author: Judge Harold R. Banke. McMurray, Presiding Judge Eldridge, Judge,

text:
    A97A2591.
    LUCKEY v. GIOIA.
    (496 SE2d 539)
   Judge Harold R. Banke.

Deborah E. Luckey, R.N. appeals the summary judgment awarded to Bruce Gioia, M.D. in her libel action against him.

On April 6, 1995, Luckey and Gioia were working in the emergency room at McDuffie County Hospital. Although Gioia worked at five other hospitals’ emergency rooms, this was his first night working at the McDuffie County Hospital (“Hospital”). Luckey was a Hospital employee while Gioia was a contract physician working for a different employer, Coastal Emergency Services.

At approximately 9:50 p.m., the McDuffie County E.M.S. brought into the emergency room a pregnant 15-year-old patient with complaints of vaginal bleeding. The patient was briefly admitted to the Hospital through the emergency room and placed in room 303. According to Luckey’s testimony, after the patient had been admitted but before she could be medically stabilized, Gioia instructed the E.M.S. personnel to load her back into the ambulance and to transport her to St. Joseph’s Hospital in Augusta. Gioia did not complete any transfer or discharge papers as required by Hospital policies and procedures. Luckey testified that when she realized that Gioia was “dumping” the patient on another hospital in violation of rules and procedures, she confronted him. When the patient arrived at St. Joseph’s emergency room under Gioia’s orders, St. Joseph’s staff was outraged that the Hospital had sent them a medically unstable patient.

At some point between the night of the transfer and about six weeks later, Douglas Keir, the Hospital administrator, asked Gioia to respond to Luckey’s nurse’s notes which stated that Gioia did not call a report or complete the transfer papers, and that St. Joseph’s emergency room personnel were upset that “we transferred an unstable pt. [sic].” In his explanatory letter of May 22 to Keir, Gioia attempted to exonerate himself and blame Luckey for the improper patient transfer. Gioia stated that about an hour after he transferred the patient, he received a phone call from a very upset nurse at St. Joseph’s about “my transferring an ‘unstable patient’ to them.” He blamed Luckey for the transfer and claimed that she had offered no objection to the transfer and led him to believe that he was operating according to proper procedure. He wrote, “I had no idea I was to fill out any transport documentation.” Gioia claimed that Luckey’s “documentation is erroneous and beyond incorrect to the point of fabrication.” He accused Luckey of unprofessional conduct and “betray[ing] the essence of her profession — integrity and trust.” He also threatened to bring formal charges of misconduct and slander against her. Keir acknowledged receiving the letter and passing it on to Belinda Campbell, the Hospital’s director of human resources. The Hospital terminated Luckey about six weeks after Gioia’s response letter. Luckey did not learn about Gioia’s letter until the day after the Hospital terminated her when she was permitted to see her personnel file. Luckey testified that Campbell told her she had been terminated based upon the complaints in her personnel file. According to Campbell, the letter had no role in the Hospital’s decision to discharge Luckey. Keir testified that because Luckey had a history of complaints from patients, the Hospital decided to end her employment.

The trial court determined that because Gioia’s written statement was not “published” when it was given to the hospital administrator, Luckey’s action for libel was foreclosed. The court also found that because the statement at issue was conditionally privileged by OCGA § 51-5-7 (3), no action would lie for malice. OCGA §§ 51-5-9; 51-5-5. Finally, the court determined that Luckey failed to prove actual malice sufficient to overcome the statutory privilege. Held,'.

1. Luckey contends that the trial court erred in holding that the letter was not “published.” In order to recover for libel, a libelous communication must be published. OCGA § 51-5-1 (b). “A libel is published as soon as it is communicated to any person other than the party libeled.” OCGA § 51-5-3. But the publication of allegedly defamatory information in the course of an employer’s investigation of an employee’s job performance, when made to persons in authority, is not “publication” within the meaning of OCGA § 51-5-1 (b). Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988); Williams v. Cook, 192 Ga. App. 811, 812 (1) (386 SE2d 665) (1989); see Monahan v. Sims, 163 Ga. App. 354, 358 (1) (294 SE2d 548) (1982).

After Luckey accused Gioia of “patient dumping,” Gioia accused Luckey of improper and unprofessional conduct. The Hospital had a duty to resolve these serious accusations. It is absolutely undisputed that Gioia, who was Luckey’s immediate supervisor at the time of the incident, provided the letter only to Keir, the Hospital administrator, who communicated it only to Campbell, the director of human resources. The record is devoid of any evidence that the letter at issue was shown to anyone who did not need to see it for employment purposes. Fly v. Kroger Co., 209 Ga. App. 75, 77 (1) (432 SE2d 664) (1993). Notwithstanding Luckey’s unsupported contention to the contrary, the fact that she was a Hospital employee and Gioia was an independent contractor does not demand a different outcome. See Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 258 (1) (345 SE2d 924) (1986) (no publication where communication made only to those whose duties and responsibilities entitle them to see it). To hold otherwise could impede legitimate inquiries by employers into employee conduct. See LuAllen v. Home Mission Bd. &c., 125 Ga. App. 456, 459 (2) (188 SE2d 138) (1972).

In the absence of any evidence of publication, an essential element of an action for libel, summary judgment was proper. Fly, 209 Ga. App. at 77 (1); Lepard v. Robb, 201 Ga. App. 41, 43 (1) (410 SE2d 160) (1991). See also Kenney v. Gilmore, 195 Ga. App. 407, 408 (1) (393 SE2d 472) (1990).

The sole authority upon which the dissent relies, Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 (67 SE2d 600) (1951), neither demands nor authorizes a different result. In Masters, unlike here, the defamatory statement was not made only to proper persons but was communicated outside of employment channels to two of the plaintiff’s neighbors. Masters, 84 Ga. App. at 830 (4).

To implement the dissent’s recommendation of allowing the instant litigation to proceed would necessitate abandoning the sound public policy of insulating from litigation comments made during employment investigations and would require overruling a long line of established authority. Williams v. Cook, 192 Ga. App. at 812 (1); Kurtz v. Williams, 188 Ga. App. at 15; Madden-Lee v. Day’s Inns &c., 184 Ga. App. 485, 486 (361 SE2d 714) (1987) (Statements made to supervisors whose job responsibility requires them to be knowledgeable about job performance are not considered to be published); Hodges v. Tomberlin, 170 Ga. App. 842, 843 (1) (319 SE2d 11) (1984); Jones v. J. C. Penney Co., 164 Ga. App. 432, 434 (297 SE2d 339) (1982); Monahan v. Sims, 163 Ga. App. at 358 (1); Jackson v. Douglas County Elec. &c. Corp., 150 Ga. App. 523, 524 (1) (A) (258 SE2d 152) (1979); Land v. Delta Airlines, 147 Ga. App. 738 (2) (250 SE2d 188) (1978); LuAllen, 125 Ga. App. at 457 (2) (a); Garrett v. Lockheed Aircraft Corp., 98 Ga. App. 443, 445-446 (106 SE2d 333) (1958).

Although the dissent mistakenly asserts that Gioia’s defense should not be governed by the maxim “Volenti non fit injuria,” that principle is neither mentioned nor applied in the instant case. That maxim is an affirmative defense whereby: “[I]f one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery.” Black’s Law Dictionary (5th ed.). Because Luckey is missing an essential element of her prima facie case, i.e., any evidence of publication within the meaning of OCGA § 51-5-1 (b), addressing possible defenses is superfluous. Kurtz, 188 Ga. App. at 15 (3).

2. Having determined that the letter was not published within the meaning of OCGA § 51-5-1 (b), we need not reach Luckey’s remaining enumerations of error.

Judgment affirmed.

Andrews, C. J, Birdsong, P. J., Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J, dissent.

McMurray, Presiding Judge

dissenting.

Because the majority’s holding stretches precepts underlying Georgia’s “invited libel” doctrine and thereby avoids application of rules governing this State’s qualified immunity doctrine, I am compelled to dissent.

I cannot go along with the majority’s logic that Dr. Gioia’s harsh views and accusations against Nurse Luckey were not legally “published” because the doctor directed them to a Hospital administrator. The majority’s holding is founded on cases which invoke “public policy” to justify the rule that defamatory comments are not actionable when rendered during an employer’s investigation of an employee’s job performance. See Fly v. Kroger Co., 209 Ga. App. 75, 76 (1) (432 SE2d 664); Lepard v. Robb, 201 Ga. App. 41, 42 (1) (410 SE2d 160); Kenney v. Gilmore, 195 Ga. App. 407, 408 (1) (393 SE2d 472); Williams v. Cook, 192 Ga. App. 811 (1) (386 SE2d 665); Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878); Monahan v. Sims, 163 Ga. App. 354, 357 (1) (294 SE2d 548), and LuAllen v. Home Mission Bd. &c., 125 Ga. App. 456, 459 (2) (188 SE2d 138). The problem I see in applying this rule in the case sub judice is that the Hospital was not investigating Luckey’s job performance when its administrator asked Gioia to respond to the nurse’s report that the doctor had “dumped” a pregnant and medically unstable 15-year-old emergency room patient. The Hospital’s investigation focused only on Gioia’s alleged violation of hospital policy and federal law — The Emergency Medical Treatment & Active Labor Act, 42 USC § 1395dd. Punishing Luckey for reporting what she believed was a violation of these standards by cutting off her right for a jury to hear her defamation claim is, in my view, not good “public policy.” On the contrary, such policy undermines the intent and purpose of 42 USC § 1395dd.

I believe that Georgia’s “public policy” is best served, under the circumstances in the case sub judice, by allowing a jury to resolve the parties’ opposing claims. Specifically, Gioia’s defense should not be governed by the maxim, “Volenti non fit injuria,” but should be measured under appropriate rules governing Georgia’s qualified immunity doctrine — which requires proof that Gioia uttered his harsh words against Luckey in good faith and with an interest to be upheld; that the doctor’s statements were properly limited in scope; that the doctor uttered the words during a proper occasion, and that he published them only to proper persons. See Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 (67 SE2d 600). Applying this test in the case sub judice, I find the content, tone and potential self-serving motive behind Gioia’s letter against Luckey sufficient to raise genuine issues of material fact as to whether the doctor acted maliciously in transmitting the letter to the Hospital’s administrator. I believe that saying otherwise chills any incentive for hospital employees to report infractions under federal law and private policies that are designed to protect helpless (and possibly disadvantaged) emergency room patients.

