author: Andrews, Judge.

text:
    A94A2668.
    SMART PROFESSIONAL PHOTOCOPY CORPORATION v. DIXON.
    (456 SE2d 233)
   Andrews, Judge.

On October 21, 1992, Delores Dixon injured her back in the course of her employment for Kroger. She instituted a workers’ compensation action and in connection therewith, she ordered medical records from her treating physician. Smart Professional Photocopy Corporation d/b/a Smart Corporation (“Smart”), a copy service which contracts with hospitals and other medical offices to provide photocopies of medical records to patients, provided her with copies of her medical records. Those records consisted of four pages and Smart billed Dixon $20. Dixon paid the $20.

On July 2, 1993, Dixon, for herself and unnamed others, filed suit in the Chatham County State Court against Smart. She claimed that she and the other class members were involved in workers’ compensation claims in Georgia. She contended that she and the other class members requested copies of medical records from institutions which used Smart to supply copies of the medical records and that they were charged more for copies of medical records than is allowable under the rules of the State Board of Workers’ Compensation pursuant to OCGA § 34-9-205. She claimed various damages, including punitive damages of $25 million.

Defendant Smart refunded Dixon $10, answered the complaint and filed a motion to dismiss. Along with its motion, Smart filed the affidavit of one of its attorneys, in which he avowed that prior to the receipt of Dixon’s lawsuit, no demand was made upon Smart for return of the $10. In its motion to dismiss, Smart argued that the state court lacked subject matter jurisdiction over the claim.

The state court denied the motion, finding that the exclusive remedy provisions of the Workers’ Compensation Act did not apply since Smart is not an employer or insurer. The court also found that the jurisdiction in the state court was proper, since the Workers’ Compensation Act did not provide Dixon with an administrative remedy. Moreover, the court found that Dixon’s injury did not arise out of and in the course of her employment, and thus that she was entitled to maintain a common law action.

We granted Smart’s application for appeal. Here, in seven enumerations of error, and two “amended” enumerations, Smart argues that the trial court erred in not granting its motion to dismiss. Specifically, Smart contends: that under OCGA § 34-9-11 Dixon’s ex-elusive remedy was with the Workers’ Compensation Board; that the court erred in finding that Dixon’s injury did not arise out of her employment; that the court erred in finding that it had subject matter jurisdiction over this allegedly intentional violation of the Act; that the court erred in finding that the Board did not provide a remedy for an alleged violation of its own rules; and that the court should have dismissed the suit since Dixon failed to exhaust her administrative remedies.

The provision which Smart is alleged to have violated arises from the scheme set forth by OCGA § 34-9-205. OCGA § 34-9-205 (a) states: “Fees of physicians and charges of hospitals and other services under this chapter shall be subject to the approval of the State Board of Workers’ Compensation. No physician, hospital, or other provider of services shall be entitled to collect any fee unless reports required by the board have been made.” Subsection (b) provides that the Board “shall publish a list by geographical location of usual, customary, and reasonable charges for all medical services provided under subsection (a) of this Code section. The board may consult with medical specialists in preparing said list. Fees within this list shall be presumed reasonable. . . .” Board Rules 203 and 205 provide various procedures for when the amount of the expenses is disputed. Board Rule 200 (c) sets forth a manner in which the employee may receive medical records in the employer/insurer’s possession at no cost.

The $.50 per page standard for copying medical records, upon which Dixon based her lawsuit, is contained in a document published by the State and adopted by the Board called the Schedule of Fees for Physicians and Surgeons and Pharmaceuticals for Services Rendered Under the Georgia Workers’ Compensation Law. That document begins with a “Summary of Medical Provisions and Requirements” within which is a section entitled “Medical Reports.” In that section, the document states: “The claimant, upon request of the employer/insurer, shall furnish copies of all medical records and reports in his/her possession. The employer/insurer shall, upon the request of the claimant, furnish copies of all medical reports in their possession. Upon failure of either party to furnish medical reports as provided above, the physician or other medical provider shall, upon request, furnish copies of all medical reports and bills in their possession at no expense to the claimant, reasonable cost to be charged against the party responsible for payment of medical expenses. Failure to submit reports required by the board will jeopardize payment of fees. Copying medical records shall be billed at 50 cents per page with a minimum charge of $10.00. Special medical reports will be billed at reasonable charges, by agreement.” (Emphasis supplied.)

As the state court found, the rules pertaining to the costs of copying are procedural rules and do not deprive the parties of any substantive rights. The court correctly concluded that Smart was a “service provider” within the meaning of OCGA § 34-9-205 (a) and was governed by the schedule of fees outlined above.

Decided February 28, 1995

Reconsideration denied March 23, 1995

Hunter, Maclean, Exley & Dunn, Arnold Young, for appellant.

Savage & Turner, Brent J. Savage, William L. Smith III, for appellees.

The issue before us is whether the state court has jurisdiction of this case involving an alleged violation of this copying fee schedule. We conclude that it does not. OCGA § 34-9-58 provides that the State Board is the body statutorily charged with the enforcement of the Act. Pursuant to OCGA § 34-9-11 (a), “(t)he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee . . . provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor. . . .” See generally Bright v. Nimmo, 253 Ga. 378 (320 SE2d 365) (1984).

Dixon argues that Smart is a third-party tortfeasor liable to suit and that the motion to dismiss was properly denied. This argument misunderstands the nature of the “right” created by the $.50 rule. Assuming arguendo that any “right” to $.50 copies is created by this provision, the provision certainly does not create a “tort” for which Dixon may seek redress in state court. Compare Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983); Jim Walter Homes v. Roberts, 196 Ga. App. 618 (396 SE2d 787) (1990); Griggs v. All-Steel Bldgs., 209 Ga. App. 253 (433 SE2d 89) (1993). The violations Dixon alleged make sense only in the context of the Act; there is no common law right to have copies made for $.50. Board rules “may not enlarge, reduce, or otherwise affect the substantive rights of the parties.” Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 285 (293 SE2d 741) (1982).

In this matter, Dixon’s redress, if any, is through the Workers’ Compensation remedies. See generally Cowart v. ARA Transp., 178 Ga. App. 766 (344 SE2d 734) (1986). OCGA §§ 34-9-21 and 34-9-18 provide penalties against parties who violate the rules of the Board and exclude Dixon’s use of common law remedies. See Bright, supra at 381. The fact that Smart is neither Dixon’s employer nor insurer is not dispositive.

Accordingly, the state court erred in failing to grant the motion to dismiss.

Judgment reversed.

Beasley, C. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2741.
    CANUP v. THE STATE.
    (456 SE2d 215)
   Pope, Presiding Judge.

After a mistrial, defendant David Canup was retried and subsequently convicted by a jury of two counts of child molestation. Defendant appeals his conviction.

The record shows that during the second trial, defendant, who was a Cartersville police officer, took the stand in his own defense. During cross-examination of defendant, the State asked him what his rank was when he left the police department. At that time defendant’s counsel asked to approach the bench. During the bench conference that followed, defendant’s counsel stated that the inquiry as to defendant’s rank and the fact that he had been demoted was irrelevant. In response, the State told the trial court that, based on the first trial of the matter, it anticipated that defendant would present testimony as to his good character. The trial court then asked defendant’s counsel whether he had any character witnesses. Defendant’s counsel said that he probably did. The trial court then stated that it would allow the State’s inquiry because defendant intended to put his character into evidence, at which point defendant’s counsel stated that he anticipated that he would be placing defendant’s character into evidence. Thereafter, the State asked defendant whether he had ever been demoted and defendant explained that he once was a lieutenant but had been involuntarily demoted to the rank of patrol officer. Defendant subsequently had his own character witnesses testify.

On appeal, defendant contends that the trial court erred by allowing the State to question defendant about his demotion in rank because such an inquiry was prejudicial, irrelevant and placed defendant’s character into issue prior to such time as defendant chose to first place his character in issue. We disagree and affirm.

“[Ojnly where the defendant makes an election to place his good character in issue may the State offer evidence of defendant’s general bad character . . . under the authority of OCGA § 24-9-20 (b).” Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). In this case it is clear that prior to the State’s questioning of defendant about his demotion, defendant’s trial counsel, upon inquiry by the trial court, told the court that he anticipated putting defendant’s character into evidence. Consequently, the specific facts of this case demonstrate that defendant, by way of his counsel’s statements, voluntarily elected or chose to place his character in issue prior to any introduction of character evidence on the part of the State. Thus, the trial court did not err in allowing the State to ask defendant about his demotion. This is especially true in light of the fact that defendant did call several witnesses to testify to his good character.

Decided February 7, 1995

Reconsideration denied March 23, 1995.

Perrotta, Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Additionally, we conclude that the trial court’s inquiry regarding whether defendant intended to place his character in issue was objectionable, and we hold that under no circumstances would it have been appropriate for the trial court to have required defendant to make an election or state whether he intended to introduce good character evidence. In this case, however, because defendant’s trial counsel did not object or take exception to the trial court’s inquiry or in any way indicate that the inquiry itself was improper, we conclude that defendant waived any objection he may have had to said inquiry.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A95A0352.
    DUNN et al. v. DUKE et al.
    (456 SE2d 65)
   Andrews, Judge.

