text:
    A90A0154.
    MILLER v. SMITH & SMITH LAND SURVEYORS, P.C.
    (391 SE2d 20)
   Birdsong, Judge.

Miller contends the trial court erroneously granted summary judgment to Smith & Smith on Miller’s claims of criminal trepass and assault. Held:

The record shows that this is the second lawsuit between the parties over the activities of the same Smith & Smith employee, Mr. Woody. The first suit alleged that Woody, while on Miller’s property, committed an assault by threatening Miller with an axe. Miller’s complaint in the present appeal alleged that Smith & Smith committed criminal trepass and assault by sending Woody to her property to harass and terrorize her.

Miller’s deposition testimony shows that while returning home in her car she came around a curve and saw a man in the ditch on the side of the road near her property. The man’s truck was parked nearby. She testified that as she drove past the driveway to her property to approach the man, he stood up and she could see that he had an axe in his hand. She testified she drove up next to the man, who by then was standing on the roadway, stopped her car, and asked what he was doing, but the man did not answer and would not look at her. Although she testified that the man in the road had bright red hair, she contends that she did not then identify him as the same man who threatened her earlier.

Miller testified that about this time she heard a beeper in the man’s pocket go off and a voice on the beeper tell the man not to talk to her, not to answer any questions, and to get in his truck and leave. Miller testified that when she again asked the man for his name, he said he worked for Smith & Smith, and with that, walked away, got in his truck, and left.

Miller acknowledges the man made no threatening motions and he held the axe straight down. She contends, however, that the man’s mere presence with the axe threatened her and placed her in fear of bodily harm.

Smith & Smith moved for summary judgment contending that criminal trepass is a criminal offense and not a tort and that as a matter of law the actions Miller complains of did not constitute an assault. The motion was supported by Miller’s deposition and the deposition of a Smith & Smith employee, other than Woody. This employee’s deposition stated that on the day of the incident he was in charge of a surveying crew, which included Woody, and that they were surveying the line at the request of the insurance company providing the defense of the first action. Miller provided no rebuttal to that testimony.

Decided February 12, 1990.

James A. Satcher, Jr., for appellant.

Bovis, Kyle & Burch, John V. Burch, for appellee.

Assuming without deciding that a criminal trepass gives rise to a separate tort from a trespass to land, it is plain that no trepass of any kind occurred. Miller’s own testimony shows that all of the actions she complains of here took place on a public road and not on her property. Further, there is no allegation that any of the actions complained of were even directed toward Miller’s property. Under these facts, the essential element of Woody’s presence on Miller’s property was absent. See generally OCGA §§ 16-7-21; 51-9-1 et seq.; Bowman v. State, 258 Ga. 829, 830 (376 SE2d 187).

Further, we have no difficulty in deciding as a matter of law under this evidence, there was no assault in this case. It is patent that Miller, in her car and on a public roadway, approached Woody, who she saw was holding an axe, and began conversation. She admits Woody made no threatening gestures and all he did in response to her questioning was to say that he worked for Smith & Smith and leave. No reasonable person could have been put in apprehension by the acts to which Miller testified, nor could these actions amount to an intentional infliction of emotional distress. Hallford v. Kelley, 184 Ga. App. 90, 92-93 (360 SE2d 644).

Accordingly, even granting Miller all the rights and benefits she is entitled to receive as the respondent to a motion for summary judgment procedures (see generally OCGA § 9-11-56), Smith & Smith was entitled to summary judgment.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A90A0155.
    FEDD v. THE STATE.
    (391 SE2d 24)
   Deen, Presiding Judge.

Alonzo Fedd brings this appeal from his conviction of violation of the Georgia Controlled Substances Act (possession of cocaine), contending that the trial court erred in denying his motions for a directed verdict and a new trial because the State failed to establish with a reasonable certainty the chain of custody of his urine sample. Held:

The evidence showed that a police officer was present when the sample was obtained. He sealed it, labeled it, and placed it in a refrigerator in the sheriff’s office. A GBI agent received possession of it from another officer, who took it out of the refrigerator. The agent checked to see that it was properly sealed and transported it to the State Crime Laboratory. The chemist who received it testified that the sample bore no evidence of tampering.

Decided February 12, 1990.

William M. Shingler, Sr., for appellant.

Charles M. Ferguson, District Attorney, J. Robert Smith, Assistant District Attorney, for appellee.

The chain of custody was sufficiently established. “Circumstances must establish a reasonable assurance of the identity of the sample, but need not exclude every possibility of tampering.” Painter v. State, 237 Ga. 30, 33 (226 SE2d 578) (1976). “[W]hen there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” Johnson v. State, 143 Ga. App. 169, 170 (237 SE2d 681) (1977); Anderson v. State, 247 Ga. 397, 399 (276 SE2d 603) (1981).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Birdsong, Judge.

text:
    A90A0347.
    CLEVELAND v. WILLIAMSON et al.
    (391 SE2d 22)
   Birdsong, Judge.

Jesse Cleveland appeals from the grant of summary judgment to appellees on his complaint against them. The record shows that appellees filed pleadings in the probate court of Cleveland’s county of residence seeking to have a guardian appointed because Cleveland was an incapacitated adult. After an expert examined Cleveland and recommended that a guardian not be appointed, appellees dismissed the petition. Thereafter, Cleveland filed a complaint seeking to recover because of allegedly libelous statements contained in the petition for appointment of the guardian and because someone, not one of the appellees, smoked cigarettes and injured Cleveland’s health.

Appellees, relying on OCGA § 51-5-8, which makes privileged statements made in pleadings, moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court treated the motion as one for summary judgment because it considered matters outside the record, and granted summary judgment to appellees.

Cleveland appeals contending the court erred because the complaint alleged that appellees maliciously filed the petition and because the complaint included a claim for personal injuries. Held:

1. OCGA § 51-5-8 is dispositive of Cleveland’s libel claim. Examination of Cleveland’s complaint shows that the statements he asserts were libelous were made in a pleading filed in the court of competent jurisdiction and that the statements were pertinent and material to the relief sought. By its terms, if the requirements of the code section are met, matters contained in such pleadings are privileged “[h] owe ver false and malicious [the allegedly libelous statements] may be. . . .” OCGA § 51-5-8; Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414). The case of Finish Allatoona’s Interstate Right v. Burruss, 131 Ga. App. 572 (206 SE2d 679), relied upon by appellant does not stand for the proposition he asserts. Therefore, the trial court did not err by granting summary judgment on these claims. Garrett v. Deworken, 148 Ga. App. 656 (252 SE2d 81).

Decided February 12, 1990.

Jesse Cleveland, pro se.

Robert E. Born, for appellees.

Gaylord Cleveland, pro se.

2. Cleveland also alleges the trial court erred by granting summary judgment on his personal injury claim. The complaint alleges that Cleveland’s stepfather smoked cigarettes at home creating an unhealthy environment and Cleveland received injuries from inhaling the smoke. Based upon the allegations in the complaint, we cannot conclude that the trial court erred by granting summary judgment to the appellees/defendants for failure to state a claim even though the trial court did not specifically address the claim in its order. Cleveland’s complaint clearly shows that Cleveland’s stepfather, the person alleged to have caused his injury, was not a party to the action. “A correct decision of the trial court will not be reversed, regardless of the reasons given therefor.” National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0416.
    BAKER v. BAKER.
    (390 SE2d 892)
   Birdsong, Judge.

Appellant widow, Virginia Akers Baker, appeals the judgment entered in her behalf of an award of $10,000 for a year’s support from the estate, of the deceased, Harry C. Baker. Appellant enumerates three errors. Held:

1. Appellant asserts that the $10,000 award for a year’s support was contrary to law and evidence, and is arbitrary and grossly insufficient. We disagree.

“[Entitlement to a year’s support award is a matter of status. This is established by demonstrating the applicant belongs within one of the classes of intended beneficiaries of the year’s support statute codified in OCGA § 53-5-2 (b). Among those named as eligible applicants is the spouse of the deceased. When one establishes that he or she is the spouse of the deceased, eligibility for year’s support is also established. The amount of the award remains as a separate inquiry.” (Emphasis supplied.) Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188). Effective July 1, 1986, and not affecting the resolution of issues in Gentry, “[t]he method of determining the amount of the year’s support award [was] redefined in . . . OCGA § 53-5-2. . . .” Gentry, supra at 571, n. 1.

OCGA § 53-5-2 (b), as amended, reflects the express legislative intent that a sufficient award shall be made for “support and maintenance for the space of 12 months from the date of death of the testator or intestate, to be determined using the criteria established in subsection (c) of this Code section and keeping in view also the solvency of the estate,” and further mandates a minimum statutory award of $1,600 provided the estate is of that value. (Emphasis supplied.)

