text:
    A01A2291.
    DANIELS et al. v. PRICE COMMUNICATIONS WIRELESS, INC.
    (562 SE2d 844)
   Blackburn, Chief Judge.

In this case regarding improper charges for 911 emergency services levied by a cellular phone company, Larry Daniels appeals the order of the trial court denying his claims and motion for class certification as moot and denying his claim under OCGA § 13-6-11 for attorney fees. For the reasons set forth below, we dismiss Daniels’ claims regarding improper 911 charges as moot, and we affirm the trial court’s rulings.

The record shows that on July 7, 2000, Daniels filed a class action complaint against Price Communications Wireless, Inc. in the State Court of Chatham County alleging, among other things, that he is a resident of Savannah, that Price sells digital communication services to residents of that city, and that it “is charging its customers for a [911 emergency telephone] service that has not been approved by the City Council of . . . Savannah.” The complaint prayed for, among other things, a judgment for amounts incorrectly charged by Price, certification of a class consisting of Daniels and individuals similarly situated, and attorney fees.

On October 13, 2000, Price filed a motion for summary judgment, stating that “Plaintiff’s claim for reimbursement of 911 emergency access fee charges is moot because Price has refunded its customers in . . . Savannah the amounts paid by them for [such charges] plus interest thereon.” Price did not contend that its collection of the charges in question was correct. To the contrary, its executive vice president noted that its “procedure in charging [this] fee to the residents of Savannah was the result of a billing system . . . based on zip codes,” and stated that “[b]eginning with the October 2000 invoices, Price will cease charging those customers who live in . . . Savannah the . . . fee.”

Finally, on February 23, 2001, the trial court entered the order appealed from in which it wrote: “As of November 6, 2000, all of the potential class members had been sent refund checks [and] [a]s of November 1, 2000, Price no longer charges its customers who are residents of. . . Savannah an E911 fee. Accordingly, the Court finds that all potential class members’ claims are moot.”

1. Daniels’ claims for reimbursement, both on his own behalf and that of the proposed class, were appropriately dismissed as moot. “[T]he record shows that appellants have obtained the relief they sought in the superior court.” Pimper v. State of Ga. Daniels and all other class members have obtained the relief they sought in the trial court, namely reimbursement of all 911 charges.

In arguing that the trial court’s finding of mootness was erroneous, Daniels argues that, even in the absence of a compensable injury, his class action must nonetheless be considered as a controversy capable of repetition yet evading review. In United Food &c. Workers Union v. Amberjack, Ltd., not a class action case, our Supreme Court, although finding that the issue appealed was moot, “proceed [ed] to decide [it] recognizing that it is capable of repetition yet evades review.” United Food, supra at 438. There the issue was whether the trial court had correctly refused to dissolve a temporary restraining order even though the pertinent procedural requirements for the issuance of the order had not been complied with, and it was moot because the trial court had proceeded to grant a superseding interlocutory injunction. In In the Interest of I. B. (physical precedent), we criticized viewing the “capable-of-repetition-yet-evading-review” rule as an “exception” to mootness; and in Collins v. Lombard Corp., our Supreme Court held that the “sound analytical approach to the doctrine of mootness” enunciated in I. B. was “correct” and stated that “the notion of [a public policy] exception to the mootness doctrine which would permit a court to consider a case notwithstanding that the case is moot is inconsistent with the concept of mootness as a jurisdictional matter.” But see Hopkins v. Hamby Corp. (“[w]e have adopted a narrow exception to the doctrine of mootness when the issue is capable of repetition and yet evades review”).

Unlike the Court in United Food, however, we are not being asked to decide the underlying issue — here the correctness of collection of the fee from residents of Savannah — because, as indicated above, no one is contending that such, collection was correct. Daniels suggests, by implication, the possibility that Price — or some other seller of digital communication services — might at sometime resume — or begin — charging an unauthorized 911 fee. But this record discloses no reason to anticipate a resumption of the charge by Price — or the commencement of it by another — and, as we stated in I. B., supra, “[a]s to what appellant fears may arise at a future date, we have no authority to render an advisory opinion.” In the Interest of I. B., supra at 276. Moreover, should resumption by Price occur, Daniels would have ample remedy. And, while it is theoretically possible that some other provider could unknowingly repeat what has occurred here, it likewise could not resume the charge without consequences. Accordingly, while the action of erroneously charging a 911 fee is “capable of repetition,” it would not “evade review.” Despite Daniels’ allegations of wilful misconduct and the like, no reason appears from the record to believe that Price’s billing Savannah residents for the charge was anything other than an unintentional error.

Accordingly, we affirm the trial court’s dismissal of these claims.

2. Daniels’ claim for attorney fees under OCGA § 13-6-11 fails because, although his prayer included a paragraph reading “[attorney fees and costs of litigation,” he did not “specially plead[ ]” for them as required by that statute. See Rowell v. Rowell, holding an award of attorney fees “clearly erroneous” where “the defendant in error does not allege that the plaintiff in error was stubbornly litigious and does not pray for the award of attorney’s fees.” (Emphasis supplied.) Id. at 585 (3); Dept. of Transp. v. Ga. Television Co. “A general request for attorney fees, without reference to OCGA § 13-6-11 or the criteria set forth therein, is not the specific pleading contemplated by the statute.” (Emphasis supplied.) Id. at 752. It is true that the trial court’s denial of attorney fees was based on other grounds, but “if the trial court is right for any reason, then it must be affirmed.” Erfani v. Bishop. Thus, we affirm the trial court’s denial of attorney fees.

Decided March 28, 2002.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, for appellants.

Holland & Knight, Elizabeth C. Helm, Thomas B. Branch III, Sara L. Doyle, Brennan & Wasden, Wiley A. Wasden III, James V. Painter, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Pimper v. State of Ga., 274 Ga. 624, 626 (555 SE2d 459) (2001).

        United Food &c. Workers Union v. Amberjack, Ltd., 253 Ga. 438 (321 SE2d 736) (1984).

        In the Interest of I. B., 219 Ga. App. 268 (464 SE2d 865) (1995).

        Collins v. Lombard Corp., 270 Ga. 120, 121-122 (1), (3) (508 SE2d 653) (1998), cert. denied, 526 U. S. 1039 (119 SC 1335, 143 LE2d 500) (1999).

        Hopkins v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000).

        Rowell v. Rowell, 212 Ga. 584 (94 SE2d 425) (1956).

        Dept. of Transp. v. Ga. Television Co., 244 Ga. App. 750 (1) (536 SE2d 773) (2000).

        Erfani v. Bishop, 251 Ga. App. 20, 22 (1) (b) (553 SE2d 326) (2001).


source: Caselaw Access Project

author: Miller, Judge. Eldridge, Judge,

license: Public Domain

text:
    A01A2509.
    A01A2524.
    JACKSON v. THE STATE. McGINTY v. THE STATE.
    (562 SE2d 847)
   Miller, Judge.

Kahbarious Jackson was convicted of various offenses arising out of his participation in a group sexual assault of a woman. Beyond the issues he waived below, he argues on appeal that he received ineffective assistance of counsel when his attorney failed to request lesser included offense charges and that the court unduly restricted his presentation of evidence concerning the victim’s sexual history with Jackson. Since the decision as to which jury charges to request is tactical, and since the court allowed Jackson to present the testimony he proffered at the in-camera hearing, we discern no error and affirm his convictions. We also affirm the sodomy conviction of Derrick McGinty, whose contention that the court should have directed a verdict on the rape and aggravated sodomy charges against him is moot in light of his acquittal on those charges.

Construed in favor of the verdict, the evidence shows that Jackson and a co-hort, Larry Brown, confronted a woman on the street who they believed had failed to pay for cocaine received from Jackson. Despite her protests, Jackson grabbed her arm and forced her down some steps into an isolated area. When the woman denied receiving the cocaine and denied having money to pay, Brown threatened to kill her and Jackson pointed a knife at her within a foot of her face. While Jackson emptied her purse, Brown removed her clothes and fondled her breasts, vagina, and anus to search for the cocaine.

Finding no cocaine and no money, Jackson demanded oral sex from the woman, who vigorously protested. Holding the knife, Jackson forced her into an outdoor bricked area of the local community center and with the assistance of Brown forced her mouth onto Jackson’s penis. Over the next two hours, the protesting woman was subjected to a series of brutal and often simultaneous sexual assaults, ranging from anal and vaginal intercourse to fellatio to belt-whippings on her buttocks and fire near her vagina, and involving Jackson, Brown, McGinty, and other men. A crowd including children gathered to watch the assaults, which eventually ended when the battered woman fainted and a neighbor came to her rescue.

Jackson, Brown, McGinty, and others were charged with rape and aggravated oral sodomy. Jackson and Brown were also charged with aggravated assault (brandishing the knife), kidnapping, false imprisonment, and possession of a knife during the commission of a felony. Brown was individually charged with aggravated sexual battery, sexual battery, aggravated anal sodomy, and aggravated assault (with a cigarette lighter and belt). At the joint trial, Jackson’s counsel argued that the sex was all consensual as payment for cocaine. McGinty’s attorney, admitting that McGinty received oral sex, also claimed it was consensual. The jury found Jackson guilty on all counts but acquitted McGinty on the rape and aggravated oral sodomy counts and found him guilty only of a lesser included charge of sodomy. Both moved for a new trial, which was denied. Jackson appeals in Case No. A01A2509, and McGinty appeals in Case No. A01A2524.