Gary Duke, as the administrator of Ora Duke’s estate, and Larry Silver filed actions for wrongful death and asserted claims against Carey Dunn, d/b/a Carey’s Place, and Carey Dunn Enterprises and another defendant, pursuant to the Dramshop Act (OCGA § 51-1-40) on February 20, 1989. On October 23, 1992, consolidated pretrial orders in the cases were filed. On December 11, 1992, the cases were placed on a trial calendar with notice sent to the attorneys of record.

On January 11, 1993, Dunn’s attorney, C. Alan Nicholson, filed a motion to withdraw from the cases; the certificate of service for the motion was dated December 28, 1992. Attached to the motion was a letter to Dunn dated December 16, 1992, in which Nicholson advised Dunn that he was withdrawing as counsel; that the Cobb County Superior Court would retain jurisdiction of the cases; that Dunn had the burden of keeping the court informed as to his whereabouts and that it was his obligation to hire another attorney to prepare for trial; that if he failed in these obligations, the court might impose sanctions, including dismissal of the answer; and that any scheduled court appearances would not be delayed by the withdrawal.

Also on January 11, attorney Nicholson filed an affidavit in which he stated that he had notified Dunn by letter on October 7,1992, that he intended to withdraw if Dunn failed to pay legal fees. That letter, which was attached to the affidavit, stated that the case would be placed on a trial calendar. Nicholson avowed that he had notified Dunn of the trial calendar on December 28, 1992. Nicholson stated that he spoke with Dunn on December 30, 1992, about his withdrawal and that Dunn had stated he had no objections to the withdrawal.

On the same date, January 11, 1993, the court granted the motion for withdrawal, effective immediately. The only certificate of service for that signed order is signed by attorney Nicholson, and dated December 28, 1992, the date of the motion to withdraw. The certificate of service indicated that Dunn had been served with the materials at his last address.

On January 29, 1993, the court entered final judgments in the matters. The judgments indicated that the matters were called for trial on January 25, 1993, and that no response or answer was made by Dunn. Upon motion by each plaintiff, the court struck the answers of the defendants and found that the defendants were in default. The court entered judgment, jointly and severally, against Dunn and the co-defendant in the amount of $750,000 in the action by Duke; and in the amount of $350,000 in Silver’s action.

On February 5, 1993, Dunn filed a motion for new trial and motion to set aside the judgment in both cases. The trial court conducted a hearing on those motions, and denied same. Here, Dunn appeals the denial of these motions.

At the hearing on the motions, Dunn testified. He admitted receiving the December 16, 1992 letter from Nicholson informing him of Nicholson’s impending withdrawal from the case and admitted discussing Nicholson’s withdrawal with him. Dunn stated that he received the first page of the trial calendar, which advised that the court would be holding jury trials during the weeks of January 4, January 11, January 25, and February 1, 1993. Dunn admitted that he was aware of the pending trial calendar and that he had been informed of his duties with regard to keeping the court apprised of his whereabouts. Nevertheless, Dunn testified that he never received the court’s order granting the motion for withdrawal and thus, that he was never aware that Nicholson had actually withdrawn from the case. Dunn recalled that Nicholson had told him that the court probably would not allow the withdrawal since the trial date was so close. Despite the fact that the certificate of service shows service of the order to Dunn at his business address, Dunn claimed that he did not receive the signed document.

1. Dunn raises four enumerations of error. Citing OCGA § 15-6-21, he claims that he never received notice that the motion to withdraw had been granted and that because of this the court erred in denying his motion to set aside the judgment. He argues that he was never served with a signed withdrawal order and that the certificate of service with the filed order confirms this fact. Dunn argues that the court had a duty to serve him with the completed order and issue a certificate of service so indicating, and that the failure to do so was reversible error.

Uniform Superior Court Rule 4.3 provides the procedures for the attorney who wishes to withdraw as counsel. Clearly, attorney Nicholson complied with the notification requirements which are set forth in subparts (A) through (H).

The rule also provides that “[a]fter the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal. . . .” The only certificate of service before us with regard to the materials sent to Dunn is dated December 28, 1992. There is no indication that Dunn received anything notifying him of the court’s action on the motion after that date.

The question thus becomes whether the court erred in not setting aside the judgments based on the apparent failure to serve Dunn with a copy of the order. The rule states that this responsibility is the withdrawing attorney’s responsibility, not the court’s. We find nothing in OCGA § 15-6-21 which conflicts with this rule.

The responsibility of the court with regard to an attorney’s withdrawal was set forth in Marlowe v. Lott, 212 Ga. App. 679, 680 (1) (442 SE2d 487) (1994). “It is the trial judge and not counsel who controls the proceedings and the conduct of the court officers who are appearing before the court.” Marlowe, supra at 680. Accordingly, “a formal withdrawal cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record.” Marlowe, supra at 680.

Here, the court issued such an order on January 11, 1993. With this act, the court completed its involvement with the withdrawal. If the order did not reach Dunn, it is through no fault of the court’s and Dunn’s redress, if any, is with his attorney. Compare Washington v. Rucker, 202 Ga. App. 888 (415 SE2d 919) (1992).

Moreover, “[i]n order for a defendant to obtain a new trial because of his absence or the absence of his counsel at the trial, it must be shown that the party was without fault, and that he had a good defense to the action. The fact that counsel for a party neglected either to appear for trial or to notify his client is not sufficient ground to authorize a new trial. Where parties have a case in court, it is their duty to attend and look after their interests. They cannot remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them, especially where, by the exercise of the least diligence, they could have ascertained the time when the case was set for trial. They are bound to take notice of the time and place of trial and of when their presence is required.” (Citations and punctuation omitted.) Haralson County Economic Dev. Corp. v. Hammock, 233 Ga. 381, 383-384 (1) (211 SE2d 278) (1974); see generally Diprima v. Hicks, 89 Ga. App. 231, 232 (1) (79 SE2d 8) (1953). Dunn has failed to sustain this burden and we find no error in the denial of his motions.

Decided March 9, 1995

Reconsideration denied March 23, 1995

Barnes, Browning, Tanksley & Casurella, Thomas J. Browning, for appellants.

Jones & Ledbetter, Howard W. Jones, Joseph D. Little, for appellees.

2. Dunn also claims that the trial court erred in failing to set aside the judgment since his telephone number was not supplied to the court as part of the withdrawal proceedings under the Uniform Rules of Superior Court. Because of this omission, Dunn claims that he could not receive the two-hour notice of trial from the court.

This argument is without merit. Although Dunn’s phone number was not supplied in the motion to withdraw, given the facts of this case the failure to provide this number does not constitute reversible error.

Judgment affirmed.

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

       The signed order is included with the materials which Nicholson included as exhibits to his motion to withdraw.


author: Birdsong, Presiding Judge.

text:
    A94A2438.
    PARRISH v. THE STATE.
    (456 SE2d 283)
   Birdsong, Presiding Judge.

James W. Parrish III appeals his conviction for driving under the influence and driving with unlawful blood alcohol concentration. Held:

1. The implied consent warning given to appellant is found to have been inaccurate according to the decision of this court in State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (cert. denied), and the State’s blood alcohol test, as ruled in Causey, was inadmissible. The conviction for driving with unlawful blood alcohol concentration under OCGA § 40-6-391 is reversed.

2. The conviction for driving while “under the influence of alcohol to the extent that it is less safe for the [defendant] to drive” in violation of OCGA § 40-6-391 (a) (1) was not dependent on, and in high probability was not affected by, the admission of the state-administered blood alcohol test. The arresting officer testified that as the result of a radio dispatch, he was alerted to a vehicle which was about a block ahead of him on the highway and which matched the description given right down to the tag number, that he followed this vehicle and observed it cross the centerline twice, that after he stopped the vehicle and approached the driver’s window he smelled an extremely strong odor of an alcoholic beverage coming from the vehicle, and that he administered field sobriety tests to the driver (appellant). Appellant was unable to complete the test successfully: he said he knew his alphabet but after reciting to the letter G, he then recited the letters R, H, I and then K, in that sequence; on the walk-and-turn, appellant stepped off the line and did not return to the instructional position, did not perform the turn and in the officer’s opinion he failed this test; he could not successfully do the index-to-nose test; and an alco-sensor field test (breath test) checked positive for alcohol. The officer concluded at that point that appellant was under the influence of alcohol. The jury could conclude from this evidence that appellant was driving “under the influence of alcohol to the extent that it is less safe for the person to drive” (OCGA § 40-6-391 (a) (1)) and the evidence of record is amply sufficient to support this conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence, including the officer’s observation of appellant’s actual driving, was overwhelming such that the erroneously admitted evidence of the state-administered alcohol test probably did not affect the verdict on this count. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

3. Appellant contends he was entitled to the requested charge that “the court’s allowance [of the state-administered test results] is not an expression of an opinion that the court views the test results as conclusive. . . . No procedure is infallible. The burden remains on the State to prove beyond a reasonable doubt that Mr. Parrish had an unlawful alcohol concentration while operating a moving vehicle.”

Appellant’s expert testified that based on the amount of alcohol appellant testified he had consumed, his blood alcohol concentration should have been .055 percent. Appellant contends his expert’s calculations would have raised a reasonable doubt as to the accuracy of the state-administered test. Appellant cites Lattarulo v. State, 261 Ga. 124 (401 SE2d 516), which involved a claim that the DUI statute constitutes a burden-shifting presumption of guilt. That case is inapposite. No presumption exists, and none was implied, that the admission of evidence of any party is an expression of opinion that the court views that evidence as conclusive. The charge requested was unwarranted and unnecessary and may even have prejudiced the State. The jury charge was correct as to the State’s burden of proof, and it advised the jury that it was the sole judge of the credibility of witnesses. The jury could not have failed to understand that it could accept the testimony of appellant’s expert and reject the State’s evidence. See Bass v. State, 208 Ga. App. 859 (4) (432 SE2d 602). The trial court did not err in refusing to give the charge requested.