Moreover, I am in full agreement with and concur fully with Judge Eldridge’s dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent.

While I fully concur with Presiding Judge McMurray’s dissent, I am compelled to point out some critical facts that have been mischaracterized in error.

Dr. Gioia’s letter was not written in response to a personnel investigation of Nurse Luckey, because he was not her supervisor, but she at most was his temporary borrowed servant; the investigation by the hospital administrator was in response to serious charges that the hospital had violated federal law in dumping a patient and could be exposed to liability to the patient and to the federal government and that he might be responsible as the independent contractor. The hospital administrator first became aware of the charge of dumping through complaints from the outraged staff of St. Joseph Hospital, upon whom the patient had been dumped. The hospital administrator looked at the patient’s records to find out what had occurred at the McDuffie County Hospital and found Luckey’s notes placing the responsibility on Gioia. Thus, at the time the hospital administrator requested a written explanation of Gioia, it was the acts or omissions of Gioia that were in question in regard to the dumping and not a personnel investigation of Luckey.

Gioia’s letter was to cover his own acts or omissions by shifting the blame to his accuser, Luckey. If the facts and allegations are not true in the letter, then the contents attacked Luckey professionally and constituted libel per se. Thus, Gioia sought to shift the blame and instigated the inquiry into the fitness of Luckey. The inquiry as to the personnel matter was not instituted by the hospital administrator and was not a personnel inquiry until a later date. Thus, Gioia’s letter to the hospital administrator was a publication, was intentional, and exhibited actual malice, because the letter sought outside of any qualified privilege to blame her in order to exonerate Gioia, which would not be privileged if false. Gioia was neither an agent nor an employee of the hospital when he wrote the letter to the hospital administrator so that he cannot claim non-publication as a communication within the corporation, because he was a third person to the hospital and Luckey. When he went beyond the defense of his own action and sought to blame and to question the professional skill of the plaintiff, any conditional privilege was exceeded, and malice negated the privilege as well. Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 258 (1) (345 SE2d 924) (1986). This decision does not stand for the legal proposition that an independent contractor cannot make a publication when written matter is sent to the employer. Under OCGA § 51-2-4, the torts of an independent contractor cannot be imputed to the employer; likewise, the communication of an independent contractor is not the same as an agent, servant, or employee, because the legal relationship is not the same. The lawyer for the condo association at the direction of the officers of the association wrote a complaint letter to the lessor about the plaintiff-lessee’s conduct, which affected both the association members as well as the lessor; the lawyer was acting as the agent of the association so that his acts were the acts of the association.

In this case, the independent contractor was not acting either as employee or agent of the hospital but was acting in his own behalf. In defense of himself and to shift blame, Gioia accused plaintiff of the conduct that he was charged by her with doing himself. This was not a qualified privileged matter under OCGA § 51-5-7 (3) as in Carter. Where there is actual malice, there is no conditional privilege. Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414) (1943). Wilful falsehood negates any good faith privilege. Holmes v. Clisby, 121 Ga. 241 (48 SE 934) (1904). Thus, there exists a factual question as to the existence of the conditional privilege.

Decided February 3, 1998

Craig T. Jones, for appellant.

Fowler & Wills, Samuel A. Fowler, Jr., for appellee.

I am authorized to state that Presiding Judge McMurray concurs fully with this dissent.

       The Emergency Medical Treatment & Active Labor Act (“EMTALA”) contains strict procedural requirements governing the examination and treatment of emergency medical conditions and women in labor. 42 USC § 1395dd. EMTALA, also known as the “Anti-Patient Dumping Act,” mandates medical screening and necessary stabilization treatment before transfer. 42 USC § 1395dd (a), (b).

       EMTALA subjects a participating hospital which negligently violates its requirements to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case where a hospital has fewer than 100 beds). 42 USC § 1395dd (d) (1) (A). It also exposes a physician “who is responsible for the examination, treatment, or transfer of an individual in a participating hospital. . . who negligently violates a requirement of this section ... to a civil penalty of not more than $50,000 for each such violation.” 42 USC § 1395dd (d) (1) (B).

       Whether the Hospital or Gioia violated the Anti-Patient Dumping Act is not at issue here. Inasmuch as the Hospital is not a party to the instant action, whether the Hospital violated the whistle blower protection provision of this statute when it terminated Luckey is not before us. 42 USC § 1395dd (i).

       These decisions appear to evolve from the common law maxim, ‘“Volenti non fit injuria’ (meaning that to which a person assents is not in law an injury)[. That is, a party injured, even by a maliciously false report,] can not complain where ... it is shown that he ... invited or brought upon himself what he claims is a defamation, made to one who has been placed, as it were, in his own shoes.” Beck v. Oden, 64 Ga. App. 407, 411 (13 SE2d 468). The Supreme Court referred to the precept as “invited libel. King v. Masson, 148 Ga. App. 229 (A) (1) (251 SE2d 107) (1978); Beck v. Oden, [supra].” Ga. Power Co. v. Busbin, 249 Ga. 180, 181 (289 SE2d 514).

       Indeed, Hospital Administrator Keir and the Hospital’s human resources director, Belinda Campbell, deposed that Luckey’s discharge was not related to Gioia’s response to her report of the July 10, 1995 emergency room incident.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0476.
    HOWARD v. THE STATE.
    (496 SE2d 532)
   Judge Harold R. Banke.

Jeffery Norris Howard was convicted of aggravated assault, kidnapping and armed robbery. He enumerates six errors on appeal.

This case arose after Omar Johnson told Howard he wanted to commit an armed robbery. Howard suggested a target, gave Johnson a gun, and agreed to drive. Several days later, Johnson arranged for Howard to drive him to the target, a country store. Johnson entered the store, asked for a pack of cigarettes, and then pulled out the gun and demanded money. After emptying the cash register into a paper bag, he dragged the clerk to a rear storage room, and, with the gun to her head, forced her to her hands and knees. Then he turned and walked away.

After Howard dropped Johnson off near the store, Howard told his passenger that “a hit [was] going to happen.” Shortly thereafter, a highway patrol officer stopped the car, searching for the robber of the store. He questioned Howard and his passenger, searched the car, and then let them go. After the passenger was subsequently arrested, he informed authorities about the robbery in the hope of getting bond. Johnson also confessed and implicated Howard. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find that Howard was a party to each of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Notwithstanding Howard’s contention to the contrary, his actions constituted far more than mere presence at the scene. The record shows that Howard supplied the suggested target, the weapon and the transportation to the target. See OCGA § 16-2-20 (b) (3). Moreover, Howard admitted that he discussed the robbery with Johnson. This evidence allowed the jury to reasonably find that Howard aided and abetted in the commission of the crimes, all that was required to satisfy OCGA § 16-2-20 (b) (3). Id.; see Smith v. State, 268 Ga. 42 (1) (485 SE2d 189) (1997); see Ridings v. State, 226 Ga. App. 155, 156 (1) (486 SE2d 378) (1997).

2. The trial court’s jury charge on aggravated assault was clearly inadequate. The court charged the jury as follows: “The defendant is also charged with the offense of aggravated assault. I charge you that under Georgia law aggravated assault is defined as a person makes an assault upon the person of another person when that person uses a deadly weapon and this can be accomplished by pointing said weapon at said person. That’s an assault. That’s aggravated assault as defined by Georgia law.” This charge failed to include the requisite elements of assault, an attempt to commit a violent injury to another’s person or the commission of an act which places another in reasonable apprehension of receiving an immediate violent injury. OCGA § 16-5-20 (a). As stated, the offense could easily be confused with the misdemeanor offense of pointing a pistol at another, OCGA § 16-11-102. Compare Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 91 (1995).

Trial counsel’s failure to raise this issue after the court solicited objections to the jury charge ordinarily would have waived it. Smith, 268 Ga. at 43 (2). However, where, as here, the charging error was a substantial misstatement of the essential elements of the offense, it is reviewable as a “substantial error . . . harmful as a matter of law.” OCGA § 5-5-24 (c); Brewton v. State, 216 Ga. App. 346, 351 (6) (454 SE2d 558) (1995), rev’d on other grounds, 266 Ga. 160 (465 SE2d 688) (1996). Such error occurs when the charge “ Tails to provide the jury with proper guidelines for determining guilt or innocence.’ [Cit.]” Roura v. State, 214 Ga. App. 43, 45-46 (2) (b) (447 SE2d 52) (1994). Unless it appears from the entire record that the error is harmless, its prejudice and harm are presumed. Brewton, 216 Ga. App. at 351 (6). Having reviewed the record, “ ‘we cannot say as a matter of law that the charge was neither confusing nor misleading.’ ” Id. In fact, under the instruction given, we find a high probability that the jury was not informed of the elements of aggravated assault sufficiently to determine whether the State met its burden of proof. Under these circumstances, we must reverse the aggravated assault count.

3. Howard maintains that the aggravated assault charge merged with the kidnapping and armed robbery charges and the kidnapping charge merged with the armed robbery charge. His failure, however, to raise these issues in the trial court waives the alleged errors. Edmonson v. State, 212 Ga. App. 449, 451-452 (3) (442 SE2d 300) (1994). Moreover, had the issues been properly preserved, we would affirm because the record demonstrates that each count relied on separate facts. The armed robbery occurred shortly after Johnson entered the store when he pulled the gun on the cashier and forced her to empty the contents of her cash register into the bag. OCGA § 16-8-41 (a); see Brown v. State, 222 Ga. App. 648, 649 (1) (475 SE2d 688) (1996). The kidnapping occurred when he forced her into the storage room. OCGA § 16-5-40 (a) (kidnapping requires proof of the unauthorized abduction and holding of another against his will); Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579) (1995) (the slightest movement of the victim establishes asportation). The aggravated assault was committed when the victim was forced to crouch on her hands and knees in the storage room at gunpoint. Robinson v. State, 210 Ga. App. 175, 176 (2) (435 SE2d 466) (1993); see Isaacs v. State, 213 Ga. App. 379, 380 (1) (444 SE2d 409) (1994).

