates, Carol Bacon, for appellant.

Dupont K. Cheney, District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A98A0222.
    LOONEY v. THE STATE.
    (503 SE2d 79)
   Judge Harold R. Banke.

Neil Looney was convicted of two counts of simple battery. He enumerates four errors on appeal, each challenging the admission of similar transaction testimony by his ex-wife.

This case arose in the wake of a domestic altercation. At about 11:30 p.m., a neighbor heard the victim, Looney’s live-in girl friend, screaming. She looked out her door and saw the intoxicated Looney standing over the prone victim. The victim begged, “Neil, let go of me” and “call 911.” While the neighbor immediately called 911, the victim began banging on her door, seeking entry to escape Looney. After the neighbor let the victim in, Looney began knocking, asking to talk to the victim.

The neighbor testified that the hysterical and intoxicated victim initially begged her not to let Looney near. The victim had bruises on her arm, damage to her kneecap, and an open cut on the bridge of her nose which was also bleeding from inside. She told the neighbor, “I think he broke my nose.” The victim explained that she had tried to have a discussion with Looney about fidelity after a woman called their apartment for him. Eventually, Looney pulled the phone from the wall and initiated the physical abuse.

While awaiting the police, the victim calmed and appeared to have a change of heart, stating, “I need to call Neil and let him know what’s going on, the police can’t come, they can’t arrest him.” The neighbor stood in front of her door to prevent the victim from returning to Looney. When the police arrived the victim was less than forthcoming, stating she could not remember what happened, and she did not want Looney to go to jail.

After Looney’s arrest, the State filed a notice of intent to present evidence of similar transactions involving Looney’s ex-wife and son. The notice specified that this evidence’s purpose was to “establish identity, motive, scheme, bent of mind, and/or course of conduct.” At the initial similar transaction hearing, the State proffered evidence that Looney committed battery on his ex-wife. At that time, the State specified that it intended to use the evidence to show course of conduct and scheme.

After Looney complained that proffering evidence would not permit a ruling on similarity, the State agreed to provide the ex-wife at a subsequent similar transaction hearing. At this hearing, the ex-wife testified that the year before, the intoxicated Looney began yelling at her, pushed her against the wall, spit in her face, tried to jab his hand in her vagina, and threw her to the floor. The victim in the instant case, however, recanted her statements to the neighbor and testified that she attacked Looney and he hit her only once to calm her. The trial court rejected Looney’s contention that the evidence was not sufficiently similar and admitted the testimony. Held:

1. Looney contends that the trial court abridged his Sixth Amendment rights by not permitting him to cross-examine the witnesses at the similar transaction hearing. Because Looney failed to raise this issue in the trial court, it is waived. Warsham v. State, 200 Ga. App. 322 (2) (408 SE2d 122) (1991). Moreover, trial courts enjoy broad discretion as to the reception of evidence in similar transaction hearings. Bryson v. State, 210 Ga. App. 642, 644 (2) (437 SE2d 352) (1993). We note Looney had a full and fair opportunity to cross-examine the witnesses at trial.

2. The similar transaction evidence was not sufficiently dissimilar to preclude its admission. “The similar transaction does not have to be identical to the crime for which the defendant stands accused. In fact, the admissibility of a similar transaction is not dependent on the number of similarities between the prior act and the crime charged. Rather, admissibility turns on whether the similarities tend to show that the prior act is relevant to a proper issue at trial. [Cits.]” Callaway v. State, 230 Ga. App. 369 (1) (496 SE2d 349) (1998).

The record shows that Looney battered his ex-wife and his girl friend, the victim here. Both incidents happened in the home they shared with Looney in the evening after he had been drinking. In both, he threw the females to the ground and damaged property in the vicinity. The trial court was not required to give credence to the victim’s testimony when the State proffered contrary evidence which the neighbor’s trial testimony supported. Bryson, 210 Ga. App. at 644 (2).

3. Looney maintains the jury instructions on similar transactions were inadequate because the trial court charged that consideration of that evidence should be solely for the purpose of showing state of mind, intent, scheme or purpose while the State limited its professed purpose to course of conduct and scheme. He relies on Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997) (physical precedent only), in which a plurality of this Court held that even in the absence of a request to charge, an adequate instruction on the limited purpose for which similar transaction evidence may be considered must be given.

Decided June 10, 1998.

Peter C. Scholle, for appellant.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.

In Belt, the trial court failed to give any limiting instruction at all, “leaving the jury free to consider the evidence for any purpose it chose.” Parson v. State, 229 Ga. App. 117, 118 (2) (493 SE2d 256) (1997). Here, the trial court twice gave a charge tracking the Suggested Pattern Jury Instructions, Vol. II, p. 24 (2nd ed.), charging the jury on the purposes (all of which were legally acceptable) for which it could consider the prior transactions. In so doing, however, the court mistakenly included some purposes not targeted by the State. Compare Prickett v. State, 220 Ga. App. 244, 245 (2) (469 SE2d 371) (1996). Belt, had it been binding precedent, is thus factually distinguishable. Court of Appeals Rule 33 (a).

Looney did not raise his objection to the purposes included in the trial court’s charge or reserve objections, and, in fact, stated that he had no exceptions to the charge when asked. Arrington v. State, 224 Ga. App. 676, 677 (2) (482 SE2d 400) (1997) (announcement of no exception to charge and failure to reserve objections waives charging errors). Nor did he submit a written request to charge on this issue. In view of the charge, which as a whole limited the jury’s consideration of the similar transaction, the inaccuracies were not sufficient to raise a reasonable possibility that their inclusion might have contributed to the conviction. McBee v. State, 228 Ga. App. 16, 25-26 (5) (491 SE2d 97) (1997); see Callaway, 230 Ga. App. at 370 (2). Thus, reversal is not required. Parson, 229 Ga. App. at 118-119 (2).

Judgment affirmed.

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

       Because the second and third enumerations raise essentially the same issue, challenging the propriety of the jury instructions given prior to the admission of the similar transaction testimony and prior to deliberations respectively, we address them collectively.

       Embracing Looney’s argument in these circumstances would encourage defendants to inject error by remaining silent in the face of such error and depriving the trial court of the opportunity to correctly instruct the jury. See Parson, 229 Ga. App. at 118.