author: Pope, Presiding Judge. Eldridge, Judge, Smith, Judge,

text:
    A99A0758.
    DUMAS v. THE STATE.
    (521 SE2d 108)
   Pope, Presiding Judge.

Frederick Dumas was convicted on one count of aggravated sodomy. His motion for new trial, as amended, was denied, and he appeals.

1. Dumas contends the verdict was contrary to the evidence and against the weight of the evidence. In particular, he contends that the State did not show that the victim lacked the ability to consent to a sexual relationship with him or that he used force. We first note that this court views the evidence in the light most favorable to support the verdict, and an appellant “no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918) (1999). So viewing the evidence, we have examined the record, and we conclude that the evidence was sufficient to enable a rational trier of fact to conclude that Dumas committed aggravated sodomy against the victim, a mentally retarded 22-year-old man.

2. Dumas contends the trial court erroneously permitted the victim to testify after finding that the victim did not understand the oath due to his incapacity.

At trial, relying on OCGA § 24-9-5, Dumas challenged the competency of the victim to testify, arguing that the victim did not have the use of reason and could not understand the oath because of his mental incapacity. OCGA § 24-9-5 provides as follows:

(a) Except as provided in subsection (b) of this Code section, persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.
(b) Notwithstanding the provisions of subsection (a) of this Code section ... in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.

During the competency hearing, the prosecutor analogized the adult victim to a child because he allegedly functioned at the capacity of a seven-year-old, and the trial court apparently agreed with this characterization of the victim’s mental abilities. The State argued that under the competency statute the victim was not required to understand the oath, rather he was required only to be able to reason. After hearing further argument, the trial court stated that the threshold issue for determination was whether the statute applied “as if he’s a child or whether it applies as if he’s an adult.” The court then attempted to question the victim using the sister’s assistance. After this initial examination, the court made the following ruling:

Based on the court’s examination of [the victim] and his sister, it’s clear to the court that [the victim] is not functioning as an adult. Clearly he may be an adult in terms of chronological age but he’s not an adult. I believe, as I understand it, he functions about like a . . . six or seven-year-old. He’s fairly non-verbal. . . . Based on what the court has observed, the court will allow the testimony of [the victim] through his sister or some other assistance through his mother for purposes of this trial. . . . I do not find that [the victim] has to understand the oath because of his obvious incapacity.

The court also concluded the victim had the ability to reason, because the victim obeyed his instructions to “come in,” “sit down,” and “get up.” The court also noted that the victim followed the instructions of his sister when she said “come on, let’s go.”

Just prior to the victim’s testimony Dumas again objected, contending that the victim was incompetent to testify as an adult. Dumas argued that under OCGA § 24-9-5, the victim was required “to understand the oath, and the difference between truth and falsity,” as well as to have the ability to reason. Dumas argued alternatively that if the court believed the victim to be a child, the victim was nevertheless incompetent under OCGA § 24-9-5 (b), because he was unable to reason. The court reiterated its earlier ruling, stating that the victim could “testify particularly after the evidence has come in as to whether he has the ability to reason, although be it as a child.” The court twice asked the victim, “Do you know how to tell the truth?” and the victim nodded his head. The court responded, ‘You do? Can you say ‘yes’ for me?” The victim answered, “[Y]es.” The victim was then permitted to testify.

First, subsection (a) of OCGA § 24-9-5 says those who cannot reason are incompetent to testify. Here, at the competency hearing the court held that the victim had that ability. Dumas has not challenged that conclusion.

Second, pretermitting whether OCGA § 24-9-5 (b) applies to the mentally incompetent, the law has long recognized that mentally incompetent witnesses may testify if they meet the same standard that formerly applied to children, and the victim in this case met that standard. Before subsection (b) was added to OCGA § 24-9-5 in 1989, competency of the mentally impaired as witnesses was assessed by the same test as children, i.e., whether they understand the nature of the oath.

A person who has been adjudged insane is not, in all cases, incompetent as a witness. His testimony is admissible if he has sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue.

Cuesta v. Goldsmith, 1 Ga. App. 48, hn. 3 (57 SE 983) (1907).

The rules governing courts in the admission of evidence of . . . one alleged to be . . .of insufficient mental capacity to understand the nature of an oath and appreciate its sanctity] ] are analogous to those applicable to a case where testimony of a child is offered and objected to on the ground that the child, because of its tender years and the mental incapacity resulting therefrom, is incapable of understanding the nature of an oath. [Cits.]

Langston v. State, 153 Ga. 127, hn. 2 (111 SE 561) (1922).

Understanding the nature of the oath does not require a technical understanding of the oath, but rather a simple understanding of truth and falsehood and the importance of telling the truth. As stated in Smith v. State, 247 Ga. 511-512 (277 SE2d 53) (1981), understanding the nature of an oath requires,

not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.

See also Vaughn v. State, 226 Ga. App. 318, 319 (1) (486 SE2d 607) (1997) (witness understood difference between truth and falsehood and the importance of telling the truth); Lamunyon v. State, 218 Ga. App. 782, 783 (1) (463 SE2d 365) (1995) (witness could appreciate the difference between truth and lie and appreciate obligation to tell the truth); Howard v. State, 212 Ga. App. 298, 301 (3) (441 SE2d 759) (1994) (witness knew what a promise was and that it was good to keep a promise and bad to break it, and then she promised to tell the truth); Haslem v. State, 160 Ga. App. 251, 252 (1) (286 SE2d 748) (1981) (victim understood nature of oath and the charges against defendant).

Everyone is presumed competent to testify, even people who have been shown to have mental disabilities. Flynn v. State, 255 Ga. 415, 419 (7) (339 SE2d 259) (1986). Here, the trial court observed that the victim had the ability to reason. Before he testified, the victim indicated he knew how to tell the truth; his mother testified he knew the difference between right and wrong and he had the ability to reason; and his sister testified he could distinguish between right and wrong and is remorseful when wrong. The mother and sister were authorized to testify regarding the victim’s competency. OCGA § 24-9-7 (b). This evidence was sufficient to show that the victim had an appreciation for the truth. “A trial court’s ruling will be affirmed if it is right for any reason.” (Citations and punctuation omitted). Lewis v. State, 233 Ga. App. 560, 562 (2) (504 SE2d 732) (1998).

3. Dumas contends the trial court erroneously admitted evidence of similar transactions. Following a Uniform Superior Court Rule 31.3 hearing, the trial court permitted the State to introduce evidence of three similar transactions. The first involved the alleged molestation of Dumas’s niece. Dumas’s sister testified that in 1977, her then seven-year-old daughter told her that Dumas had placed his finger in her bottom. Although Dumas’s sister reported this alleged incident to the authorities, she eventually dropped the charges at the request of their mother.

Another of Dumas’s sisters testified that she and Dumas were living with their mother in 1978, and she returned home from work to find the house locked. She knocked on the door and asked “Nookie” to let her in. Dumas told her he was coming to the door, but the witness testified she stood at the door for five minutes, and she threatened to “bust the window pane if you don’t come to the door.” When Dumas finally opened the door, the witness saw “a little child . . . coming out the door.” The child “acted like she was real scared and . . . she was looking real wild. Her little eyes, you know, she had bugged out little eyes.” The child was unable to talk, apparently because of her fear, according to the witness. The child did, however, point out to the witness where she lived. Thinking that Dumas had raped the child, the witness took her home and told her mother to take her to the hospital. Dumas was prosecuted for this offense. The State introduced a certified copy of an indictment, charging him with child molestation. Dumas pled guilty to “placing his sex organ on and against the sex organ of the child on or around January 4, 1979.”

The third transaction involved a 38-year-old victim. Officer Gordon Earls with the Atlanta Police Department testified that he investigated a call in April 1988 by a woman who stated she had been raped by Dumas. The victim’s lip was cut, and she had two “knots” on her head, according to Earls. The State introduced a certified copy of an indictment charging Dumas with rape, but Dumas pled guilty to a lesser-included offense of aggravated assault with intent to rape. Dumas testified that he gave this victim money for sex, and when she then refused to have sex with him, they began fighting. He admitted telling the victim, “You’re either going to do something or we’re going to fight.”

Before evidence of similar transactions may be admitted, the State must make three affirmative showings as to each transaction. The State must show that the evidence is being used for a permissible purpose, that sufficient evidence shows the accused to have been the perpetrator of the similar transaction, and that sufficient similarity exists between the transaction and the crime for which the accused is on trial, such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). This exception to the general rule concerning the admission of evidence of independent offenses “has been most liberally extended in the area of sexual offenses.” (Citation and punctuation omitted.) Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991).