Decided March 23, 1995.

H. Samuel Atkins, Jr., for appellant.

Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Ethelyn N. Simpson, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn and Ruffin, JJ., concur.


author: Blackburn, Judge.

text:
    A95A0715.
    CAMPBELL v. POYTHRESS.
    (456 SE2d 110)
   Blackburn, Judge.

We granted Greg Campbell’s application for discretionary appeal to determine whether a substitute teacher is entitled to unemployment benefits under Georgia’s Employment Security Law.

Greg Campbell was employed with the Atlanta Public Schools as a substitute teacher from November 1990 to October 1992. During his employment with the school system, he was called to work on an as-needed basis from a list of substitute teachers maintained by the school system. He was not guaranteed that he would be called to work and was only paid for the number of hours that he actually worked. On October 13, 1992, Campbell requested that Atlanta Public Schools remove his name from the list of authorized substitute teachers, and consequently, ended his employment with Atlanta Public Schools. Campbell did not work at all during the 1992-1993 school year.

Campbell initially applied for and received unemployment benefits effective January 12, 1992. After exhausting his regular benefits, he filed a claim for extended benefits and received additional unemployment benefits. Campbell reapplied for benefits in August 1992, and his claim for benefits was granted by the Georgia Department of Labor. This decision was affirmed by an administrative hearing officer following an administrative hearing. On appeal, the Board of Review reversed the decision of the administrative hearing officer, and denied the claim for benefits for the period of August 23, 1992, to September 26, 1992, based upon a 1982 decision of the Board. The superior court affirmed the Board’s decision, concluding that Campbell’s part-time, spasmodic, and erratic employment was not the type of employment that the statute was intended to encourage. In reaching its conclusion, the court found Attorney General Opinion 77-45 persuasive.

Under this state’s unemployment law, an individual is deemed unemployed “in any week during which the individual performs no services and with respect to which no wages are payable to him or her or in any week of less than full-time work if his or her deductible earnings do not equal or exceed his or her weekly benefit amount.” OCGA § 34-8-47. The Georgia appellate courts have not interpreted the Employment Security Act in reference to substitute teachers. Although the Attorney General’s opinion relied upon by the trial court is not binding on the appellate courts, C. W. Matthews Contracting Co. v. Collins, 214 Ga. App. 532 (448 SE2d 234) (1994), such an opinion can be considered as persuasive authority.

In Attorney General’s Opinion 77-45, the Attorney General concluded that substitute teachers were ordinarily ineligible to receive unemployment benefits because of the intermittent nature of their employment. “[I]t would be rare if ever that such a teacher would be eligible to receive unemployment compensation during intervals between his periodic services solely by virtue of his being a substitute teacher. . . . The award of benefits for such deliberate part-time only work would indeed seem to be contrary to the basic purpose of the law — which is to enhance stable employment and lighten the burden of involuntary unemployment. [Cit.] The individual who of his own choice opts for part-time employment of a highly unstable nature would hardly appear to be involuntarily unemployed during the obviously contemplated intervals between calls.” Id. at 78.

In Palm Beach County School Bd. v. State of Fla. Unemployment Appeals Comm., 504 S2d 505 (Fla. App. 4th Dist. 1987), the District Court of Appeal of Florida, interpreting a statute which contained language similar to OCGA § 34-8-47, held that a substitute teacher was not unemployed for the purpose of determining her eligibility requirements for unemployment compensation where she had no obligation to work if called and was not promised any number of calls during a given time period. The court concluded that Florida’s unemployment compensation law “is not designed to provide coverage to substitute workers who are called in from time to time as the need arises.” Id. at 507-508.

Additionally, in Town of Bourne v. Director &c. of Employment Security, 515 NE2d 1205 (Mass.App.Ct. 1987), the Appeals Court of Massachusetts refused to award unemployment benefits to a substitute teacher who was employed part-time and only when needed. The court relied on an earlier appellate decision, Town of Mattapoisett v. Director &c. of Employment Security, 466 NE2d 125 (Mass. 1984), recognizing that the legislative purpose of lightening the burden of unemployment would not be served by compensating such part-time employees. In Mattapoisett, the Supreme Judicial Court of Massachusetts reversed an award of benefits to a part-time police officer who worked only as needed. The Court concluded that the state’s unemployment act did not apply to an employee whose contract of employment provided for irregular hours and less than full-time work. To characterize such employees as “partially unemployed” is “to torture the plain meaning of the term” and impose an artificial definition of unemployment. Id. at 127. Cf. Scott County Reorganized School District v. Labor &c. of Mo., 703 SW2d 528 (Mo.App. 1985) (“This court does not believe it was the intention of the legislature to discourage substitute employment by requiring an employer to assume the burden of furnishing unemployment benefits for the period when the substitute employee is not at work.”) Id. at 535. We find the decisions of our sister states and Attorney General Opinion 77-45 persuasive under the facts presented herein.

Decided March 23, 1995.

Jessie R. Altman, for appellant.

Michael J. Bowers, Attorney General, Arrington & Hollowell, Bradley S. Wolff, W. Ray Persons, for appellee.

In light of the guidance provided by the above-cited decisions, we must conclude that the trial court did not err in affirming the decision of the Board of Review. Campbell was employed on an as-needed basis and was not guaranteed employment with the school system for a certain period of time. His employment with the school system was intermittent by nature and not the type of employment that Georgia’s Employment Security Law was designed to encourage. Consequently, Campbell was not unemployed as defined by statute as a matter of law at the time that he filed his claim for unemployment benefits. Therefore, his claim for benefits was properly denied.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Beasley, Chief Judge.

text:
    A95A0852.
    INGLE v. THE STATE.
    (456 SE2d 281)
   Beasley, Chief Judge.

Ingle appeals the denial of her motion for supersedeas bond pending a motion for new trial and subsequent appeal of multiple convictions of withholding information from a practitioner regarding controlled substances, OCGA § 16-13-43 (a) (6). Appellant has requested expedited consideration, to which she is entitled. OCGA § 5-6-43 (c). See Ferry v. State, 210 Ga. App. 321 (436 SE2d 59) (1993).

The issue is whether the trial court erred in denying bond without first affording appellant an evidentiary hearing. The State’s position is that an opportunity to present her case was afforded to appellant.

At the conclusion of the imposition of sentence and notification of appeal rights, Ingle’s counsel asked to be heard on the issue of bond, and the court permitted him to proceed. Counsel asked the court to consider setting a reasonable bond for appeal, arguing that Ingle had made all of her court appearances, had other cases pending, was still under other bond, would remain available to the court, and would not be shown to be a risk under Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976). The court invited the State to respond before it made a ruling.

The State asked the court to deny bond, expressing its concern about “the fact of the risk of the defendant intimidating witnesses,” stating that the witness was very apprehensive of Ingle should she remain free, and reminding the court of an apparent threat made to the witness earlier. Defense counsel replied that to his knowledge he had made the only contact with the witness. After the State reiterated its concerns about witness intimidation, defense counsel acknowledged that Ingle and the witness had some disagreement but maintained it was unrelated to the case.

The court denied bond, expressly finding risk that Ingle might intimidate the witness because sentence had been imposed and Ingle realized she was facing a lengthy prison term. The court also offered its opinion that any appeal would be frivolous.

At this point, defense counsel served the prosecutor with a motion for new trial. He then tendered to the court a written motion for bond, stating that he wanted an evidentiary hearing on the motion so that a record could be made to challenge the State’s contention of witness intimidation; counsel stated he would bring in the witness. The court stated that it was its responsibility to decide the question concerning the risk of witness intimidation. Counsel interjected that some evidence had to be produced, and the court reiterated that it found two Birge factors present. Counsel challenged the finding of frivolousness because the court had not yet considered the motion for new trial. The court stated it could make that determination based on what it then knew but would consider what was presented on the motion for new trial.

There was no further hearing in the matter and the denial of bond was later reduced to writing. The court found a substantial risk that Ingle would intimidate witnesses and that an appeal appeared to be frivolous or taken only for the purposes of delay.

Decided March 23, 1995.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Roger Queen, District Attorney, for appellee.

The procedure required by the law is that “ ‘(A)fter a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court.’ (Emphasis supplied.) Birge v. State, 238 Ga. 88, 89, supra. In doing so, the court must give applicant notice of the hearing and a chance to appear and be heard.” Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979), modifying the procedure outlined and overruling anything to the contrary in the order of court in White v. State, 146 Ga. App. 147, 148 (245 SE2d 870) (1978). See Edwards v. State, 166 Ga. App. 270, 271 (304 SE2d 438) (1983), which noted Moore’s refinement of the White procedure.

Even though Ingle, via her counsel, initiated the issue of bond, this did not abrogate the trial court’s duty to make a “fresh determination,” that is, a decision made after affording the defendant an opportunity for an evidentiary hearing specifically addressing the matter of bond. This is what defendant eventually asked for, including the right to present a witness to rebut the State’s assertion of intimidation. The trial court erred in denying the bond without further inquiry.