4. Howard contends that his trial counsel was ineffective on several grounds. We need not reach them, however, because appellate counsel raised these issues for the first time on appeal, without addressing them in his motion for new trial. That ineffectiveness claims must be raised “at the earliest practicable moment” is well established. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996). The failure to do so procedurally bars Howard from raising them here. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

5. We reach the following issue because it could arise on retrial. Howard contends that the victim’s age was an essential element of the aggravated assault count because it was predicated on OCGA § 16-5-21 (d), the subsection dealing with victims 65 years of age or older. We disagree.

In Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455) (1981), the Supreme Court held that legislative intent determined whether an amendment created a separate crime or was simply a penalty enhancement. The General Assembly enacted the age-related provisions of the aggravated assault statute “so as to change the penalty provisions relating to persons convicted of the crime[ ] of aggravated assault.” Ga. L. 1984, p. 900. Thus, proof that the victim was at least 65 years old was not necessary to establish a prima facie case of aggravated assault. Such evidence was required, however, to enhance the penalty under OCGA § 16-5-21 (d), which mandates incarceration for “not less than three nor more than 20 years.”

Decided February 3, 1998.

Bentley & Bentley, Alonzo J. Bentley, Jr., Mark M. Irvin, William A. Adams, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Assistant District Attorney, for appellee.

Accordingly, Howard’s convictions on the armed robbery and kidnapping charges are affirmed. His conviction for aggravated assault is set aside and the sentence pertaining thereto is vacated.

Judgment affirmed in part and reversed in part.

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

       The indictment charged Howard with assaulting the victim “with a firearm, a deadly weapon, by pointing said weapon at said person.”

       In the amended motion for new trial the ineffectiveness issue was limited to trial counsel’s failure to assure the recordation of certain portions of the trial.

       In Bundren, the Supreme Court found that aggravated assault of a police officer was a separate crime from aggravated assault, requiring proof of knowledge that the crime was committed against a police officer as an essential element.


author: Andrews, Chief Judge.

text:
    A97A2574.
    CANNON v. THE STATE.
    (496 SE2d 330)
   Andrews, Chief Judge.

Juan Antonio Cannon appeals from the denial of his motion for new trial after conviction of first degree arson.

1. Cannon’s second enumeration contends there was insufficient evidence for the conviction. The indictment charged that Cannon unlawfully “damaged the structure and dwelling located at 3627 Forest Park Road, . . . , without the consent of the owner . . . and the dwelling was occupied at the time.”

“ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.’ (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993).” Etienne v. State, 219 Ga. App. 95, 97 (2) (464 SE2d 396) (1995).

So viewed, the evidence was that Cannon was living with Pritchett and her two children in an apartment complex owned by Pyle. Of the eleven units in the apartment building, nine were occupied in December 1994. On the evening of December 17, 1994, Cannon beeped Pritchett to pick him up at a MARTA station after he finished work, which she did. Later that evening, Pritchett took Cannon to a store where he encountered Marsh, a prostitute. Unknown to Pritchett, Cannon agreed to buy crack and exchange it for sex with Marsh. After Pritchett had gone to sleep in the bedroom with her children, Cannon and Marsh partook of the cocaine and engaged in sex. They were discovered by Pritchett, who became enraged and told Cannon and Marsh to leave. Pritchett took her children, got in her car and blew the horn repeatedly. She saw Marsh try to leave the apartment, but be pushed back by Cannon. Minutes later, Marsh left the apartment and had a bloody nose. Pritchett again told Cannon to leave the apartment, and then she drove off.

Around 4:00 a.m., Roberts, Cannon’s neighbor who knew both Cannon and Pritchett, was awakened by a commotion and got up to check it out. He saw a woman he did not know talking to one of his neighbors about using the phone. Later, he heard Pritchett outside blowing her horn. He walked around the apartment building to check on things and noticed nothing out of the ordinary, aside from the commotion, before returning to his apartment. Because of the continuing noise, he got back up and went to Pritchett’s apartment where he saw her driving around in the parking lot. He saw that Cannon was in the apartment, and as Roberts approached, Cannon slammed the door. Roberts walked around to the rear of the unit and tried to see in the kitchen. All he could see was a shadow moving in the living room. He returned to his unit and heard glass break at Pritchett’s apartment. When he looked out the back of his apartment, he saw Cannon crouching at a rear window of Pritchett’s unit and then get up and leave in the opposite direction. Flames could be seen coming out of Pritchett’s kitchen window. Roberts returned to Pritchett’s unit and kicked in the door because a sofa was blocking it and discovered the apartment in flames.

The fire gutted five units and severely damaged six. Arson investigator Phillips investigated and determined that there were two points of origin for the fire, one at the front door on or near the sofa and one in the rear bedroom on a mattress.

Cannon denied setting the fire, contending that Marsh’s smoking of crack on the sofa was to blame. “ ‘ “The jurors in this case heard the (witnesses), and are better qualified to judge the reasonableness of a hypothesis raised by evidence . . . than is this court which is restricted to a cold record and to issues of law. (Cit.)” ’ [Powell v. State, 171 Ga. App. 876, 878 (1) (321 SE2d 745) (1984)].” Steidl v. State, 215 Ga. App. 17, 19 (449 SE2d 644) (1994). The jurors resolved these conflicts, and the evidence is legally sufficient. Id.

2. The second enumeration is that the court “did not fulfill its duty to clarify jury confusion about the law to be applied to [Cannon’s] case.”

The court instructed the jury by reading the charge as stated in the indictment and then defining arson in the first degree as a person “by means of fire knowingly and intentionally damag[ing] any dwelling house of another,. . . without the consent of the owner while the dwelling was occupied at the time.” (Emphasis supplied.) This was Cannon’s Request to Charge No. 16. Occupancy at the time of the fire is not included in the statutory definition of the crime. OCGA § 16-7-60 (a) (1); Steidl, supra.

Decided January 23, 1998

Reconsideration denied February 4, 1998.

Jana M. Whaley, for appellant.

After beginning deliberations, the jury sent a written inquiry asking if there was another degree of arson besides first and if “they’re charged with first degree, must we follow that? What is necessary for first degree?” The court then reread the indictment, including the “occupied” language; OCGA § 16-7-60 (a) (1), which does not require the dwelling to be occupied; and OCGA § 16-7-61, arson in the second degree which requires, as applicable here, burning “any building,” not necessarily a dwelling. The court also specifically instructed the jury at that time that “the State must prove the offense as charged in the indictment and that’s the charge.” (Emphasis supplied.)

A single juror then verbally asked the court to “clarify the first and second degree, the difference between the two of them.” The court responded “I just read them to you. I don’t want to editorialize it.”

Cannon contends that this refusal to “clarify” jury confusion was reversible error, based on, e.g., Matthews v. Taylor, 155 Ga. App. 2, 3 (2) (270 SE2d 247) (1980) and Freeman v. State, 142 Ga. App. 293, 294 (4) (235 SE2d 560) (1977). Those cases, however, are situations where, in response to the jury’s written inquiry, the court gave no further instructions, but referred them to the previously given instructions. That is not adequate. Id.

Here, on the other hand, the court fully charged the elements of the crime charged in the indictment as well as the statutory elements in response to the jury’s question.

Pretermitting the fact that only a single juror made further inquiry after the recharge here, not the entire jury, which may not denote “confusion” of the entire jury so as to trigger the need to recharge, id., the recharge given by the court here was sufficient to address the jury’s question, and there was no abuse of discretion in not further responding to the individual juror. Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997); Branam v. State, 204 Ga. App. 205 (419 SE2d 86) (1992); Baxter v. State, 176 Ga. App. 154, 157 (7) (335 SE2d 607) (1985).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Phyllis M. Burgess, Assistant District Attorneys, for appellee.

       An antenna broken off a car and a Brillo pad were used to fashion a pipe.


author: Smith, Judge.

text:
    A97A2021.
    CHERRY v. THE STATE.
    (496 SE2d 764)
   Smith, Judge.

Michael Cherry was indicted by a Cherokee County grand jury on one count of sale of cocaine and one count of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). He was convicted by a jury, and his motion for new trial was denied. Cherry’s motion for an out-of-time appeal was granted by the trial court, and he appeals.

1. Cherry, an African-American, complains that he was not permitted to ask a specific question on voir dire regarding possible racial bias of the members of the venire. He asked the potential jurors if anyone had “[flormed or expressed an opinion that most of the guys that are arrested, because they are young black males, that they are guilty?” The State objected to this question as calling for an opinion on the ultimate issue in the case, and the trial court sustained the objection.

OCGA § 15-12-133 provides for a broad scope of examination “touching any matter or thing which would illustrate any interest of the juror in the case, including . . . any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto.” Questioning concerning potential racial prejudice generally should be allowed. Legare v. State, 256 Ga. 302, 303-304 (348 SE2d 881) (1986). Cherry relies upon Mitchell v. State, 176 Ga. App. 32 (335 SE2d 150) (1985), to assert error in the trial court’s refusal to allow his question. But unlike the question posed in Mitchell, which inquired generally about “any prejudice, bias, or leaning against” the defendant because of his race, see id. at 33 (2), Cherry’s proposed question appeared to seek an opinion as to guilt or innocence based at least in part on the facts of his case. Such questions are forbidden on voir dire. Pinion v. State, 225 Ga. 36, 37 (4) (165 SE2d 708) (1969) (question as to belief in innocence of defendant improper); Stell v. State, 210 Ga. App. 662 (1) (436 SE2d 806) (1993) (hypothetical question seeking response which might amount to prejudgment of the case improper).

“Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.” (Citations and punctuation omitted.) Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238) (1981).

But even if we assume the question was a proper one and should have been permitted, the action of the trial court in forbidding this single question was harmless error in light of the other questions to the venire which explored the issue of possible racial bias. The statutory questions included asking if any juror had formed or expressed an opinion regarding Cherry’s guilt or innocence, had any prejudice or bias for or against him, or was not perfectly impartial between the State and the accused. Immediately before the question objected to, Cherry’s counsel asked, “Has anyone formed or expressed an opinion just because the defendant is black that this — and this is, naturally, a drug case — formed or expressed an opinion about that?” After noting that “a lot of press is given to black males such as Mr. Cherry,” counsel also asked, “as far as drug sales and drug use goes, has anyone formed or expressed an opinion because of this press publicity that they might see on television or radio or hear about it in the newspaper?” Later, Cherry’s counsel asked, “[AJnyone on the panel expressed or formed an opinion to Michael Cherry because of his race, black?” and “[AJnyone on the panel expressed or formed an opinion because of the adverse publicity or the negative publicity of the press regarding black males dealing with drugs?” None of these questions elicited a response from any potential juror.