With respect to the child molestation charge initiated after Dumas’s sister discovered the frightened seven-year-old girl and the aggravated assault charge, we find no error in the admission of these transactions. The State introduced all of the similar transactions to show Dumas’s state of mind, a permissible purpose. See, e.g., McCormick v. State, 228 Ga. App. 467, 468 (5) (491 SE2d 903) (1997). The testimony of Dumas’s sister was sufficient evidence to show that he was the perpetrator of the offense against the child, and his own testimony showed his involvement in the aggravated assault of the adult woman. As for the third showing the State was required to make, a sufficient similarity between the prior offenses and the one for which Dumas was on trial, the prior child molestation charge demonstrated Dumas’s tendency to sexually assault individuals of limited mental capacity.

Although the similarity of the aggravated assault against the adult woman to the sexual assault against the victim in this case is not as clear, some similarity and relevance exist, as Dumas’s conduct during the former incident showed his tendency to use force in an effort to engage in sexual contact with a victim. Even if the trial court did not make explicit findings on the record that each of these requirements was met, no harmful error occurred, because the evidence was sufficient to show that the Williams requirements were satisfied. See Byrd v. State, 236 Ga. App. 485, 489 (6) (d) (512 SE2d 372) (1999). Moreover, it is clear in this case that the relevancy of these similar transactions outweighed any prejudice that their admission may have occasioned. “Such evidence is particularly relevant and needed, where the victim of. . . sexual abuse is mentally retarded.” Payne v. State, 207 Ga. App. 312, 316 (2) (428 SE2d 103) (1993), overruled on other grounds, Sims v. State, 266 Ga. 417, 418 (2) (467 SE2d 574) (1996). “Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. [Cit.] We find no such abuse here.” Arnold v. State, 236 Ga. App. 380, 382 (2) (511 SE2d 219) (1999).

With regard to the incident involving Dumas’s niece, Dumas argues there was no indictment or conviction, the testimony was introduced through someone other than the victim, and the court failed to make the three required findings. We conclude that any possible error was harmless. Appellate courts must assess harm as well as error when similar transaction evidence has been improperly admitted. White v. State, 269 Ga. 74, 75 (2) (495 SE2d 278) (1998); Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997). The error is harmless when it is highly probable the error did not contribute to the judgment. White, 269 Ga. at 75 (2); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Here, the victim demonstrated for the jury what Dumas did to him. The victim’s sister identified Dumas as the person to whom she entrusted the victim; the victim and Dumas were missing for over an hour and a half; when the victim was found, the sister observed evidence of the assault on the victim and she noted that his underwear was missing; and she found the victim’s underwear the next day in some bushes. Given this evidence and the other two similar transactions, it is highly probable that any error introducing the incident with the niece did not contribute to the judgment. See Sweet v. State, 237 Ga. App. 613, 616 (2) (516 SE2d 317) (1999) (similar transaction evidence of prior molestation was harmless when only evidence against defendant was three-year-old child told mother and social worker that defendant had molested her, and mother saw some physical evidence on child).

Dumas suggests the State presented a fourth similar transaction regarding Rosemary Dumas’s daughter. It does not appear, however, that evidence of this incident was introduced at trial. To the extent that evidence regarding the transaction was arguably inquired into by the State on cross-examination of Dumas, Dumas raised no objection at trial.

4. Dumas contends the trial court erroneously charged the jury concerning the use of similar transactions. The trial court, however, instructed the jury that evidence concerning the similar transactions was admissible “for the sole issue or purpose to which the evidence is limited and not for any other purpose” and that evidence of similar transactions was admissible, among other reasons, to show “the identity of the perpetrator, the state of mind, i.e., depraved state of mind, lustful disposition, knowledge or intent of the defendant in the crime charged in the case now on trial.” The court went on to state that if the jury believed Dumas committed the similar transactions, it would “be strictly limited in [its] consideration of the evidence as to the identity of the defendant or to his state of mind as relates to an element of the offense charged in the indictment.” Considering this charge as a whole, we conclude that the jury was properly instructed on the law of similar transactions, and we find no error. See generally Barnes v. State, 191 Ga. App. 424, 426 (2) (382 SE2d 164) (1989).

5. Dumas contends he was denied his right to cross-examine the victim because the trial court permitted the victim to testily “through” his mother. During the victim’s competency hearing, the court ruled that it would permit the victim’s testimony “through his sister or some other assistance through his mother for purposes of this trial.”

We might be inclined to agree with Dumas that he was denied his right to confront the victim if, indeed, the mother or sister interpreted for the jury unintelligible statements or communications by the victim, particularly if they interpreted the victim’s language as meaning that Dumas committed the crime against him. This did not occur, however. During the pre-trial hearing, the court also ruled that it would not permit the mother or sister to “make up testimony.” At trial, upon further argument by Dumas, the prosecutor contended that the mother should be permitted “to be present with the ‘victim’ and . . . help maintain his calm and composure.” The court then asked the victim a series of questions, and the victim made clear responses in the English language.

A short time later, after the victim demonstrated his ability to follow the instructions of his mother to make a sandwich and say grace, the prosecutor asked his mother to “begin to identify .him.” The mother asked the victim, “Who are you?” and gave him simple commands to talk into the microphone. The mother then asked whether the victim knew Nookie, and the victim responded affirmatively. After the prosecutor asked whether the victim saw Nookie in the courtroom, the mother instructed the victim to answer the question. The prosecutor instructed the victim to “[p]oint at Nookie” and asked what Nookie did to him. The mother told the victim that it was “all right to tell him.” At the prosecutor’s request to show what Nookie did to him, the victim stood and, according to the transcript, indicated to the jury what occurred. The prosecutor then asked the mother to look away while he asked the victim to pick out Nookie’s photograph. The record reflects that the victim chose a photograph of Dumas from a series of photographs.

Defense counsel was then allowed to cross-examine the victim. At defense counsel’s request, the mother asked the victim if he could ask the victim any questions, and the victim responded affirmatively. Throughout cross-examination, defense counsel asked some questions to which he received no response. But at other times during cross-examination, the victim would answer when instructed by his mother to “answer yes or no.” After defense counsel finished questioning the witness, he moved for mistrial, claiming that he “did not receive the assistance from the mother ... as the State did.” This contention is belied by the record, however, as the mother instructed the victim several times to answer counsel’s questions, and the court aptly noted that “[i]f during your examination you weren’t getting the assistance you needed, if you had brought it to the attention of the court, I could have corrected it.”

Under the facts of this case, we find no violation of Dumas’s right to confront the victim. Dumas was given the opportunity to cross-examine the victim and chose to use the mother’s assistance during the victim’s testimony. Furthermore, the mother in no manner “interpreted” or “explained” the victim’s responses, which could have presented a constitutional violation, depending on the mother’s statements. Moreover, the fact that the victim was often unresponsive was not an abridgement of Dumas’s Sixth Amendment rights. The victim’s

silence itself was evidence, as the jury could observe [his] demeanor as each question was posed. A witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.

Bright v. State, 197 Ga. App. 784, 786 (400 SE2d 18) (1990). Dumas was given full and fair opportunity to cross-examine the victim in this case.

6. With regard to Dumas’s assertion that his character was wrongly placed in issue, Dumas waived consideration of the denial of his motion for mistrial because he failed to renew the motion after the court gave curative instructions. Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998). With regard to the testimony about Dumas’s sexual preference, although the response that he likes “both ways” may have put his character in issue, Dumas failed to object on these grounds at trial. Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986). Further, the comment was not evidence of a similar transaction but only a comment on sexual preference.

Judgment affirmed.

Johnson, C. J, Blackburn, P. J., and Ellington, J., concur. Eldridge, J., concurs and concurs specially. Smith, J., concurs as to Divisions 1, 4, 5 and 6 and concurs in part and dissents in part as to Division 3 and dissents as to Division 2. Barnes, J., concurs as to Divisions 1, 2, 4, 5 and 6 and concurs in part and dissents in part as to Division 3.

Eldridge, Judge,

concurring specially.

I concur fully in the opinion of the majority. I write separately because of my concern that the proper standard for the admission of outcry testimony be maintained.

Contrary to the position of the dissent, a child’s outcry need not be made “immediately after the sexual assault” in order for such evidence to be admissible at trial. That has not been the law since 1986, when OCGA § 24-3-16, the Georgia Child Hearsay Statute, was enacted. See Ga. L. 1986, p. 668, § 1. Such evidence is not “res gestae” evidence. The amount of time between improper sexual contact and outcry may be one aspect a trial court looks at in order to determine “indicia of reliability’ for the admission of outcry testimony pursuant to OCGA § 24-3-16, but it is by no means dispositive. Medina v. State, 234 Ga. App. 13, 14 (505 SE2d 558) (1998); Wells v. State, 222 Ga. App. 587, 588 (2) (474 SE2d 764) (1996); Gregg v. State, 201 Ga. App. 238, 239 (3) (411 SE2d 65) (1991).

Smith, Judge,

concurring in part and dissenting in part.

Although I concur with the remainder of the majority opinion, I respectfully dissent as to Division 2, and I dissent in part to Division 3.