Case No. A01A2509

1. Jackson first argues that he received ineffective assistance of counsel when his attorney failed to request jury charges on assault and battery (as a lesser included offense of rape) and terroristic threats (as a lesser included offense of aggravated assault). To establish ineffective assistance of counsel, Jackson must show that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense. “There is a strong presumption that trial counsel’s performance falls within a wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.”

Although Jackson’s trial counsel testified at the motion for new trial hearing, Jackson’s appellate counsel did not ask him about his reasoning for not requesting the specified lesser charges. The testimony revealed that trial counsel carefully reviewed and adopted the charges proposed by co-defendant’s counsel. Thus, we follow the legal doctrine that “[decisions as to which charges will be requested and when they will be requested fall within the realm of trial tactics and strategy. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” Not only has Jackson failed to show that his trial counsel’s decision not to request such charges was patently unreasonable, but such charges would have been inconsistent with Jackson’s defense theory that the actions were all consensual. The trial court did not clearly err in finding that Jackson failed to demonstrate that his trial counsel’s performance was deficient.

2. Jackson argues that the trial court erred in granting the State’s motion in limine based on the Rape Shield Statute and in limiting the evidence he could present showing that he and the victim had a prior relationship in which they exchanged sex for drugs. Specifically, he claims that the court “prohibited appellant Jackson from offering any evidence other than his own testimony of the prior relationship between appellant and the prosecutrix.”

The record, however, reflects otherwise. The court did not prohibit Jackson from offering other evidence of his relationship with the victim; rather, Jackson’s own actions limited his presentation. The court simply followed the procedure set forth in OCGA § 24-2-3 (c) as to what must first take place before the defendant is allowed to introduce evidence of past sexual behavior between the defendant and the victim. After the defense notifies the court of an intent to introduce such evidence, the court conducts an in-camera hearing to examine that evidence. If the court finds that the past sexual behavior directly involved the participation of the defendant and further finds that the evidence supports an inference that the defendant could have reasonably believed that the victim consented to the conduct at issue in the trial, then the court specifies what evidence may be introduced and how it may be introduced.

Here Jackson proffered only his testimony at the in-camera hearing. Not only did he not proffer testimony from others, but when the State observed that Jackson had no independent witnesses to the sexual relationship, Jackson agreed, testifying that no one else knew about his sexual relationship with the victim. Based on Jackson’s proffer, the court ruled his testimony was admissible. The court expressly left open the door to allow any party during the trial to request another in-camera hearing to elicit additional testimony if that party wanted to have anyone else testify to prior sexual conduct of the victim. During the trial, the court twice more reminded the parties of this opportunity. Although Jackson stated during trial that he had other witnesses to testify that the victim gave sex for drugs, Jackson never requested another in-camera hearing nor proffered the testimony of these witnesses, and he never showed that these witnesses could testify about his personal sexual relationship with the victim.

We review the trial court’s exclusion of evidence under the Rape Shield Statute for abuse of discretion. Since only Jackson testified at the in-camera hearing, the court did not abuse its discretion in ruling that only Jackson’s testimony was admissible.

3. Jackson contends that the trial court erred in instructing the jury on both oral and anal aggravated sodomy, even though Jackson was charged only with oral aggravated sodomy. Evidence showed that Jackson forced the victim to engage in both forms of sodomy with him. Where the indictment charges that the defendant committed the offense by one method while the court instructs the jury that the offense could be committed by either of the statutory methods with no limiting instruction, and where there is evidence showing both methods, then there is reversible error.

Nevertheless, Jackson induced and then waived this error. Jackson adopted the jury charges proposed by his co-defendants, which included a charge defining the offense of sodomy as either anal or oral. The court gave the instruction as requested. “A defendant cannot complain of a verdict which was brought about by a charge which he had requested.”

During deliberations, the court twice more instructed the jury, at the jury’s request, on the same requested charge. Regarding the first reinstruction, Jackson agreed that the jury should be so charged again and raised no objection when the court asked for any exceptions to the recharge. Following the second reinstruction, Jackson’s counsel expressly stated that he had no exceptions. Any error was waived.

4. Citing OCGA § 16-1-7, Jackson argues that the court failed to merge the aggravated assault count into either the rape or kidnapping counts at sentencing. “It was incumbent upon [Jackson] to make objection at sentencing or to make a proper motion at sentencing if sentenced in violation of OCGA § 16-1-7.” Jackson has not provided us with a transcript of his sentencing hearing nor made any showing that he raised the merger issue or objected to the sentences imposed at the time of sentencing. Jackson’s raising of the issue in his amended motion for new trial is too late, for as held in Williams v. State, “errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.”

We note that a decision of this Court held otherwise. Citing Williams v. State, Cannon v. State concluded that the defendant preserved his merger issue “by raising it in his amended motion for new trial.” Of course, as set forth above, Williams, quoting from Alonso v. State, held to the contrary, stating that issues raised “ ‘for the first time in a motion for new trial . . . present nothing for review.’ ” Indeed, in Alonso the defendant raised the merger issue for the first time in his amended motion for new trial, which issue Alonso refused to consider on the merits on the ground that the issue was untimely raised and therefore not preserved for review. Thus, the authority cited in Cannon does not support the holding of the case. Accordingly, notwithstanding the fact that Cannon is such a recent case, we are constrained, for consistency purposes, to overrule Cannon to the extent it holds that a defendant may first raise the issue of merger in a motion for new trial.

The dissent’s position that the merger question is nonwaivable is based on the premise that Jackson’s sentence was void. However, as explained in Noble v. State, cited by the dissent, void sentences refer to those imposing punishment that the law does not allow. That is not the case here. Indeed, Noble specifically cites the circumstance here — “imposition of consecutive sentences for two crimes when one was allegedly a lesser included offense of the other” — as a waivable objection.

Case No. A01A2524

5. In his appeal, McGinty first contends that the court erred in failing to grant him a directed verdict of acquittal on the rape and aggravated sodomy charges brought against him. The acquittal of McGinty on these offenses renders moot any complaint about the failure to direct a verdict on them.

6. McGinty next complains that the court erred in not instructing the jury on public indecency as a lesser included charge of rape and aggravated sodomy. Once again, McGinty’s acquittal on the greater charges renders his complaint moot. Indeed, McGinty was convicted only of sodomy, an offense to which he freely admitted. Even if we were to construe McGinty’s argument as suggesting public indecency was a lesser included charge of sodomy, and even if we were to accept this premise, “the uncontradicted evidence showed completion of the greater offense; therefore, charges on the lesser offense [ ] are not required.”

Judgments affirmed.

Blackburn, C. J., Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin, Barnes, Ellington and Mikell, JJ., concur. Eldridge and Phipps, JJ., concur in Divisions 1, 2 and 3 and dissent in Division 4 as to Case No. A01A2509 and concur in Divisions 5 and 6 as to Case No. A01A2524.

Eldridge, Judge,

dissenting.

Because a merger issue under OCGA § 16-1-7 involves the possible imposition of a void sentence which may be reviewed at any time, I must respectfully dissent from Division 4 in Case No. A01A2509.

As held in Kinney v. State, 234 Ga. App. 5, 7 (2) (505 SE2d 553) (1998), one crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other. OCGA § 16-1-6 (1). A defendant may be tried for both offenses under such circumstances, but may not be convicted of both. OCGA § 16-1-7 (a) (l). “This right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant’s entry of a guilty plea or by his failure to assert it in the trial court.”

Accordingly, a trial court is without subject matter jurisdiction to sentence on an offense that has merged into another offense as a matter of law and/or fact. Such a sentence would be a mere nullity because the conviction on a merged offense is against the law. An appeal may be taken from such a void sentence, even if no objection was made in the court below, because “a void sentence is one which imposes punishment the law does not allow. [Cits.]” “A judgment which is void for any cause is a mere nullity and it may be so held in any court where it becomes material to the interest of the parties to consider it.”

Accordingly, I cannot agree that Jackson, by failure to object at the time of sentencing, waived consideration of his claim that the aggravated assault count merged into either the rape or kidnapping counts pursuant to OCGA § 16-1-7. It is important to note that the Supreme Court of Georgia has granted certiorari on this issue in Curtis v. State, Case No. S01G1868, cert. granted February 13, 2002. Before we overrule another one of our precedents — again leaving bench and bar bewildered by inconsistency — I would address the instant claim of error, if for no other reason than such issue was preserved below at the motion for new trial. Cannon v. State, 250 Ga. App. 777, 782 (3) (552 SE2d 922) (2001), citing Williams v. State, 233 Ga. App. 217, 220 (4) (504 SE2d 53) (1998) (“There is no evidence in the record that Williams raised the merger issue or objected to the sentences imposed at the time of sentencing or in his motion for new trial”) (emphasis supplied).