Like the defendant in Walker v. State, 214 Ga. App. 777, 778-779 (3) (449 SE2d 322) (1994), Cherry “had a fair and adequate opportunity during voir dire to explore the prospective jurors’ possible racial bias. . . . The broad leeway allowed by the trial court distinguishes this case from Legare, supra, and Craig v. State, 165 Ga. App. 156 (299 SE2d 745) (1983).” Id. at 779 (3). In both those cases, the trial court erred in prohibiting the defense from asking a series of questions on a particular issue, effectively preventing any inquiry on that topic. Here, Cherry asked a number of similar and somewhat repetitive questions. Any error in simply forbidding one of a series of such questions was harmless under the facts of this case. Id.; see also Walker v. State, 215 Ga. App. 790, 792-793 (4) (452 SE2d 580) (1994).

2. Cherry also asserts as error the trial court’s denial of his motion to suppress evidence obtained during a search of the Casadena Restaurant pursuant to a warrant. But Cherry has no standing to complain of the search, because he was a mere visitor to the restaurant at the time the search warrant was executed.

The evidence reveals that the restaurant was owned and operated by two named individuals other than Cherry. Cherry acknowledges that he was merely a patron of the restaurant and does not allege any interest in the premises. “As a mere visitor he had no expectation of privacy in the premises of another, where he had neither a proprietary nor a possessory interest.” (Citations and punctuation omitted.) Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989) (visitor to another’s mot'el room). See also Sims v. State, 251 Ga. 877, 882-883 (311 SE2d 161) (1984) (no expectation of privacy in open box on floor of storage area in spouse’s business “to which an undetermined number of persons have access”); Todd v. State, 184 Ga. App. 750, 751-752 (2) (362 SE2d 400) (1987) (no standing to object to search of mother’s farm property).

3. Cherry complains of the joinder of the two indictments for a single trial. It is well established that indictments for continuing sales of the same type of contraband may be properly addressed in a single trial because they “ ‘constituted] parts of a single scheme or plan.’ ” Little v. State, 165 Ga. App. 389, 391 (2) (300 SE2d 540) (1983). But we do not reach the issue of joinder or severance because Cherry raises it for the first time in this appeal.

Unlike the defendant in Little, who filed a motion to sever, Cherry did not file such a motion, and the record reveals no response or brief in opposition 'to the State’s motion to join the offenses for trial. At trial, the State announced that it was ready in both cases, and Cherry raised no objection but announced that he was ready. After a jury was selected, the trial court inquired as to any pending motions, and Cherry responded that a motion to suppress was the only motion to be heard. After the hearing and ruling on the motion to suppress, Cherry’s counsel agreed with the prosecutor that there were “no further matters on this case that I know of.”

“No matter how erroneous á ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. A party’s acquiescence to the ruling of a trial court deprives the party of a right to complain of that ruling on appeal, and acquiescence can be caused by silence. Defendant has waived the issue argued on appeal by failing to raise an objection in the trial court.” (Citations and punctuation omitted.) Carr v. State, 214 Ga. App. 367, 368 (448 SE2d 33) (1994) (defense counsel made no argument in opposition to State’s argument, trial court allowed State to proceed, defense made no objection). Under these circumstances, Cherry has waived any objection to the joinder of the two indictments for trial.

4. Cherry next enumerates as error a number of instances of testimony and evidence which, he contends, impermissibly placed his character in issue. But, with one exception, Cherry failed to object to any of this evidence. We cannot consider his objections now because they were not raised in the trial court. Morrison v. State, 220 Ga. App. 151, 155 (4) (469 SE2d 686) (1996).

The only matter to which Cherry objected at trial was the appearance of witnesses for the defense in jail clothing. But he did not object on the grounds that the dress of the witnesses placed his character in evidence; instead, he contended that the clothing “might prejudice the jury toward them or their testimony.” (Emphasis supplied.) “Because he never objected to the testimony on this ground at trial, he has waived this claim of error. This Court does not consider objections to evidence different from those made in the trial court. [Cit.]” Maddox v. State, 227 Ga. App. 602, 604 (3) (490 SE2d 174) (1997).

Moreover, the single imprisoned witness who ultimately testified on Cherry’s behalf had already appeared as a State’s witness in jail clothing without objection from Cherry, and the fact of his guilty plea and conviction had already been discussed, without objection, in the presence of the jury. Even if we assume, without deciding, that a defendant’s procedural right to appear in civilian clothes extends to defense witnesses, Cherry’s failure to assert this objection until after the witness had already appeared before the jury in jail clothing waived any claim of error. See Slade v. State, 267 Ga. 868, 870 (3) (485 SE2d 726) (1997). “[Wjhere the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless admission of the same evidence over objection. [Cits.]” Masters v. State, 186 Ga. App. 795, 797 (3) (368 SE2d 557) (1988).

Cherry acknowledges his failure to object to any other alleged instances of improper character evidence. He also failed to request an instruction on character evidence from the trial court, explicitly stated that he had no objection to the charge as delivered, and failed to reserve the right to object at a later time. He nevertheless contends on appeal that the trial court, on its own motion, should have charged the jury not to consider certain evidence, even though that evidence was never identified or objected to at trial. He describes this as “plain error,” or substantial error, under OCGA § 5-5-24 (c) and Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986). We disagree.

In Barnett, the State presented highly inflammatory evidence of sexual and physical child abuse that was completely irrelevant to the charge of assault against a police officer for which Barnett was on trial. In contrast, the matters complained of by Cherry did not relate to a totally extraneous, highly prejudicial, and unrelated crime, as in Barnett, but to Cherry’s involvement with drugs. Much of the testimony complained of was part of the res gestae or explained the officers’ conduct during the investigation, and some was elicited by Cherry’s counsel on cross-examination. Under these circumstances, the waived failure to give the unrequested charge clearly does not constitute “substantial error as defined in OCGA § 5-5-24 (c).” Smith v. State, 186 Ga. App. 303, 312 (6) (367 SE2d 573) (1988). See also Sharp v. State, 183 Ga. App. 641, 643 (4) (360 SE2d 50) (1987).

5. In his fifth enumeration of error, Cherry complains that the prosecutor referred to future dangerousness in his closing argument. While at the time of Cherry’s trial, in 1993, such references were permitted under Vance v. State, 262 Ga. 236, 237 (1) (416 SE2d 516) (1992), the Supreme Court later overruled Vance in Sterling v. State, 267 Ga. 209, 210 (2) (477 SE2d 807) (1996).

Generally, failure to interpose a timely objection to the prosecutor’s argument at trial forecloses consideration of the issue on appeal. Rivers v. State, 265 Ga. 694, 697 (7) (461 SE2d 205) (1995). As in Division 4, supra, Cherry raises an issue for the first time on appeal, then asserts the “substantial error” rule to contend that the trial court, on its own motion, should have instructed the jury to disregard matters to which Cherry never objected. In this instance, however, there was no “substantial error” in any event because the error, if any, was harmless.

Construed to support the verdict, the evidence at trial showed that Cherry stopped an undercover officer and a confidential informant on the street to solicit a sale of crack cocaine, told them to go to a residence where he negotiated the price and received cash for the cocaine, then solicited future sales. The evidence at trial also showed that Cherry was in a restaurant when officers entered to execute a search warrant and was observed attempting to conceal a vial containing 19 pieces of crack cocaine in a pocket of a pool table. An officer testified that, based on his training and experience, this amount of cocaine was “a large amount for, for a decent sized dealer in Canton.” Given the overwhelming evidence of Cherry’s guilt, any error with respect to this portion of the argument was harmless. McClain v. State, 267 Ga. 378, 383 (3) (a) (477 SE2d 814) (1996).

6. Finally, Cherry’s claim of ineffective assistance of trial counsel is barred by his failure to raise this claim in a renewed motion for new trial before filing the notice of appeal. “The grant of an out-of-time appeal includes the right to file a motion for new trial. Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991). And failure to seize an opportunity to file such a motion for new trial is a bar to raising it on appeal. Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996). In Glover, the Supreme Court overruled the line of cases that held that ‘new appellate counsel may bypass an opportunity to raise ineffectiveness of trial counsel before appeal by way of a motion for new trial and then raise the issue on appeal and be entitled to a remand to the trial court for a resolution of the issue.’ Id. at 184, n. 6. Although in Glover the Supreme Court allowed a remand because it was not previously known that no remand was available, id. at 184-185 (2), that rule has been in place sufficiently long to bar such a remand in this case.” Price v. State, 228 Ga. App. 155, 156-157 (1) (491 SE2d 210) (1997). This issue was therefore waived.

Decided February 4, 1998.

John B. Sumner, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Cherry was convicted in 1993 and obtained permission to file an out-of-time appeal in 1994, but the transcript was not prepared until 1997. In 1995, Cherry was paroled. But this does not moot the appeal, because the balance of his sentence is to be served on parole until 2008 and the conditions attached to his parole could result in reconfinement if violated. See Morgan v. Kiff, 230 Ga. 277 (196 SE2d 445) (1973), overruled on other grounds, Jacobs v. Hopper, 238 Ga. 461, 463 (233 SE2d 169) (1977).

       The State is incorrect in its assertion that appellant was required to make further exception to the trial court’s adverse ruling in order to preserve the issue for appeal. Stone v. State, 177 Ga. App. 750, 752 (4) (341 SE2d 280) (1986).


author: Blackburn, Judge.

text:
    A97A2169.
    NATIONAL TREASURY EMPLOYEES UNION v. MACON-BIBB COUNTY HOSPITAL AUTHORITY.
    (496 SE2d 760)
   Blackburn, Judge.

National Treasury Employees Union (NTEU) appeals the trial court’s judgment rendered against it in the underlying negligent misrepresentation action brought by Macon-Bibb County Hospital Authority d/b/a Medical Center of Central Georgia (the Hospital). NTEU asserts several enumerations of error.