Subsection (c) of OCGA § 53-5-2, as amended, establishes the following statutory method for determining the amount of the year’s support: “The amount to be set apart under subsection (b) of this Code section shall be an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the testator or intestate, taking into consideration the following: ... (1) The support available to the person, for whom the property or money is to be set apart, from sources other than year’s support, including but not limited to any separate estate and earning capacity of that person', and ... (2) Such other relevant criteria as the court deems equitable and proper.” (Emphasis supplied.) “Under the 1986 amendments, dependency is clearly a factor in the amount of the award.” Redfearn, Wills & Administration in Ga. (5th ed.), Year’s Support, § 324, p. 4. Thus, “consideration of other resources of the applicant is a [relatively] new feature in determining the amount of year’s support. . . .” Redfearn, supra at § 338, p. 80.

Examining the evidence of record in its totality, including but not limited to appellant’s living expenses for 1987 and 1988, her gross income reported on her pertinent federal tax returns, her monthly Social Security benefit, and the rental income of a room in her house, we are satisfied that the trial court did not abuse its discretion in the manner in which it applied the statutory year’s support determination methods of OCGA § 53-5-2 (b) & (c).

2. Appellant asserts that error of constitutional magnitude was created when the trial court merged her request for a second year’s support with her request for a first year’s support without giving timely notice.

In its final order awarding $10,000 year’s support to appellant, the trial court stated, “[t]his order is intended to grant the Applications for Year’s Support filed on August 25, 1988 and on June 21, 1989.” The original application was for first year’s support and the second application was for second year’s support.

In response to a request for clarification by appellee’s counsel, the trial court provided the following explanation: “Before any hearing was held or order issued on [the original application for year’s support], [appellant] filed another application for year’s support . . . requesting the same real property and furnishings be set aside, deleting only an IRA account. . . . An application for a second year’s support can only be made if there are no debts of the estate, [cit.] ‘A year’s support is the highest claim against an estate. . . . Based on these two rules of law and the fact that the later application requested that the same assets be set aside with the exception of the IRA account which had passed to the designated beneficiary, the court treated the later application as an amendment to the first year’s support. Thus, my order . . . covered both year’s support applications. . . . Because we are within 3 years of the date of death [January 20, 1988], (see OCGA § 53-5-2 (c)), [appellant] would not be precluded [from bringing] a second year’s support.”

Pretermitting the questions of whether the trial court erred in merging the two applications and by, in effect, denying the request for jury trial contained only in the subsequent application for second year’s support, is the question whether appellant currently had a valid claim for second year’s support. We find that she did not, and that the second request was invalid.

OCGA § 53-5-4, as amended, pertinently provides that “[w]hen an estate is to be kept together for more than 12 months and there are no debts to pay, the surviving spouse . . . shall, upon application and proceedings thereon . . . have a year’s support for each year that the estate may be kept together.” (Emphasis supplied.) But, “[w]here it is shown that there are debts against an estate which is being kept together for a time longer than twelve months, a widow is not entitled to have a second year’s support set apart out of such estate of her deceased husband. ...” (Emphasis supplied.) Crummey v. Crummey, 58 Ga. App. 57 (1) (197 SE 501); see Redfearn, supra at § 338, p. 80; 29 EGL, Year’s Support, § 20; 40 Mercer Law Rev., Wills, Trusts & Administration of Estates, § 2. A., p. 475. In Woodall v. First Nat. Bank &c., 118 Ga. App. 440, 441 (2) (164 SE2d 361), “the estate [had] outstanding obligations for executor’s fees, attorney’s fees for representing the estate, funds borrowed by the executor in the exercise of authority under the will, and interest thereon, to pay estate taxes, first year’s support, and other purposes, ad valorem taxes due . . . and income taxes due [both Georgia and the United States].” Noting that Code § 113-1004 [currently OCGA § 53-5-4] authorizes a second or subsequent year’s support to the widow only if “ ‘there are no debts to pay,’ ” this court held that except for certain of the above obligations which are secured by real estate, “the remaining obligations are ‘debts to pay’ which bar the grant of a second’s year support to the widow out of the estate.” Woodall, supra at 441 (2); see also OCGA § 53-5-2 (a). The court also concluded that “the purpose of the General Assembly [was] to treat the costs of the administration as much a debt of the decedent as any other obligation.” Id. Potential additional taxes also have been treated as estate debts for this purpose. Baker v. C & S Nat. Bank, 147 Ga. App. 188 (1) (248 SE2d 224). Moreover, the presence of such debts will support a grant of summary judgment against the applicant for second or subsequent year’s support. Compare Wolters v. Kennedy, 182 Ga. App. 324 (355 SE2d 665); Baker, supra; Woodall, supra. Of course, the payment of debts cannot be prolonged in bad faith to avoid an award of additional year’s support. Redfearn, supra at § 338, p. 81.

Decided February 12, 1990.

Gary C. Harris, for appellant.

Examination of the record reflects that estate debts did exist within the meaning of OCGA § 53-5-4 which would bar appellant’s claim for a second year’s support. Thus, the trial court did not commit reversible error in merely merging both applications into an application for first year’s support without so merging and granting the separate and distinct jury trial request, which had been asserted only in the request for second year’s support. “[A] judgment right for any reason must be affirmed.” Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344).

Moreover, an appellant is required to show harm as well as error to prevail on appeal. See Jenkins v. Bd. of Zoning Appeals &c., 122 Ga. App. 412 (2) (177 SE2d 204). In the case sub judice, appellant’s application for second year’s support was not dismissed with prejudice, and, as observed by the trial judge, appellant is free to file another application at any time within three years of decedent’s death and request a jury trial at that time. See generally OCGA §§ 53-5-2 (c); 53-5-4. Accordingly, we further find that appellant can readily avail herself of the full panoply of all rights to which she is entitled by the timely filing and establishment of a valid claim for second year’s support.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

John W. Spears, Jr., for appellee.


author: Pope, Judge.

text:
    A89A1809.
    PIERCE v. THE STATE.
    (391 SE2d 3)
   Pope, Judge.

Defendant Willie James Pierce was convicted by a jury of trafficking in cocaine, possession of marijuana and driving with a suspended license. He appeals from the denial of his motion for new trial, arguing that the trial court erred in denying his motion to suppress evidence found during the inventory search of his automobile. We affirm.

Deputy Sheriff Mark Robinson testified that he initially stopped the defendant, who was traveling alone, for weaving over the center-line. When it was ascertained that defendant’s Florida driver’s license had been suspended, defendant was transported to the Jones County Sheriff’s Department and the rental car he was driving was locked and left parked on the side of the highway. At the Sheriff’s office Robinson explained to defendant the procedure for posting bond for the charge and advised him he was impounding his car. Robinson gave defendant the choice of having the car stowed at the Sheriff’s Department or in a locked fence at the wrecker company Robinson had contacted to remove the car from the highway and defendant chose the latter. However, Robinson advised the wrecker company to first bring the car to the Sheriff’s Department for the purpose of conducting an inventory search to record all property found in the vehicle. This search revealed the evidence which was the subject of defendant’s motion to suppress, to wit, 996.3 grams of cocaine, located in a Fruit Loops Cereal Box and 4.6 pounds of marijuana, located in several grocery bags.

1. “[Defendant] contests the search of the [car] and the seizure of the contraband by attacking the underlying validity of the impoundment of his automobile. The justification for the inventory search is necessarily premised on the validity of the impounding. (Cit.) Unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be unreasonable and the resulting inventory search invalid. (Cit.) Inventory searches have two purposes: to protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions. (Cit.) State v. Thomason, 153 Ga. App. 345, 349 (265 SE2d 312) (1980). [Defendant] urges, in effect, that there was no evidence that the impoundment of his car was necessary, relying upon the fact that the officer [testified that the car was moved off] the roadway [and was not impeding traffic]. Dunkum v. State, 138 Ga. App. 321 (226 SE2d 133) (1976). The viability of [defendant’s] motion to suppress is not benefited by this circumstance. The argument that an automobile must be an impediment to traffic before it can be lawfully impounded has been rejected. Mooney v. State, 243 Ga. 373, 376 (254 SE2d 337) (1979). It is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that. Mooney v. State, 243 Ga. at 375, supra.” (Punctuation omitted.) Garner v. State, 154 Ga. App. 839, 840-41 (269 SE2d 912) (1980).

Decided January 29, 1990

Rehearing denied February 13, 1990

Wilson B. Mitcham, Jr., for appellant.

Joseph H. Briley, District Attorney, for appellee.