Decided March 28, 2002

David D. Bishop, for appellant (case no. A01A2509).

Dell Jackson, for appellant (case no. A01A2524).

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

I am authorized to state that Judge Phipps joins in this dissent.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Champion v. State, 238 Ga. App. 48 (1) (517 SE2d 595) (1999).

       (Citation omitted.) Id. at 49 (1) (b); see Fambro v. State, 164 Ga. App. 359 (3) (297 SE2d 111) (1982) (decision on whether to seek jury charges on lesser offenses is a trial tactic that will not be second-guessed).

       Compare Pearson v. State, 216 Ga. App. 333, 334-335 (454 SE2d 205) (1995) (where defendant’s sole defense to armed robbery charge was that he did not have a weapon, trial counsel’s failure to request lesser charge of robbery by intimidation was deficient performance.

       See Johnson v. State, 251 Ga. App. 455, 457 (2) (554 SE2d 587) (2001) (“We will not disturb a trial court’s finding of effective assistance of counsel unless clearly erroneous. [Cit.]”).

       OCGA § 24-2-3.

       OCGA § 24-2-3 (c) (1).

       OCGA § 24-2-3 (b), (c) (2).

       See Nelson v. State, 210 Ga. App. 249, 250 (3) (435 SE2d 750) (1993) (physical precedent only) (burden on the defendant to request in-camera hearing and to proffer testimony).

        Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998).

       See Dukes v. State, 265 Ga. 422, 423-424 (457 SE2d 556) (1995).

       (Citation and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

        Price v. State, 237 Ga. App. 54, 55-56 (2) (513 SE2d 40) (1999); see Reynolds v. State, 231 Ga. App. 33, 37 (5) (497 SE2d 580) (1998).

       (Citation omitted.) Williams v. State, 233 Ga. App. 217, 220 (4) (504 SE2d 53) (1998).

       See id. at 221 (4).

       (Citations and punctuation omitted.) Id., quoting Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989) (merger issue raised for the first time in an amended motion for new trial is too late).

       Supra, 233 Ga. App. at 220-221 (4).

       250 Ga. App. 777, 782 (3) (552 SE2d 922) (2001).

       Supra, 190 Ga. App. at 30 (7).

       Supra, 233 Ga. App. at 221 (4).

       Supra, 190 Ga. App. at 30 (7).

       220 Ga. App. 155, 158 (2) (469 SE2d 307) (1996).

       Id. at 159.

        Matthews v. State, 268 Ga. 798, 803 (5) (493 SE2d 136) (1997); see Harridge v. State, 243 Ga. App. 658, 663 (4) (534 SE2d 113) (2000).

       (Citations omitted.) Morton v. State, 168 Ga. App. 18, 20 (5) (308 SE2d 41) (1983); see Mackler v. State, 164 Ga. App. 874, 876 (4) (298 SE2d 589) (1982).

       See generally State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974).

        Redding v. State, 188 Ga. App. 805 (374 SE2d 339) (1988); Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974); McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986).

        Noble v. State, 220 Ga. App. 155, 158 (469 SE2d 307) (1996). See also State v. Baldwin, 167 Ga. App. 737, 738 (2) (307 SE2d 679) (1983); Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995).

       (Citation omitted.) State v. Sheahan, 217 Ga. App. 26, 27 (1) (456 SE2d 615) (1995).


author: Eldridge, Judge.

text:
    A02A0887.
    CULPEPPER v. THOMPSON.
    (562 SE2d 837)
   Eldridge, Judge.

Plaintiff Charles M. Culpepper, Jr. sued Andrew Thompson, president of the Brooks County Farm Bureau (“BCFB”), for tortious interference with his employment as agency manager for Brooks County for Georgia Farm Bureau Mutual Insurance Company (“GFBMIC”) claiming that Thompson requested at the direction of the directors of the BCFB that the plaintiff be transferred from Brooks County, which was done. Thompson answered and moved for summary judgment, which was granted. We affirm for several reasons.

The plaintiff failed to set forth a separate enumeration of error in his brief; however, from the brief, plaintiff contends that the trial court erred in granting summary judgment. We do not agree.

As agency manager for GFBMIC and its Brooks County agent for it, Culpepper had to maintain good relations with the local board of directors of the BCFB, because he had agreed to do so in writing and because BCFB had a vested business interest in the success of GFBMIC from insurance premiums generated in the county. BCFB, a nonprofit corporation, leased various services to GFBMIC, i.e., secretaries, equipment, and office space, and its board served as volunteer agents to sell GFBMIC insurance. The board of BCFB also approved, at GFBMIC’s request, the placement of its agents in Brooks County. Therefore, it had a privileged relationship with the employment of Culpepper in Brooks County by GFBMIC.

During 1993, Culpepper began working as managing agent in Brooks County. In 1994 and 1995, the acting president of BCFB met with the plaintiff, because of complaints made that he failed to return insureds’ phone calls who were BCFB members. In August 1998, further complaints about failure to return calls, to be in the office, to make appointments, and to act as agent of the day required the plaintiff to meet with the defendant, a BCFB office secretary, a board member of BCFB, and plaintiff’s supervisor, GFBMIC district manager Zack Williams. Again in December 1998, the plaintiff, Williams, the defendant, and a BCFB board member met over the continued problems of the plaintiff as agency manager. However, on March 30, 1999, the entire BCFB board unanimously voted to request GFBMIC transfer the plaintiff from Brooks County, because he had failed to adequately serve their members as insureds. The defendant was directed by the board to communicate the request to GFBMIC. Thompson had no personal differences with Culpepper. Thompson’s involvement was entirely in his capacity as president of BCFB.

(a) Immunity as president of a board of directors of a nonprofit organization.

As president of BCFB, Thompson, as an uncompensated officer of a nonprofit farm bureau, was immune from civil liability for any good faith acts or omissions, whether ministerial or discretionary, arising out of official actions and duties, when injury has not been caused by his wilful or wanton misconduct. OCGA § 51-1-20 (a); Atlanta Airmotive v. Royal, 214 Ga. App. 760, 761 (449 SE2d 315) (1994) (additional immunity to sovereign immunity which covers both ministerial and discretionary actions); Dyches v. McCorkle, 212 Ga. App. 209, 215-216 (2) (441 SE2d 518) (1994); Johnson v. MARTA, 207 Ga. App. 869, 871-872 (2) (429 SE2d 285) (1993). “Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.” (Citations and punctuation omitted.) Dyches v. McCorkle, supra at 216. Further, for purposes of this statute, “[m]alice may consist in personal spite or in general disregard of the right consideration of mankind, directed by chance against the individual injured.” (Citations omitted.) Id. Wilful and wanton conduct does not encompass negligence, because “[w]anton and wilful conduct differs from gross negligence. Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” (Citation and punctuation omitted.) Id. at 217. Immunity under this statute extends to public, charitable, or nonprofit institutions and organizations generally, including BCFB as a nonprofit corporation. Bunkley v. Hendrix, 164 Ga. App. 401, 402-403 (296 SE2d 223) (1982). Thus, Thompson’s good faith performance of his duty in communicating the request of the board to GFBMIC entitled him to immunity. Dyches v. McCorkle, supra. Thompson’s actions arose out of his performance of his official duties as president of BCFB. Zarach v. Atlanta Claims Assn., 231 Ga. App. 685, 687-688 (1) (500 SE2d 1) (1998). Thus, Thompson was entitled to the statutory immunity.

Further, Thompson in good faith in the exercise of a duty, either public, private, or speaker’s interest, made the communication to GFBMIC as president of BCFB; thus, he came within the privilege of OCGA § 51-5-7, which also applies as a defense to tortious interference with contractual relations. See Brewer v. Schacht, 235 Ga. App. 313, 318 (4) (b) (509 SE2d 378) (1998) (public duty — OCGA § 51-5-7 (1)); NationsBank v. SouthTrust Bank, 226 Ga. App. 888, 892 (1) (A) (1) (487 SE2d 701) (1997) (speaker’s interest — OCGA § 51-5-7 (3)). Thus, to overcome such privilege, plaintiff “must show actual malice in making the statement[ ].” (Citation omitted.) Brewer v. Schacht, supra at 318.

(b) Employment at will provides no basis for tortious interference with contract.

Culpepper’s employment was for an indefinite period of time and, thus, was employment at will, terminable, with or without cause, at any time by GFBMIC. OCGA § 34-7-1; Burton v. John Thurmond Constr. Co., 201 Ga. App. 10, 11 (410 SE2d 137) (1991). Therefore, plaintiff had no enforceable contract rights with which to interfere so as to give rise to a breach of contract and damages; thus, since the underlying contract could not be enforced by him as an employment at will, then, the tortious conduct of a third party does not give rise to an action for inducing a breach of the employment contract. Moore v. BellSouth Mobility, 243 Ga. App. 674, 676 (1) (534 SE2d 133) (2000); Johnson v. MARTA, supra at 870 (1).

(c) Elements of tortious interference with contract unsupported by evidence.

The elements of tortious interference with a contract consist of: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of a contractual obligation or caused a party or third party to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff. Disaster Svcs. v. ERC Partnership, 228 Ga. App. 739, 740 (492 SE2d 526) (1997).