1. I do not agree that the victim in this case was shown to be competent within the meaning of OCGA § 24-9-5 (a). That statute requires “that the witness has sufficient understanding to receive, remember and narrate impressions and is sensible of the obligation to tell the truth. [Cit.]” Ambles v. State, 259 Ga. 406, 409 (2) (b) (383 SE2d 555) (1989). See also Dorsey v. State, 206 Ga. App. 709, 713 (3) (426 SE2d 224) (1992) (physical precedent only) (witness competent where he or she understands obligation to tell truth and can give material evidence concerning subject matter at issue).

Although the competency statute contains only minimal requirements concerning whether a witness is competent to testify, those requirements were not met in this case. While the victim indicated to the court that he knew what it meant to tell the truth, nothing in the trial court’s examination of the victim or the record itself shows that the victim understood the difference between truth and falsehood. Compare Vaughn v. State, 226 Ga. App. 318, 319 (1) (486 SE2d 607) (1997) (victim demonstrated her understanding of the difference between truth and falsehood and importance of telling the truth). While the victim may well have been capable of meeting the requirements of the statute, his competence was not adequately demonstrated below. Had the trial court simply also asked the victim whether he knew what it meant to tell a lie or to tell a falsehood and the consequence, of not being truthful under oath, I might well be able to agree that his competence was adequately shown.

Decided July 16, 1999.

Cynthia W. Harrison, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Nathaniel Dobson, Jr., Assistant District Attorneys, for appellee.

2.1 agree with the majority that the similar transaction evidence involving the child molestation charge initiated by defendant’s sister after discovering the seven-year-old neighbor girl was properly admitted, as was the evidence concerning the incident with the adult woman. I do not agree, however, that the trial court correctly admitted the similar transaction testimony involving Dumas’s niece. The alleged victim herself, aged 24 at the time of trial, did not testify. Instead, her mother testified as to what the then seven-year-old victim reported to her, and she did so without any showing that the child made the outcry immediately after the alleged sexual assault. It therefore was not shown that the outcry might have been admissible as part of the res gestae. See generally Tucker v. State, 243 Ga. 683, 684 (3) (256 SE2d 365) (1979).

I am authorized to state that Judge Barnes joins in Division 2 of this dissent.

       At the time of the decision in Cuesta, the statute on witness competency was essentially the same as OCGA § 24-9-5 prior to 1989. Section 5273 of the Civil Code of 1895 provided, “ “Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.’ ” Cuesta, 1 Ga. App. at 52 (3).

       The court also stated, “I will not allow, if [the prosecutor]' asks where were you on June 5th and they come back, yes, the defendant did it. .. . That’s not going to be admitted.”

       Although Bright involves the application of OCGA § 24-9-5 (b), as noted by the State in its appellate brief, “the analysis applied in [Bright] is helpful to the resolution of [the] issue of whether appellant’s right to confrontation was violated.”


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A2174.
    WADDELL v. T & G FINANCIAL, INC. et al.
    (520 SE2d 911)
   McMurray, Presiding Judge.

Plaintiff Stacy Waddell, an inmate at Rogers State Prison in Reidsville, filed a pro se breach of contract action, alleging defendants T & G Financial, Inc., M. Hugh Turner, Crumley Auto Service, Inc., and James Crumley negligently repaired plaintiff’s 1986 Porsche 944 Turbo. The superior court granted summary judgment in favor of defendants, and plaintiff brings this direct appeal. Held:

Under the express mandate of OCGA § 42-12-8, appeals of all actions filed by prisoners shall be by application for discretionary appeal as provided in OCGA § 5-6-35. Plaintiff’s failure to comply with the discretionary appeal procedure requires dismissal of the appeal in Case No. A99A2174. Jones v. Townsend, 267 Ga. 489, 491 (480 SE2d 24); see also Serpentfoot v. Salmon, 225 Ga. App. 478 (483 SE2d 927); Hall v. Linahan, 225 Ga. App. 439 (484 SE2d 65).

Decided July 16, 1999.

Stacy Waddell, pro se.

Daryl J. Walker, for appellees.

Appeal dismissed.

Johnson, C. J., and Phipps, J., concur.


author: Smith, Judge.

text:
    A99A0079.
    JENNETTE v. NATIONAL COMMUNITY DEVELOPMENT SERVICES, INC.
    (520 SE2d 231)
   Smith, Judge.

Mark L. Jennette appeals from rulings of the trial court in favor of National Community Development Services, Inc. (“NCDS”), in an action brought by NCDS against Jennette alleging that while acting as NCDS’s agent, Jennette breached various agreements and his fiduciary duties of “loyalty, good faith, honesty, and fair dealing” by diverting business to himself. Jennette answered the complaint, alleging that the agreements were not enforceable and denying agency and breach of fiduciary duty. He also asserted several counterclaims. The parties filed cross-motions for summary judgment, and the trial court denied summary judgment to either party on all issues with the exception of Jennette’s counterclaims for conversion and punitive damages. As to those, the trial court granted summary judgment to NCDS. The case was then tried by the court without the intervention of a jury, resulting in a judgment in favor of NCDS in the amount of $235,000. On appeal, Jennette contends the trial court erred in finding that an agency relationship existed between the parties, in awarding damages to NCDS, in awarding summary judgment to NCDS on his counterclaim for conversion, and in failing to award summary judgment in his favor for sums due him as compensation. We find no error, and we affirm the judgment.

The record shows that NCDS is in the business of creating and managing fund raising campaigns for nonprofit entities, including chambers of commerce, colleges and universities, and economic development organizations. This case arose out of business transactions that occurred while Jennette was working as an independent contractor “senior associate” for NCDS, developing projects for customers. When Jennette expressed interest in developing new business, Howard C. Benson, NCDS’s Chief Executive Officer, offered to pay him a commission of ten percent of the gross revenue realized by NCDS on business he developed if he acted as NCDS’s representative in developing business. Other independent contractors were paid similar “finder’s fees.”

In the fall of 1993, one such customer, Macon College, contacted NCDS and asked to have a representative visit its campus to discuss fund raising services. Benson asked Jennette to visit the college and attempt to secure the college’s fund raising business for NCDS. Jen-nette met with the college’s Vice President for Business Affairs, Jack Ragland, who was also the Treasurer of the Macon College Foundation. The college decided to hire NCDS. Additionally, during that fall, he secured for NCDS the business of conducting feasibility studies for Darton College and the Albany State College Foundation. He also made contacts on behalf of NCDS with a group of organizations comprised of Wesleyan College, Andrew College, and the Georgia United Methodist Commission on Higher Education & Campus Ministry (“the Methodist Group”) concerning a feasibility study.

On January 6, 1994, while Jennette was in Huntsville, Alabama, working on a fund raising campaign for NCDS, Benson traveled to Huntsville to work out some problems with the campaign. At that meeting, Jennette informed Benson that the Huntsville campaign would be his last for NCDS, and that when the Huntsville campaign was over, he would begin working on his own. No discussion took place regarding how clients and potential clients would be handled when Jennette began working on his own. Toward the end of January 1994, Jennette formed a sole proprietorship called Advancement & Development Services (“ADS”).

In February 1994, Jennette submitted a proposed contract with NCDS for the first phase of the Macon College project, a feasibility study. He visited Macon College to pick up the college’s check for $15,000, in payment for the feasibility study. But he refused to accept a check payable to NCDS and instructed Ragland to void that and write another check, payable to ADS. Jennette told Ragland that NCDS had been split, with one division doing more development commission work and the other doing more for nonprofit organizations. Ragland testified that Jennette said ADS had been set up as a special division; Ragland believed it was still part of NCDS. Jennette substituted ADS for NCDS not only on the check, but also in the written agreements covering the fund raising project.

On the same day, Jennette sent a proposal to Dr. Billy Black, President of Albany State College, for a fund raising campaign to be conducted by ADS. This proposal was accepted on March 14, 1994. Dr. Black testified, by affidavit read into the record by stipulation at trial, that when Jennette presented the proposal he understood that ADS was a separate organization, but he thought it would be “affiliated” with NCDS. On February 22,1994, Jennette presented a proposal for a fund raising feasibility study to the Methodist Group, which was accepted the same day. At the time the Methodist Group entered into the contract with ADS, it was under the impression that ADS was a division or branch of NCDS. This group paid ADS for the feasibility study but never went forward with a fund raising campaign.

In April 1994, Jennette informed Macon College that ADS and NCDS would not affiliate in conducting campaigns, and in July 1994, Macon College entered into a contract with ADS for a fund raising campaign. The total receipts received by ADS from Macon College, Albany State College, and the Methodist Group for all studies and campaigns after January 6, 1994, was $235,000.

1. NCDS’s request that we impose a penalty for frivolous appeal is denied.

2. In three enumerations, Jennette contends the trial court erred in concluding that he was an agent for NCDS at any time, after January 6,1994, and after March 1994. He argues that NCDS was unable to prove the requirements for an agency relationship because it could not show that Jennette had the authority to bind NCDS, which is “[a]n essential characteristic of an agent.” Gen. Warranty Corp. Ins. Agents &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 436 (1) (356 SE2d 83) (1987).