In this case defendant was the sole occupant of an out-of-state rental car and the only other authorized driver listed on the rental agreement was located in Miami, Florida. Robinson testified that departmental policy left it to the discretion of the officer to impound the vehicle when there was no one other than the arrestee to drive the vehicle, and policy dictated that officers conduct an inventory search of all impounded vehicles. “Under all the circumstances, the trial court’s finding that the impoundment of [defendant’s] car was lawful is supported by the evidence and will not be disturbed on appeal.” Garner, supra at 841. See also State v. Evans, 181 Ga. App. 422 (352 SE2d 599) (1986).

2. Contrary to defendant’s argument on appeal, he was not entitled to surrender his suspended Florida driver’s license in lieu of bail, see OCGA § 17-6-11 (a), and thereby avoid impoundment of his vehicle.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1963.
    DAVIS et al. v. THE STATE.
    (391 SE2d 124)
   Pope, Judge.

On April 15, 1988, Trooper Fred Ponder of the Georgia State Patrol and Sheriff Tony Kennedy of Webster County, Georgia, established a roadblock on the highway known as Corridor Z for the purpose of checking drivers’ licenses, automobile registrations and proof of insurance of those drivers in vehicles passing through the roadblock. Approximately two hours into the operation, Trooper Ponder stopped a vehicle in which defendant Herbert Lee Davis was the driver and defendant Curtis Williams was the sole passenger. The registration produced by defendant Davis showed Josephine Douglas of Ft. Myers, Florida, to be the owner. Trooper Ponder detained defendants and questioned them separately about the owner of the vehicle and their destination. Defendant Davis stated the vehicle belonged to his sister and that the two men were en route to Columbus, Georgia. At the hearing on defendants’ motion to suppress, the trooper testified defendant Williams told him the vehicle belonged to defendant Davis’ girl friend and that they were en route to West Point, Georgia. Trooper Ponder conducted a check and determined that defendant Davis’ license was valid and the automobile had not been reported stolen. Trooper Ponder asked defendants if they were transporting contraband and they both responded negatively. He then requested permission to search the vehicle and both men gave their oral consent to search. The trooper found a bag containing cash in the amount of approximately $2,000 tucked between the two front seats and measuring scales, drug paraphernalia and cocaine in the trunk of the car. Defendants were arrested and charged with trafficking in cocaine. Prior to trial defendants filed a motion to suppress evidence found in the automobile. The motion was denied and defendants were convicted by a jury.

1. We hold the trial court properly denied defendants’ motion to suppress evidence seized from the automobile. The uniformed officers of the State Patrol are vested with the duty “[t]o enforce the laws of this state relating to the use, ownership, control, licensing, and registration of motor vehicles . . . .” OCGA § 35-2-33 (a) (1). The setting up of roadblocks by police officials for the purpose of checking the legality of licensing of drivers and registration of vehicles is reasonable and acceptable. State v. Swift, 232 Ga. 535 (1) (207 SE2d 459) (1974). That the automobile was registered to an individual not present in the automobile and that defendants gave conflicting statements as to the identity of the owner and their destination provided the trooper with an articulable suspicion sufficient to justify his making a brief stop to investigate the ownership of the vehicle. “The rationale of Terry v. Ohio, [392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)], and its progeny allows investigating officers who possess articulable suspicion of criminal activity to detain a suspect for a limited period in order to identify the suspect . . . and conduct limited questioning.” Williams v. State, 251 Ga. 749, 792 (312 SE2d 40) (1983).

The extent of the stop in this case did not exceed the permissible scope of investigation by the officer to determine whether the driver was properly licensed and in lawful possession of the vehicle and the motor vehicle was properly registered. See Coop v. State, 186 Ga. App. 578 (1) (367 SE2d 836) (1988). Because the initial stop of the vehicle was valid, “the trooper . . . did not violate the [defendants’] Fourth Amendment rights merely by requesting . . . consent [to search].” Pupo v. State, 187 Ga. App. 765, 766 (371 SE2d 219) (1988). The facts of Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978), cited by defendants, are distinguishable because in that case the detention of defendants went beyond a brief investigative stop to become an illegal arrest and because consent was obtained by coercion and not freely and voluntarily.

2. The owner of the automobile, who was the girl friend of defendant Davis, testified at trial that her brother used her car with her permission regularly two or three times a week and that he used the car the day before defendant Davis borrowed it. Her brother returned the car late in the evening on April 14 and defendant Davis picked up the car the morning of April 15. The owner testified her brother died May 23, 1988, just over a month after the automobile was seized. In a proffer of evidence outside the presence of the jury, the owner testified that when her brother learned the car had been seized by Georgia authorities she had a conversation with him in which he said he had been using her car to transport drugs between Ft. Myers and Tampa and that he had left the drugs in the car. During this conversation he paced the floor and appeared to be nervous. He told her he would be killed if he did not retrieve the drugs. Defendants argued the trial court erred in refusing to allow the hearsay testimony about the deceased declarant’s statements to be presented to the jury.

Georgia courts have long held that an exception to hearsay will not be made in regard to testimony that another person admitted committing a crime because of the rule that the admission of a person that he, and not the accused, was the actual perpetrator of the offense is not admissible in favor of the accused. See Massey v. State, 243 Ga. 228 (6) (253 SE2d 196) (1979); Little v. Stynchcombe, 227 Ga. 311 (2) (180 SE2d 541) (1971). The United States Supreme Court has held that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U. S. 284, 302 (93 SC 1038, 35 LE2d 297) (1973). In those cases in which the United States Supreme Court has ruled the confession of a third party to be admissible as an exception to hearsay, the Court found strong indicia of reliability of the out-of-court statement. In Chambers, the third-party declarant had made three separate admissions of guilt to three different people, the statements bore persuasive assurances of trustworthiness and the declarant was available for cross-examination by the state so that his demeanor and responses could be weighed by the jury. In Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979), the Supreme Court held that pursuant to the Due Process Clause of the Fourteenth Amendment, testimony concerning the confession of a co-defendant should have been admitted in the sentencing phase of the trial because it was highly relevant to the issue of punishment and because substantial reasons existed to assure its reliability.

However, in Davis v. State, 255 Ga. 598 (8) (340 SE2d 869) (1986), the Georgia Supreme Court refused to extend the holding of Green v. Georgia to the guilt-innocence phase of a trial court where, as here, the declarant was not available for cross-examination and the out-of-court statement lacked strong indicia of reliability because it was not made to a neutral third party but to one who had an interest in the outcome of the trial. Here, the declarant was deceased and unavailable for cross-examination and the only party who witnessed the out-of-court admission was the girl friend of one of the defendants. We do not believe the holdings of the Georgia Supreme Court or the United States Supreme Court require the admission of testimony about the out-of-court statement in this case and find that the trial court did not err in excluding the testimony.

We reject defendants’ argument that the rule against evidence of third-party admissions against penal interest does not apply in this case because the declarant, who admitted to ownership of the cocaine and to trafficking in cocaine within the state of Florida, did not admit to any acts which would impose criminal liability in Georgia. The alleged admission of the deceased declarant was clearly against his penal interest.

3. Defendants assert the trial court erred in refusing to strike for cause several relatives of the county sheriff who appeared in the jury pool. If the sheriff were the “prosecutor,” within the meaning of OCGA § 15-12-163 (b) (4), then these jurors would have been disqualified pursuant to OCGA § 15-12-135 as being related to the sheriff within the sixth degree by blood or marriage. However, the sheriff cannot be characterized as the “prosecutor” in this case. “The general rule is that, ‘A prosecutor is one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based. (Cit.)’ [Cits.]” Spence v. Statem, 238 Ga. 399, 400 (233 SE2d 363) (1977). A state trooper signed the arresting warrant and was the primary arresting officer in this case. The case was presented to the grand jury by special presentment and not by sworn accusation. The evidence presented at the hearing on the motion to suppress showed the sheriff participated in the arrest only as an assisting officer at the roadblock and that he could not hear what transpired between the arresting trooper and the defendants. The sheriff did not testify at trial. The fact that he sat at counsel table with the District Attorney and assisted in striking the jury affords no ground for challenging his relatives for cause. Durham v. State, 129 Ga. App. 5 (3) (198 SE2d 387) (1973). The sheriff in this case was not the prosecutor and no ground exists for striking his relatives from the jury. See generally Jones v. State, 184 Ga. App. 4 (2) (360 SE2d 599) (1987).