The case is remanded for a consideration of evidence on the matter of post-conviction bond. If bond is again denied following the requisite hearing, defendant may appeal the adverse ruling. See Chatham v. State, 153 Ga. App. 483, 485 (265 SE2d 835) (1980).

Judgment vacated and case remanded.

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


text:
    A94A2119.
    BILL PARKER & ASSOCIATES v. RAHR.
    (456 SE2d 221)
   Birdsong, Presiding Judge.

Bill Parker & Associates (“Parker”) appeals a judgment, based upon a jury verdict, in favor of Andrew Rahr on his legal malpractice claims. This litigation arises from a transaction in which Rahr retained Bill Parker & Associates to prevent a foreclosure on his property. To prevent foreclosure, a bankruptcy petition was to be filed in the Newnan Division of the United States Bankruptcy Court. After Rahr signed the petition and mailed it to Parker’s Atlanta office, the petition was transmitted to Parker’s Newnan office for filing. The procedures used in this case, however, deviated from the usual procedures in that in Newnan the client usually signed the petition in the office and then the petition would be filed. Expecting those procedures to be followed in Rahr’s case, the attorney in Newnan did not immediately file the petition as the Atlanta office expected, but, without even reading the petition, held it awaiting Rahr’s signature. Before this error was detected, it was too late to prevent the foreclosure.

Rahr then brought this legal malpractice action against Parker and the attorneys who handled his bankruptcy petition. Although the action was filed in Fulton Superior Court 20 days before the expiration of the statute of limitation for tort actions, service on Parker was not accomplished until 57 days after the expiration of the statute. Although a duplicate original summons and service copy of the complaint were forwarded to the DeKalb County Sheriff in sufficient time for service on Parker at the correct address in that jurisdiction, the sheriff returned the service documents stating Parker could not be served at that address. Thereafter, Rahr attempted to ascertain where Parker could be served only to learn that the address first provided the sheriff was the proper address after all. Parker was then served.

The record shows also that after Parker filed motions to dismiss and for summary judgment that were denied, he filed and dismissed an application for an interlocutory appeal under OCGA § 5-6-34 (b).

Although Rahr settled his claims against the individual attorneys, the case proceeded to trial against Parker. Ultimately, the jury returned a verdict in favor of Rahr for $500 in nominal damages, $5,000 in general damages, and $8,500 in special damages.

Parker alleges that the trial court erred by denying its motion to dismiss based on the expiration of the statute of limitation; that the trial court erred by denying its motion for summary judgment based on the release granted to one of Parker’s co-defendants; that the trial court erred by denying a motion for directed verdict because Rahr failed to show by expert testimony a separate act of malpractice committed by Parker that was the proximate cause of Rahr’s loss; that the verdict is illegal; and that the trial court erred by awarding attorney fees and expenses of litigation under OCGA § 9-15-14 because the record did not support the award. Held:

1. Parker’s allegation that the trial court erred by denying his motion to dismiss the complaint based on untimely service of process is without merit.

The trial court found that there was insufficient evidence of lack of diligence to warrant granting the motion. Parker contends the trial court’s ruling was erroneous because the burden was on Rahr to prove his diligence rather than on Parker to prove the lack of diligence. While Parker correctly states the proper test (Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360)), we will not reverse the trial court merely because the trial court misspoke in stating the reason for its ruling. Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268). Here, we find no abuse of discretion. Rahr provided the sheriff with a correct service address; if the sheriff had merely executed his responsibilities properly, Parker would have been timely served and this issue would not have arisen. A party should not be penalized because of the actions of the officials charged under our law with service of process. Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94); Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349-350 (408 SE2d 111).

2. Although Parker re-asserted his motion for summary judgment based on the release of a co-defendant in his motion for a directed verdict, he has not enumerated the denial of this motion as error on appeal. Accordingly, any issue concerning the denial of his motion for a directed verdict based on the release of a co-defendant is not before us for review (Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272)) as the issues were waived (see Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507)); or abandoned (Court of Appeals Rule 15 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564)), and we cannot consider errors not enumerated. Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396); Hurston v. Ga. Farm Bureau Mut. Ins. Co., 148 Ga. App. 324, 326 (250 SE2d 886). Further, any issue concerning the denial of Parker’s motions for summary judgment is moot because the case has been tried on the merits and the evidence found to support the verdict. Talmadge v. Talmadge, 241 Ga. 609 (247 SE2d 61); Gosnell v. Waldrip, 158 Ga. App. 685, 686 (282 SE2d 168).

3. Parker further contends the trial court erred by denying his motion for a directed verdict on liability based on Rahr’s failure to show by expert testimony that any act of malpractice committed by Parker separately was the proximate cause of Rahr’s loss. In reviewing the trial court’s denial of Parker’s motion for a directed verdict, this court must resolve the evidence and any doubt or ambiguity in favor of the verdict, and a directed verdict is not proper unless there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions therefrom, demands a certain verdict. Southern Store &c. Equip. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Further, the “denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations, punctuation, and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (388 SE2d 373).

Parker contends that because of Rahr’s settlement with Parker’s co-defendant and release of his claim, Rahr cannot rely on respondeat superior as a basis for his claims against Parker. See Harris v. Hanna Creative Enterprises, 208 Ga. App. 549 (430 SE2d 846). Thus, Parker maintains that Rahr must base his claim on some negligence by Parker which was sufficient to support the verdict. Pretermitting whether Parker could be vicariously liable under respondeat superior because of Harris v. Hanna Creative Enterprises, supra, we cannot say there was no evidence that Parker’s personal negligence was not responsible for Rahr’s damages. Parker was the senior official of Bill Parker & Associates and was responsible for the firm’s procedures and practices for doing business, and whether these procedures and practices were the proximate cause of Rahr’s damages was a question for the jury. While apart from respondeat superior Parker may not be responsible for another attorney’s failure to read his mail and take action on it, or may not be responsible for another attorney’s failure to communicate that a particular matter required special handling, Parker, nevertheless, was responsible for the system in which these attorneys operated, and whether these procedures caused Rahr’s damages is a question for the jury. Accordingly, the trial court did not err by denying Parker’s motion for a directed verdict.

4. Parker also alleges the jury verdict is illegal because the verdict for $5,000 in general damages and special damages of $8,500 could have only been awarded ex delicto and not ex contractu, but any tort recovery against appellant should be barred by the statute of limitation. The thrust of Parker’s argument is that general and special damages are not authorized in a contract action and because Parker contends that Rahr’s action based on negligence should have been barred by the expiration of the two-year statute of limitation for negligence actions, these damages for a tort were not authorized. Because of our disposition of Parker’s argument regarding the expiration of the statute of limitation in Division 1, this argument is without legal support. Further, even though the statutory definitions of general and special damages (see OCGA § 51-12-2 (a) and (b)) refer to tortious acts, general and special damages also may be recovered in contract actions if the general and special damages are not remote or consequential (OCGA § 13-6-8) and “are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. In particular, “[a]ny necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages.” OCGA § 13-6-9. See also Eastgate Assoc. v. Piggly Wiggly Southern, 200 Ga. App. 872, 875 (410 SE2d 129); Cobb & Eldridge, Ga. Law of Damages (3d ed.), p. 19, § 2-2. This enumeration of error is without merit.

Decided February 21, 1995

Reconsideration denied March 24, 1995

William R. Parker, for appellant.

Ralph S. Goldberg, for appellee.

Nevertheless, because the jury awarded general and special damages, the award of nominal damages was not authorized. Nominal damages are authorized when some loss is proven but “ ‘the damages are not susceptible of reasonable certainty of proof as to their extent.’ ” Ponce de Leon Condos, v. DiGirolamo, 238 Ga. 188, 190 (232 SE2d 62). Accordingly, upon receipt of the remittitur, the trial court is directed to strike $500 from the judgment.

5. Finally, Parker asserts that the trial court erred by making an award under OCGA § 9-15-14 because there was no evidence on which the trial court could base the award. As to the hours and fees, this contention is without merit because Rahr’s attorney testified about the hours expended and the fees he charges. As to the merits of the award under OCGA § 9-15-14, however, the record does not authorize an award under OCGA § 9-15-14 because the trial court did not make the required findings. See Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31); MacDougald v. Phillips, 213 Ga. App. 575, 576-577 (445 SE2d 357). Accordingly, the award under OCGA § 9-15-14 must be remanded to the trial court with direction that the court make findings that would support the award or vacate the award. MacDougald v. Phillips, 262 Ga. 778 (425 SE2d 652).

Judgment affirmed in part and remanded in part with direction.

Blackburn and Ruffin, JJ., concur.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2126.
    JACKSON v. THE STATE.
    (456 SE2d 229)
   McMurray, Presiding Judge.

Defendant was tried before a jury for possession of cocaine with intent to distribute. The evidence adduced at trial reveals the following: At about 8:45 in the evening on June 26, 1992, Officer Jeff Smith of the Lawrenceville Police Department was on routine traffic patrol with the “DUI” task force when he received a radio dispatch directing a lookout for a blue Chevrolet Monte Carlo allegedly operating in an area known for illegal drug activity. Within less than 30 minutes, Officer Smith spotted a blue Monte Carlo in the designated area, noticed the suspect vehicle stopped in the middle of the roadway and observed the driver of the Monte Carlo talking (through the driver’s side window) to a man the officer recognized as Frankie Joe Patillo. When Officer Smith pulled his patrol car behind the suspect vehicle, the Monte Carlo moved to the side of the road. Officer Smith followed and radioed for police assistance. He then exited his police cruiser and approached Frankie Joe Patillo, who was then standing by the driver’s side window of the suspect vehicle.