(1) Thompson at all times acted with privilege as president of BCFB in its ongoing, interrelated business relationship with GFBMIC. Privilege means a legitimate or bona fide economic interest of the defendant or a legitimate relationship of the defendant with the contract, which causes the defendant not to be considered a stranger, interloper, or meddler to the contract. Disaster Svcs. v. ERC Partnership, supra at 741. Thus, as a matter of public policy, the defendant had a right to involve himself in the contract. Id.; see also Johnson v. MARTA, supra at 872 (2). Moreover, in similar situations, where there was no malicious intent, directors of local farm bureaus were authorized to participate in discharge of a GFBMIC agent without liability for tortious interference with contract. Singleton v. Itson, 192 Ga. App. 78, 80 (383 SE2d 598) (1989).

(2) There was no evidence of a wrongful act on the part of Thompson. “[A]re independent wrongful act is required as well as an injury [and malice].” (Citations and punctuation omitted; emphasis in original.) Singleton v. Itson, supra at 79. “Improper actions constitute conduct wrongful in itself; thus, improper conduct means wrongful action that generally involves predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” (Citations and punctuation omitted.) Disaster Svcs. v. ERC Partnership, supra at 741-742.

(3) In tortious interference with contract actions, “[m]alice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse.” (Citations omitted.) Renden, Inc. v. Liberty Real Estate Ltd. Partnership III, 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994); accord Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 581 (3) (b) (492 SE2d 546) (1997), overruled on other grounds, Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 610 (8) (503 SE2d 278) (1998).

There exists no evidence of malice, and no inference, reasonable or otherwise, permits the drawing of an inference of malice from the facts of this case. “Unsupported inferences or conjecture regarding a defendant’s motivation [does] not suffice to show malice.” Brewer v. Schacht, supra at 318 (4) (b). Where privilege has been shown under OCGA § 51-5-7 (3), the plaintiff must show actual malice to overcome the privilege. Id. Thompson merely carried out the unanimous will of the board without the intent to injure Culpepper in requesting his transfer from Brooks County where he failed to adequately serve their members. Culpepper admitted that he knew Thompson’s actions were as spokesman for the entire board.

(4) Thompson and the board merely expressed a request for Cul-pepper’s transfer to GFBMIC, which did not cause a breach of contract. First, if a legitimate complaint made in good faith and based upon the acts or omissions of an employee, who had failed or refused to properly perform the duties of his job, could constitute tortious interference with a contract of employment, then this would chill any complaints about service by the public, which would be contrary to public policy and the public good. See Singleton v. Itson, supra at 79-80. Secondly, in this case, Culpepper was an employee at will, subject to termination at any time, with or without cause. Id. Thus, he had no enforceable contract for future employment that could be breached.

Decided March 28, 2002.

Farkas & Ledford, Leonard Farkas, for appellant.

Groover & Childs, Duke R. Groover, for appellee.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


author: Miller, Judge.

text:
    A01A1776.
    BAU v. ACTAMED CORPORATION.
    (562 SE2d 734)
   Miller, Judge.

Acting pro se, Norman Bau, a former employee of Actamed Corporation, sued the company for breach of contract. After both parties moved for summary judgment, the trial court granted summary judgment to Actamed and denied Bau’s motion. Bau appeals this ruling, and upon review, we affirm.

. Summary judgment is proper when there is no genuine issue of material fact and when the undisputed facts, viewed most favorably to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Collier v. State Farm &c. Ins. Co., 249 Ga. App. 865, 866 (1) (549 SE2d 810) (2001).

The evidence shows that on January 31, 1997, Bau entered into a stock option agreement with his then employer, Actamed. The stock option plan granted Bau an option to purchase 4,000 shares of the common stock of the company. Each year following the grant date (January 31, 1997), one-fifth of the 4,000 shares would vest, and Bau then had the option to purchase those shares. On January 31, 1998, 800 shares vested, and Bau exercised the option to purchase those shares.

The stock option plan also contained a provision entitled “Change in Control,” which provided that

[n]otwithstanding any provision in this Agreement to the contrary, in the event of a “change in control” of the Company while the optionee is in “continuous employment with the Company” (as defined in paragraph 3 (b)), this Option shall become immediately exercisable in full. For the purposes of this paragraph , a “change in control” of the Company shall be deemed to occur if (i) the Company is a party to a merger, share exchange or other business combination pursuant to which the Company does not survive or survives as a subsidiary of another corporation; or (ii) all or substantially all of the assets of the Company are sold or otherwise disposed of.

(Emphasis supplied.) Paragraph 3 (b), which governed the optionee’s right to exercise the option, provided that the option shall be exercisable “for a period ending 30 days after Optionee is no longer in ‘continuous employment with the Company,’ as provided in paragraph 6 (a) hereof.” Paragraph 6 (a) provided that

[u]pon termination (for any reason other than death or retirement) of Optionee’s “continuous employment with the Company” (as defined in paragraph 3 (b) above) and with all of its subsidiaries (whether voluntary or involuntary and whether with or without cause), his or her option privileges thereafter shall be limited to the Option Shares which were immediately purchasable by him or her at the date of such termination and such option privileges shall expire unless exercised by him or her within 30 days after the date of such termination. . . .

On February 24, 1998, Actamed entered into an “Agreement and Plan of Reorganization” to merge with Healtheon Corporation. The merger was subject to shareholder approval of both companies and was expected to close no later than May 15, 1998.

On May 1, 1998, Actamed terminated Bau’s employment with the company, and on May 23,1998, Bau sought to purchase the 3,200 shares that remained from the stock agreement. Actamed refused to grant Bau the option to purchase the remaining shares because those options had not vested and had expired upon Bau’s termination on May 1, 1998.

1. In eight enumerations, Bau argues that there was a “change in control” of Actamed on February 24, when the plan of reorganization was signed, and that therefore Actamed had become a “party to a merger” under the “Change in Control” provision of his stock option plan. Under this reasoning, Bau claims that he was an employee of Actamed during the “change in control” and therefore was entitled to exercise the right to purchase the remaining 3,200 shares as allowed by paragraph 1 (c) of the stock option agreement.

Actamed argues that it became a “party to a merger” when the merger was consummated on May 19, 1998, and that as Bau was no longer an employee, the “Change in Control” provision did not apply.

“Where contract language is unambiguous, no construction is necessary and the court must simply enforce the contract according to its clear terms.” (Footnote omitted.) Caswell v. Anderson, 241 Ga. App. 703 (527 SE2d 582) (2000). The stock option agreement between Actamed and Bau clearly states that a “change in control” occurs if Actamed is a party to a merger, not when Actamed is a party to an agreement to merge. Moreover, the “Agreement and Plan of Reorganization” states that the companies shall not be merged until the effective time, with the effective time being the closing date of the merger (May 19, 1998). See also OCGA § 14-2-1106 (a merger takes effect when six events occur). Therefore, Actamed became a party to a merger on May 19, 1998, 18 days after Bau was terminated. Since Bau was no longer with the company, his right triggered by the merger had evaporated.

To be a party to a merger, there must be a merger, not simply a plan to merge. Under the plan of reorganization, the merger itself may have never taken place, as it could have been terminated by the parties. See, e.g., C & S/Sovran Corp. v. First Fed. Sav. Bank &c., 266 Ga. 104, 105 (1) (463 SE2d 892) (1995). Indeed, to allow Bau to exercise his stock options prior to the closing date, when the consummation of the merger is uncertain, would be an absurd result.

Here, the language of both the stock option plan and the plan of reorganization is plain, and “[w]hen the language of an agreement is plain and unambiguous, the court must afford its literal meaning, despite a party’s contention that he understood the contract to mean something else.” (Citation omitted.) Sofran Peachtree City v. Peachtree City Holdings, 250 Ga. App. 46, 50 (550 SE2d 429) (2001). Therefore, we see no basis for extending the phrase “if the Company is a party to a merger” to begin the date when the plan of reorganization between companies was signed in February as Bau argues. Cf. George L. Smith II &c. Auth. v. Soft Comdex, 250 Ga. App. 461, 464 (1) (c) (550 SE2d 704) (2001). The court did not err in denying summary judgment on this count of Bau’s complaint and in granting summary judgment to Actamed.

Decided March 6, 2002

Reconsideration denied March 29, 2002

Norman J. Bau, pro se.

Alston & Bird, Kenneth D. Steele, Leigh M. Levine, for appellee.

2. In four enumerations, Bau presents arguments relating to his termination from Actamed. The stock option agreement, however, clearly states that the termination clause applies whether Bau was involuntarily or voluntarily terminated. Moreover, Bau was an at-will employee of Actamed. Therefore, Actamed had a right to terminate his employment at any time without cause. See Hickman Datsun, Inc. v. Foster, 181 Ga. App. 229, 230 (1) (351 SE2d 678) (1986). Bau’s arguments that he intended to remain employed and that the “Change in Control” clause was to induce him into remaining in continuous employment with Actamed are of no significance.