4. Defendants assert the trial court erred in failing to grant their motion for a directed verdict on the ground that the evidence was insufficient to convict them of the offense of trafficking in cocaine. As defendants argue, if evidence exists of prior use of an automobile by another person in the recent past then the equal access rule would demand an acquittal. See Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983). However, the equal access defense requires affirmative evidence that persons other than the defendants had equal opportunity to commit the crime; mere speculation that others may have had equal access to the automobile is insufficient. Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989). In Cochran, defendants argued the fact that the car had recently been borrowed from the owner established that others had equal access to the car. However, this court held that such evidence did not demand acquittal because “the jury would be authorized to find that the owner would not have loaned his vehicle knowing that his [contraband] and . . . cash were located therein.” Id. at 886. In the case now before us the evidence showed the car had been used the evening before defendants were arrested by the owner’s brother. As in Cochran, the jury would be authorized to find a third party would not have relinquished possession of a vehicle containing over 500 grams of cocaine. “Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury.” Ramsay v. State, 175 Ga. App. 97, 99 (7) (332 SE2d 390) (1985). The trial court properly charged the jury on the equal access rule. It did not err in denying defendants’ motion for directed verdict of acquittal.

5. Finally, defendants argue they were deprived of their proportional share of peremptory strikes as provided by OCGA § 15-12-165 because veniremen who were peremptorily excused by the prosecutor in a previous trial were returned to the panel of prospective jurors for defendants’ trial. Defendants assert that this practice permitted the prosecutor to excuse from the earlier trial veniremen whom he believed would be more beneficial to the State in defendants’ trial. Defendants argue this effectively doubled the prosecutor’s peremptory challenges in defendants’ trial and deprived them of their share of challenges by forcing them to use their peremptory strikes to eliminate the juror or allow the juror to be impanelled. We reject defendants’ argument. If anything, by returning to the jury pool veniremen already once rejected by the prosecutor, the practice discriminated against the prosecutor by forcing him to choose from among veniremen he had already challenged. “A defendant is entitled to a panel of qualified jurors not a panel of preferred jurors.” Smith v. State, 245 Ga. 205, 208 (264 SE2d 15) (1980). We hold defendants have no ground for challenging the array of the jurors. Cf. Cady v. State, 198 Ga. 99 (la) (31 SE2d 38) (1944) (in which the Georgia Supreme Court held that a defendant has no ground to challenge the array of jurors because it may include jurors who appeared in a panel in a previous trial of the defendant and who had been peremptorily challenged).

Decided January 29, 1990

Rehearing denied February 13, 1990

Mark G. Pitts, for appellants.

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Sognier, Judge. Pope, Judge,

text:
    A89A2078.
    LOCKRIDGE v. THE STATE.
    (390 SE2d 853)
   Sognier, Judge.

Danny Mitchell Lockridge was charged with the murder of his brother-in-law, and he brings this appeal from his conviction of voluntary manslaughter.

1. Appellant first contends the trial court erred by denying his motion for a new trial made on the ground that improper communication between a deputy sheriff and one of the jurors deprived him of a fair trial. The record reveals that after being empaneled the jury was sequestered, and Bryan County Deputy Sheriff Tim Faught was assigned to drive a juror home to collect her belongings for the overnight stay at a motel. While driving with the juror, Faught commented to her that appellant was “guilty. He deliberately murdered this man.” The juror did not reveal this communication until after appellant’s conviction, when her affidavit was appended to appellant’s motion for a new trial. At the hearing on appellant’s motion for a new trial, Faught denied having made the statement, and the juror testified that Faught’s statement did not influence her verdict in any way. She recalled taking the oath as a juror and testified that she followed that oath. The trial court found that the communication had taken place, but that the deputy’s statement did not prejudice the juror or influence her verdict.

“Where an unauthorized contact or communication is made to a juror, a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.]” Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986). The burden is on the State to prove that the defendant was not actually prejudiced. Martin v. State, 242 Ga. 699, 701 (251 SE2d 240) (1978). In the case sub judice, the prosecution carried its burden of showing that appellant was not harmed by the communication, compare Lamons v. State, 255 Ga. 511 (340 SE2d 183) (1986), and thus we find the trial court did not abuse its discretion by denying appellant’s motion for a new trial on this ground.

2. Appellant raises error in the trial court’s refusal to allow his expert to examine the State’s crime scene photographs to determine if they had been altered. Appellant relies on the Supreme Court’s holding in Sabel v. State, 248 Ga. 10 (282 SE2d 61) (1981) that “[a] criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion.” Id. at 17-18 (6). “Critical evidence” is evidence which is crucial to the State in obtaining a conviction, i.e., evidence which, when doubt is cast upon it by skilled defense experts, “could induce a reasonable doubt in the minds of enough jurors to avoid a conviction.” White v. Maggio, 556 F2d 1352, 1357-1358 (5th Cir. 1977). In this case, the State agreed to produce the photographs for in camera inspection by the trial court to determine whether any of the photographs were critical evidence within the meaning of Sabel, supra. The trial court inspected the photographs and found that they were not critical evidence. We find no error in the trial court’s ruling, particularly since the transcript reveals that Dr. Joseph Burton, appellant’s retained expert, testified that he had examined the crime scene photographs and had determined that nothing in the photographs as presented by the State was inconsistent with the defense theory of how the shooting occurred. If the photographs as presented were not inconsistent with the defense theory, it follows that they could not be crucial to the State in obtaining a conviction.

3. Appellant contends the trial court improperly restricted his cross-examination of GBI Agent Nathan Katzif regarding Katzif’s prior testimony before the grand jury. Prior grand jury testimony has been ruled admissible in criminal cases for impeachment purposes. See Williams v. State, 253 Ga. 690 (324 SE2d 440) (1985). However, contrary to appellant’s assertion that the trial court so limited his cross-examination that he was deprived of his constitutional right to confront this witness, see Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347) (1974), the record reveals that the trial court merely sustained two objections to specific questions posed by appellant’s counsel to Katzif about whether Katzif had subpoenaed certain witnesses to appear before the grand jury and whether Katzif himself had testified before the grand jury. The trial court also indicated that it was concerned with the length of the questioning, and with getting “distracted from the issues.” The trial court did not give the jury an instruction to disregard Katzif s answers or prohibit any further inquiry into matters concerning Katzif s grand jury testimony. Defense counsel simply changed his line of questioning after these objections were sustained, and the matter was dropped. Accordingly, we find no abridgement of a constitutional right by the trial court in exercising its discretion to curtail the cross-examination. See Hamilton v. State, 184 Ga. App. 143, 145 (361 SE2d 30) (1987).

4. Appellant finally contends the trial court erred by permitting the State to introduce evidence of the victim’s good character. “As a general rule, the character of a murder victim is irrelevant and inadmissible in [a] murder trial. [Cit.] It is unlawful to murder a violent and ferocious person, just as it is unlawful to murder a nonviolent and inoffensive person. [Cit.] Proof of violent and turbulent character of the deceased becomes admissible when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the accused was honestly seeking to defend himself. [Cits.]” Henderson v. State, 234 Ga. 827, 828 (1) (218 SE2d 612) (1975). In the case sub judice, the defense put the character of the victim in issue in its opening statement to the jury, and several hostile witnesses testified when examined by the defense in the State’s case in chief as to the victim’s bad character. “ ‘Where the defendant has offered evidence of threats against himself made by the deceased, the prosecution has been permitted to introduce evidence of the good character of the latter.’ [Cits.] After the defense had thus distinctly put the character of the slain man in issue, and had introduced, for the consideration of the jury, testimony which tended to demonstrate that the deceased was a man of violent character, in the interest of truth and for the purpose of aiding the jury in their efforts to reach a correct conclusion as to this material issue the court properly refused to exclude evidence offered to show that the deceased was a man of an entirely different character from that portrayed in the statement of the accused and by his witnesses.” Crawley v. State, 137 Ga. 777, 779 (1) (74 SE 537) (1912); see Dixon v. State, 243 Ga. 46, 49-50 (5) (252 SE2d 431) (1979).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., and Birdsong, J., concur. Carley, C. J., Pope, Beasley and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent from Division 1 of the majority opinion. “A bailiff is to make no communication to a jury and is not to allow any other communication with them, except by leave of court. Where a communication from the bailiff to the jury is shown, the burden is on the state to rebut by proof the presumption of harm.” (Citations and punctuation omitted.) Hollis v. State, 191 Ga. App. 525 (382 SE2d 145) (1989). See also Jones v. State, 258 Ga. 96 (366 SE2d 144) (1988); OCGA § 15-12-140. Although the majority finds that the State met its burden because the juror testified that the deputy sheriff’s remark concerning the defendant’s guilt ultimately did not influence her ability to render a fair verdict, in this case, her testimony in this regard was not without equivocation, in that she also testified that her initial response to the remark was that the case was “open and shut.” Furthermore, our Supreme Court previously has recognized that there are some situations in which the misconduct may be so outrageous “that the public policy of the State requires a new trial for the defendant. [In those cases] the verdict should be set aside, whether the defendant was injured or not.” Shaw v. State, 83 Ga. 92, 101-102 (9 SE 768) (1889). In my opinion, such was the situation created in the case at bar when an officer of the court stated to a juror that the defendant was “guilty [that h]e deliberately murdered this man.” Consequently, I would reverse the trial court’s denial of defendant’s motion for new trial on the basis of the improper communication between the deputy sheriff and the juror.