Officer Smith observed two men in the front seat section of the Monte Carlo. One of these men was the defendant who was in the driver’s seat and the other man was a passenger who was not identified. When police back-up arrived, Officer Smith asked defendant to produce his driver’s license and vehicle registration. Officer Smith then noticed that defendant’s “eyes were bloodshot and glazed, that his speech . . . was slurred and thick, and [that] an odor of alcoholic beverage [was] coming from [defendant’s] face and breath as he spoke.” Officer Smith asked defendant “to step from the vehicle so as to investigate [defendant’s] sobriety.” As defendant complied, Officer Smith observed “physical manifestations [which caused him to place defendant] under arrest for driving under the influence.” Officer Smith searched defendant, handcuffed him and placed him in the back of the police cruiser. He then returned to the Monte Carlo and “did a visual look at the [suspect vehicle] to see if there was anything out in the open. [Officer Smith] did notice that there was an end of a can protruding from underneath the drivers [sic] seat, and[,] as [he] pulled the can from underneath the driver’s seat[, the officer] noticed it was an empty beer can. [Officer Smith] also noticed a prescription bottle under the seat next to the [beer] can.” The prescription bottle contained 19 pieces of “a white chunky substance which [was later identified as] crack cocaine.”

The jury found defendant guilty of possession of cocaine with intent to distribute. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first challenges the sufficiency of the evidence and cites Reid v. State, 212 Ga. App. 787 (442 SE2d 852), and Whipple v. State, 207 Ga. App. 131 (427 SE2d 101), arguing that the State’s evidence of his spatial proximity to contraband is insufficient to support a finding that he was in constructive possession of “crack cocaine.”

In Reid and Whipple, this court reversed convictions involving illegal possession of cocaine because the State failed to link defendants to contraband found in vehicles they occupied immediately before their arrests. These decisions balance on the fact that others had equal access to the vehicles where the contraband was found and involve lack of evidence of the contraband’s close spatial proximity or easy accessibility to the defendants. Reid v. State, 212 Ga. App. 787, 789, supra, and Whipple v. State, 207 Ga. App. 131 (1), 132, supra. While the case sub judice is similar to Reid and Whipple in that the State relies on circumstantial evidence to prove defendant’s constructive possession of cocaine, it is distinguishable because defendant is linked to the contraband by evidence other than mere spatial proximity.

“ ‘A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. . . .’” Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). In the case sub judice, defendant was not only in close spatial proximity to the “crack cocaine” found in the suspect vehicle, he had easy access to the contraband and thus had power to exercise immediate control over it. To this extent, the contraband was not “stashed” or otherwise “tucked away” so as to make it difficult for defendant to reach; the cocaine was found lying on the floorboard under the driver’s seat and it was found next to an empty beer can which was directly linked to defendant via his state of inebriation at the time of arrest. Further, it appears that the “crack cocaine” was not within immediate reach of the passenger of the suspect véhicle and it is highly unlikely that a group of onlookers that gathered at the crime scene had access to the suspect vehicle while Officer Smith was securing defendant in the patrol car as “three or four [other] officers [were then] on the scene.” This evidence, evidence that exigent circumstances arose requiring a hasty “stash” of the contraband under the driver’s seat of the suspect vehicle (i.e., Officer Smith’s extemporaneous arrival at the scene), evidence that the quantity and form of cocaine found is typical of an amount and type carried by persons engaged in illegal drug distribution and evidence that defendant was talking (apparently dickering) with Frankie Joe Patillo in the middle of a known drug source area is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991).

2. Next, defendant contends the trial court erred in failing to instruct the jury as to the law of “equal access” even though his trial attorney did not submit a written request, arguing that such an instruction went to his sole defense at trial. This contention was raised and rejected under similar circumstances in Pittman v. State, 208 Ga. App. 211, 215 (3) (430 SE2d 141).

Defendant’s reliance on the equal access rule as a defense is misplaced. “ ‘The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. (Cit.)’ Wright v. State, 194 Ga. App. 739 (2) (391 SE2d 791) (1990). ‘ “It is simply a defense available to the accused to whom a presumption of possession flows. Because (in the case sub judice) the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.” (Cit.)’ Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) (1987).” Bowen v. State, 203 Ga. App. 371 (1) (417 SE2d 18). Consequently, the trial court did not err in failing to charge the jury on “equal access.” See Pittman v. State, 208 Ga. App. 211, 215 (3), supra.

3. In his third enumeration, defendant contends the trial court erred in allowing evidence of his prior conviction (which was based on defendant’s plea of guilty) for possession of cocaine with intent to distribute, arguing that there is insufficient similarity or connection between the prior offense and the offense charged so that proof of the former tends to prove the latter. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649). We do not agree.

The prior offense occurred about two years before the crime charged; both crimes occurred in the same area of town; both cases involved defendant’s apprehension while stopped in a vehicle with another man; both times defendant was either in actual or constructive possession of quantities and types of cocaine consistent with illegal drug trade. “Under the circumstances, we find the evidence of similarity sufficient. Accordingly, as there was compliance with Williams v. State, supra at 642 and Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483), and the trial court’s ruling was not clearly erroneous, there was no error in admitting this similar transaction evidence. Mitchell v. State, 206 Ga. App. 672, 673 (426 SE2d 171).” Riden v. State, 213 Ga. App. 17, 18 (2) (443 SE2d 865).

4. In his final enumeration, defendant challenges the trial court’s finding that he was not denied effective assistance of counsel at trial, arguing that his trial attorney should have submitted a request to charge on “equal access.” Defendant also argues that his trial attorney should have called an alleged eyewitness (Dudley Blake Harris) who testified at the hearing on defendant’s motion for new trial that he saw an unidentified man standing on the passenger side of the suspect vehicle at the time of defendant’s arrest and “make a motion like he threw something, as the officer come around the curve, like he threw something — toss something off in the car, and he took off running.” Finally, defendant argues that his trial attorney should have called him to testify in his own defense at trial.

“To establish ineffective assistance of counsel, [defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Fran cis, 253 Ga. 782, 784 (325 SE2d 362), cert. denied, 474 U. S. 925 (106 SC 260, 88 LE2d 266) (1985).” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284). In the case sub judice, we cannot say the trial court erred in finding that defendant failed to satisfy this test.

As demonstrated in Division 2 of this opinion, defense counsel’s failure to request a charge on “equal access” was neither erroneous nor harmful. Further, after examination of Dudley Blake Harris’ testimony at the motion for new trial hearing, we cannot say the trial court erred (as a matter of law) in concluding that defense counsel’s decision not to call Dudley Blake Harris as a witness at trial amounted to ineffective assistance of counsel. Nor can we say the trial court erred in refusing to second guess defense counsel’s recommendation to defendant not to testify in his own defense at trial. Such alleged errors of judgment and tactics do not constitute ineffective assistance of counsel as a matter of law. Lebis v. State, 212 Ga. App. 481, 485 (11) (442 SE2d 786).

Judgment affirmed.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur fully in the result reached by the majority and in Divisions 2 and 4. I write specially for two reasons.

1. Although I agree that the evidence was sufficient to support Jackson’s conviction, I cannot agree with all that is said by the majority in Division 1. In describing both Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994) and Whipple v. State, 207 Ga. App. 131 (427 SE2d 101) (1993), the majority states that both decisions “involve lack of evidence of the contraband’s close spatial proximity or easy accessibility to the defendants.” That may have been true in Whipple. In Reid, however, as in this case, there was evidence that the contraband was found in close spatial proximity to the accused and he had easy access to it. Reid was a passenger in the car where the contraband was found “on the floorboard on the passenger side of the car between the place where the bench seat was bolted to the car’s frame and the passenger door, approximately six inches from the door.” 212 Ga. App. at 788.

In my view, all three cases involve circumstantial evidence, constructive possession, and the spatial proximity of the contraband to the accused; Reid and this case also involve evidence of similar transactions. A finding of constructive possession, however, must be based upon “some connection [with] the defendant and the contraband other than spatial proximity.” (Citation and punctuation omitted.) Llaguno v. State, 197 Ga. App. 789, 790-791 (1) (399 SE2d 564) (1990). If the State’s case had consisted solely of evidence that Jackson was driving, the drugs were found under the driver’s seat, and Jackson had previously been convicted of possession of cocaine with intent to distribute, then, in my view, a directed verdict of acquittal may have been demanded.

The reason it was not, and the difference between this case and Reid, is that here the State introduced additional evidence linking Jackson with the contraband. That evidence, although itself circumstantial, was sufficient to allow the case to go to the jury. See Allen v. State, 200 Ga. App. 326, 328 (2) (408 SE2d 127) (1991). The arresting officer testified that Jackson appeared to be inebriated. The State introduced evidence that Jackson had been driving, that an empty beer can was found under the driver’s seat, and that the vial containing 19 rocks of cocaine was found right next to the empty beer can. From this evidence, the jury was authorized to believe that Jackson had been drinking beer from the can found under his seat and that he placed the empty can under the seat. They therefore were also authorized to infer that he at least must have known of the vial immediately adjacent to the can.