“An agency relationship arises wherever one person, expressly or by implication, authorizes another to act for him.” (Citation and punctuation omitted.) Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 606 (1) (a) (503 SE2d 278) (1998). But to be an agent, one must be “more than the employee delegated ... to look after certain accounts.” Id. One must have “ ‘authority, real or ostensible, to create obligations on behalf of’ ” the principal, “ ‘bringing third parties into contractual relations with’ ” it. Id. The record shows that Jennette did have that authority. Contrary to Jennette’s argument, the fact that he was hired as an independent contractor is not dispos-itive of this issue. As pointed out by NCDS, the terms “independent contractor” and “agent” are neither antonyms nor mutually exclusive. Jennette had both actual and ostensible authority to bind NCDS. He was authorized to sign contracts on behalf of NCDS. Benson testified that Jennette had the authority “[t]o obligate the corporation to perform the work as outlined in a proposal.” Jennette himself admitted signing agreements on behalf of the company. It also appeared to clients that he had that power. No doubt exists that Jen-nette was known to these clients as an NCDS agent and that the clients themselves, in several cases, believed they were dealing with NCDS when they dealt with Jennette.

As NCDS’s agent, Jennette was under a duty not to make a personal profit from the principal’s business, OCGA § 10-6-25, or from the knowledge obtained from the relationship, to the principal’s injury. Koch v. Cochran, 251 Ga. 559, 560 (307 SE2d 918) (1983). He owed to NCDS the fiduciary duties of loyalty and good faith. Id.

Further, unlike the agents in Gen. Warranty Corp. and Atlanta Market Center, Jennette did not merely compete with a former principal; he deliberately used deception and misrepresentation to obtain for himself business and funds intended for the alleged principal. It is clear from the evidence that Jennette specifically held himself and/ or ADS out to clients as “affiliated” with or a “division” of NCDS, when he knew this was not true, that he did so to secure the clients’ business, and that he converted payments intended for and belonging to NCDS.

Even those commitments made to ADS later in the year, by organizations who by then knew that ADS was a separate entity, were made because of the original deception. For example, a representative of Macon College testified that because Jennette had done the feasibility study he knew “where the money is, so that you — you are waiving your money if you don’t go with that firm to do the complete campaign.” NCDS therefore would be entitled to recover these payments on its claim for conversion or money had and received. See, e.g., Kellett v. Boynton, 87 Ga. App. 692 (75 SE2d 292) (1953) (action for money had and received by disloyal agent).

3. Jennette maintains that the trial court erred in awarding damages to NCDS in the amount of $235,000. He argues that only an amount equal to ADS’s profit should have been awarded and that NCDS failed to prove this amount with any degree of certainty. We do not agree.

As plaintiff, NCDS had the burden of proving its damages with reasonable certainty. Post Realty Assoc. v. DSL Assoc., 228 Ga. App. 678, 679 (492 SE2d 600) (1997). The factfinder must be able to calculate the amount of damages from the evidence presented, since an award may not be based upon guesswork. Gen. Warranty Corp., supra at 437 (4). But it is undisputed that $235,000 is the amount of gross revenue received by Jennette from the diverted business. The gross revenue rightfully belonged to NCDS, and Jennette misappropriated it. The amount of the gross revenue therefore was correctly awarded to NCDS.

Contrary to Jennette’s argument, Vinson v. E. W. Buschman Co., 172 Ga. App. 306 (323 SE2d 204) (1984) does not stand for the proposition that an agent’s breach of fiduciary duty entitles the principal to recover only the agent’s profits, not the gross receipts. In fact, Vinson states that the law is clear in Georgia, as well as in other jurisdictions, that “breach of fiduciary duty negates the unfaithful agent’s right to any compensation and renders him liable to his principal for his dealings with the latter’s property. [Cits.]” Id. at 309-310 (1).

Jennette also argues that in the alternative, NCDS’s recovery could be measured by its loss of anticipated profits, citing the general principle that NCDS should not be placed in a better position than it would have been had the “contract” not been breached. But this general contract principle is not applicable to these facts. If it were, it would conflict with the statutory provision prohibiting the recovery of commission by an unfaithful agent. OCGA § 10-6-31.

4. Jennette asserts that the trial court erred in granting summary judgment to NCDS on his counterclaim for conversion of a computer he left in the office he was using in Huntsville. Benson testified on his deposition that when Jennette left Huntsville, he essentially “shut down” the campaign NCDS was conducting there. He took the central processing unit of Jennette’s computer, containing essential information about the campaign, leaving the monitor, keyboard, and some personal items in the office. After Jennette counterclaimed for the items he left in his office, these items were turned over to Jen-nette’s attorney. At the time he was deposed, Benson indicated that no items belonging to Jennette were in his possession. Jennette came forward with nothing disputing this evidence. Contrary to the assertion in Jennette’s brief, the trial court’s “assumption” that NCDS’s possession of Jennette’s property was lawful in the first instance was fully warranted by Benson’s testimony at his deposition that Jen-nette left the property in the office of NCDS. This was not disputed or contradicted by Jennette. To establish a prima facie case for conversion, Jennette was required to show title to the property or the right of possession, actual possession in NCDS, demand for its return, and refusal by NCDS. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (2) (300 SE2d 328) (1983). Once evidence was presented that Benson returned the computer monitor and other property belonging to Jen-nette, Jennette could not rely on the allegations of conversion in his counterclaim. He was required to come forward with evidence supporting the elements of his case or suffer summary judgment against him. T & R Custom v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 146 (2) (488 SE2d 705) (1997). Jennette failed to do this, and the trial court did not err in entering summary judgment against him on this claim.

5. Jennette contends the trial court erred in declining to award him $1,922.77 on his counterclaim for work performed for NCDS as an independent contractor in the Huntsville campaign. This claim was tried, and the trial court rendered judgment for NCDS on the claim.

The evidence at trial was sufficient to support the trial court’s judgment on this issue. Evidence was presented that the Huntsville campaign was in trouble; that because Jennette had been directing his attention to ADS while heading the Huntsville campaign for NCDS, Jennette accomplished “virtually no work ... of any substance” in Huntsville; and that NCDS was forced to send another team to Huntsville and work for about four months with no fee to “clean up the mess.” Under these circumstances, we cannot say the trial court erred in concluding that Jennette was not entitled to further compensation for that campaign.

Decided June 28, 1999 —

Reconsideration denied July 19, 1999.

Julian M. Treadaway, for appellant.

Chorey, Taylor & Feil, Jeffery T. Coleman, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Barnes, Judge.

text:
    A99A0275.
    CLARK v. CAUTHEN.
    (520 SE2d 477)
   Barnes, Judge.

Carolyn Siebert Clark appeals the grant of summary judgment to Victor C. Cauthen. Clark sued Cauthen personally in an effort to pierce the corporate veil of Studebaker’s of Savannah, Inc. (“Studebaker’s”), to collect a judgment owed her by Studebaker’s. Her suit contended that Cauthen and other defendants, who were former owners of Studebaker’s, fraudulently conveyed Studebaker’s assets to other corporations, conspired to defraud Clark of her right to collect her judgment, and otherwise used Studebaker’s as their alter ego to deplete its assets and prevent Clark from enforcing her judgment.

Clark contends that, among other actions, Cauthen sold his interest in Studebaker’s to a corporation that had been administratively dissolved, received a $20,000 loan from Studebaker’s that was later characterized as salary, and forgave royalty payments that were to be paid him as part of the sale of his interest in Studebaker’s. Also, Clark’s expert, a certified public accountant, stated he found inconsistencies between Studebaker’s financial records and the affidavit of Studebaker’s CPA for the years 1986 to 1989. The previous history of this litigation may be found in Studebaker’s of Savannah v. Tibbs, 195 Ga. App. 142 (392 SE2d 908) (1990), and Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (362 SE2d 377) (1987). Clark was formerly known as “Tibbs.” This appeal does not concern the other defendants.

After discovery, the trial court granted Cauthen’s second renewed motion for summary judgment. On appeal, Clark contends the trial court erred by doing so because genuine issues of material fact remain for trial on whether Cauthen should be held personally liable for the judgment against Studebaker’s and because the grant of Cauthen’s second renewed motion for summary judgment was unauthorized.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. The law of corporations is founded on the legal principle that each corporation is a separate entity, distinct and apart from its stockholders (Exchange Bank of Macon v. Macon Constr. Co., 97 Ga. 1 (1) (25 SE 326) (1895)), and insulation from liability is an inherent purpose of incorporation. Mitcham v. Blalock, 214 Ga. App. 29, 34 (4) (447 SE2d 83) (1994). Therefore, Clark is not entitled to recover from Cauthen merely because she cannot recover from Studebaker’s.

To recover from Cauthen personally for Studebaker’s debts, Clark must pierce Studebaker’s corporate veil.

The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.

(Citation and punctuation omitted.) Fuda v. Kroen, 204 Ga. App. 836, 837 (1) (420 SE2d 767) (1992).