Decided January 4, 1990

Rehearing denied February 13, 1990

Cook & Palmour, Bobby Lee Cook, Lloyd D. Murray, Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Carley, Judge Beasley and Judge Cooper join in this dissent.


text:
    A89A1635.
    WALTON v. THE STATE.
    (390 SE2d 896)
   Birdsong, Judge.

Appellant, Thomas Jerome Walton, appeals his conviction of possession of cocaine with intent to distribute.

Commander Hufstetler of the Thomasville-Thomas County Drug Squad obtained certain information from a reliable confidential informant. This information was relayed to various members of the department. Identification of the suspect along with a description of the car and tag number was given to officers.

Appellant was stopped and asked for his driver’s license. He was advised of his rights and consented to a search of the car by signing a consent form.

A package of Kool cigarettes was on the floor of the car. Appellant voluntarily said, “It’s not mine.” Six pieces of rock cocaine weighing 1.6 grams were found in the package. The amount and size of the “crack” was consistent with amounts possessed by a dealer.

Appellant presented evidence of good reputation and that other persons had access to the vehicle. Held:

1. Appellant asserts that the trial court abused its discretion in denying his motion to reveal the identity of the confidential informant. We disagree.

The facts of this case clearly are distinguishable from those in Moore v. State, 187 Ga. App. 387 (370 SE2d 511), where the informer was the only witness in a position to amplify or contradict the testimony of appellant and the police officer regarding the circumstances of a drug sale.

In determining the disclosure of an informant, the court must balance the public interests in protecting the flow of criminal information against an accused’s right to prepare his defense, using the factors considered. Roviaro v. United States, 353 U. S. 53, 62 (77 SC 623, 1 LE2d 639); Jones v. State, 188 Ga. App. 713 (2) (374 SE2d 110); Moore, supra at 389, and cases cited therein. In addition, the court may consider as a relevant balancing test factor that, in the absence of a contrary showing, a witness “cannot reasonably be expected to appear in court and incriminate himself.” Moore, supra at 391. The appellate court, in determining the propriety of disclosing the identity of an informant, may consider all relevant evidence contained in pretrial, trial and post-trial proceedings. Ponder v. State, 191 Ga. App. 346 (381 SE2d 534); cf. Stapleton v. State, 235 Ga. 513, 516 (1) (220 SE2d 269) (can examine entire record to determine if confession was voluntary); Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (can consider all relevant evidence of record in considering the legality of a search). In applying the required balancing test, we find the trial court did not err in denying this motion.

2. Appellant asserts that the trial court erred in denying his suppression motion. We disagree.

Information which police transmit to one another, by any accepted means of communication, can provide “sufficient grounds to create an articulable suspicion warranting reasonable cause to stop [appellant’s automobile].” Holcomb v. State, 191 Ga. App. 379, 380 (381 SE2d 594). Where there is articulable suspicion such as we have in this case to stop appellant’s car, there is no error. Stopping a car is not per se illegal. Brooks v. State, 129 Ga. App. 109 (198 SE2d 892). The Moultrie police had an articulable suspicion that appellant had rock cocaine in his vehicle. See Stiggers v. State, 151 Ga. App. 546 (1) (260 SE2d 413), citing Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612). We further find that under all attendant circumstances, the stop of appellant was reasonable, and that appellant was not in a status of arrest merely because of the number of police cars used to effect the stop and the manner in which the police blocked his automobile. Thus, circumstances surrounding the stopping of appellant’s car did not taint his subsequent consent to search.

An individual may waive his Fourth Amendment rights by voluntarily consenting to a search. Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338). The State has the burden of proving that consent was freely and voluntarily given; voluntariness of consent is determined by looking at the totality of the circumstances. Id. Valid consent eliminates the need for both probable cause and a search warrant. Id. “ ‘A consent to search must be the product of an essentially free and unrestrained choice by its maker. [Appellant’s car was lawfully stopped.] There is no indication there were any coercive acts by the officers] or involuntary acts by the defendant.’ ” Allen v. State, 191 Ga. App. 623 (1) (382 SE2d 690). Under the totality of the circumstances, appellant’s consent to search was freely and voluntarily given. This enumeration is without merit.

3. Appellant asserts that the trial court erred in instructing the court on constructive possession. Appellant’s reliance on Lockwood v. State, 257 Ga. 796 (364 SE2d 574) is misplaced.

Appellant in this case was charged with a violation of OCGA § 16-13-30 (b) by possession of a controlled substance with intent to distribute. Possession sufficient to sustain a conviction pursuant to OCGA § 16-13-30 (b) may be either actual or constructive. Christopher v. State, 190 Ga. App. 393, 398 (379 SE2d 205). This enumeration is without merit.

4. Appellant asserts that the trial court erred in allowing the officer to testify to information given to him by the confidential informant. There was no error. The officer was not permitted to testify about his conversation with the informant. The conversation with the Moultrie dispatcher is admissible. OCGA § 24-3-2; compare Goldsby v. State, 186 Ga. App. 180 (2) (367 SE2d 84); Bennett v. State, 153 Ga. App. 21, 23 (264 SE2d 516).

5. Appellant asserts that the trial court erred in denying his motion for new trial, and that the evidence was insufficient to sustain his conviction for possession of cocaine with intent to distribute.

On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer is shielded by a presumption of innocence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Appellate courts review the sufficiency and not the weight to be accorded the evidence. Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228).

The trial court charged adequately on the defense theory of equal access. See generally Brooks v. State, 258 Ga. 20 (4) (365 SE2d 97); Barton v. State, 188 Ga. App. 237, 238 (372 SE2d 647). The jury weighed the evidence, determined witness credibility, and returned a verdict finding appellant guilty as charged.

Decided February 13, 1990.

Kirbo & McCalley, Thomas L. Kirbo III, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

The evidence submitted to the jury, in this case established more than appellant’s mere possession of contraband. Evidence of record included time of possession of the car, appellant’s statement as to the cigarette package, the manner of contraband packaging, and appellant admitted that he did not use cocaine. See Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546).

Any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of possession of cocaine with intent to distribute as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A89A1845.
    PHELPS v. THE STATE.
    (390 SE2d 899)
   Cooper, Judge.

Appellant was indicted on several counts for aggravated assault, robbery, escape, fleeing or attempting to elude, driving with no license plate, and driving with a suspended license. After a jury trial, appellant was found guilty on all counts, except the aggravated assault count, on which he was found guilty of simple assault.

The evidence adduced at trial authorized the jury to find that all of the charges for which appellant was convicted stemmed from a single incident. The prosecuting officer testified that after stopping the vehicle appellant was driving for a tag violation, appellant, who could not produce a driver’s license, gave the officer a name and date of birth which did not match those on file, and upon further questioning about his identity, became very nervous. The officer placed appellant under arrest, and while attempting to get appellant to place his feet in the patrol car, appellant knocked the officer to the ground, grabbed him in a bearhug, and attempted to get his gun. During the struggle, appellant struck the officer, causing his glasses to break, and his vision to blur. Appellant wrestled the gun from the officer, and the officer broke loose and ran away, hearing one shot as he ran, and a second shot a few seconds later. After hearing the second shot, the officer heard appellant drive away. Appellant turned himself in to the police the next day, and voluntarily showed the investigating officer where he had thrown the gun.

1. Appellant first contends that the trial court erred in denying his motions for directed verdict and new trial because the offenses of aggravated assault and robbery merged as a matter of fact and law. Appellant relies on OCGA § 16-1-7 (a) (1), which provides that the accused may not be convicted of more than one crime if one crime is included in the other, and § 16-1-6, which provides that a crime is included in another if it is established by the same or less than all the facts required to establish the other crime. A review of the facts in this case reveals that the statutory criteria for a merger of offenses have not been met. Appellant robbed the officer of his gun by wresting it from him, and immediately afterward used the gun to fire two shots as the officer ran away. Although these occurrences happened within a short span of time, the robbery had been completed at the time appellant fired the gun, and involved different actions and intents. Thus, the offenses did not merge as a matter of law. Millines v. State, 188 Ga. App. 655 (2) (373 SE2d 838) (1988). Neither do the offenses merge as a matter of fact since the robbery is proved by a different set of facts than those needed to prove the assault. See Williams v. State, 184 Ga. App. 480 (2) (361 SE2d 713) (1987). Accordingly, appellant was properly convicted and sentenced for both offenses.