“The [Hospital] provided medical care to the newborn son of a federal employee who was an insured under a group insurance policy sponsored by the [NTEU] and issued under the Federal Employees Health Benefits Act (FEHBA), 5 USC § 8901 et seq. The [Hospital] alleged that it provided care after being assured by the insurer that the infant was covered by his mother’s insurance policy. When the insurer subsequently denied coverage for the infant, the [Hospital] filed suit. . . seeking damages for NTEU’s alleged negligent misrepresentation.” Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557 (458 SE2d 95) (1995).

1. In its first enumeration of error, NTEU contends that the trial court erred in concluding as a matter of law that the statements made by NTEU constituted legal misrepresentations despite its factual finding that NTEU provided accurate information to the Hospital concerning insurance coverage for routine childbirth.

The trial court made the following factual findings: “The Plaintiff provided medical treatment to the Defendant’s insured involved in the birth of her child. The Plaintiff’s representative contacted representatives of the Defendant to verify that coverage was available. The Plaintiff was advised by authorized employees and agents of the Defendant that coverage was available for the insured for the routine childbirth from the moment of birth. The Defendant’s insured’s policy provided coverage for routine childbirth coverage. The policy required that the child be added to the policy with [sic] thirty (30) days of its birth.” NTEU contends that the trial court’s factual findings confirm that no inaccurate information was given to the Hospital. However, the trial court’s findings state that “coverage was available for the insured for the routine childbirth from the moment of birth.” The trial court’s findings do not address themselves to what the NTEU representative stated with regard to coverage of the newborn. Therefore, NTEU’s enumeration is without merit.

2. In its second enumeration of error, NTEU contends that the trial court erred in determining that the Hospital was not contributorily negligent. NTEU argues that the evidence established that the Hospital failed to follow its own established verification policy of asking whether the insured had single or dependent coverage and that the Hospital gave NTEU an incorrect diagnosis when requesting insurance verification.

At trial Mabel Pinkston testified for the Hospital that she talked with Deetra Knight, a NTEU representative, to verify insurance coverage. Pinkston told Knight, “I have Valjeanne Thompson. She is the insured and the patient. She was admitted 5/6/89 at eleven twelve a.m. for childbirth. I need benefits on maternity.” Knight informed Pinkston of Thompson’s coverage. When Pinkston asked if the baby was covered, Knight responded that the baby was covered from birth. Pinkston testified that “[s]ince she told me, ‘Baby covered from birth,’ and from my experience with this plan, I knew that the baby’s bill would be paid essentially in full or all — as far as I know, all the way in full under the mother’s miscellaneous coverage. We don’t.bill a room on babies. All coverage on babies is covered under mother’s or father’s or both’s miscellaneous.”

Pinkston acknowledged receiving and reviewing a memorandum which set forth guidelines to follow when verifying insurance coverage on obstetric patients and newborns. The memorandum contained the following guideline: “Determine if patient has single or dependent coverage: Single coverage will not cover the newborn; this could prove very costly to our hospital if the newborn is sick or premature. Thus, you should encourage the mother to change policy to dependent coverage and follow-up to insure the change is made. Dependent coverage, even if the mother’s condition is pre-existing, will provide coverage for a sick or premature neonate.”

NTEU argues that because Pinkston did not specifically ask if Thompson had single or dependent coverage that she violated the Hospital’s procedures and thus was contributorily negligent. However, when questioned about whether she asked Knight if Thompson had single or dependent coverage Pinkston responded: “Not in those words, but essentially I did. I asked her in words that were familiar to all of us . . . and I asked her the pertinent questions, and according to hospital policy, I got exactly what we needed.” If the exact coverage situation was clear between the parties, the infant could have been subsequently added to the insurance contract within 30 days of birth and the policy would have provided coverage from the moment of birth. However, because the Hospital was informed that the baby was covered from birth no steps were taken to add the baby to the mother’s coverage. Therefore, as the facts were not plain and indisputable, the trial court, as the trier of fact, did not err as a matter of law in determining that the Hospital was not contributorily negligent on this basis.

NTEU next contends that the Hospital was contributorily negligent when it gave the wrong diagnosis upon obtaining insurance verification. Pinkston told Knight that Thompson’s diagnosis was “childbirth.” NTEU contends that because Thompson was only 28 weeks pregnant and had ruptured membranes, the diagnosis should have noted the high-risk nature of the delivery and that potential respiratory problems were likely for the newborn. However, although Dr. Dalrymple testified that if Thompson followed the required precautions, she probably had a 50 to 60 percent chance of going into labor, the doctor did not testify that “childbirth” was an incorrect diagnosis. Dr. Dalrymple did testify that she would not have notified the neonatal intensive care unit if she anticipated that Thompson’s labor and delivery were going to be routine; however, again, the doctor did not testify that “childbirth” was an incorrect admitting diagnosis.

Issues regarding contributory negligence are resolved by the trier of fact, in this case, the trial court. See Pique v. Lee, 218 Ga. App. 357, 358-359 (461 SE2d 302) (1995). Because the facts establish that more than one conclusion was permissible, we cannot say that the trial court erred as a matter of law in failing to find that the hospital was contributorily negligent. ■

Decided February 4, 1998

George H. Connell, Jr., for appellant.

Sell & Melton, John A. Draughon, for appellee.

3. In its final enumeration of error, NTEU contends that the trial court erred in failing to dismiss the complaint because the Hospital, as Thompson’s agent pursuant to a power of attorney, had a duty to know the contents of the insurance contract and was not authorized to rely on oral representations in conflict with the terms of the contract. However, as our Supreme Court concluded in its earlier opinion in this case, “the [Hospital’s] allegation of negligent misrepresentation is a ‘run-of-the-mill’ state law claim with too tenuous a connection with the FEHBA contract of insurance to warrant a finding that it ‘relates to’ the contract.” Macon-Bibb County Hosp. Auth., 265 Ga. at 560.

Additionally, the power of attorney signed by Thompson is a limited one. It does not purport to assign all Thompson’s rights and benefits in the insurance contract to the Hospital, but merely assigns the insurance benefits and gives the Hospital the authority to complete any forms or release any records required in order to obtain those insurance benefits. This limited power of attorney is distinguishable from the cases cited by NTEU which involved general assignment and subrogation. See Algernon Blair, Inc. v. Nat. Surety Corp., 222 Ga. 672 (151 SE2d 724) (1966) and Healey v. Morgan, 135 Ga. App. 915 (219 SE2d 628) (1975). Because the Hospital did not take a general power of attorney or assignment of the insurance contract, it did not stand in Thompson’s shoes with regard to NTEU’s defenses. Therefore, we find that the trial court did not err in failing to dismiss the Hospital’s complaint on these grounds.

Judgment affirmed.

Pope, P. J, and Johnson, J., concur.

       This is the second appearance of this case before us. See Nat. Treasury Employees Union v. Macon-Bibb County Hosp. Auth., 213 Ga. App. 724 (445 SE2d 777) (1994), rev’d, Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557 (458 SE2d 95) (1995). Our Supreme Court determined that the Federal Employees Health Benefits Act (FEHBA) did not preempt the Hospital’s action in the underlying case. See Macon-Bibb County Hosp. Auth., 265 Ga. at 560. After remand, a bench trial was had which resulted in the judgment presently before us.

       NTEU also relies upon Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551 (385 SE2d 736) (1989) and Boynton v. State Farm Mut. Auto. Ins. Co., 207 Ga. App. 756 (429 SE2d 304) (1993). They also do not involve a limited power of attorney, but additionally, as they both are physical precedent only, we will not consider them.


author: Johnson, Judge.

text:
    A97A2253.
    TOLES v. G & K SERVICES, INC.
    (496 SE2d 550)
   Johnson, Judge.

This case arises from the trial court’s entry of default judgment against Alvin Toles as a sanction for his failure to comply with the court’s orders to pay attorney fees to G & K Services, Inc. (“G & K”) incurred in bringing a motion to compel discovery. We affirm the trial court’s judgment.

In July 1993, G & K sued Toles alleging that he improperly terminated a service agreement with G & K. In October 1993, G & K served Toles with its first request for production of documents and interrogatories. In March 1994, G & K served upon Toles a notice to appear for a deposition. Toles responded to the interrogatories and request for production, but objected to nearly all of the questions posed in the interrogatories and several of the requests for documents. He also failed to appear for the noticed deposition or any other deposition. In April 1994, G & K sent Toles a letter demanding more complete responses to the interrogatories and request for production of documents. Toles did not respond.

In July 1994, G & K filed a motion to compel discovery. In opposition to the motion, Toles did not deny that the responses to the interrogatories or request for production were incomplete or offer an explanation for their incompleteness. Instead, he argued that, as to the deposition at least, G & K failed to promptly commence, diligently pursue or complete discovery. After a hearing, the trial court granted G & K’s motion and ordered Toles to provide complete responses to the discovery requests by October 1994 and to appear for his deposition. The court also ordered Toles to pay attorney fees in connection with the motion to compel.

In September 1995, after nearly a year passed without Toles paying any attorney fees, G & K filed a motion for contempt. The trial court held a hearing and, in January 1996, found Toles to be in wilful civil contempt and ordered payment of a fine in addition to the attorney fees previously awarded.

Toles still had not paid any attorney fees or the fine by March 1997. G & K then moved for Toles to be held in contempt, for his pleadings to be stricken, and for entry of default judgment. Finding that Toles had wilfully failed to comply with the court’s orders, the trial court found him in contempt, struck his pleadings, and entered default judgment against him. Toles appeals.

1. Toles claims the trial court erred in its 1994 order granting G & K’s motion to compel discovery and awarding G & K attorney fees for bringing the motion when discovery had not been completed within six months and there was no order extending the discovery period. See Uniform Superior Court Rule 5.1. Toles bases his argument on the fact that G & K mailed its deposition notice to him only two days before the six-month discovery period expired and set the deposition for a date two weeks beyond that period. Therefore, he argues, the trial court was not authorized to compel him to appear for a deposition.