In deciding this appeal we are guided by two principles that sometimes conflict: (1) Caution should be exercised before disregarding the corporate entity, and (2) piercing the corporate veil is a jury issue unless no evidence exists that would be “sufficient to justify disregarding the corporate form.” J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995). Therefore, the grant of summary judgment to Cauthen would be authorized only if no evidence exists that shows, or from which it might be inferred, that “the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud, or to evade statutory, contractual or tort responsibility.” (Citation and punctuation omitted.) J & J Materials v. Con-yers Seafood Co., 214 Ga. App. 63, 65 (4) (446 SE2d 781) (1994).

This record shows no such evidence. None of the transactions Clark relies upon shows that Cauthen disregarded Studebaker’s corporate legal entity. For example, Cauthen did not receive compensation from Studebaker’s when he sold his interest in Studebaker’s to a corporation owned by his former business associates. The funds he received in that transaction were from a bank loan to the purchasing corporation, and not from Studebaker’s. Also, that Cauthen did not receive all the money from the purchasing corporation to which he was entitled, or that he forgave some royalty payments to which he was entitled, did not affect Studebaker’s financial condition. Additionally, no evidence shows that Cauthen was aware that the corporation that purchased his interest in Studebaker’s had been administratively dissolved at the time of the sale. Neither transaction shows that Cauthen disregarded Studebaker’s corporate entity or acted as if Studebaker’s was his alter ego or business conduit. See Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150-151 (137 SE2d 619) (1964). Also, the loan Cauthen received from Studebaker’s which was later reclassified as salary was consistent with Studebaker’s usual practice regarding the owner’s compensation. Moreover, Clark did not rebut the statement in Cauthen’s affidavit that “other than receiving salary compensation, [he] never transferred or caused to be transferred any assets of Studebaker’s to any other person, party, or corporation.”

3. The trial court did not use an improper standard in ruling on Cauthen’s motion for summary judgment. This argument is based on the following portion of the order granting summary judgment:

Plaintiff has supplied the court with a list of issues which are in need of jury resolution, and has pointed out inconsistencies in defendant’s position which support Plaintiff’s case. Despite the litany of alleged questionable behavior, inaccurate information and inconsistent testimony to which plaintiff points in support of her case, the court is convinced that the jury issues, even if resolved in favor of plaintiff, would not rise to the requisite level to allow plaintiff to make defendant personally liable. In sum, the court does not feel that there exist in the record triable jury issues which would result in the corporate veil being pierced.

Decided June 30, 1999

Reconsideration denied July 21, 1999

Marshall R. Wood, for appellant.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Michael J. Classens, for appellee.

The trial court’s order merely states the rule that only genuine issues of material fact preclude the grant of summary judgment. See Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 422 (4) (160 SE2d 633) (1968). Here, the trial court ruled that the issues Clark asserts are not relevant and material to the issue of piercing the corporate veil. There was no error.

4. Clark also asks us to hold that the grant of summary judgment was not authorized because it followed Cauthen’s second renewed motion, and that after Cauthen’s first motion for summary judgment was denied by the trial court, his application for interlocutory appeal was denied by this court. She seeks a ruling that a trial court may not change its ruling after it has denied a motion for summary judgment unless the movant asserts a new evidentiary basis. Such a holding, of course, is contrary to existing precedent, (Southeastern Metal Products v. Horger, 166 Ga. App. 205, 206 (1) (303 SE2d 536) (1983)) and would, in effect, reinstate the law of the case rule. Because that result would be contrary to OCGA § 9-11-60 (h), we could not issue such a ruling even if we are inclined to do so. We find no error in the procedures used by the trial court.

Accordingly, the superior court did not err by granting Cauthen’s motion for summary judgment.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The largest discrepancy was $42,698 between the net profit of $10,119, as determined by Studebaker’s CPA, and the net income of $52,963, as shown in Studebaker’s financial statement.

       This Code section provides that “[t]he law of the case rule is abolished.’


text:
    A99A0505.
    LANE v. THE STATE.
    (520 SE2d 705)
   Barnes, Judge.

Gary M. Lane, Sr. appeals his convictions for driving under the influence in violation of OCGA § 40-6-391 and weaving over the roadway in violation of OCGA § 40-6-390. Lane’s initial enumeration of errors contended the jury was picked from a jury pool that did not represent a fair cross-section of the community, the trial court erred by granting the State’s motion in limine to exclude certain testimony of the arresting officer, and the trial court erred by refusing to charge on the weight to be given the breathalyzer or blood analyzer results. Later, Lane amended his enumeration of error to add an allegation that the trial court erred by refusing to exclude the breathalyzer test results.

1. We cannot consider the error asserted in Lane’s amended enumeration of error that was filed four days after Lane filed his original enumeration of errors because an enumeration of errors cannot be amended after the time for filing an enumeration of errors has expired. Talley v. State, 200 Ga. App. 442, 447 (408 SE2d 463) (1991). In this case, pursuant to an extension of time in which to do so, Lane filed his enumeration of errors and brief on December 18, 1998, the last day of the extension. His amended enumeration that was filed on December 22, 1998, was thus untimely.

2. On the day of trial, Lane filed a motion challenging the array from which the jury was selected. The motion contended that young adults and whites were excluded from the jury list intentionally, dis-criminatorily, and systematically and that prior traverse jury lists reveal a history and pattern of intentional, discriminatory, and systematic exclusion of both groups.

(a) To prove his allegation regarding young adults, Lane was first required to prove that young adults represented a cognizable group in Fulton County. Potts v. State, 259 Ga. 812, 813 (1) (388 SE2d 678) (1990). To do so, Lane was required to prove that young adults were a group defined and limited by some factor, that a common thread or interest ran through the group, and that the group had a community of interest that would not be represented if the group was excluded from the jury selection process. Id. Secondly, he was required to show that young adults have been consistently underrepresented on the jury lists. Id.

Lane failed to prove either part of the test because he presented no evidence to support his motion. For example, he made no showing that young adults were a cognizable group in Fulton County or that young adults have been consistently under-represented in the jury pool. Potts v. State, supra, 259 Ga. at 813.

(b) Lane also failed to prove his challenge to the racial composition of the array. Evidence that a jury panel contains no members of a defendant’s race, standing alone, does not support a challenge to the array (Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635) (1988)) because the Constitution does not guarantee that the jury impaneled in a particular case will be a representative cross-section of the community. Truitt v. State, 212 Ga. App. 286, 287 (441 SE2d 800) (1994). The correct inquiry concerns the procedures for compiling the jury lists and not just the composition of a particular jury. Patterson v. Balkcom, 245 Ga. 563, 565 (1) (266 SE2d 179) (1980).

(c) Lane’s challenge to the preparation of the jury list merely alleges that unspecified “arbitrary methods” are used, that the list is out of date, and that using an alphabetical list allows “entire family units” to dominate the jury process. Lane, however, presented no evidence to prove that these allegations were true, or to prove the effect of these alleged irregularities was to exclude members of any group from the jury. Although offered the opportunity to support his motion, Lane did not do so, and even though he renewed his motion after the jury was selected, he presented no evidence to support his claims. Therefore, the trial court did not err by denying this motion.

3. Lane further contends the trial court erred by granting the State’s motion in limine to exclude the arresting officer’s statements at a hearing on Lane’s possible guilty plea to these charges. The trial court concluded that the officer was not sworn at the hearing and that the officer’s statement was inadmissible because it was part of the plea negotiations. Lane contends, however, that he should have been allowed to use the officer’s statements at the guilty plea hearing to impeach the officer’s testimony that Lane was a less safe driver.

During the guilty plea hearing, the officer admitted that he stated his opinion that the results of the field sobriety tests he administered to Lane did not warrant the high results shown by the breathalyzer. Later, during a hearing on the admissibility of the breathalyzer results, the officer acknowledged making that statement, but the officer also testified that at no time did he ever say that he believed that Lane was not under the influence of alcohol to the extent he was a less safe driver. The officer merely said he did not believe Lane’s physical attributes warranted the numerical test results.

Pretermitting whether the trial court was correct in excluding the officer’s statements during the guilty plea hearing, we find no reversible error because the officer’s testimony before the jury was not inconsistent with either his statement at the guilty plea hearing or his testimony at the motion hearing. At all times the officer testified that Lane’s performance on the field sobriety tests did not appear to warrant the breathalyzer test results and that he believed that Lane was a less safe driver because he was under the influence of alcohol. Consequently, as the officer’s testimony and his statement were not inconsistent, Lane could not use the statement for impeachment. Thus, he was not harmed by the grant of the motion in limine. Moreover, Lane was not denied the use of the officer’s opinion because the officer testified before the jury that he believed the breathalyzer results were higher than he expected based on Lane’s performance on the field sobriety tests. Harm and error must be shown to warrant reversal. Hinton v. State, 233 Ga. App. 213, 214 (1) (504 SE2d 49) (1998).

Decided June 30, 1999

Reconsideration denied July 21, 1999

William H. Toler III, for appellant.