2. Appellant’s second enumeration of error is that the trial court erred in not charging the jury on any lesser included offense of robbery. The record reflects that after the court charged the jury, defense counsel stated that he knew of no charge which the court failed to give, and had no exception to any of the charges given. During the court’s recharge to the jury on the verdict form as it related to the aggravated assault count of the indictment, the court stated that there were no other counts in which the jury had to consider a lesser included offense. The court specifically asked for exceptions to the charge, and there were none from the defendant. “Where the record does not disclose a request for a charge upon a particular lesser included offense, the failure to give such a charge sua sponte, is not error. [Cit.]” Young v. State, 191 Ga. App. 651 (4) (382 SE2d 642) (1989). Under the circumstances, appellant’s enumeration of error is without merit.

3. Appellant’s third enumeration of error is that the trial court erred in denying his motion for new trial, because his conviction on the robbery count is inconsistent with his conviction of the lesser included offense of simple assault on the aggravated assault count. Appellant’s argument erroneously concludes that he was charged with aggravated assault by committing an assault “with the intent to rob” (OCGA § 16-5-21 (a)). However, the indictment reflects that appellant was indicted for aggravated assault by committing an assault “with a deadly weapon” (OCGA § 16-5-21 (b)). We note at the onset that the inconsistent verdict rule has been abolished in criminal cases in this state.” Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). However, having reviewed appellant’s argument we find it to be without merit.

Decided February 13, 1990.

Joseph E. Williams, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

4. In his final enumeration of error, appellant contends that there was insufficient evidence to support the robbery conviction inasmuch as there was no evidence of appellant’s intent to commit a theft. Appellant bases his argument on the fact that he discarded the weapon shortly after he took it, and later showed the police where he put the weapon. “[R]egardless of whether appellant intended to take the [gun] and withhold it permanently, his intent to take it for his own temporary use without the owner’s authorization evinces an intent to commit a theft.” Smith v. State, 172 Ga. App. 356 (2) (323 SE2d 257) (1984). The evidence was sufficient to authorize a rational trier of fact to find that appellant was guilty of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1868.
    DANIEL v. THE STATE.
    (391 SE2d 128)
   Birdsong, Judge.

Appellant, Melvin Russell Daniel, appeals his judgment of conviction for aggravated sodomy, his sentence, and the denial of his motion for new trial.

Appellant was convicted of the aggravated anal sodomy of his niece who, on the date of the incident, was either eleven or twelve years of age. The trial court allowed, over objection, the introduction of evidence of similar transactions between appellant and the victim and between appellant and his daughter. Appellant has asserted three enumerations of error. Held:

1. Appellant asserts that the trial court erred in allowing evidence of similar transactions to be introduced in evidence. We disagree. The evidence introduced meets the two-prong test of Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270); accord Gladson v. State, 253 Ga. 489 (2) (322 SE2d 45). Moreover, balancing the probative value of the evidence against any potentially prejudicial impact it might possess, we find that the potential for prejudice did not outweigh its probative value. Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455). “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Oller, supra at 820 (2). Moreover, “the requisite similarity between the two incidents depends on the purpose for which the evidence is being presented.” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259). Generally, when similar transactions are being introduced to prove such issues as bent of mind, motive, intent or lack of mistake, less similarity need be shown than when identity is sought to be proved thereby. See Maggard, supra. Moreover, this evidence was introduced for a limited purpose; and, the trial court gave appropriate limiting instructions both before the evidence was introduced and in its closing charge. Accordingly, no error appears. Terry v. State, 259 Ga. 165, 169 (1) (377 SE2d 837).

2. Appellant asserts that the trial court erred in denying appellant’s motion for directed verdict.

“[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311).

Appellant asserts that in prosecuting the aggravated sodomy offense the State utterly failed to prove that actual force was used against the victim. We disagree. Force may be proved by direct or circumstantial evidence. The record shows that appellant had engaged in repetitive acts of sexual misconduct against the victim, that previously he had uttered a veiled threat to the victim that “your dad would kill us if he knew,” or words to that effect, and that the victim was afraid of him and scared. (Emphasis supplied.) The victim testified that as she was growing up the one person she trusted and “thought he really cared” was the appellant, but when she learned that what he was doing was “wrong” she became scared. The record also affirmatively reflects that concurrently with the commission of the criminal act, appellant “kept trying to turn [her] over.” In addition the record affirmatively reflects that although the victim could not observe whether actual penetration of her rectum occurred, “the next day [she] was real sore.” (Emphasis supplied.) We are satisfied that from this circumstantial evidence the court clearly could infer that appellant had applied actual force, both by physical means and by mental coercion and intimidation, to the victim during the commission of the criminal act. Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342). Compare Drake v. State, 239 Ga. 232, 235 (2) (236 SE2d 748); Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721), and Houston v. State, 189 Ga. App. 61 (375 SE2d 239).

Reviewing the transcript in a light most favorable to the jury’s verdict, we find ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Appellant asserts that the trial court erred in its charge to the jury concerning the issue of force. The court charged the jury of the effect of committing an act of sodomy with a person not capable of expressing an intelligent consent or dissent, and further instructed inter alia that it is necessary for the State to prove the defendant used force to commit the act of sodomy; that in cases of incapacity to consent, the element of force is automatically supplied by law; a child under the age of fourteen cannot consent to any sexual act; sexual acts directed to a child are in law forcible and against the will; and, “[t]he question of the mentality of the alleged victim is one for you, the jury to determine with all the facts and circumstances of this case.” (Emphasis supplied.)

Examining the charges in their entirety, Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177), we find that although they might have been more carefully crafted the jury was neither misled nor confused, and that the charges in their entirety were not erroneous. Compare Richardson, supra at 747 (2); Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382); McFall v. State, 235 Ga. 105, 106 (218 SE2d 839) (cited as authority in Cooper); and Carter v. State, 122 Ga. App. 21 (1) (176 SE2d 238) (cited as authority in Cooper); see also OCGA §§ 16-6-3 (a); 16-6-4 (a); 16-6-5 (a); cf. Houston v. State, supra at 62 (1) (court would not be placed in “trepidation” by extending the Cooper holding to a girl of age fourteen sodomized by a seventeen-year-old male).

Moreover, the questioned charge when examined in toto clearly placed within the jury’s hands the issue of the victim’s mental capability to give an informed consent to the crime.

We further find Drake v. State, supra, to be distinguishable from the facts before us. Drake was a forcible rape case. The case sub judice involves the criminal act of forcible sodomy — an act historically recognized by the law as a so-called unnatural act or act against nature. See, e.g., Carter, supra at 22 (3); 81 CJS, Sodomy, §§ 1 & 2. Accordingly, we need not determine the extent to which Drake is still controlling in cases of rape in view of the Supreme Court’s recent holding in Richardson and in Cooper. Suffice it to say that Drake was published in 1977, and that since that time medical science has confirmed that AIDS, a fatal disease, is often contracted by sexual transmission, and that anal intercourse, in particular, places the recipient at “high risk,” thus creating an entirely new dimension to the legal question of intelligent or informed consent to a sexual act by a child. Accordingly, we are satisfied that sexual acts of anal sodomy directed to a child of age eleven or twelve are, in law, both forcible and against the will. Richardson, supra at 747 (2); Cooper, supra at 631 (2); Carter, supra; cf. Houston, supra.

Decided February 13, 1990.

Michael M. White, for appellant.

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

Hines v. State, 173 Ga. App. 657 (327 SE2d 786), being a two-judge decision, has value only as “physical precedent” and is not now binding on this court. Court of Appeals Rule 35 (b); Cooper v. State, 180 Ga. App. 37, 39 (348 SE2d 486). Moreover, the facts as to force in this case are different than those in Hines where there was no evidence of force.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1891.
    MATHIS v. THE STATE.
    (391 SE2d 130)
   Cooper, Judge.

Appellant was convicted of shoplifting and obstruction of an officer. On appeal he questions the sufficiency of the evidence presented on the shoplifting charge, maintains there is a fatal variance between the allegata and probata on the obstruction charge, and contends the trial court intimated its opinion as to the guilt of appellant, a violation of OCGA § 17-8-57.