First, Toles fails to mention in his brief that only part of the motion to compel involved the deposition. G & K also sought to compel responses to interrogatories and a request for production of documents served in October 1993, well within the six-month period. In the trial court’s order, the court specifically referred to Toles’ repeated failure to respond adequately to the interrogatories and request for production of documents, as well as his failure to appear for a deposition despite it being rescheduled numerous times at his request. The court ordered full responses to discovery requests as well as the taking of depositions. There was evidence to support the trial court’s finding that G & K promptly commenced and diligently pursued discovery within six months after the answer was filed.

Second, discovery need not be completed within six months, just promptly and diligently pursued by the moving party within that time period, as was done in this case. See Fisher v. Bd. of Commissioners &c., 200 Ga. App. 353 (1) (408 SE2d 120) (1991). The trial court did not abuse the broad discretion given it under the discovery provisions of the Civil Practice Act. See generally Potter v. American Medcare Corp., 225 Ga. App. 343, 346 (484 SE2d 43) (1997).

Finally, where a motion to compel is granted, the party whose conduct caused the motion to be filed shall be required to pay attorney fees incurred by the movant in obtaining the order. OCGA § 9-11-37 (a) (4) (A). We find no error.

2. Toles contends that the trial court erred in granting G & K’s 1997 motion for contempt, striking his pleadings and entering default judgment against him without giving him the opportunity for a hearing. We disagree.

“[A] defendant’s wilful failure to comply with an order requiring the payment of attorney’s fees as reimbursement for the expenses incurred by the plaintiff in obtaining a discovery order has been held to authorize the [entry of default judgment]. [Cit.]” Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 633 (362 SE2d 439) (1987). The trial court is not required to hold a hearing on the issue of wilfulness in every case. “ ‘Such a requirement serves no purpose where the trial court(, as here,) can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.’ [Cit.]” Champion Mgmt. Assn. v. McGahee, 227 Ga. App. 895, 896 (1) (490 SE2d 215) (1997). Here, Toles had more than two years to comply with the court’s orders to pay fees, yet failed to do so and failed to show justification or circumstances making the award unjust. See OCGA § 9-11-37 (b) (2). In addition, the trial court did hold a hearing on the first motion for contempt. The first contempt motion, like the final one, involved Toles’ failure to pay attorney fees as ordered. According to the trial court’s order on that motion, the only justification Toles offered at the hearing for not paying was that the prior order was not a final judgment. However, the obstinate party cannot wait until final judgment to pay attorney fees awarded pursuant to OCGA § 9-11-37 (b) (2) (D). See Orkin Exterminating, supra at 588 (1). Toles had an opportunity to present any legal justification or explanation at the prior contempt hearing, and he failed to convince the trial court at that time. See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991). As the Supreme Court pointed out in Schrembs, “ ‘[t]he interminable discovery procedures which bog down final resolution . . . would be exacerbated without justification if further hearing were required in these circumstances.’ [Cit.]” Id.

Decided February 4, 1998.

3. Toles claims the trial court violated Uniform Superior Court Rule 6.3 by entering judgment against him without allowing him the opportunity for oral argument. Rule 6.3, however, provides that unless otherwise ordered by the court, all motions in civil actions shall be decided without oral hearing, except motions for new trial and for judgment n.o.v. While the rule does allow oral argument upon written request on motions for summary judgment, the judgment entered in this case was not summary judgment, but default judgment. Rule 6.3 does not require an oral hearing on such motions. This enumeration is therefore without merit.

4. Toles argues the trial court erred in not realizing that his pleading entitled “Defendant’s Brief on the Issue of Summary Judgment as to the Issue of the Penalty Provision in the Contract” was intended to be a motion for summary judgment and in ruling it was moot. Even assuming the trial court erred in not construing the pleading entitled “Brief” as a motion, this enumeration is without merit. The trial court struck Toles’ pleadings as a sanction for his repeated failure to comply with its orders, as it was authorized to do. It was therefore unnecessary for the court to address the issues raised in the pleading.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Rita T. Williams, for appellant.

Johnson, Matte & Hobgood, Thomas T Hobgood, Margaret E. Sanders, for appellee.

       We note that the 1994 order is appealable here despite the significant time lapse. See OCGA § 5-6-34 (d). See generally Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 588 (452 SE2d 159) (1994).


text:
    A97A2507.
    PULTE HOME CORPORATION v. WOODLAND NURSERY & LANDSCAPES, INC.
    (496 SE2d 546)
   Blackburn, Judge.

Woodland Nursery & Landscapes, Inc. (Woodland) brought the underlying action for breach of contract against Pulte Home Corporation (Pulte). Pulte counterclaimed for breach of contract. After a trial, the jury awarded damages and attorney fees to Woodland and declined to award any set-off damages in connection with Pulte’s counterclaim. Pulte appeals the jury verdict contending several errors occurred at trial.

1. Pulte contends that the trial court erred in allowing Woodland to present evidence contradicting an admission contained in its responses to Pulte’s request to admit pursuant to OCGA § 9-11-36.

“Any matter admitted under [OCGA § 9-11-36] is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. ... In determining this issue, we must recognize that the intended purpose of [the Code section] is the facilitation of proof at trial. In form and substance an admission under [OCGA § 9-11-36] is comparable to an admission in pleadings or stipulation of facts and as such is generally regarded as a judicial admission rather than evidentiary admission of a party. A judicial admission, unless allowed to be withdrawn by the court, is conclusive whereas an evidentiary admission is not conclusive but is always subject to be contradicted or explained. . . . Past decisions of this court have recognized the binding effects of admissions under [OCGA § 9-11-36], In ETI Corp. v. Hammett, 140 Ga. App. 618 (231 SE2d 545) (1976) it was held that evidence was not admissible to controvert matters deemed to have been admitted by failure to answer requests for admission even though the substance of the matter deemed admitted had been denied in the answer to the complaint.” (Citations, punctuation and emphasis omitted.) Albitus v. Farmers &c. Bank, 159 Ga. App. 406, 407-408 (283 SE2d 632) (1981).

In Piedmont Aviation v. Washington, 181 Ga. App. 730, 732 (2) (353 SE2d 847) (1987), we determined that the ALJ improperly “disbelieved” the claimant’s admissions in judicio. We held that “[n]o motion was made to contradict or amend these admissions; therefore, the ALJ was not at liberty to disbelieve any of them based on other evidence. They are facts, residing now in the body of the court, and they cannot be contradicted, varied or amended except on formal motion.” (Emphasis in original.) Id.

In the present case, Woodland admitted that it “agreed and consented to perform all of the terms and obligations of the form agreement contained in Exhibit ‘A’ and the attachments thereto.” Exhibit A included two documents entitled “Schedule ‘B’ Performance Requirements and Specifications.” Both of these documents were signed by Amy Mumma. At trial, Woodland was allowed, over Pulte’s objection, to present evidence that Mumma did not have authority to sign contracts on behalf of Woodland. Because Woodland admitted that it agreed to the obligations contained in the documents signed by Mumma, Woodland should not have been allowed to present evidence regarding Mumma’s lack of authority to sign for it. Woodland’s obligation to perform according to the documents was conclusively established by its admission, and it failed to formally move for withdrawal of same. Therefore, the trial court erred in allowing the presentation of evidence contradictory to the admissions. On the record before us, we cannot say that such error was harmless; thus, the judgment must be reversed and the case remanded for a new trial. Due to the trial court’s error in allowing evidence contradicting Woodland’s admission we must reverse the jury verdict; however, because Pulte’s enumerations of error contain issues which could recur upon any retrial of this case, such enumerations will also be addressed.

2. In several enumerations of error, Pulte contends that the trial court erred in denying its motion for directed verdict and motion for judgment n.o.v or new trial. “The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the any evidence test. Little v. Little, 173 Ga. App. 116 (1) (325 SE2d 624) (1984). The issues of a directed verdict and judgment n.o.v. are reviewed on the same basis. The question before this court is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded. A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. Stone v. Cook, 190 Ga. App. 11 (1) (378 SE2d 142) (1989).” (Punctuation omitted.) Ruben's Richmond Dept. Store v. Walker, 227 Ga. App. 867 (1) (490 SE2d 536) (1997).

Woodland is a landscaping subcontractor who provided landscaping for certain Pulte developments. The parties entered a subcontractor agreement form covering the work to be performed. Woodland contends that Pulte breached the contract by withholding payment for services properly invoiced thereby justifying their failure to continue providing services under the contract. Pulte contends that Woodland breached the contract by such failure and by performing the services it did provide in a negligent manner. By its responses to Pulte’s requests to admit, Woodland admitted that it agreed to certain contract specifications. The evidence was disputed as to whether Pulte’s actions in withholding payment breached the terms of the contract. The evidence also created disputes as to whether Woodland breached the contract prior to the alleged failure of Pulte to pay. As the evidence does not demand a judgment contrary to that reached by the jury, we find that the trial court did not err in denying Pulte’s motions for directed verdict and judgment n.o.v. or new trial.

3. Pulte enumerates as error the trial court’s jury charge on interest. In its brief, Pulte argues that there was no evidence to support an award of prejudgment interest because the amount of the debt was not liquidated.

“Allowance of interest in actions for unliquidated damages arising from breach of contract is governed by OCGA § 13-6-13 which states: In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery. Norair Engineering Corp. v. Saint Joseph’s Hosp., 147 Ga. App. 595, 604 (6) (249 SE2d 642) (1978). The jury in their discretion may increase the immediate amount of damages found, by an allowance of interest. Bennett v. Tucker & Pennington, 32 Ga. App. 288, 293 (123 SE 165) (1924).” (Citations and punctuation omitted.) Carpet Transport v. Kenneth Poley Interiors, 219 Ga. App. 556, 559 (4) (466 SE2d 70) (1995). Therefore, the trial court did not err in charging the jury regarding interest.

4. Pulte contends that the trial court erred in denying its motion for directed verdict and motions for post-judgment relief regarding attorney fees pursuant to OCGA § 13-6-11.

“A review of the record shows the existence of a bona fide controversy as to [Woodland’s claims and Pulte’s claims in set-off]. The existence of such a bona fide controversy would preclude a recovery of OCGA § 13-6-11 attorney’s fees on the theory that [Pulte] had been stubbornly litigious or caused [Woodland] unnecessary expense, notwithstanding that the jury ultimately resolved that controversy in favor of [Woodland]. See Ginsberg v. Termotto, 175 Ga. App. 265, 267 (3) (333 SE2d 120) (1985). Compare Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990).” Williams Tile &c. Co. v. Ra-Lin & Assoc., 206 Ga. App. 750, 752 (5) (426 SE2d 598) (1992).