3. Bau’s enumeration claiming that the court erred in failing to grant his motion for reconsideration is without merit. As we held in Division 1, the court properly ruled on the motions for summary judgment. See Kruse v. Todd, 260 Ga. 63, 69 (4) (389 SE2d 488) (1990); First Community Bank &c. v. Bryan Starr & Assoc., 203 Ga. App. 696, 697 (2) (417 SE2d 330) (1992).

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       The complaint was amended several times and at one point contained four counts, but Bau appeals only from the denial of summary judgment on Count 2.

       Actamed presented evidence that on May 1, 1998, when Bau was terminated, many conditions of the merger had not been satisfied, and that no change in control of Actamed had occurred.


author: Andrews, Presiding Judge.

text:
    A01A2224.
    SATILLA REGIONAL MEDICAL CENTER v. CORBETT.
    (562 SE2d 751)
   Andrews, Presiding Judge.

We granted Satilla Regional Medical Center’s application for discretionary appeal in this workers’ compensation case to determine whether the superior court properly remanded the case to the administrative law judge for further consideration of the medical evidence. Because we find the order remanding the case procedurally deficient and no evidence that the appellate division failed to consider all of the medical evidence presented, we reverse the superior court’s decision and reinstate the appellate division’s decision adopting the decision of the ALJ.

Diane Corbett, an emergency room registered nurse with Satilla Regional, sustained a work-related injury to her neck in 1994. The injury required two cervical fusions. Following the second surgery, Corbett performed regular nursing duties for six hours in the emergency room then worked another six hours as a triage nurse. Although the triage position involves a great deal of writing, it does not require as much physical exertion as regular nursing duties. Cor-bett continued experiencing problems with her neck, and, following the recommendation of her doctor that she work in a full-time sedentary position, in January 1997, she became a full-time triage nurse. Consistent with this position, Corbett was required to do the paperwork for approximately 60 patients daily.

The record reflects that in early 1998, while she was working as a triage nurse, Corbett began to complain of pain in her right wrist and thumb. She saw a variety of doctors with little resolution of her condition. While Corbett was receiving treatment for chronic pain associated with her wrist and thumb, she was diagnosed with fibro-myalgia, a chronic disease characterized by joint and muscle pain. On September 16, 1998, while pushing a wheelchair, Corbett suffered an accident which resulted in another neck injury. Corbett has not worked since that time. In December 1999, Corbett was diagnosed with carpal tunnel syndrome.

Corbett received workers’ compensation benefits for the neck injury but also sought benefits for injury to her wrist and thumb as a separate injury related to her work as a triage nurse.

After a hearing, the ALJ, citing various medical records from assorted physicians, determined that although the injury to Corbett’s thumb was related to her work, the wrist condition was not. The judge found no compensable carpal tunnel injury because:

Unlike the thumb condition, the history of the employee’s complaints to her doctors does not support her contention. Before she ceased work September 16, 1998, the employee made two brief mentions of right wrist pain, one September 25, 1997 to Dr. Rovner and one April 27, 1998 to Dr. Dial. In the former, Dr. Rovner mentioned DeQuervain’s, not CTS; in the latter, Dr. Dial later basically ruled out CTS.

The appellate division agreed and made the award the decision of the board. The superior court reversed the decision of the appellate division and remanded the case to the ALJ for what it termed “consideration of the medical evidence.” The trial court directed that the ALJ include in its consideration certain notes handwritten by Corbett. This appeal followed.

Satilla Medical contends that the trial court erred in failing to apply the “any evidence” standard of review. See generally Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). It argues that because there was considerable evidence to support the findings of the ALJ and appellate division, the trial court was not authorized to substitute its judgment as to the weight of the evidence. We agree.

When the record contains any evidence to support a factual finding, reviewing courts are bound by the any evidence rule. U. S. Fidelity &c. Co. v. Reynolds, 146 Ga. App. 615, 616 (2) (247 SE2d 199) (1978). Accordingly, absent a legal error, when any evidence supports the findings of the ALJ and appellate division, those findings must be affirmed. Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995).

Here, the trial court remanded the case back to the ALJ “for consideration of the medical evidence, including, but not limited to, the handwritten notes executed by the Claimant at the time she presented for treatment at the Mayo Clinic.” But there is absolutely no evidence that the appellate division failed to consider this evidence. To the contrary, it appears that the ALJ carefully considered most if not all of Corbett’s substantial medical records. There is no reason to believe that Corbett’s handwritten notes were not among this evidence. “[T]he mere failure to refer to all the evidence in the findings of fact does not establish that the board did not consider the evidence in its review of the matter.” Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829, 830 (2) (a) (357 SE2d 271) (1987).

Thus, there appears to be no basis for the superior court’s conclusion that, as a matter of law, the board did not fulfill its duty and considered only some of the evidence in its decision-making process. See Henderson, supra.

Further, it does not appear that the trial court is statutorily authorized to remand the case to the ALJ. While the superior court does have the authority to set aside the board’s decision and remand, it can do so only for one of the five statutory grounds. OCGA § 34-9-105 (c), (d). See also Action Staffing v. Spalding Ford-Lincoln-Mercury, 198 Ga. App. 764, 767 (2) (403 SE2d 61) (1991). (Where not authorized by statute, superior court does not have authority to remand based on newly discovered evidence.) The superior court made no such finding on any of the grounds delineated in the statute. See id.

Likewise, the superior court is authorized to remand only to the board, not the ALJ. “Upon the setting aside of any such decision of the board, the court may recommit the controversy to the board for further hearing or proceedings in conformity with the judgment and opinion of the court.” (Emphasis supplied.) OCGA § 34-9-105 (d).

Decided March 12, 2002

Reconsideration denied March 29,2002.

Walker & Sweat, Shawn F. Wildes, for appellant.

Hackel & Hackel, Thomas M. Hackel, for appellee.

Accordingly, the superior court’s remand to the ALJ cannot stand and the court’s judgment is reversed and the decision of the board reinstated.

Judgment reversed.

Eldridge and Miller, JJ., concur.

       The findings made by the members within their powers shall, in the absence of fraud, be conclusive; but upon such hearing the court shall set aside the decision if it is found that: (1) The members acted without or in excess of their powers; (2) The decision was procured by fraud; (3) The facts found by the members do not support the decision; (4) There is not sufficient competent evidence in the record to warrant the members making the decision; or (5) The decision is contrary to law.
      OCGA § 34-9-105 (c).


text:
    A01A2365.
    SCHWINDLER v. THE STATE.
    (563 SE2d 154)
   Miller, Judge.

Frank Schwindler was convicted of various counts of child molestation and one count of failing to report school attendance, all of which arose out of his operation of a boarding school that trained youth on the operation of a tall sailing ship. He raises 28 enumerations of error on appeal, none of which have merit. We therefore affirm. We also affirm the dismissal of his criminal complaint filed against the prosecuting attorney.

Construed in favor of the verdict, the evidence shows that in the mid-1990s, Schwindler organized a program/boarding school to train adolescents how to operate a tall sailing ship moored on a river in Chatham County. The students would often stay overnight on the ship. T. B., a 12-year-old male resident of Chatham County, became a member of the program in 1997. In November 1997, Schwindler brought T. B. into his onboard cabin and, touching T. B.’s penis, propositioned him. T. B. eventually consented, and Schwindler removed T. B.’s pants and underwear and performed oral sex on him. Thereafter, Schwindler invited T. B. to spend the night on the ship numerous times, where he would repeatedly perform oral sex on the boy and also (using Vaseline) masturbate himself while doing so. These sexual episodes onboard the ship occurred hundreds of times. As a reward, Schwindler purchased expensive gifts for the boy, including rollerblades, food, clothing, and a surfboard.

Similar episodes occurred in Schwindler’s nearby apartment in Chatham County, where Schwindler often invited the students to sleep. Schwindler invited T. B. to sleep in Schwindler’s bedroom, where Schwindler then fondled T. B.’s penis, performed oral sex on him, and using Vaseline, masturbated in the boy’s presence. These sexual episodes in the apartment also occurred hundreds of times. One time Schwindler forced the boy to perform oral sex on Schwin-dler, and another time he arranged to have the boy and him watch a pornographic video together, which depicted young males engaging in oral and anal sex.

A Chatham County grand jury indicted Schwindler on three counts of child molestation (Count 1 — touching the boy’s penis, Count 2 — masturbating in the boy’s presence, and Count 3 — showing the boy the homosexual video), two counts of aggravated child molestation (Count 4 — performing oral sodomy on the boy, and Count 5 — the boy performing oral sodomy on him), two counts of enticing a child for indecent purposes (Count 6 — enticing the boy to the apartment, and Count 7 — enticing the boy to the ship), one count of sexual exploitation (Count 8 — possessing a photograph of a young boy exposing his sex organ), and one count of violating the school reporting requirements of OCGA § 20-2-690 (Count 9). The court entered a directed verdict of acquittal on the exploitation count, and a jury found Schwindler guilty on the remaining counts. Schwin-dler moved for a new trial and also filed a criminal complaint against the prosecuting attorney, accusing him of misconduct during the trial. After holding a joint hearing on both matters, the court in one order denied the motion for new trial and in another dismissed the criminal complaint due to a lack of probable cause. Schwindler appeals both orders. We will first address Schwindler’s conviction and then the criminal complaint against the prosecutor.