1. Appellant maintains the State did not present sufficient evidence to authorize his conviction for shoplifting. The assistant store manager testified that one of the store’s cashiers called him to her register and reported that appellant, who had placed three items on the counter, said he had already paid for the items but was unable to produce a receipt. The assistant store manager accompanied appellant to various areas of the store where appellant said he had paid the butcher and a delicatessen employee for the merchandise. Both store employees denied taking money from appellant, and the assistant manager testified that neither area of the store was equipped with a cash register. Appellant and the assistant store manager returned to the front of the store where the assistant manager asked appellant to either display a receipt for the merchandise or pay for it. When appellant did neither, the assistant store manager called the police.

“A person commits the offense of theft by shoplifting when he . . . with the intent of appropriating merchandise to his own use without paying for the same . . . takes possession of the goods or merchandise of any store or retail establishment; ...” OCGA § 16-8-14 (a) (1). Appellant maintains that there was no evidence he possessed the store’s merchandise. However, the assistant store manager testified that appellant carried the goods with him as they traversed the store in search of the employee appellant allegedly paid. Inasmuch as appellant exercised dominion and control over the merchandise with the intent of appropriating it for his own use without paying for it, the State presented sufficient evidence for a rational trier of fact to determine that appellant was guilty beyond a reasonable doubt of shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-8-14 (a) (1). Although appellant possessed the goods only within the store, since there was evidence that he possessed them with the intent of appropriating them to his own use without paying for them, he may be found guilty of shoplifting.

2. The accusation charged appellant with obstructing law enforcement officers engaged in the lawful discharge of their official duties by refusing to obey the officers and get in the patrol car. At trial, the officers recounted their physical struggle with appellant when he refused to enter the patrol car, including appellant’s efforts to obtain their firearms. Appellant contends the inclusion of the latter evidence caused a fatal variance between the allegations of the accusation and the proof presented at trial.

“The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1935). Allegations and proof must correspond in order to inform a defendant of the charges against him so that he might prepare a defense, and to protect the accused against another prosecution for the same offense. Partridge v. State, 187 Ga. App. 325 (3) (370 SE2d 173) (1988). The accusation adequately informed appellant of the charge he had to face and the testimony that detailed the extent of appellant’s obstruction of the officers could not be used against appellant in another prosecution for obstruction of the officers. Thus, there was no fatal variance between the allegata and probata.

3. As for appellant’s contention that the trial court violated OCGA § 17-8-57 when he propounded questions concerning appellant’s attempts to get the officers’ firearms, “ ‘(t)he question of whether [OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made.’ [Cit.]” Smith v. State, 158 Ga. App. 330 (2) (280 SE2d 162) (1981). Neither was made in the case at bar. Furthermore, “[t]he questions here did not contain any expressions or intimations [of opinion] and were addressed to relevant issues so as to assist the jury in ascertaining the truth. [Cits.]” Parrish v. State, 182 Ga. App. 247 (4) (355 SE2d 682) (1987).

Decided February 13, 1990.

Knox & Knox, W. Bryant Swan, Jr., for appellant.

Bennis C. Sanders, District Attorney, for appellee.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1992.
    A89A1993.
    BARTON v. ANTHONY. CHANCE et al. v. ANTHONY.
    (391 SE2d 25)
   Banke, Presiding Judge.

The appellee, Mildred Anthony, obtained a judgment against appellant Kenneth Chance, among others, in an action to enforce a workers’ compensation award previously entered in her favor. Following entry of that judgment, an award of attorney fees and expenses of litigation was entered, pursuant to OCGA § 9-15-14 (b), against appellant B. H. Barton, the attorney who had filed defensive pleadings on behalf of the defendants in the case. Barton filed a direct appeal from the latter award and also joined with Chance in filing an appeal from a subsequently entered order denying their motion for a protective order to abate post-judgment discovery. Held:

1. Barton’s appeal from the award of attorney fees and expenses of litigation, docketed in this court as case no. A89A1992, is dismissed based on his failure to follow the application procedures applicable to “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14.” OCGA § 5-6-35 (a) (10).

2. While the notice of appeal in case no. A89A1993 ostensibly is from the order denying the motion for a protective order to abate post-judgment discovery, all of the appellants’ enumerations of error in that appeal relate to the trial of the case. There appears to be a conflict in the decisions of this court regarding whether post-judgment discovery orders are directly appealable pursuant to OCGA § 5-6-34. See Custom Form Mfg. Co. v. Miller, 157 Ga. App. 410 (278 SE2d 69) (1981); Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984); Miller v. U. S. Shelter Corp., 179 Ga. App. 469 (347 SE2d 251) (1986). Pretermitting that issue, however, we hold that an appeal from such an order cannot be used as a vehicle for obtaining appellate review of the final judgment entered in the case, where the time for appealing that judgment has otherwise expired. The present appeal is consequently dismissed.

Decided February 13, 1990.

Kenneth R. Chance, for Barton.

Nelson & Hill, Janet E. Hill, for Anthony.

Kenneth R. Chance, pro se.

Appeals dismissed.

Sognier and Pope, JJ., concur.


text:
    A89A2020.
    JOHNSON v. THE STATE.
    (391 SE2d 132)
   Cooper, Judge.

Appellant was tried before a jury and convicted of driving under the influence (OCGA § 40-6-391 (a) (1)), and operating a motor vehicle after being declared an habitual violator. OCGA § 40-5-58 (c). He appeals from the judgment of conviction and sentence entered on the jury verdict.

1. Appellant contends that the trial court erred in denying his motion for a directed verdict because there was no evidence that he operated a motor vehicle while under the influence of alcohol. We disagree. The arresting officer’s testimony, uncontroverted at trial, was that during a routine patrol at approximately 2:00 a.m. he observed a truck parked in a local fast food parking lot, with the lights on, and the engine running. By the time the officer reached the car, the engine had been turned off, and he observed appellant inside the truck. As appellant got out of the truck, the officer noticed that his eyes were very glassy, and that he had a strong odor of alcohol about his person. After the officer administered a field sobriety test to appellant, which proved to be positive, he arrested appellant for driving under the influence of alcohol. After appellant’s arrest an intoximeéer test was administered, which measured appellant’s blood-alcohol content to be 0.18 percent.

Appellant is correct that to be guilty of the offense of driving under the influence one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol. Carr v. State, 169 Ga. App. 679 (2) (314 SE2d 694) (1984). However, “ ‘[i]t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.’ [Cits.]” Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 238) (1987). “ ‘In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferenees and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.’ [Cit.]” Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988). Although the evidence was circumstantial, it justified a finding of guilt beyond a reasonable doubt. The officer found appellant behind the steering wheel of a truck in a local business’ parking lot at 2:00 a.m. The engine was running, the lights were on, and appellant had glassy eyes and an odor of alcoholic beverage about his person. Although the officer did not see the car moving, he observed circumstances from which a jury could infer that appellant was in actual physical control of the car when it was moved to the location where the officer found it, and that appellant was intoxicated while moving it there. See Frye v. State, supra. Therefore, we affirm the trial court’s denial of appellant’s motion for directed verdict.

2. In his second enumeration of error, appellant contends that the trial court erred in denying his motion for a directed verdict on the habitual violator charge because the State failed to prove that he drove a vehicle and that he was notified about his status of habitual violator. For the reasons discussed in Division 1, appellant’s contention that the State failed to show he drove a vehicle is without merit. We also find appellant’s contention that there was no evidence that he received notice of his habitual violator status to be without merit. Notice of appellant’s habitual violator status was sent by certified mail to appellant at his last known address and the return receipt indicates that the notice was signed for by appellant. “ ‘[NJotice (of habitual violator status) given by certified mail with return receipt requested mailed to the person’s last known address shall be prima facie evidence that such person received the required notice.’ ” King v. State, 179 Ga. App. 184 (345 SE2d 902) (1986). The evidence offered by the State was sufficient to make out a prima facie case against appellant, and the trial court did not err in denying a directed verdict of acquittal.

3. Appellant enumerates as error the trial court’s admission of the result of his intoximeter test, which was not supplied to appellant pursuant to OCGA § 17-7-211. However, the uncontradicted testimony of the officer who administered the test was that he gave appellant a copy of the test results. “Since the appellant had already been provided with a copy of the intoximeter test results, he could not have been harmed by the [S]tate’s failure to provide the same pursuant to OCGA § 17-7-211. [Cit.]” Henson v. State, 168 Ga. App. 210 (1) (308 SE2d 555) (1983). Accordingly, we find that the trial court properly admitted the test results into evidence.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided February 13, 1990.

Brace W. Luquire, for appellant.

Douglas C. Pullen, District Attorney, J. C. Bernard, Assistant District Attorney, for appellee.


text:
    A89A2062.
    In the Interest of C. M., a child.
    (391 SE2d 26)
   Pope, Judge.