Joseph J. Drolet, Solicitor, Marko L. Burgar, Assistant Solicitor, for appellee.

4. Lane contends the trial court also erred by denying his request to charge no. 9 that

[t]he reliability and performance of any given breathalyzer or blood analyzer machine is subject to challenge. If there is evidence that any particular machine has malfunctioned or was designed or operated so as to produce unreliable results, such evidence is relevant to the weight which you should accord the test results.

Alleged errors in jury instructions, however, are not considered alone, but must be considered in the context of the whole charge when determining whether there was error. Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177) (1987).

Review of the entire charge given in this case shows the trial court charged the jury that “even where a procedure in general use is based upon a scientific theory, it may have some margin of error and give an erroneous result under certain circumstances.” As this charge addresses the substance of the requested charge, the trial court did not err by refusing to give request to charge no. 9. It is not error to fail to charge in the exact language of a requested charge if the principles of law embodied in the request are included in the charge given. Gibbins v. State, 229 Ga. App. 896, 900 (5) (495 SE2d 46) (1997). Accordingly, we find no error.

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0645.
    DIXON DAIRY FARMS, INC. v. CONAGRA FEED COMPANY.
    (519 SE2d 729)
   Barnes, Judge.

Conagra Feed Company sued Dixon Dairy Farms for $123,110.61 on an open account, plus contractual attorney fees and interest. Dixon Dairy answered that it did not owe on the account because Conagra’s feed was not fit for its intended purpose, and counterclaimed for lost profits. The trial court granted summary judgment to Conagra on both its suit on account and Dixon Dairy’s counterclaim. Dixon Dairy appeals the summary judgment grant. We affirm the grant of summary judgment to Conagra on Dixon Dairy’s claim for lost profits, but reverse the grant to Conagra on its claim for money due on an open account.

On appeal, Dixon Dairy raises two enumerations of error, arguing that questions of fact remain as to whether the feed was fit for its ordinary purpose and whether the farm lost profits due to Conagra’s alleged breach of the implied warranty of merchantability. Dixon Dairy admitted in its answer that it had an open account with Conagra, that Conagra shipped feed during the time period alleged, and that the account showed an unpaid balance; thus we need only address Dixon Dairy’s defenses and counterclaim.

In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). As the movant for summary judgment, Conagra had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to Dixon Dairy, warranted judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Assuming Conagra made that showing, the burden then shifted to Dixon Dairy to show evidence sufficient to create an issue of fact on its affirmative defense.

Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.

(Citations and emphasis omitted.) Garrett v. NationsBank, N.A., 228 Ga. App. 114, 116 (491 SE2d 158) (1997). If Dixon Dairy met this burden, Conagra, as the moving party not bearing the burden on the affirmative defense, could meet its burden by pointing out that the evidence did not support the affirmative defense. Bell u. Smith, 227 Ga. App. 17, 18-19 (488 SE2d 91) (1997).

Pleadings and depositions establish that Conagra began delivering feed to Dixon Dairy on November 10, 1995, and stopped on January 20, 1996. A veterinarian who treated Dixon Dairy’s cows regularly testified that he examined the herd in December 1995 and January 1996 at the owner’s request. He testified the cows looked tired, their coats were dull, and their weight was down, as if they were not receiving sufficient nutrition. He examined the dairy’s records with the farm manager, and noticed that the interval between breeding times had lengthened, which reduced the amount of milk the animal produced. He attributed their poor condition to inadequate nutrition because that was the only part of their routine that had changed, and testing revealed no diseases or infections. He said the feed itself did not look fresh and had some kind of contaminate that looked like rat parts. Finally, he testified that a month after switching their feed, the cows’ milk production rose; within three months their coats looked good and they were alert again.

Dixon Dairy’s farm manager testified that the herd became sluggish 30 to 45 days after it began eating Conagra feed. The cows ate more feed but milk production remained flat, even though it generally rises during cooler months. He said he saw contaminants in the feed, such as rats, a hard hat, and a glove. Milk production rose after the dairy resumed using Purina feed, and the herd became healthy again.

We note the record contains references to various tests of the feed but no proper evidence of the test results. At most, it contains hearsay about what a test report indicates to a witness. Significantly absent from the record is any testimony from the person who conducted the tests or testimony regarding the sample and testing procedures. Without such evidence, the test results are hearsay. Furthermore, even if properly admitted, the evidence does not indicate the appropriate significance to be placed on the percentages contained in the analysis.

1. Dixon Dairy asserted that Conagra’s feed was not fit for its ordinary purpose, feeding dairy cattle. OCGA § 11-2-314 provides that, unless excluded, a contract of sale implies a warranty of merchantability of the goods. OCGA § 11-2-314 (2) defines merchantable as follows:

Goods to be merchantable must be at least such as: (a) Pass without objection in the trade under the contract description; and (b) In the case of fungible goods, are of fair average quality within the description; and (c) Are fit for the ordinary purposes for which such goods are used; and (d) Run, within the variations permitted by the agreement, of even kind, quality, and quantity within each emit and among all units involved; and (e) Are adequately contained, packaged, and labeled as the agreement may require; and (f) Conform to the promises or affirmations of fact made on the container or label if any.

Evidence that hog feed contained toxins, that hogs tested positive for toxins after eating the feed, and that hogs were healthy before and unhealthy after eating feed was sufficient to sustain a jury verdict for the farmer in a suit against a feed company alleging breach of implied and express warranties and negligence. Tillman & Deal Farm Supply v. Deal, 146 Ga. App. 232, 233 (1) (246 SE2d 138) (1978). However, testimony that crop production was lower the year a farmer applied a certain fertilizer was insufficient to withstand a directed verdict on a suit on open account, as the farmer failed to show the manufacturer’s product caused the decreased production. Lorick v. Na-Churs Plant Food, 150 Ga. App. 209-210 (2) (257 SE2d 332) (1979).

Cases alleging that seed providers breached the implied warranty of fitness also illustrate the amount and type of evidence sufficient to create a jury question on whether goods were fit for their ordinary purpose. For example, evidence from county extension agents that a peanut crop did not germinate properly and had abnormal roots was sufficient to affirm a trial court’s decision to send an implied warranty of merchantability claim to the jury in Gold Kist v. Williams, 174 Ga. App. 849 (332 SE2d 22) (1985). Deposition testimony claiming seed corn contained sterile male com, which will not produce a crop, was sufficient to withstand a summary judgment on an implied warranty of merchantability claim in Farmers Mut. Exchange of Baxley v. Dixon, 146 Ga. App. 663, 664 (4) (247 SE2d 124) (1978). “Where there is evidence of. a defect in the goods which renders them unfit for the ordinary purposes for which such goods are used, the vendor may be held liable under the UCC.” (Citation omitted.) Id. at 664.

In granting summary judgment to Conagra, the trial court found that Dixon Dairy

presented no evidence that the feed supplied by [Conagra] did not conform to the specifications represented on its packaging, or that its nutritional content fell below that mandated by the Georgia Department of Agriculture. ... In the absence of verifiable, objective evidence a feed’s nutritional content was below what was represented or what is legally mandated, a claim which can be sustained only by proof the feed was defective cannot be pursued.

The evidence outlined above from the veterinarian and farm manager raises an issue of fact regarding Dixon Dairy’s defense to Conagra’s suit on account, and the trial judge erred in awarding summary judgment to Conagra on the account.

2. However, Dixon Dairy presented evidence insufficient to withstand summary judgment on its claim for lost profits. “It is well settled that there can be no recovery on a claim for loss of expected profits except where such loss can be shown with reasonable certainty. Farmers Mut. Exchange of Baxley v. Dixon, 146 Ga. App. 663, 664 (247 SE2d 124) (1978).” Morey v. Brown Milling Co., 220 Ga. App. 256, 259 (6) (469 SE2d 387) (1996). Our decision in Morey outlines the evidence necessary to show lost profits with reasonable certainty in an analogous situation. The plaintiff in Morey sought to recover profits lost when a batch of peanut seed failed to yield a good crop. We held that, in order to show lost profits due to defective seed, Morey had to compare crops grown in the same soil, planted at the same time under identical weather conditions, and fertilized and cultivated in the same manner. Id. at 259-260.

We have further held that, to recover lost profits, the farmer “must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.” Kitchens v. Lowe, 139 Ga. App. 526, 531 (3) (228 SE2d 923) (1976).

To show lost profits, therefore, Dixon Dairy would have to compare the output of cows kept in the same location and cared for in the same manner, as well as introduce evidence of the expenses it would have incurred. It did not do so. The evidence showing lost profits consisted of the farm manager’s deposition testimony and his conclusory affidavit submitted in response to Conagra’s motion for summary judgment.