1. Enumeration No. 1. Schwindler first complains that the court erred in admitting evidence obtained through two searches of his apartment conducted pursuant to search warrants. He argues that the affidavit supporting the first warrant was insufficient to provide probable cause and that the officers seized material not covered by the search warrant. After a hearing, the trial, court denied Schwin-dler’s motion to suppress.

In reviewing this enumeration, we construe the evidence in favor of the court’s ruling and uphold its findings if there is any evidence to support them. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); see Bragg v. State, 249 Ga. App. 430 (1) (548 SE2d 121) (2001). The question is whether the testimony given in favor of the warrant provided the issuing judge a substantial basis for concluding that probable cause existed to issue the warrant. DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997); see Bragg, supra, 249 Ga. App. at 431 (2). The lower court’s task is “simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citation and punctuation omitted.) DeYoung, supra, 268 Ga. at 787 (7). The Fourth Amendment’s strong preference for searches conducted pursuant to a warrant means that we accord substantial deference to the lower court’s finding of probable cause and that we decide doubtful or marginal cases largely in favor of finding the warrant valid. Bragg, supra, 249 Ga. App. at 431 (2).

Here the ten-page detailed affidavit underlying the first warrant reflected that the testifying officer met with numerous people about possible allegations of molestation by Schwindler. The officer met with Cody Cahoon, a student in the sailing program who described the multiple “sleep overs” on the ship and in Schwindler’s apartment. Cody related that Schwindler had T. B. sleep in Schwindler’s bedroom, that Schwindler maintained file cabinets and computers at the apartment, that Schwindler had various pictures of T. B. in his apartment, that a fellow student had found a dildo and a jar of Vaseline under Schwindler’s mattress, that the fellow student had also discovered at the apartment a pornographic video depicting homosexual acts, and that after the training school moved to South Carolina, Vaseline was found under Schwindler’s mattress in the isolated tent he shared with T. B.

The officer met with Megan Littlejohn, another student in the program. She confirmed in an audiotaped interview that she had heard sexual noises coming from the tent in which Schwindler and T. B. were sleeping in South Carolina. After she confronted T. B. about the matter, he admitted that he and Schwindler were engaging in sexual acts. Megan also discovered the pornographic video in the apartment, which she briefly watched to determine its contents. When changing Schwindler’s bed linens at the apartment, she found a dildo, a book depicting male homosexual acts, and Vaseline under his bed. Her parents told the officer that they had observed Schwind-ler kissing and hugging T. B., something that he did not do with other students.

The officer met with Tom Anderson, a corporate pilot who served as a volunteer assistant at the sail training school. He confirmed that T. B. slept in Schwindler’s apartment bedroom and in Schwindler’s South Carolina tent. He related conversations with students such as Cody and Megan confirming that Vaseline had been found under Schwindler’s bed in his apartment and tent. He further related that Schwindler refused to address his sleeping arrangements with T. B., leading to Anderson’s resignation from the school board of directors. He stated that the training school’s business records and computers were kept in the Chatham County apartment and that the school itself had many irregularities in its operation and reporting.

The officer personally drove to the South Carolina and apartment sites to confirm their locations. She ran a criminal computer check on Schwindler and learned he had previously been convicted of child molestation and arrested for producing child pornography and for molesting another child. Based on this affidavit, the court found probable cause that tangible evidence of the crimes of child molestation and violating the compulsory school attendance laws would be found at the apartment, including the person of T. B., pictures of T. B., VCR tapes depicting sexual acts, a book depicting homosexual acts, a container of Vaseline petroleum jelly, a dildo, computers, and school business records.

In executing the warrant, police did not find T. B. but did find and seize pictures of him, the VCR tape, the book, the petroleum jelly, a dildo, the computers, school business records as well as marijuana and miscellaneous papers and files. Police eventually located T. B., who recounted the molestation and included details such as the purchasing of surfboards for him, which led to a second warrant to search for those surfboards. The second warrant also sought further computer records pertaining to sexual acts. The second search resulted in the seizure of three surfboards and computer material.

We hold that the underlying affidavits provided the lower court with ample, reliable evidence to find probable cause for the searches. Much of the information was firsthand, the informants were identified and shown to be reliable, their statements were corroborated by others and by police observations, and the items were described with sufficient particularity. Cf. Bragg, supra, 249 Ga. App. at 432 (2); Whitten v. State, 174 Ga. App. 867 (1) (331 SE2d 912) (1985). The additional seized correspondence, though not specifically listed in the warrant, was sexual in nature and therefore relevant to the suspected crimes; thus, it was properly seized. See Walsh v. State, 236 Ga. App. 558, 560 (1) (b), (c) (512 SE2d 408) (1999).

2. Enumeration No. 2. Schwindler argues that his indictment was not sufficiently particular and further charged multiple unrelated offenses. He asserts that the counts were unclear as to dates and locations and that the various offenses were not related in time or place.

The test as to the definiteness of the indictment is whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Smith v. State, 249 Ga. App. 39, 42 (2) (547 SE2d 598) (2001). With regard to identifying the place of the crimes, an indictment that charges the crimes to have been committed in a particular county is sufficiently certain (unless the character of the place is an essential element of the offense, which is not applicable here). Gentry v. State, 235 Ga. App. 328, 329-330 (3) (508 SE2d 671) (1998). With regard to identifying the time of the crimes, alleging an exact date is not needed unless it is an essential averment of the crime charged. Snider v. State, 238 Ga. App. 55, 58 (2) (516 SE2d 569) (1999). Thus, alleging that child cruelty occurred sometime during a four-year period and that child molestation occurred sometime during an eighteen-month period was held sufficient. Id.; see Gentry, supra, 235 Ga. App. at 329-330 (3).

Here the indictment charges that the five specified acts of child molestation and aggravated child molestation occurred in Chatham County between the dates of November 1, 1997, and December 31, 1998. The two enticement counts allege that Schwindler enticed T. B. to the specified locations of the apartment and the ship (both of which were located in Chatham County) for the purpose of child molestation, sometime between November 1,1997, and December 31, 1998. The sexual exploitation count alleges that on February 8, 1999, Schwindler possessed in Chatham County sexually lewd material involving a minor. The school reporting count alleges that between May 7, 1998, and February 10,1999, Schwindler in Chatham County failed to report attendance to the Savannah-Chatham County public school district. Based on the authorities cited above, the indictments were sufficiently definite.

Schwindler’s complaint about the counts being contained in the same indictment also fails. “The rule is well established that separate and distinct offenses of a similar nature, and of the same class or species, may be properly joined in different counts in the same indictment.” (Citations and punctuation omitted.) Wingfield v. State, 231 Ga. 92, 99 (12) (200 SE2d 708) (1973). The seven counts involving the molestation of T. B. and the count involving the possession of child pornography are of the same class or species. The joinder of the school reporting count was also appropriate, in that it was part of a single scheme or plan to use the school to facilitate the molestation. See Wilcox v. State, 271 Ga. 544, 546 (2) (522 SE2d 457) (1999). We discern no error.

3. Enumeration Nos. 3, 25, and 26. Schwindler claims that jurisdiction and venue in Chatham County were improper with respect to Counts 1, 2, 4, 5, 7, and 9. His argument regarding Count 9 (school reporting violation) is that the school was located in South Carolina and thus not subject to Georgia reporting requirements. This argument first ignores that the unincorporated and unregistered school (a) kept its records in Schwindler’s apartment in Chatham County, (b) conducted a class in that apartment, and (c) provided transportation to the school from that apartment. More importantly, OCGA § 20-2-690 (b) (5) requires all administrators of private schools (regardless of location) which teaGh a student who resides in a Georgia public school district to report that student’s attendance to the school superintendent of the public school district. As Schwindler failed to report the attendance of T. B. and other Chatham County residents to that district’s superintendent, venue and jurisdiction were appropriate in Chatham County.

The venue challenge to the other counts rests on the premise that the ship was of Canadian registry and on the argument that acts on the ship were therefore not subject to the laws of Georgia. Without addressing the merits of the argument, we note that there was no evidence at trial of a foreign registry of the boat. Thus, this challenge lacks a factual basis in the record. The undisputed evidence showed that the vessel was located in Chatham County at the time of the crimes.

4. Enumeration No. 4. Schwindler claims that the prosecution failed to turn exculpatory evidence over to him, which evidence included electronic messages and other material. Testimony at the motion for new trial hearing showed that all such material was given to Schwindler. As the trial court determines the credibility of witnesses at such hearings, Buice v. State, 239 Ga. App. 52, 61 (6) (b) (520 SE2d 258) (1999), we will not overturn its determination that Schwindler’s testimony to the contrary was incredible.

5. Enumeration Nos. 5, 7, 17, and 18. Schwindler complains about various evidentiary rulings that he claims unfairly prejudiced his case. First, he argues that the admission of photos showing him performing oral sodomy on other young boys, which he admitted were accurate photos of him engaging in the depicted behavior, was error. As this is the very conduct of which he was accused here, the photos were admissible. See Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999).