2. Although I agree with the majority’s conclusion in Division 3 that evidence of Jackson’s prior conviction was properly admitted as a similar transaction, I believe that Jackson is entitled to an explanation distinguishing his case from Morris v. State, 212 Ga. App. 779 (442 SE2d 792) (1994), upon which he relies heavily. In Morris, we reversed a conviction for possession of diazepam and held that similar transaction evidence was improperly admitted.

Jackson argues that Morris stands for the proposition that a prior crime is necessarily dissimilar when it involves a different type of possession. In Morris, the prior offense involved constructive possession while in the charged offense the accused was found in actual possession of the contraband. Jackson reasons that the holding in Morris must have been based on that distinction because the other dissimilarity noted in the majority opinion there — the fact that the offenses involved different drugs — was held by the Supreme Court not to affect the admissibility of prior crimes. State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980) (reversing Johnson v. State, 154 Ga. App. 793 (270 SE2d 214) (1980)).

I find this argument to be fallacious. Johnson was decided before the Supreme Court’s decision in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), which changed the law regarding the admission of similar transaction evidence. Moreover, this court has found evidence of prior crimes admissible despite differences in the type of possession. See, e.g., Riden v. State, 213 Ga. App. 17, 18 (2) (443 SE2d 865) (1994) (prior offense admissible as similar even though it involved actual possession, when offense charged involved constructive possession). The distinction drawn by Jackson belies common sense as well, since possession may be changed from actual to constructive at will by the accused at the time of his arrest, merely by throwing down any contraband. That maneuver, however, does not change the underlying nature of the offense or the ways it may be similar to prior or subsequent offenses in the manner contemplated by Williams, supra.

Decided February 27, 1995

Reconsideration denied March 24, 1995

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Brian K. Wilcox, Assistant District Attorneys, for appellee.

Here, the prior offense was sufficiently similar to the charged offense to be admissible, in that the drug was identical, the number of “rocks” of crack cocaine found was more than that ordinarily found for personal use, and Jackson possessed the contraband while traveling in an automobile.

        Morris has no precedential value, because only two judges concurred in the majority opinion.


text:
    A94A2398.
    PARRIS v. THE STATE.
    (456 SE2d 59)
   Andrews, Judge.

Parris appeals his conviction of one count of making a false statement to the City of Summerville. OCGA § 16-10-20. Parris’ sole contention is that the evidence was legally insufficient.

Parris was a Summerville city council member. Members were allowed by ordinance to collect, before making the trip, reimbursement for expenses as well as lost salary or profits from their businesses for trips made out of town on city business. The ordinance regarding lost profits was proposed by Parris at the June 8, 1992, meeting and passed. At that time, he was the only self-employed councilman, running a water equipment supply business which sold water pipe, meters, hydrants, and valves. After discussion with other council members, it was agreed that the best method for Parris to use in estimating his anticipated business losses was to take the week prior to any trip, get all his receipts, divide by 40 to get an hourly rate, and then be compensated for the hours spent out of town on city business.

Parris was scheduled to attend a seminar in Houston County in September 1992. He went to the Summerville city clerk and presented four sequentially numbered invoices reflecting dates from the prior week, September 7 through 14. These were presented as representing his prior week’s income. Based on the clerk’s computation, Parris was paid $480 for five days of lost profit, as well as the expenses of his trip.

State’s Exhibit 7 was invoice # 16115, dated September 14, 1992, showing a sale of pipe and other items to White, Georgia, for $151.60.

Toles, editor of the local newspaper, received one anonymous tip and one report from another city councilman indicating improprieties in the profit reimbursement. He interviewed the persons referred to on the invoices and Parris. He spoke to Charles Comer of the City of White by telephone. Comer was in charge of all purchases for the water system of the city and denied that any purchase had been made September 14. When Toles met with Parris and went through the invoices, Parris told him that Comer had personally come and picked up the items and paid him cash. When told Comer denied it, Parris stated that “I don’t care what he says; he paid me cash anyway.” Comer testified that purchases were never made with cash, always by check.

When interviewed on October 14, 1992, by the GBI concerning the White incident, Parris told the agent that he had gone to White and personally given Comer a written quote on the materials and then left. He further stated that, the next day, some man he was unable to identify, not Comer, came over to his shop and said he wanted to pick up the materials that “Charles got a quote on.” This man also paid in cash. Parris could provide no description of this man.

Later in the investigation, Parris produced Exhibit 13, the purported quote given to Comer. It was dated September 12, 1992. Comer testified he had never seen that document before trial.

At trial, Parris testified that it was Comer’s “word against mine, and mine stood because I gave it to him because I put it on paper.”

Although there are no cases specifically dealing with sufficiency of the evidence under OCGA § 16-10-20, there are numerous cases which we find persuasive under comparable federal statute 18 USCA § 1001. United States v. Calhoon, 859 FSupp. 1496 (M.D. Ga. 1994) (false statements on Medicare reimbursement forms); United States v. Cannon, 811 FSupp. 1568 (M.D. Ga. 1993) (false statements regarding compliance with contract specifications on government contracts); see United States v. Swindall, 971 F2d 1531 (11th Cir. 1992) (charge under 18 USCA § 1623, false statement to a grand jury).

There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); see Swindall, supra; Calhoon, supra; Cannon, supra.

Decided February 28, 1995

Reconsideration denied March 24, 1995.

H. Robert Hannah III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       Parris was charged with five counts, was found not guilty of Count 2, and a mistrial was declared after the jury was unable to reach a verdict on the remaining three counts.


text:
    A95A0429.
    McGONAGIL et al. v. TREADWELL et al.
    (456 SE2d 260)
   Birdsong, Presiding Judge.

Appellants/plaintiffs Russell “Russ” John McGonagil and Ellen McGonagil appeal from the order of the trial court granting summary judgment to appellees/defendants Margarita and Robert Michael Treadwell; the trial court determined appellees had “probable cause” to cause an arrest warrant to issue. This litigation arises from appellees’ swearing out a warrant for the arrest of appellant Russ McGonagil and the filing of a subsequent false arrest suit by him. The relevant facts are substantially as follows: In 1991, appellees’ teenage son, Brian, began playing in a band with two young friends; the band consisted of two (electric) guitars and one set of drums. The boys wrote their own hard rock and heavy metal music; they practiced up to three hours per day and two or three days a week.

That same year the McGonagils moved next door. Thereafter, an incident occurred where appellant Russ McGonagil moved a lounge chair, which was in bad condition, belonging to and located on appellees’ property without permission. Appellees called appellant who met with them and apologized; appellant did not move their chair again. Appellant testified by deposition that he was never told to keep off the appellees’ property; however, appellee Margarita Treadwell testified by deposition that appellant was told, during the confrontation, to leave the premises and never return.

Certain neighbors had complained to other neighbors about the loud noise created by the band’s practice and, at least once, a neighbor called the police. The music temporarily ceased but the boys resumed band practice in the summer of 1992. Before the date of his arrest, appellant Russ McGonagil personally had called the police three or four times to report the noise. On at least two occasions, appellee Margarita Treadwell confronted appellant Russ McGonagil and asked whether he had called the police; appellant testified that on one of these occasions Margarita Treadwell threatened to call the police any time appellant used his lawn mower.

In October 1992, an attorney wrote a letter on behalf of certain subdivision families, including appellants, contending the boys were in violation of a Cobb County noise ordinance and demanding such violations cease and desist. At approximately 10:15 p.m., on Wednesday, April 7, 1993, appellant Russ McGonagil went to bed; appellees Treadwell were in Florida on vacation. About 10:30 p.m., Russ McGonagil heard loud music coming from the Treadwells’ home, so he went next door to complain. Although appellant McGonagil could see Brian and one of his friends upstairs giggling, no one answered the door when he repeatedly knocked for five to seven minutes. Finally appellant turned the front door knob, partially opened the door, and called to Brian to come downstairs and talk. The evidence is in conflict whether appellant actually entered appellees’ house that evening. Appellant testified he did not enter; Brian testified that he did. Brian and his friend came down and, after conversing with appellant, agreed it was too late to be playing and apologized. Appellant testified he told the boys he would not take any further action, but stated if similar incidents occurred he would summon the authorities. Appellee Robert Treadwell testified that he was informed by the boys that appellant called Brian a coward and threatened court action; appellees do not claim physical threats were made. Appellee Margarita Treadwell received a phone call from Brian the night of the incident; Brian was upset and reported appellant called him a coward, called to him to come downstairs, and threatened to take the family to court. Brian also reported he had seen appellant in the foyer of appellees’ home. Brian admitted to his mother that the boys had been playing music, and when someone started knocking on the door they stopped playing music and turned on the radio so the person would go away. Upon returning from vacation, appellees reported the incident to the police but swore out no arrest warrant.

Subsequent to this incident, the boys continued to play loud music; this upset several neighbors and not just appellants. As a result the police were called to the Treadwell home on various occasions. On June 4, 1993, neither of Brian’s parents was home; Brian once again began to play music and appellant Russ McGonagil once more called the police. The investigating officer could hear the music from the street, and cited Brian for violation of the noise ordinance. Brian subsequently was found to have violated the noise ordinance in juvenile court. Shortly thereafter, appellees placed or lined up trash cans, rusty lawn chairs and/or a lounge chair, and cat feces approximately one foot from appellants’ property line; appellant discovered this situation on his return from vacation on June 14, 1993, and complained to the homeowner’s association. Following investigation of the incident, the homeowner’s association wrote appellees a letter informing them that they were in violation of the restrictive covenants of the subdivision properties.