Decided February 4, 1998.

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., for appellant.

Bross & Saginar, Gary W. Bross, for appellee.

Nor are attorney fees recoverable on the basis of Pulte’s alleged bad faith. The record reveals that, although there was evidence of Pulte’s failure to pay certain invoices, “there was insufficient evidence of [Pulte’s] bad faith in entering into the subcontract or its performance thereof. There was no showing that [Pulte] acted through ill will or furtive design with regard to the performance of the contract. Since there was no evidence from which a jury could find that the contract was made in bad faith or that [Pulte] breached it as a result of some sinister motive, the award of attorney’s fees cannot be sustained on the basis of bad faith. ... A recovery of OCGA § 13-6-11 attorney’s fees in a contract action must be based upon evidence which shows more than a mere breach of contract.” (Citation and punctuation omitted; emphasis in original.) Id. at 752-753. Therefore, the trial court erred in denying Pulte’s motion for directed verdict as to its non-liability for OCGA § 13-6-11 attorney fees.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       We note that several of Pulte’s enumerations of error contain more than one assertion of error in violation of OCGA § 5-6-40. Therefore, we have treated each enumeration as arguing only one issue. See West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990).


text:
    A97A2024.
    REYNOLDS v. THE STATE.
    (496 SE2d 474)
   Judge Harold R. Banke.

John C. Reynolds was convicted of driving under the influence of alcohol, driving with an unlawful alcohol concentration, and failure to maintain lane.

After observing Reynolds’ truck drifting outside his lane on an interstate highway, the arresting officer stopped Reynolds, who smelled strongly as though he had been drinking, slurred his speech, was flushed, had watery eyes, and admitted to having one drink. After conducting several field sobriety tests, the officer arrested Reynolds and took him to the station for a breath test which measured .145 and .149. Held:

1. We reject Reynolds’ contention that the admission, pursuant to OCGA § 40-6-392 (f), of certificates showing the breath testing device was properly inspected, tested, and standardized violated the rule against hearsay. Reynolds maintains that the certificate lacked a proper foundation because the State failed to inquire whether it was in the regular course of business to make the record at the time of the act.

Decided January 14, 1998

Reconsideration denied February 5, 1998

Sidney L. Moore, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

Although Reynolds asserted a hearsay objection to this evidence during a hearing on his motion in limine, the record shows that Reynolds never objected to the inadequacy of the foundation for this evidence. Reddin v. State, 223 Ga. App. 148, 152-153 (5) (476 SE2d 882) (1996). Therefore, the error was waived. See McGee v. State, 205 Ga. App. 722, 729 (12) (423 SE2d 666) (1992).

2. Reynolds’ claim that the admission of the certificate of inspection violated his right to confrontation is foreclosed by Brown v. State, 268 Ga. 76, 81 (485 SE2d 486) (1997).

3. The trial court properly denied Reynolds’ motion for directed verdict on the charge of driving with an unlawful blood alcohol content. The certification of inspection, the officer’s testimony that Reynolds had been driving, and the blood alcohol test results taken shortly thereafter showing a concentration of .145 were sufficient to allow the jury to find all the essential elements of the offense. OCGA § 40-6-391 (a) (5); Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996) (the standard for reviewing the denial of a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence).

4. Reynolds maintains that the jury charge on expert witnesses was incomplete because it failed to state that the jury was not bound by the testimony, even if unopposed. The charge on credibility of witnesses adequately covered the concept at issue. Willingham, v. State, 268 Ga. 64, 66 (5) (485 SE2d 735) (1997) (charge reviewed as a whole). Moreover, the charge given was previously approved by the court. New v. State, 171 Ga. App. 392 (5), 393 (319 SE2d 542) (1984). In any event, the fact that neither party called an expert undermines Reynolds’ argument.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Beasley, Judge. McMurray, Presiding Judge, Smith, Judge,

text:
    A97A1989.
    WAND v. THE STATE.
    (496 SE2d 771)
   Beasley, Judge.

Convicted of child molestation (OCGA § 16-6-4 (a)) and giving a false name (OCGA § 16-10-25), Jeffrey Wand appeals the molestation conviction on two grounds: insufficient evidence and error in disallowing cross-examination of the victim’s mother about prior allegations of sexual abuse against the victim. Beyond the general grounds, the issues are (a) whether previous molestation accusations (whether true or false) are admissible in a child molestation case to explain the victim’s lack of a hymen or to attack the mother’s credibility, and (b) whether Wand’s failure to proffer evidence of the truth or falsity of the prior allegations, or to request a hearing on them, precluded cross-examination about them.

1. The standard of review for sufficiency of the evidence is “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.” In this context, “ ‘appellant no longer enjoys a presumption of innocence[, and a]n appellate court determines only the legal sufficiency of the evidence . . . and does not weigh [it] or assess the credibility of the witnesses. [Cits.]’ [Cit.]”

One Saturday, Wand, his wife, his 13-year-old stepdaughter and his brother-in-law were watching a movie in the living room. The stepdaughter went into her mother’s bedroom to pet the family dog. Wand soon followed and demanded she remove her clothes. When she refused, he forcibly removed them, pulled out his organ, laid down on top of her, and kissed her “all over.” She testified he then had sexual intercourse with her. The mother walked into the bedroom, witnessed him on top of her daughter engaging in sexual activity, and saw and heard him jump up and exclaim, “It’s her fault!” She demanded he leave, which he did. The victim testified he had also engaged in sexual intercourse with her the preceding two or three Saturdays. This evidence is more than sufficient to sustain a child molestation conviction.

The proof is not undermined by the failure of the emergency room physician to discover any visible evidence of molestation. The physician testified he would expect to find such in only about one-third of the cases whére sexual activity had occurred. Evidence the mother had a motive to fabricate a story and to coach the victim so as to get rid of Wand simply presents a jury issue. “ ‘The jurors are the judges of credibility and weight of the evidence; they see and hear the witnesses and are better qualified to judge the reasonableness of a hypothesis or a doubt than the appellate court.’ ”

Wand argues that his acquittals of rape (OCGA § 16-6-1), statutory rape (OCGA § 16-6-3), and incest (OCGA § 16-6-22) mean that no intercourse took place, and thus there is no evidence of molestation. He relies on the inconsistent verdict rule, but it has been abolished in Georgia. Besides, there is no inconsistency. The acquittals simply mean the jury found insufficient evidence of penetration, which is not an element of child molestation. His other acts independently suffice to sustain the conviction.

2. As to the court’s refusal to allow Wand to cross-examine the victim’s mother about her daughter’s prior allegations of sexual abuse against the child, Wand argued a two-fold purpose for the evidence: if the prior allegations of the child were false, they would show the current allegations are unfounded; if true, they would offer an alternative explanation for the medical evidence that the victim had no hymen. Appellant acknowledges the standard of review, which is that the “scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused. [Cits.]”

(a) First, any limits on examining the mother about these prior allegations were harmless, for Wand had earlier cross-examined the victim about them with no objection. She confirmed that her mother had made the accusations and, in response to Wand’s direct question, testified that the accusations were true.

In Duck v. State the trial court did not allow defendant to cross-examine a psychiatrist about another alleged molestation against the victim but did allow these questions to the victim and her stepmother. Although Duck held the court should have allowed these questions to the psychiatrist, Duck found the error harmless where other witnesses answered them.

(b) Second, the court correctly limited inquiry into the prior allegations. Wand established through cross-examination of the child that the prior molestations in fact did occur, and Wand did not challenge or seek to undermine this testimony. He did not question her further about it at all.

Nor did Wand at any point proffer any evidence that the prior molestations did not occur. When the court inquired as to the relevancy of Wand later cross-examining the mother about her reporting the prior molestations, Wand initially claimed he wanted to prove the mother’s prior reports of molestation were false. When the court pointed out the allegations came from the child, not from the mother who was merely reporting the child’s statements, Wand abandoned this tactic and took the position that the allegations (which he had already established through the child were true) would explain the child’s lack of a hymen. Wand did not suggest nor proffer any evidence to show the allegations were false or that the mother had coached the child into making false prior allegations.

Even if Wand had continued to pursue the rationale that the child’s prior allegations were false, his cross-examining the mother about them was excludable. Some cases rely on the Rape Shield Statute (OCGA § 24-2-3) for limiting such inquiries. Even without it, a sound basis for exclusion in child molestation prosecutions is the common law principle of relevancy.

In a child molestation prosecution, evidence pertaining to other molestations of the child is admissible as a matter of common law under certain limited circumstances. Wilson v. State enumerates them: (a) to show that someone other than defendant caused the injuries to the child; (b) to show lack of victim credibility if the victim’s prior allegations of molestation were false; and (c) to show other possible causes for the symptoms exhibited.

In this case, as in Woods v. State, the common law governs whether in defending against the child molestation charge Wand could cross-examine the mother about her reporting the child’s prior allegations of molestation. It is excludable, and thus it is unnecessary to determine the applicability of the Rape Shield Statute.

(c) Wand’s purpose for showing the allegations of prior molestation were false does not win admissibility. “Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissible.” Under the common law requirement of relevancy, evidence of false allegations is admissible only “to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur.”

But the common law rule of relevancy generally applies to show false accusations made by the victim, not the victim’s mother. In Lane v. State the trial court prohibited the defendant from asking a witness about the victim’s mother having falsely accused that witness of child molestation. Citing Smith v. State, the defendant claimed the questioning was proper. Lane held that the “rule announced in Smith concerns admission of testimony regarding the victim’s alleged past false accusations against persons other than the defendant. The Supreme Court ruled that such testimony is permissible because it shows the victim’s propensity to make false statements regarding sexual misconduct.” Showing the victim made previous false allegations is directly relevant to the question of defendant’s guilt; showing the victim’s mother reported those allegations does not affect the victim’s credibility. The relevance of the mother’s reporting is marginal.