Second, he contends the court erred in admitting certain adoption records and correspondence. Since he did not object to their admission below, the matter is not preserved for appeal. Stroud v. State, 272 Ga. 76, 77 (3) (526 SE2d 344) (2000); see Heidler v. State, 273 Ga. 54 (1) (537 SE2d 44) (2000).

Third, he claims the court erred (a) in admitting his Navy records showing that he did not achieve the rank of captain and that he was not discharged as a result of a relative’s crime, and (b) in admitting his school records showing he had not received a doctorate degree. As these records impeached Schwindler’s recruitment statements made to parents of potential students, they were relevant and admissible to demonstrate the sham nature of the school.

Fourth, he argues that the court erred in admitting certain cor-responderme between a prosecution witness and himself, in which Schwindler’s relationship to this witness was shown to be a father/ adopted son relationship and in which Schwindler admits to the molestation of T. B. The adopted son turned these letters over to the prosecution as part of a plea agreement. Schwindler’s argument that he confessed to the molestation so as to give his adopted son leverage in negotiating a plea bargain is not grounds for excluding the letters.

Fifth, Schwindler contends that the prosecution failed to give him notice of its intent to introduce child hearsay statements. See OCGA § 24-3-16. There is, however, “no requirement in OCGA § 24-3-16 that the state provide the defense with pre-trial notice of its intention to introduce child hearsay statements in evidence.” Thornton v. State, 264 Ga. 563, 567 (2) (d) (449 SE2d 98) (1994).

Sixth, Schwindler urges that the court should not have admitted photos obtained during a search in 1985 by the Alabama police, which led to his guilty plea in Alabama of possession of child pornography. He claims that the search was illegal, that he has asserted such grounds in an unresolved post-conviction pleading in Alabama, and that the Georgia court could not use such photos while the question was pending in Alabama. Without addressing the argument, we note that Schwindler makes no citations to the record and that our own review reveals no facts in the record to support the assertion that the matter is still a pending issue in Alabama; thus, the entire argument lacks a factual premise. See Price v. State, 223 Ga. App. 807, 810-811 (6) (478 SE2d 915) (1996).

6. Enumeration No. 6. Schwindler argues that the court erred in admitting three similar transactions to show his bent of mind: a 1973 molestation of a four-year-old girl, a 1985 conviction for possessing obscene material showing him performing oral sodomy on young boys (which conduct took place from 1981 to 1984), and a 1987 conviction for molesting a young boy. He contends that the transactions are too old and that sexual activity with a young girl is not relevant to the alleged molestation of a young boy.

“The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses.” (Footnote omitted.) Hardeman v. State, 247 Ga. App. 503, 506 (4) (a) (544 SE2d 481) (2001). Thus, in child molestation cases, prior “sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Couch v. State, 248 Ga. App. 238, 239 (2) (545 SE2d 685) (2001); accord Willett v. State, 223 Ga. App. 866, 872 (3) (a) (479 SE2d 132) (1996). Contrary to Schwindler’s argument, Gilstrap v. State, 215 Ga. App. 180, 182 (5) (450 SE2d 436) (1994), is consistent with these principles.

Although the similar transactions took place some years ago, they reflect a continuous course of conduct over a period of several years. See Starnes v. State, 205 Ga. App. 882, 883 (1) (424 SE2d 4) (1992). The gaps are largely explained by Schwindler’s time in the Navy, which often took him overseas, and his incarceration for the child molestation conviction. We discern no abuse of discretion. See Frady v. State, 245 Ga. App. 832, 835 (4) (538 SE2d 893) (2000) (abuse of discretion standard).

7. Enumeration No. 8. Schwindler claims that the court erred in denying him the right to cross-examine witnesses. Specifically, he complains about the court’s rulings precluding him from (a) inquiring into the family lifestyle and sexual history of the victim and (b) asking whether Schwindler acted appropriately toward other students.

Although OCGA § 24-9-64 entitles a defendant to a thorough and sifting cross-examination of witnesses against him, “[t]he scope of cross-examination is not unlimited, but rests largely within the discretion of the trial court, and its discretion will not be disturbed on appeal unless it has been abused.” (Citations and punctuation omitted.) Carter v. State, 257 Ga. 510, 511 (1) (361 SE2d 175) (1987). Indeed, “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . (Citations and punctuation omitted.) Id. at 512 (1).

Here Schwindler wanted to show that the victim had engaged in homosexual activities with others and that his family allowed such because of their own sexual propensities. Schwindler reasoned that to divert attention from this deviancy (so that the victim could continue this lifestyle), the victim was falsely accusing Schwindler. The propensity for such tenuous evidence to be used as a means of simply impugning the character of the victim caused the trial court to conclude that the prejudice of admitting the evidence outweighed any possible relevance. We discern no abuse of discretion. Cf. Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990) (previous sexual activity of child molestation victim irrelevant to show victim’s reputation for nonchastity or preoccupation with sex).

With regard to acting appropriately toward other students, the record reflects that Schwindler was indeed allowed to explore this area of inquiry. To the extent he was restricted in this area, the trial court acted within its discretion, for such was not relevant to proving whether he molested T. B. We discern no abuse of discretion.

8. Enumeration No. 9. Schwindler contends he was denied the right to be tried by a fair and impartial jury in that juror no. 19 admitted to knowing one of the State’s witnesses but was nevertheless allowed to remain on the jury. After this juror admitted to knowing the witness, however, Schwindler expressly waived any objection to the juror remaining on the jury. Any complaint by Schwindler that the juror did not disclose the full extent of the relationship is based on testimony at the motion for new trial hearing, which testimony the trial court found incredible. See Buice, supra, 239 Ga. App. at 61 (6) (b) (determining the credibility of witnesses at the motion for new trial hearing is in trial court’s discretion).

Schwindler also claims that juror no. 19 was overheard, prior to the end of trial, expressing his feeling to another juror that Schwind-ler was guilty. Once again, this was based on testimony at the post-trial hearing that the court found incredible. Moreover, Schwindler did not call the juror to testify, and thus the evidence was hearsay and could not authorize the grant of a new trial. Boone v. State, 250 Ga. App. 133, 137 (5) (549 SE2d 713) (2001).

9. Enumeration Nos. 10 and 14. Schwindler argues that he was forced to be represented by hostile trial counsel, who refused to follow his instructions. He claims the court refused to appoint new counsel even though trial counsel, outside the presence of the jury, accused Schwindler of lying about alleged misconduct by the trial counsel. He also complains that the court denied him the right to represent himself pro se. See generally Howard v. State, 251 Ga. App. 243, 245 (6) (553 SE2d 862) (2001) (federal and state constitutions guarantee individuals right to self-representation).

Before trial the court complied with Schwindler’s request for appointed trial counsel to take the place of retained counsel. The court specifically instructed counsel to consider carefully four pro se motions filed by Schwindler during the brief time he was unrepresented. When shortly before trial Schwindler asked the court to replace the appointed counsel, the court pointed out that a defendant cannot pick and choose that counsel and invited Schwindler to present a substantial reason for replacing counsel. See Mitchell v. State, 242 Ga. App. 177, 183 (6) (529 SE2d 169) (2000) (request to replace appointed counsel in court’s discretion).

Schwindler then complained that counsel had not filed motions to exclude the similar transaction evidence and to object to venue and jurisdiction. The court pointed out that the hearing being held that day was to determine whether to allow in the similar transaction evidence and that no motion was necessary. The court also noted that the State had the obligation to prove venue and jurisdiction as a part of its case, and thus again a motion was unnecessary. The court denied the request for new counsel, but asked whether Schwindler wanted to represent himself pro se. Schwindler hinted that he may want “hybrid counsel,” but then decided against it because he felt there could only be “one captain on the ship.” Since Schwindler was equivocal in his response and did not express a desire to proceed pro se, the court discerned no request for pro se representation and allowed appointed counsel to proceed. We discern no abuse of discretion.

Near the end of trial, Schwindler again complained about his counsel, this time stating that even though counsel was an excellent attorney, he was not listening to Schwindler, and that counsel outside the presence of the jury called Schwindler a liar regarding Schwindler’s accusation of misconduct against counsel. Later that day, Schwindler changed his mind and announced that his difficulties with counsel had been resolved and that he wanted counsel to continue to represent him. Thus, any possible error in not allowing Schwindler to receive other counsel or to proceed pro se earlier was rendered harmless. Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987).

At the sentencing hearing, Schwindler demanded that his trial counsel be dismissed and that he be permitted to proceed pro se, which request the court allowed after making the requisite inquiries. The court, however, invited Schwindler to request the appointment of appellate counsel for post-sentencing proceedings. After sentencing, Schwindler announced his desire for appellate counsel, and the court appointed one.

At the motion for new trial hearing, Schwindler changed his mind and announced he wanted his appellate counsel to serve as co-counsel with him. A defendant has no right to such hybrid representation. Potts v. State, 259 Ga. 812, 816 (4) (388 SE2d 678) (1990); see Boone, supra, 250 Ga. App. at 139 (10). Thus, the court was acting within its discretion when it initially allowed the hybrid representation but later disallowed it by permitting only appellate counsel to address the court.