About two days after appellees received the association’s letter, appellee Robert Treadwell swore out a warrant, before the local magistrate, for appellant Russ McGonagil’s arrest for criminal trespass. In that warrant, appellee asserted that on April 7, 1993, appellant McGonagil, without permission, had entered the Treadwells’ residence and made threatening remarks to appellees’ son and his teenage friend.

The arrest warrant was executed; Russ McGonagil was arrested at his home by the sheriff, removed in handcuffs, and taken to the county jail where he was fingerprinted, photographed, and required to post a cash bond. On September 30, 1993, the county solicitor filed an election not to prosecute on grounds of insufficient evidence. Robert Treadwell testified by way of deposition that prior to the swearing out of the arrest warrant, he talked with both Brian and his friend, James “Jamie” Harper, who basically confirmed what Brian had reported. When asked whether Jamie had stated he had seen appellant Russ McGonagil in the house, appellee testified, “I believe so.” However, Jamie, who was with Brian the night of the confrontation at the Treadwells’ house, testified by way of deposition that he was behind Brian coming downstairs and did not see appellant Russ McGonagil inside the house.

Appellee Robert Treadwell conceded in his deposition that the application for warrant was based entirely upon what “Brian and Jamie” had told about the incident. But he subsequently testified, without explanation, that he had followed closely and relied upon the police report of the incident in filling out the arrest application. Conversely, appellee Margarita Treadwell testified by way of deposition that Robert Treadwell had not talked with Jamie or his parents, and that no one, other than Brian, had given appellees any information that formed the basis for swearing out the arrest warrant. Margarita Treadwell also testified, as to her belief, that in seeking the arrest warrant appellees informed the magistrate they had told appellant Russ McGonagil, during the chair incident, to leave their property and not to come back.

Appellant Russ McGonagil brought suit against appellees for false arrest; his wife, Ellen McGonagil, subsequently asserted a loss of consortium claim. Appellees moved for summary judgment asserting they had probable cause to have Russ McGonagil arrested for criminal trespass, and that appellants therefore could not establish an essential element of their false arrest claim. The trial court granted summary judgment for appellees. Held:

1. An action for false (malicious) arrest “is strictly guarded ... it is never encouraged, except in plain cases; were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and to discharge his duty to society, with the prospect of an annoying suit staring him in the face.” Ventress v. Rosser, 73 Ga. 534, 541 (3). Nevertheless, the applicable summary judgment standard when movant is defendant is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); the party opposing a motion for summary judgment is to be given the benefit of all reasonable doubt and all favorable inferences that may be derived from the evidence produced with any doubt as to the existence of a substantial issue of fact being resolved against the movant (Kelly v. Vargo, 261 Ga. 422, 423 (1) (405 SE2d 36); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)). Statements of fact in the briefs of the parties unsupported by evidence in the record cannot be considered on appeal (Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223)); and, unless part of the res gestae, hearsay evidence has no probative value and cannot be considered in support of either the movant or the party opposing summary judgment (Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576)). Opinion testimony can preclude (but not support) a grant of summary judgment. See Dickson v. Dickson, 238 Ga. 672, 675 (4) (235 SE2d 479). Further, as to any inconsistent testimony of the parties which has not been adequately explained, the rules of Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383) and Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) apply.

2. The statutory elements of false arrest are promulgated in OCGA § 51-7-1, and require, inter alia, that the arrest be made maliciously (see generally OCGA § 51-7-2) and without probable cause. “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.” OCGA § 51-7-3.

The trial court concluded appellees had probable cause to cause an arrest warrant to issue against appellant Russ McGonagil for criminal trespass. The offense of criminal trespass, which is legally distinguishable from civil trespass, is promulgated in OCGA § 16-7-21. As a criminal statute, OCGA § 16-7-21 is subject to strict construction. See Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36).

The “probable cause” requirement for malicious prosecution or false arrest is the same. Compare Smith v. Trust Co. Bank, 215 Ga. App. 413, 415 (1) (450 SE2d 866). In determining whether probable cause existed, the question is, not whether plaintiff was guilty, but whether defendants had reasonable cause to so believe — whether the circumstances were such as to create in the minds of defendants a reasonable belief that there was probable cause for the arrest or prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was arrested or prosecuted. Id.; see Jones v. Parrish, 203 Ga. App. 566, 568 (1) (417 SE2d 210). While probable cause need not approach absolute certainty as to the facts, and it is not inconsistent with a considerable element of doubt, it must be more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time, and an arrest or prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant later. Id. “ ‘ “The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution [or swearing out an arrest warrant], he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.” ’ ” (Emphasis omitted.) Id.

Under the facts of this case, we find that the trial court erred in failing to submit the issue of probable cause to the jury in accordance with the general rule promulgated in OCGA § 51-7-3. Genuine issues of material fact exist, inter alia: (1) whether appellant Russ McGonagil previously had been given notice by appellees to leave their property and not come back; (2) whether appellant Russ McGonagil entered upon appellees’ premises for a lawful or unlawful purpose (unless given previous notice not to enter the premises, a person can enter another’s premises peaceably for the lawful purpose of reporting a claim of nuisance and to request that it be voluntarily abated); and (3) a genuine issue of material fact exists whether appellant Russ McGonagil actually entered the foyer of appellees’ home (or whether he merely opened the unlocked door and called upstairs). The jury’s determination of these issues in favor of appellants would authorize it also to find probable cause lacking for the arrest. The trial court erred in granting appellees’ motion for summary judgment.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided March 10, 1995

Reconsideration denied March 24, 1995

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellants.

Brewer & Associates, Deedra M. Brewer, Jason A. Golden, for appellees.


author: McMurray, Presiding Judge.

text:
    A93A1020.
    BATTEN et al. v. CHRYSLER CORPORATION.
    (456 SE2d 114)
    Decided March 24, 1995.

      Sutton & Associates, Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

      Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Walker & Sweat, Bruce M. Walker, Freeman & Hawkins, Joe C. Freeman, Jr., Stephen M. Lore, for appellee.

      King & Spalding, Chilton D. Varner, Lawrence A. Slovensky, amici curiae.
   McMurray, Presiding Judge.

In accordance with the judgment of the Supreme Court of Georgia in Chrysler Corp. v. Batten, 264 Ga. 723 (450 SE2d 208), affirming in part and reversing in part the judgment of this court in Batten v. Chrysler Corp., 211 Ga. App. 173 (438 SE2d 647), this court’s judgment is vacated. The judgment of the Supreme Court of Georgia is made the judgment of this court and the judgment of the trial court is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.


text:
    A93A2258.
    MAXWELL v. CITY OF CHAMBLEE et al.
    (456 SE2d 114)
   McMurray, Presiding Judge.

In accordance with the judgment of the Supreme Court of Georgia in City of Chamblee v. Maxwell, 264 Ga. 635 (452 SE2d 488), affirming in part and reversing in part the judgment of this court in Maxwell v. City of Chamblee, 212 Ga. App. 135 (441 SE2d 257), this court’s judgment is vacated. The judgment of the Supreme Court of Georgia is made the judgment of this court and the judgment of the trial court is affirmed in part and reversed in part.

Decided March 24, 1995.

Richardson & Chenggis, George G. Chenggis, for appellant.

Sullivan, Hall, Booth & Smith, Jeffrey T. Wise, Kirk R. Fjelstul, Barksdale & Mobley, Steven J. Misner, for appellees.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.


text:
    A95A0110.
    BALES v. THE STATE.
    (456 SE2d 112)
   Pope, Presiding Judge.

Defendant, Jason Eric Bales, entered a conditional plea of guilty to possession of a controlled substance. His motion to suppress was denied, and this appeal followed.

Police obtained a search warrant for a residence and were conducting their search when a vehicle driven by defendant approached the scene. A second man, Delwood Sparks, was a passenger in this vehicle. In the driveway, police stopped the vehicle and asked if either person in the vehicle was Stanley Norris. Both men said no. Sparks identified himself as a resident of the house. He was directed inside and arrested for having narcotics in his room.

Defendant identified himself and handed over his driver’s license. The police proceeded to verify the license information and check for any outstanding warrants against defendant. While awaiting the results, police led defendant into the residence. They asked for permission to search defendant and his vehicle. Defendant refused. The police then requested permission to pat him down for weapons. Defendant agreed, and no weapons were found. An officer then said “Well, why don’t you just give us your drugs?” Defendant said “[o]kay, here they are,” and turned the drugs over to the police, who then arrested defendant.

Defendant asserts that this was not a valid Terry stop. We disagree. The officers, pursuant to a search warrant, had discovered narcotics at the residence. They were on the lookout for Stanley Norris, an occupant of the house. While the search was in progress, two males drove up the driveway. Defendant’s arrival was sufficient to establish “an articulable suspicion so as to authorize a brief investigatory stop.” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). See also Setser v. State, 209 Ga. App. 57, 58 (432 SE2d 652) (1993).

Decided March 24, 1995.

Banks & Stubbs, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Kimberly K. Frye, Assistant District Attorneys, for appellee.

We are aware of the fact that the police found no weapons on defendant yet did not release him. However, the police were still looking for Norris and were trying to secure further information about defendant. The entire detention of defendant was less than five minutes before he turned the drugs over to police. “The U.S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

The police clearly had an articulable reason to suspect defendant of criminal activity, since the residence at which defendant arrived contained illegal drugs, and since a passenger in his vehicle was just arrested for possession of a controlled substance. Given the totality of circumstances, the police were justified in attempting to ascertain his identity, and in checking for outstanding warrants before releasing him.