(d) Even if the Smith rule (false accusations are relevant to show credibility) were applicable, Wand failed to follow the procedure required to introduce, evidence of false accusations. Smith and its progeny have emphasized: “before such evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” As in Allen, Wand “asked the victim the question without first requesting the trial court to determine the admissibility of the line of inquiry outside the jury’s presence. Under these circumstances, the trial court properly disallowed the inquiry.”

(e) Nor did Wand proffer what evidence would have been introduced at either a Smith hearing or at trial had the hearing or questioning taken place. The defendant in Hicks v. State proffered no evidence in the Smith hearing that the victim’s allegations of past sexual abuse were false. Hicks upheld the exclusion of prior false allegations.

The rule is stated and applied in Thompson v. State: “ ‘Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. (Cit.) The record in the instant case does not show that such witnesses were proffered, or if when proffered the court refused to permit the witnesses to testify, or if proffered what questions were asked or what answers were expected from the witnesses. In the Absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.’ [Cit.]”

(f) Wand’s second alleged purpose for the testimony was to show that the allegations of prior molestation were true and that this explained the victim’s lack of a hymen. Yet when the court pointed out to Wand no one had argued or testified that the child’s hymen had been lost from a sexual act with Wand, and that a child could lose her hymen from many non-sexual causes, Wand agreed “[absolutely.” Wand thus conceded a rationale that rendered any further inquiry into this area irrelevant.

Moreover, under the common law, such evidence is inadmissible. Lemacks held that prior molestation evidence is admissible to explain the medical evidence showing repeated penetration of the victim’s anus and vagina. But the physician here found no evidence of injuries. Nor did his testimony that the hymen was absent open the door for this testimony. First, the physician testified the child had not lost her hymen in the few weeks preceding his examination, which ruled out the incident on trial as the cause. Second, the State did not argue that Wand’s actions caused the lack of a hymen. The court forbade it. Third, by acquitting Wand of rape, statutory rape, and incest, the jury obviously found Wand did not penetrate the victim, so the lack of an alternative explanation for the absence of a hymen was harmless. Finally, Wand proffered no evidence that the previous molestations involved penetration. Absent such, other molestations would be irrelevant in explaining the absence of a hymen.

The trial court did not abuse its discretion in limiting the cross-examination of the victim’s mother about prior allegations of molestation.

Judgment affirmed.

McMurray, P. J., and Smith, J, concur specially and in the judgment.

McMurray, Presiding Judge,

concurring specially and in the judgment.

I am compelled to concur in the judgment only because the majority’s harmless error holding in Division (2) (a) disarms any bid at criticizing or overruling or disapproving cases which apply Georgia’s Rape Shield Statute in child molestation prosecutions.

In Division 2 (a), the majority holds that any error in the trial court’s refusal to allow defendant to cross-examine a witness about the victim’s prior allegations of sexual abuse is harmless because the same subject was covered, without objection, during the victim’s cross-examination. Because this is the proper resolution of the issue in question, this Court is powerless to attempt to effectively overrule any case extending Rape Shield protection to children. Statements and comments in an opinion concerning a rule of law or legal principle which are not essential to resolve the case are obiter dicta and lack the force of an adjudication. Veal v. Barber, 197 Ga. 555, 560 (1), 561 (30 SE2d 252). Consequently, the majority’s words in Divisions 2 (b), (c), (d), and (e) and 3 do not cancel any rule applying Georgia’s Rape Shield Statute in child molestation cases.

Smith, Judge,

concurring specially.

I concur in the judgment but write separately to express my concerns about the admissibility of the victim’s mother’s alleged prior false allegations of sexual abuse against the victim as discussed in Division 2 (c). I cannot follow the majority’s lead in so wholeheartedly dismissing such allegations as inadmissible.

Decided February 5, 1998.

William H. Newton III, for appellant.

Tarnbra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.

I question whether Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), should be cited as authority for adopting a “black letter” rule that only the victim’s alleged prior false allegations may be admissible. First, although that case involved a factual situation in which the victim allegedly made false allegations, the Court did not appear to expressly limit its holding to such a factual scenario.

Second, under Smith and its progeny, it is indeed well established that prior false allegations by a victim do not violate the rape shield statute, OCGA § 24-2-3. But I am not convinced that the logic underlying this principle as applied to a victim’s testimony is always inapplicable to evidence of prior false allegations by another individual. In either case, it is not the sexual behavior per se of the victim that is attacked in such testimony. As stated in Lemacks v. State, 207 Ga. App. 160, 161 (427 SE2d 536) (1993), “a prior [molestation] committed against the victim has nothing whatsoever to do with her past sexual behavior. It is no reflection on [the victim’s] character that [she] has been an unwilling victim of prior crimes.” (Punctuation and emphasis omitted.) It is the credibility of the allegation against the defendant that is attacked, and this is affected regardless of whether it is the victim herself or a third person who may have fabricated the accusation. I cannot agree that the relevance of the mother’s credibility in this case is “marginal,” as stated by the majority. She reported the alleged incident to the police, and alleged evidence of prior similar false allegations could impact on her credibility and propensity for making such allegations.

Despite my reservations over the excludability of the mother’s alleged prior false allegations of child molestation, however, in this case I am compelled to concur in the judgment. Even if Smith might apply to this case, Wand failed to proffer evidence that any alleged prior allegations were false, and as noted by the majority, such a proffer is essential to our consideration of the issue. See, e.g., Thompson v. State, 187 Ga. App. 152, 153 (369 SE2d 523) (1988).

       (Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

        Right v. State, 221 Ga. App. 574, 575 (1) (472 SE2d 113) (1996).

        Gentry v. State, 215 Ga. App. 270 (1) (450 SE2d 304) (1994).

        Hill v. State, 183 Ga. App. 654, 655 (1) (360 SE2d 4) (1987).

       See OCGA § 16-6-4 (a).

       See Hathcock v. State, 214 Ga. App. 188, 189-190 (2) (447 SE2d 104) (1994) (exposure alone is sufficient).

        Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987); see Cantrell v. State, 225 Ga. App. 680, 681 (484 SE2d 751) (1997).

       210 Ga. App. 205, 206 (2) (435 SE2d 725) (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772 (479 SE2d 125) (1996).

       Id.; see Proper v. State, 208 Ga. App. 471, 472 (1) (431 SE2d 133) (1993) (where defense counsel had alternative mechanism to pursue theory, no harm to limit cross-examination), overruled on other grounds, Strickland, 223 Ga. App. 772.

        McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319) (1997); see Peters v. State, 224 Ga. App. 837, 839 (4) (481 SE2d 898) (1997); Flowers v. State, 220 Ga. App. 814, 816-817 (5) (468 SE2d 199) (1996), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, supra; Allen v. State, 210 Ga. App. 447, 448 (1) (436 SE2d 559) (1993); Rouse v. State, 204 Ga. App. 845, 847 (2) (420 SE2d 779) (1992); Snyder v. State, 201 Ga. App. 66, 67-68 (5) (410 SE2d 173) (1991); Martin v. State, 196 Ga. App. 145, 147 (3) (395 SE2d 391) (1990); Brown v. State, 173 Ga. App. 640, 641 (1) (327 SE2d 515) (1985).

       210 Ga. App. 705, 706-707 (1) (436 SE2d 732) (1993).

       See Lemacks v. State, 207 Ga. App. 160, 161 (427 SE2d 536) (1993).

       See Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992).

       See Hall v. State, 196 Ga. App. 523, 524-525 (2) (396 SE2d 271) (1990); Moody v. State, 205 Ga. App. 376, 377-378 (3) (422 SE2d 70) (1992); Marion v. State, 206 Ga. App. 159, 160 (1) (424 SE2d 838) (1992).

       187 Ga. App. 105 (1) (369 SE2d 353) (1988).

       (Punctuation omitted.) Marion, 206 Ga. App. at 159 (1); Chastain, 257 Ga. at 55.

        Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989); see Dupree v. State, 206 Ga. App. 4, 5 (2) (424 SE2d 316) (1992).

       223 Ga. App. 740, 743 (5) (479 SE2d 350) (1996).

       259 Ga. at 137 (1).

       (Citations and punctuation omitted; emphasis in original.) 223 Ga. App. at 743.

       See Washington v. State, 225 Ga. App. 262, 263 (2) (483 SE2d 683) (1997) (argument that mother had a grudge against defendant and had coached the victim insufficient to allow in evidence of vague prior molestation).

       (Citation and punctuation omitted.) Smith, 259 Ga. at 137 (1); see Berry v. State, 210 Ga. App. 789, 790 (1) (437 SE2d 630) (1993); Allen, 210 Ga. App. at 448 (1); Humphrey v. State, 207 Ga. App. 472, 475-476 (2) (428 SE2d 362) (1993).

       210 Ga. App. at 448 (1). Compare Peters, 224 Ga. App. at 839 (4) (court refused to conduct Smith hearing after request); Berry, 210 Ga. App. at 789-790 (1) (court refused hearing after request).

       222 Ga. App. 828, 829-830 (1) (476 SE2d 101) (1996).

       See Hines v. State, 221 Ga. App. 193, 195 (470 SE2d 787) (1996) (“Because no evidence had been presented at the time of this proffer to support a theory that the allegations . . . were false, the trial court did not err in keeping [the prior molestation testimony] from the jury”); Eason v. State, 215 Ga. App. 614, 615 (1) (451 SE2d 820) (1994) (burden on defendant to produce sufficient evidence of falsity).

       187 Ga. App. 152 (369 SE2d 523) (1988).

       Id. at 153-154; see Dent v. State, 220 Ga. App. 147, 148-149 (3) (469 SE2d 311) (1996) (counsel failed to proffer substance of evidence of false accusations; testimony excluded).

       207 Ga. App. at 160-161.

       Compare Hall, 196 Ga. App. at 524-526 (2) (defendant may introduce prior molestations to explain State’s evidence of child abuse accommodation syndrome).

       See McGarity, 224 Ga. App. at 304 (1) (State did not argue child’s testimony was more credible because of her knowledge of sexual matters; not error to exclude evidence of prior molestations).

       See Rouse, 204 Ga. App. at 846 (1) (defendant failed to show other molester had .gonorrhea; thus, evidence of other molestation as source of victim’s gonorrhea properly excluded).