In his deposition, the manager attributed the largest portion of loss to “the milk production, the cows peaking lower than they would, what I feel like they would have normally peaked.” Using figures from “either the University of Pennsylvania or Cornell or the Herds Dairyman, I can’t remember which one,” he figured out how much a cow’s milk production would drop when the cows’ production peaked at a lower level than anticipated. He estimated that the dairy lost $215,000 worth of milk. He further estimated that lower reproduction rates cost the farm “around $35,000,” “based on a formula in a public dairy manual.” His affidavit similarly failed to compare cows kept in the same location and cared for in the same manner, and did not include any evidence regarding the formulas by which he calculated the lost milk.

Decided June 23,1999 —

Reconsideration denied July 21,1999.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellant.

Chambless, Higdon & Carson, Brown W. Dennis, Jr., Marc T. Treadwell, for appellee.

This evidence is insufficient to establish lost profits. Morey v. Brown Milling Co., supra, 220 Ga. App. at 259. The trial court did not err in granting summary judgment to Conagra on Dixon Dairy’s counterclaim for lost profits.

Judgment affirmed in part and reversed in part.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


author:
Eldridge, Judge.
      SMITH, Judge, Pope, Presiding Judge,

text:
    A99A0735.
    LEDFORD v. THE STATE.
    (520 SE2d 225)
   Eldridge, Judge.

A Whitfield County jury found Jeffery Lynn Ledford guilty of intentional inhalation of paint fumes as proscribed by OCGA § 16-13-91. He appeals, challenging the sufficiency of the evidence.

The Whitfield County Sheriff’s Office received a call regarding a domestic dispute involving Ledford, in which Ledford’s trailer was burned. Ledford was located in another trailer near the scene. The deputies knocked on the door of the trailer, and Ledford answered. They asked him if he was alright. Ledford started to cry. He immediately held out his wrists and blurted out, “I’m sorry, I’m ready to go. I’m sorry; I burned my trailer down.” Ledford was extremely emotional and upset; he was “nervous and shaking.” The deputies attempted to calm Ledford down and ask him what happened. While relating his version of events, Ledford pointed to a paper bag containing a can of gold spray paint and paper towels saturated with gold paint. Ledford told the deputies that he had been “huffing” paint and that he did so whenever “his nerves are shot.” Ledford had traces of gold paint around his nose and mouth. The label on the spray can stated that the paint contained “toluene.” At trial, the State introduced similar transaction evidence showing that Ledford had pled guilty to intentional inhalation of paint fumes on three prior occasions. Held:

In challenging the sufficiency of the evidence introduced against him, Ledford contends that there was insufficient evidence to demonstrate that the contents of the spray paint can included the chemical toluene. We are constrained to agree.

The offense of intentional inhalation occurs when one intentionally, for the purpose of causing a condition of intoxication, etc., smells or inhales the fumes from any “model glue.” OCGA § 16-13-91. In that regard, “model glue” is defined as any chemical substance containing certain proscribed chemicals, inter alia, acetone and toluene. OCGA § 16-13-90. Ledford was indicted for inhaling “paint containing acetone and toluene.” Thus, the presence of either acetone or toluene is an essential element of the offense of intentional inhalation as indicted.

In this case, the State proved that the inhaled paint contained the chemical toluene solely through the introduction of the gold spray paint can which carried a contents label identifying toluene as one of its ingredients. There was no objection to the introduction of the can or to the reading of its label to the jury. However, this evidence, alone, is insufficient as a matter of law. The presence of toluene, an essential element of the crime, cannot be proved only through the introduction of the spray can. The contents label is hearsay and, absent a recognized exception, cannot prove the truth of the matter asserted thereon. See, e.g., Taylor v. State, 144 Ga. App. 534 (241 SE2d 590) (1978). Hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/ Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990). See also Curtis v. State, 190 Ga. App. 173,175 (378 SE2d 516) (1989). Since no competent evidence proved that the inhaled paint contained either acetone or toluene as required by OCGA § 16-13-90, the State failed to prove the crime pursuant to OCGA § 16-13-91.

The dissent’s reliance on the necessity exception to the hearsay rule is misplaced. The necessity exception to the hearsay rule has two components: (1) necessity and (2) particularized guarantees of trustworthiness. Chapel v. State, 270 Ga. 151, 155 (510 SE2d 802) (1998).

1. With regard to the first component, necessity, the dissent asserts that a necessity for an exception to the hearsay rule is established by the fact that: “an array of witnesses would be necessary to qualitatively analyze the container’s contents and to establish production control and packaging in order to introduce the evidence.” Although the dissent does not credit the source of such statement, the statement is essentially a direct quote from the case of Moore v. State, 811 SW2d 848 (Mo. App. 1991): “an array of witnesses would be required to establish qualitative analyses of substances as well as production control and packaging in order for the items to be admissible in evidence.” Id. at 850. However, the statement in Moore was directed at establishing strict compliance with Missouri’s multiple statutory procedures for taking blood in preparation for chemical testing and did not go to the actual test of the blood itself. The statement is completely inapplicable to the instant case. Clearly, there is no “array” of witnesses required to testify that a spray can contains toluene, other than the lab technician who conducts the chemical test and the chain of custody witness — just like in any other drug case where the State must prove the presence of a prohibited substance.

In order to use the “necessity exception” as a method to abrogate a criminal defendant’s constitutional right to confront the witnesses against him, especially those that establish an essential element of the indicted offense, there must be a genuine necessity.

Under the necessity exception to the hearsay rule, hearsay statements are admissible when the evidence is necessary and when there are particular guarantees of trustworthiness. We have previously found that the first criteri[on] is met when the declarant is deceased. However, death or unavailability of the declarant cannot alone satisfy the necessity component without allowing the exception to swallow the rule. Additionally, the proponent of the evidence must show that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered. These additional elements will help ensure that the necessity exception does not render the rules of evidence meaningless and allow the conduct of trials by hearsay.

(Emphasis supplied.) Chapel v. State, supra at 155; Lee v. State, 270 Ga. 626, 627 (2) (513 SE2d 225) (1999). Here, the first prong of the necessity exception cannot be satisfied, because evidence regarding the contents of the spray can may be procured and offered through the testimony of a crime lab technician, without resorting to the hearsay label on the can. The fact that it would be easier to introduce the can does not rise to the level of showing “necessity” pursuant to the necessity exception to the hearsay rule.

2. With regard to the second prong of the necessity exception, “particular guarantees of trustworthiness,” the dissent relies upon five additional foreign cases in order to establish such. However, a review of the basis for each case’s holding (as opposed to selected excerpts from each case) demonstrates that the rationale for admissibility is not applicable under Georgia law.

In the Interest of T D., 115 Ill.App.3d 872 (450 NE2d 455) (1983), the court determined that a contents label was admissible based upon the language of an Illinois statute which required such labeling in conjunction with an Illinois evidentiary statute regarding “trade inscriptions” which makes labels made in the ordinary course of business self-authenticating. Id. at 458-459. Georgia has neither statute.

In re Michael G, 19 Cal.App.4th 1674 (24 Cal.Rptr.2d 260) (1993), determined that a content label was admissible based upon a specific California statutory exception to the hearsay rule, the “compilation exception,” that permitted the introduction of the label under the business records exception to the hearsay rule. Id. at 262. Georgia has no such exception.

In Commonwealth v. Harvey, 666 A2d 1108 (Pa. 1995), the court found that the label at issue was not hearsay because it was not being offered for the truth of the matter asserted thereon, i.e., the contents of the container, but as an identifier. Id. at 1110. Later, the court took judicial notice of the contents of the identified product based upon a State-published digest regarding such contents, the Pennsylvania Bulletin, which publication was required by State Control Board regulations. Id. at 1113. In the instant case, the label on the can was the sole evidence offered to prove the contents of the can.

Wirth v. State, 55 Wis.2d 11 (197 NW2d 731) (1972), focused on a State statute requiring that a pharmacist maintain a narcotics registry and label any container for a narcotics substance. Id. at 732-733. In a trial for the improper purchase of an excessive amount of a narcotic substance, codeine, the pharmacist was called to testify as to his sale of a bottle of the narcotic to the defendant. The court found that the State had sufficiently shown the bottle to contain the narcotic in that: (1) the bottle was kept in a nonaccessible area reserved for narcotics; (2) it was sealed with an unbroken seal; (3) it was dispensed by a registered pharmacist who believed it to contain a narcotic substance; (4) it was labeled as containing a narcotic substance; (5) it was labeled and sealed by the manufacturer in response to both federal and state laws regulating manufacturing, packaging and selling or dispensing narcotics; and (6) the defendant in making the purchase signed the narcotics registry as required by law, thereby demonstrating that the bottle he purchased contained a narcotic substance. Id. at 731-732. Most importantly, the pharmacist who kept the narcotics registry and sold the product to the defendant was called to testify and was subject to cross-examination on all of the above-referenced points. Id. at 733. Contrary to the dissent’s assertions, the label alone was not admitted to prove the contents of the bottle, and the defendant’s right to cross-examination was not abridged.