The appellant brings this appeal from an order of the Juvenile Court of Fannin County terminating his parental rights with respect to his eleven-year-old daughter.

The Department of Family & Children Services (DFCS) first obtained custody of C. M. in April 1985 following the death of her mother, appellant’s wife. At that time the juvenile court determined the child to be deprived and a plan was implemented to reunite her with appellant. Appellant, however, was incarcerated shortly thereafter and was not released until April 1986.

A DFCS caseworker testified at the termination hearing that following appellant’s release from jail, a plan was again implemented to reunite appellant with his child. This plan included the stipulations that appellant would receive counseling, would quit drinking, and that appellant’s new wife would be in the home. Pursuant to this plan, in October 1986 physical custody was returned to appellant and legal custody was retained with DFCS. The appellant took the child to Cherokee County, North Carolina, where he and his wife resided at that time. Approximately two weeks later, however, appellant returned with the child to Fannin County following a domestic dispute with his wife. He took the child to his brother’s house, where a DFCS caseworker picked her up and returned her to foster care. According to the testimony of the DFCS caseworker, appellant has not seen the child since that date and has not contacted him concerning the child, with one exception following appellant’s incarceration in November 1987 for DUI, driving left of centerline, attempting to elude and being an habitual violator. Testimony was presented that from April 1985 until the time of the termination hearing on March 20, 1989, appellant had been incarcerated for approximately two years and four months. At the time of the hearing he had between one and six months remaining to serve on the sentence he received following the November 1987 offenses.

The DFCS worker also testified that he attempted to contact appellant on several occasions, both at his work and at appellant’s father’s home, and that he sent him several letters. Further testimony was presented that appellant never offered any support for the child, that he never sent her toys, clothes, books or Christmas or birthday presents.

Appellant admitted that the child was initially removed from his custody because of his drinking, but stated he had been attending AA meetings while incarcerated. Contrary to the testimony of the DFCS worker, appellant testified he made several attempts to contact the worker concerning his daughter, but admitted he never left a message concerning where the worker could contact him. Appellant also testified that he loved his daughter and wanted to regain custody of her.

1. Appellant’s first two enumerations of error challenge the sufficiency of the evidence to support the order terminating his parental rights. “ ‘(T)he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test. . ., is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence (parental misconduct or inability as provided by OCGA § 15-11-81 (b).)’ (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-513 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987).” In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376) (1989). “ ‘In a case such as this, a plea of (additional time) to improve is without force to overcome the proof of unrelieved detriment already suffered by the [child]

. . . where there is no indication but the promise to suggest hope of improvement.’ In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987).” In the Interest of S. L., 189 Ga. App. 361, 362 (375 SE2d 484) (1988). See also In re J. L. W., 170 Ga. App. 886 (318 SE2d 751) (1984).

2. Appellant also contends that the trial court erred in terminating his parental rights because he was “lulled into a false understanding” that DFCS involvement with his daughter extended only to placing her in foster care and that he was unaware that his conduct could result in a complete termination of his parental rights. The DFCS caseworker testified that he made several unsuccessful attempts to contact appellant, and that several months prior to the filing of the petition to terminate he notified appellant by letter sent to appellant’s father’s address of the possibility of the termination of appellant’s parental rights. Consequently, appellant was given notice in addition to that prescribed by law inasmuch as OCGA § 15-11-83 (c) requires only that a copy of the summons and petition be served on the parent at least thirty days before the time set for hearing on the petition. We find no merit to this enumeration. Accord In re Wright, 306 SE2d 825 (6) (N.C. App. 1983).

Decided February 13, 1990.

Roger E. Bradley, for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Dana M. Thompson, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A90A0026.
    DELJOU v. SHARP BOYLSTON MANAGEMENT COMPANY.
    (391 SE2d 27)
   Birdsong, Judge.

This appeal concerns an order denying attorney fees under OCGA § 9-15-14 (a) to the prevailing party on an abusive litigation claim on which the judgment was $750.

Sharp Boylston Management Company (Sharp Boylston) filed a dispossessory action against Mehrdad Deljou (Deljou). Deljou answered denying the allegations of the dispossessory and counterclaimed against Sharp Boylston for abusive litigation.

Sharp Boylston dismissed the dispossessory, and subsequently a jury awarded Deljou $750. Although Deljou’s motion for attorney fees was pending, the trial court entered judgment for Deljou, but did not make the findings necessary under OCGA § 9-11-54 (b) for a final judgment. Later, the trial court denied the motion for attorney fees because it found subsection (a) of OCGA § 9-15-14 inapplicable since it decided the dispossessory action was justified when filed and subsection (b) inapplicable since it determined attorney fees were not appropriate under the facts.

We granted Deljou’s application for authority to appeal the denial of his motion for attorney fees under OCGA § 5-6-35 (a) (10) and he contends that his motion for attorney fees was erroneously denied because award of attorney fees under OCGA § 9-15-14 (a) is mandatory when one prevails on an abusive litigation claim. Held:

Decided February 13, 1990.

Calabro, Vogel & Jennette, Michael M. Calabro, for appellant.

Germano, Kimmey & Cheatwood, J. Steven Cheatwood, for appellee.

Deljou’s contention that jury verdicts awarding damages on abuse litigation claims under Yost v. Torok, 256 Ga. 92 (344 SE2d 414), require trial courts to award attorney fees and expenses of litigation under OCGA § 9-15-14 (a) is without merit. Although this section requires the award of attorney fees and litigation expenses (Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 526 (360 SE2d 566)) upon a proper determination (OCGA § 9-15-14), the section does not mandate an award whenever a party prevails on an abusive litigation claim. OCGA § 9-15-14 (f) vests the trial court, without jury, with responsibility for determining whether an award should be made. Ferguson v. City of Doraville, 186 Ga. App. 430, 433 (367 SE2d 551), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, fn. 8 (376 SE2d 861). Thus, the jury verdict awarding damages on Deljou’s abusive litigation claim, even reduced to judgment, did not mandate the award of attorney fees. Bouchard v. Fowler, 193 Ga. App. 697 (388 SE2d 874) (1989). Accordingly, the trial court did not err by refusing to award attorney fees merely because Deljou prevailed on the abusive litigation claim.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0176.
    PINSON v. THE STATE.
    (391 SE2d 28)
   Deen, Presiding Judge.

Appellant Pinson was found guilty of the offense of abandonment and non-support of his minor child, OCGA § 19-10-1. In appealing from this judgment he enumerates two errors: (1) the trial court erred in admitting into evidence the report on the blood test performed to determine the likelihood vel non of paternity, in that the chain of custody of the blood samples was allegedly not sufficiently established; and (2) that the trial court violated defendant/appellant’s constitutional right against self-incrimination by ordering him to undergo a blood test pursuant to OCGA § 19-7-5. Held:

1. OCGA §§ 19-7-46 and 19-10-1 expressly permit the admission into evidence of blood tests such as that at issue here “when offered by a duly qualified geneticist, or other duly qualified person.” Our examination of the trial transcript reveals that appellant stipulated to the qualification of the laboratory official as an expert witness. The transcript further reveals that this witness testified that the blood samples involved in the test were handled according to the laboratory’s normal procedures, and that the laboratory’s “internal chain of custody” of the samples was maintained at all times. We find no error in the admission of this evidence, and appellant’s first enumeration is devoid of merit.

Decided February 13, 1990.

Charles E. Muskett, for appellant.

John H. Cranford, Solicitor, for appellee.

2. OCGA § 19-7-45 expressly authorizes the trial court to order blood tests when, as in the instant case, properly requested. As to violation of the constitutional guarantees against self-incrimination, the Supreme Court held in Raines v. White, 248 Ga. 406, 407 (284 SE2d 7) (1981), that requiring a blood test for the purpose of proving or disproving paternity “would not compel appellant to be a witness against himself within the meaning of the Fifth Amendment of the United States Constitution [cit.] nor would such procedure compel him ‘to give testimony tending in any manner to incriminate himself’ within the meaning of the Georgia Constitution.” See also Smith v. City of East Point, 189 Ga. App. 454 (376 SE2d 215) (1988). Georgia’s highest court having expressly held the challenged requirement to be constitutional, appellant’s second enumeration is also without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur. Beasley, J., also concurs specially.

Beasley, Judge,

concurring specially.

I concur fully but wish to point out that the wording in the Georgia Constitution quoted in Raines v. White, 248 Ga. 406, 407 (284 SE2d 7) (1981), has changed somewhat. It now is “to be self-incriminating” instead of “to incriminate himself.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI. Although it is the latter which applies to this case, the result is the same.