Defendant asserts that the police threatened to obtain a search warrant if he did not voluntarily turn over the drugs to them. On appeal, we are constrained to follow the trial court’s decision on questions of fact and credibility at a suppression hearing, unless they are clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). After reviewing the entire record we do not find the trial court’s decision clearly erroneous. We do find that the police conducted a valid Terry stop and the denial of the defendant’s motion to suppress was proper.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       Although permissible on the date the plea was entered, the procedure relied upon by Bales has since been disapproved as a means of preserving issues for review in this court. Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994).


text:
    A94A1912.
    JOHNSON v. THE STATE.
    (456 SE2d 251)
   McMurray, Presiding Judge.

Defendant was charged with rape, two counts of child molestation, and cruelty to children, for acts committed against the minor daughter of defendant’s girl friend. The jury found him guilty on all four counts. Following the denial of his motion for new trial, defendant appeals from the judgment of conviction and sentence entered on the jury’s verdicts. Held:

1. In his first enumeration of error, defendant contends the “testimony of an expert witness not on the state’s witness list denied defendant effective assistance of counsel and a fair trial, though the defendant had not filed a demand pursuant to OCGA § 17-7-110.” Specifically, he argues that trial counsel rendered ineffective assistance in “failing to file a discovery motion and demand for a list of witnesses, effectively defeating a claim under Allison v. State, 256 Ga. 851 [(353 SE2d 805)] (1987) when the state produced a previously unlisted psychologist-witness whom counsel was unprepared to cross-examine, thus failing to elicit exculpatory statements and video the psychologist made of the alleged child-victim.”

The record demonstrates that appointed trial counsel had informal access to the State’s file and was given a copy of the indictment with a list of witnesses, “before [he] filed [his prepared] Brady motion.” Paul W. Schenk, a doctor of clinical psychology, was not on that list as originally furnished. On June 11, 1992, Dr. Schenk interviewed the victim in a two-hour session, and this session was preserved on videotape. The existence of this tape was not known to the defense. However, the existence of this psychologist was not unknown to the defense. The victim’s mother, a defense witness who was married to defendant at the time of trial, also “saw the psychologist June 10th and 11th. ...” Trial counsel testified at the hearing on the motion for new trial that he was “a lot more concerned about . . . whether or not the medical doctor would hurt us or not than the psychologist.”

The State’s attorney had subpoenaed Dr. Schenk some 15 days before trial. However, the State’s attorney could not anticipate using Dr. Schenk’s testimony without a release of the psychologist-patient privilege from the proper custodian of the victim. As of June 11, 1992, the proper custodian of the victim was the Cobb County Department of Family & Children Services, whereas after that date, custody of the victim was returned to the mother. On the first day of the three-day trial, Dr. Schenk testified briefly that he would generally videotape interviews of children, “particularly in the cases of sexual abuse allegations. . . .” However, he did not answer the precise question whether he had made a videotape of the extended June 11, 1992, interview, because the proceedings turned to the question of privilege. The State did not seek to introduce this videotape. Defendant’s trial counsel did not seek a continuance to interview Dr. Schenk nor did he object to Dr. Schenk’s testimony on the ground that his name was not on the witness list. At the hearing on the motion for new trial, the State’s attorney stated in her place that she knew nothing of the contents of this videotape “until [Dr. Schenk] gave it to me that morning before it came in this courtroom.” Trial counsel confirmed that on the morning of trial, the State’s attorney “told me that she may use Dr. Schenk. . . . And she even gave me a phone number. . . .”

Defendant’s enumeration “fail[s] to specify any error alleged to have been committed by the trial court. See OCGA § 5-6-51 (4). It is, however, evident that he complains of the order of the trial court overruling his motion for new trial on the ground of ineffective assistance of trial counsel.” Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718). The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641). “As to [this claim], we have reviewed the transcript of [the motion for new trial] hearing at which trial counsel testified as well as the trial transcript and find sufficient evidence to support the trial court’s conclusion that [defendant] failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). . . . Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993).” (Punctuation omitted.) Robinson v. State, 210 Ga. App. 278, 279 (3), supra. See also Ingram v. State, 211 Ga. App. 252, 254 (3) (438 SE2d 708). Specifically, the failure of trial counsel “to file pretrial motions demanding access to evidence is clearly harmless where[, as in the case sub judice,] the defense has obtained the informal cooperation of the prosecutor to review the State’s file. [Cit.]” Robinson v. State, 210 Ga. App. 278, 279 (3), 280, supra. Although appellate counsel argues that Dr. Schenk’s videotape of the June 11, 1992, interview was exculpatory matter which the State should have produced and that it was “prosecutorial misconduct” for the State’s attorney to “sand[bag]” trial counsel, we find defendant’s reliance upon Allison v. State, 256 Ga. 851, 853 (8), supra, to be misplaced. With respect to the live testimony of Dr. Schenk, the State was not aware of his availability until the morning of the first day of trial, when the trial court ruled that the psychologist-patient privilege could and would be waived, but only to that extent that the Cobb County Department of Family & Children Services was the proper custodian of the victim-patient. Under this ruling, Dr. Schenk’s testimony “clearly would have fit within the parameters of the newly discovered evidence exception set forth in OCGA § 17-7-110 [when] the [S]tate called him as part of its case-in-chief.” Thomas v. State, 262 Ga. 754, 755 (2a) (425 SE2d 872). As to the videotape, this was not evidence in the State’s file or in the possession of an investigator for the police or the District Attorney’s office. Hence, there was no ability, and consequently no obligation, for the State to produce it as allegedly exculpatory material. Accordingly, defendant’s contention that the failure of the State to turn over privileged material in the hands of an independent psychologist amounted to prosecutorial misconduct is without merit. Moreover, we have reviewed the videotape of the June 11, 1992, interview of the victim by Dr. Schenk. Although she makes reference to other unindicted acts amounting to child molestation, her statements therein are entirely consistent with her direct testimony at trial that defendant committed rape, child molestation, and an act of cruelty to children, as alleged in the indictment. Such slight variances as may arguably have been impeaching nevertheless were not material in the constitutional sense. There is nothing in this videotape that presents a reasonable probability that, had the tape been disclosed to the defense, the result of the proceeding would have been different. See Belins v. State, 210 Ga. App. 259 (2), 261 (435 SE2d 675). See also Brown v. State, 214 Ga. App. 838 (2b), 839 (449 SE2d 538). This enumeration is without merit.

2. Next, defendant contends he “was entitled to a not guilty verdict on the rape charge because the state failed to prove ‘force.’ ” Defendant correctly argues that the age of the nine-year-old victim does not itself establish the element of force required under OCGA § 16-6-1 (a). See generally Drake v. State, 239 Ga. 232 (1) (236 SE2d 748). However, the victim also testified that defendant threatened her “ ‘Don’t tell anybody ... [or she] would get a spanking if [she] did.’ ” In the case sub judice, this “showing of force through intimidation of a nine-year-old victim was adequate to overcome [defendant’s] motion for directed verdict. ‘. . . (L)ack of resistance, induced by fear, . . . is force.’ Curtis v. State, 236 Ga. 362, 363 (223 SE2d 721) (1976).” Drake v. State, 239 Ga. 232, 235 (2), supra. See also Cooper v. State, 256 Ga. 631 (1) (352 SE2d 382).

3. Defendant’s third enumeration contends there was a fatal variance between the allegations of the indictment and the proof adduced at trial, in that the dates were material allegations “but the sole evidence was that the crimes occurred outside these dates [;. . . and that by] listing such dates, the state should have notified defendant pursuant to Uniform Superior Court Rule 31.3 of its intent to present similar transaction evidence allegedly occurring outside the dates.” This compound enumeration is controlled adversely to defendant’s contentions by Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58). Compare Story v. State, 196 Ga. App. 590, 591 (396 SE2d 547), where “the indictment alleged that [defendant] had molested the victim in a specific manner, whereas the subsequent similar offense involved an act of alleged molestation committed against the victim in a totally different manner.” (Emphasis in original.)

Decided March 8, 1995

Reconsideration denied March 28, 1995

Eric N. Welch, James E. Albertelli, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, R. Barry Laux, Assistant District Attorneys, for appellee.

4. In his fourth enumeration, defendant contends the trial court, “without request should have given a complete jury charge on circumstantial evidence, considering the hearsay testimony of the case workers and the questionable testimony of the child.” We disagree. “[T]he testimony of the victim as to the act[s] done is direct evidence. . . .” Mims v. State, 209 Ga. App. 901, 907 (434 SE2d 832) (Smith, J., dissenting), rev’d Mims v. State, 264 Ga. 271 (443 SE2d 845). In the absence of a proper and timely written request to charge the law of circumstantial evidence (and not the discredited “two theories” language), the trial court did not err in failing to give, sua sponte, such an instruction. Shutt v. State, 215 Ga. App. 617 (1) (451 SE2d 530). The rule is otherwise only when the State’s entire case depends solely on circumstantial evidence. See Yarn v. State, 215 Ga. App. 883, 884 (2), 885 (452 SE2d 537).

5. Defendant’s fifth and sixth enumerations of error are not supported by citation of authority or argument in his brief and are deemed abandoned in accordance with Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.