Finally, in State v. Mitchell, 18 Ohio App.2d 1 (246 NE2d 586) (1969), as in the above case, Wirth v. State, supra, the defendant was tried for purchasing an excessive amount of codeine. Again, the State proved the contents of the bottle, not through the label alone, but through the testimony of a pharmacist who was under the same State statutory scheme as in Wirth to maintain a narcotics registry. The court found the registry admissible under the State’s business records exception to the hearsay rule, Ohio Code § 2317.40, Revised Code, which specifically included a “mercantile inconvenience” aspect of the business record exception that was found to encompass product labels. Id. at 590-591. In addition, the pharmacist testified and was subject to cross-examination regarding the narcotics registry, in protection of the defendant’s confrontation rights. In this case, we are not dealing with the same type of crime, the same State statutory regulatory scheme, or the same exception to the hearsay rule.

Clearly, a close inspection of the actual holdings in the above-cited cases is required. Not one of the cited cases permitted the introduction of a product label under the “necessity exception” to the hearsay rule. Each case had an independent evidentiary and/or statutory basis for admission of the product label. Most importantly, not one of the cited cases permitted a product label alone to prove an essential element of the State’s case against a criminal defendant.

That it would be more convenient and expedient to introduce the spray can label to prove the contents of the can is indisputable. And perhaps our State legislature may provide for an exception that would permit just that. But for now, the spray can label is hearsay and does not fall within any recognized exception in this State. A criminal defendant has a right to be tried and convicted on competent evidence. Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996). Ledford’s conviction must be reversed.

Judgment reversed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur. Blackburn, P. J., and Smith, J., concur specially and in judgment only. Johnson, C. J., and Pope, P. J, dissent.

SMITH, Judge,

concurring specially and in the judgment only.

I concur in the result reached by the majority, but I do not agree with all that is said in the majority opinion. I therefore cannot concur fully. Although I appreciate the reasoning in the dissent and might agree with it personally, in my view it expands the law with regard to exceptions to the hearsay rule to an extent not permitted to this court. Such an expansion is best left to the Supreme Court of Georgia or the Georgia General Assembly. I therefore concur in the majority opinion, but in judgment only.

I am authorized to state that Presiding Judge Blackburn joins in this special concurrence.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. Although there appear to be no Georgia opinions directly on point, a series of opinions from other jurisdictions apply an exception to the hearsay rule when considering labels which are required by law to show the contents of the container. The reasoning of these cases is sound and consistent with the general principles of Georgia law, and the evidence should be admitted.

“The statutory exceptions to the rule against the admission of hearsay are not exhaustive and exclusive of all other cases. [Cit.] An exception will be allowed ‘from necessity’ where ‘necessity’ and ‘particularized guarantees of trustworthiness’ are established. [Cit.]” McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993). Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993); OCGA § 24-3-1 (b).

Case law from other jurisdictions confirms the majority’s conclusion that the label on the can of paint is hearsay. See, e.g., In re Michael G., 19 Cal.App.4th 1674 (24 Cal.Rptr.2d 260) (1993) (label on can of spray paint); Moore v. State, 811 SW2d 848 (Mo. App. 1991) (label on pharmaceutical container); In the Interest of T D., 115 Ill.App.3d 872 (450 NE2d 455) (1983) (label on tube of glue); Wirth v. State, 55 Wis.2d 11 (197 NW2d 731) (1972) (label on medication bottle); State v. Mitchell, 18 Ohio App.2d 1 (246 NE2d 586) (1969) (label on drug bottle). But in each of these cases, the court held that the label could be introduced into evidence under an exception to the hearsay rule.

In In re Michael G., a California appellate court affirmed an order declaring the defendant to be a ward of the court by reason of his possession of a substance containing toluene with the intent to inhale for the purpose of intoxication. The court applied a California statute establishing a hearsay exception for “published compilations” that were “generally used and relied upon as accurate in the course of a business.” Id. at 1677. The court reasoned,

A label including (rather than excluding) a hazardous substance is inherently trustworthy, in that a manufacturer would have no interest in proclaiming that the product contained such a substance if in fact it did not. . . . The trial court was thus entitled to take judicial notice that the public relies on the dangers and antidotes listed on a label as a matter of common knowledge, and to conclude that the label was generally used and relied on as accurate in the course of a business within the meaning of the [published] compilation exception to the hearsay rule.

Id. at 1678. Although this result is based on a specific statute, the court found that the labels were inherently trustworthy. And cases from other jurisdictions have found information from labels admissible in the absence of a statutory exception to the hearsay rule.

In Moore, a defendant appealed an order suspending his driving privileges on the ground that he was convicted of driving under the influence based on hearsay evidence. 811 SW2d at 850. With regard to a blood test to determine blood alcohol content, a Missouri statute required the blood tester to use a “sterile needle and sterile vessel” to draw the blood and a “nonalcoholic antiseptic” to clean the skin. The phlebotomist’s testimony that the two items were sterile and that the antiseptic was nonalcoholic was based on the label on their respective packages. The court therefore had to address whether the labels, which were obviously hearsay, could be used to prove the contents of the containers to which the labels were attached.

The Missouri appellate court stated,

labels placed on pharmaceutical and hazardous substances suffice to establish “circumstantial probability of trustworthiness,” and are admissible as evidence to prove the contents of the substances in the containers to which the labels are attached. [Cit.] Otherwise, an array of witnesses would be required to establish qualitative analyses of substances as well as production control and packaging in order for the items to be admissible in evidence.

811 SW2d at 850. The court held that this situation warranted a special exception to the traditional hearsay rule. Id. at 852 (and cases cited therein from Iowa and Maine).

In In the Interest of T. D., the Appellate Court of Illinois affirmed an adjudication of wardship alleging a minor had sniffed glue containing “toluol” in violation of state law. 450 NE2d at 456. The court noted that the label was a statement by the manufacturer as to the contents of the product. Id. at 457. The court disagreed that the label fell within Illinois’ business record or public document exceptions to the hearsay rule, but found that the label was sufficiently trustworthy to be an exception. Id. at 459. The court went on to explain that it found trustworthiness because the label was required by state law, any misinformation would be a violation of the law and would probably provide a basis for civil liability on the manufacturer, and there was no indication of tampering or adulteration of the contents. Id.

The Supreme Court of Wisconsin affirmed a conviction of misuse of narcotics which was based in part on a label which stated the bottle contained a substance containing codeine, a narcotic. Wirth, 197 NW2d at 733-734. Citing Wigmore on Evidence, the court held that the surrounding circumstances were sufficient to show probability of trustworthiness of the label and the fact that the substance in the bottle contained a narcotic. Id. at 733. The court quoted Professor Wigmore’s third edition,

“We see that under certain circumstances the probability of accuracy and trustworthiness of [the] statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner. ... It is merely that common sense and experience have from time to time pointed them out as practically adequate substitutes for the ordinary test, at least, in view of the necessity of the situation. [5 Wigmore, Evidence (3rd ed.), p. 204, § 1422.]”

Id.

The Federal Hazardous Substances Act, 15 USC §§ 1261-1278, and the corresponding regulations, 16 CFR 1500, require labeling of substances deemed hazardous, including toluene, with the common or usual name or chemical name of the substance. Failure to provide such a label is considered misbranding and is a violation. 16 CFR 1500.3. As stated in In re Michael G., there is no incentive for the manufacturer to label a product as containing a substance when in fact it did not.

A necessity for an exception to the hearsay rule is established by the fact that an array of witnesses would be necessary to qualitatively analyze the container’s contents and to establish production control and packaging in order to introduce the evidence. Particularized guarantees of trustworthiness for the information contained on these labels are established by the federal law requiring labels, the ubiquitous use of product labels in our society, and the common reliance on these labels. Thus the elements of the necessity exception to the hearsay rule are present, and the can and its label should be allowed into evidence. See McKissick v. State, 263 Ga. at 189. This rule would be strictly limited to the presence of the hazardous substance, and not to its quantity or quality, and only to those substances required by law to be identified on the label.

Decided June 28, 1999

Reconsideration denied July 21, 1999

Coppedge, Leman & Ward, David L. McGuffey, for appellant.

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

Finally, contrary to the statement in the majority opinion, the dissent does not rely on Commonwealth v. Harvey, 666 A2d 1108 (Pa. 1995).

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

       Competent evidence of the presence of the chemical toluene in the contents of the can would necessarily entail a chemical analysis of the contents of the can. That the label identifies “toluene” as an ingredient as a matter of law proves nothing about the actual contents of the can at the time of the alleged offense, or that it was in a chemical state capable of being inhaled.

       Missouri Code § 577.029 specifically requires blood to be drawn with “a previously unused and sterile needle and sterile vessel.... A non-alcoholic antiseptic shall be used for cleansing the skin.” Moore, supra at 850. The “array” of witnesses referenced by the court went to testimony regarding the sterility of the needle, the previous non-use of the needle, the sterility of the vessel, and the non-alcoholic nature of the cleansing solution. All of these requirements are procedural, go to admissibility, and do not impact on an essential element of a criminal offense.