10. Enumeration No. 11. Schwindler claims that he received ineffective assistance of counsel. To establish this claim, Schwindler bore the burden at the motion for new trial hearing of showing that trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). The trial court found he did not prove these matters. We uphold the trial court’s determination on these issues unless clearly erroneous. Pittman v. State, 243 Ga. App. 564, 565 (2) (533 SE2d 769) (2000).

We have carefully reviewed the trial transcript and the motion for new trial transcript, in which Schwindler’s trial counsel defended his decisions on the various strategic matters challenged by Schwind-ler. We find ample evidence to support trial counsel’s decisions. Cf. Gunsby v. State, 248 Ga. App. 18, 22 (4) (545 SE2d 56) (2001). As in Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999), and Gunsby, supra, 248 Ga. App. at 22 (4), we do not find it necessary to address specifically and individually each and every one of Schwind-ler’s numerous instances of challenged trial tactics. Suffice it to say that the decisions on which witnesses to call, whether to put on evidence so as to preserve the final word in closing argument, how to conduct cross-examinations, what motions to file, and what objections to make are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel. See Stroud, supra, 272 Ga. at 78 (4); Welch v. State, 243 Ga. App. 798, 800 (2) (534 SE2d 471) (2000); Gunsby, supra, 248 Ga. App. at 22 (4).

Finally, Schwindler’s complaint that counsel improperly turned over privileged documents to a third party fails in light of Schwind-ler’s express instruction to counsel to turn over those documents. The findings of the trial court against Schwindler on this matter are not clearly erroneous.

11. Enumeration No. 12. Citing Apprendi v. New Jersey, 530 U. S. 466 (120 SC 2348, 147 LE2d 435) (2000), Schwindler contends that the court erred in not requiring the State to prove his prior convictions beyond a reasonable doubt in order to have him sentenced as a recidivist under OCGA § 17-10-7. However, Apprendi held that “\p\ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis supplied.) 530 U. S. at 490. As the prior convictions were the basis for the increased sentences, the court could properly determine such without a jury. Here the certified convictions provided ample support for the court’s enhancement of the sentences. See OCGA §§ 17-10-7 (a); 16-6-4 (b).

12. Enumeration No. 13. Schwindler received concurrent life sentences with respect to Counts 1 through 3, which charged child molestation; 30 years, consecutive to Counts 1 through 3, with respect to Counts 4 and 5, which charged aggravated child molestation; 20 years, concurrent with all other counts, with respect to Counts 6 and 7, which charged enticing a child for indecent purposes; and a $100 fine with respect to Count 9, which charged failure to report school attendance. He claims that his sentences were excessive and disproportionate.

These sentences all fall within the maximum sentences allowed by the relevant statutes. See OCGA §§ 16-6-4 (b), (d) (1); 16-6-5 (b); 20-2-690 (d). “[Wlhere the sentences imposed are within the statutory limits, as they are here, they are not unconstitutional.” (Citation and punctuation omitted.) Johnson v. State, 246 Ga. 126, 128 (IV) (269 SE2d 18) (1980). Any complaints regarding the severity should have been addressed to the appropriate sentence review panel. Pendleton v. State, 184 Ga. App. 358, 361 (4) (361 SE2d 663) (1987).

13. Enumeration No. IS. Schwindler argues that the cumulative effect of all the errors so prejudiced him as to require reversal. “However, Georgia does not follow a cumulative error rule of prejudice. [Cit.]” Laney v. State, 271 Ga. 194, 198 (11) (515 SE2d 610) (1999).

14. Enumeration No. 16. Schwindler claims that the State interfered with his defense team when it solicited Schwindler’s adopted son to testify against him. Without addressing the merits of the argument, we note that this argument is premised on Schwindler’s assertions that his son was an integral part of his team and that the State solicited his son. Evidence at the motion for new trial hearing proved otherwise. Indeed, the assertion that the information (such as letters) that the son received from Schwindler was somehow privileged contradicts Schwindler’s assertion at trial that he intentionally wrote these incriminatory letters to his son so that his son, in negotiating a plea bargain with the State, could give the letters to the State in exchange for a lesser sentence.

15. Enumeration No. 19. Schwindler complains that prison officials took from him papers critical to his defense, thereby prejudicing his case. The court held a hearing mid-trial and post-trial on this matter and, relying on the testimony presented, found Schwindler’s complaints lacking in foundation. As the trial court judges the credibility at such hearings, we discern no error. See Buice, supra, 239 Ga. App. at 61 (6) (b). Schwindler’s further complaint that he has been denied access to the law library is without support in the record and is not the subject of a court ruling in the appeal before us.

16. Enumeration No. 20. Schwindler contends that the trial court abused its discretion when it denied his request for a continuance of his sentencing hearing. The grounds for the request were that Schwindler had just dismissed his trial counsel. The court properly considered the factors before it, including Schwindler’s voluntary conduct in dismissing his counsel just before sentencing. See Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (“ The conduct of the party is a relevant and proper consideration of the (trial court) in the exercise of its discretion in order to prevent a party (from) using the discharge and employment of counsel as a dilatory tactic.’ [Cit.]”); see also Howard, supra, 251 Ga. App. at 245 (6). We discern no abuse of discretion. Moreover, Schwindler “has failed to demonstrate any harm from the denial of the continuance. [Cit.]” Roberts v. State, 272 Ga. 822, 824 (2) (537 SE2d 86) (2000).

17. Enumeration No. 21. Schwindler argues that the trial court erred in not recusing itself and all judiciary members of the local circuit in determining the claim of ineffective assistance of counsel. He claims that his trial counsel serves as a part-time magistrate for Chatham County and that therefore the local judiciary could not impartially decide the question of his effectiveness as Schwindler’s counsel. Once again, Schwindler’s claim lacks a factual basis in the record, as he makes no record citation showing evidence of his counsel’s magistrate status, nor do we find any such evidence. Moreover, Schwindler made no recusal motion on this basis below, thus waiving the issue for appeal. See Thurman v. State, 249 Ga. App. 390-391 (1) (547 SE2d 715) (2001).

18. Enumeration No. 22. Schwindler complains that the trial court failed to supplement the appellate record with certain pleadings. The court found that the missing pleadings were immaterial. As Schwindler has failed to demonstrate that the pleadings are essential to the disposition of his appeal, we discern no error.

19. Enumeration No. 23. Schwindler challenges the sufficiency of the evidence on Count 3 (child molestation arising out of showing a pornographic video to a child under 16). As charged in the indictment, the evidence demonstrated that Schwindler, in his apartment in Chatham County, showed T. B. a pornographic video graphically depicting oral and anal sodomy between young males. Schwindler’s claim that there was no VCR at the apartment is belied by the testimony of the victim and of Schwindler’s own adopted son who lived at the apartment. The evidence sufficed to sustain the conviction. See OCGA § 16-6-4 (a); Stroeining v. State, 226 Ga. App. 410, 412 (1) (486 SE2d 670) (1997) (physical precedent only).

20. Enumeration No. 24. Schwindler also challenges the sufficiency of the evidence for the convictions on Counts 6 (enticing T. B. to the apartment for indecent purposes) and 7 (enticing T. B. to the ship for indecent purposes). The evidence, which showed that Schwindler repeatedly solicited and enticed T. B. to his cabin on the ship and to his apartment bedroom for purposes of molesting him, sufficed. OCGA § 16-6-5 (a).

21. Enumeration Nos. 27 and 28. The final two enumerations concern the dismissal of the criminal complaint against the assistant district attorney who prosecuted Schwindler’s case. Following his conviction, Schwindler filed a complaint against the prosecutor to hold him criminally liable for his conduct during the trial. At the motion for new trial hearing, Schwindler adopted the allegations made in his complaint against the prosecutor and asked the court to consider them in conjunction with his motion for new trial. Since the complaint was based largely on the same grounds asserted in Schwindler’s motion for new trial, the trial court acquiesced and ordered that it was consolidating the probable cause hearing on the complaint (see OCGA § 15-18-27 (a)) with the hearing on the motion for new trial. Schwindler raised no objection at the hearing. Schwind-ler was thereafter, in two additional days of hearings, allowed to present whatever evidence he deemed appropriate for these consolidated issues.

Decided March 14, 2002

Reconsideration denied March 29, 2002

Zipperer & Lorberbaum, Steven L. Beauvais, Eric R. Gotwalt, for appellant.

Frank J. Schwindler, pro se.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Schwindler either induced the court’s ruling to consolidate the hearings or at least acquiesced therein. In any case, his argument on appeal that the court erred in exercising its discretion to consolidate the hearings is waived. Moreover, we can discern no abuse of that discretion. Nor do we perceive any grounds for the court to have recused itself from the probable cause hearing. Thus, the court did not err in dismissing the complaint against the prosecutor as lacking probable cause.

Judgments affirmed.

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

       The first mention of its possible foreign registry was in an unauthenticated hearsay letter introduced at the motion for new trial hearing that only implied that the vessel may at one time have had a Canadian registry. The evidence was untimely, and hearsay evidence lacks probative value. Howard v. State, 238 Ga. App. 461, 462 (518 SE2d 152) (1999).