author: Eldridge, Judge.

text:
    A98A2186.
    WAGES et al. v. AMISUB OF GEORGIA.
    (508 SE2d 783)
   Eldridge, Judge.

Frances and Henry Wages and their children, who are the parents and siblings of decedent Misty Parr, appeal the grant of partial summary judgment to Amisub of Georgia, d/b/a Barrow Medical Center. We affirm.

Viewed in the light most favorable to the Wages, the facts show that, at approximately 10:00 a.m. on October 14, 1995, 23-year-old Misty Parr and her 25-year-old husband, Adam, were involved in a head-on collision in Auburn, Georgia. Adam Parr was pronounced dead at the scene, while Mrs. Parr was transported to Barrow Medical Center for emergency treatment. Mrs. Parr arrived at Barrow Medical Center at approximately 10:56 a.m., but her treatment was unsuccessful and she was pronounced dead at 1:33 p.m. by the Barrow County Medical Examiner. A deputy chaplain from the Barrow County Sheriff’s Department went to the home of the plaintiffs and informed them that Mr. and Mrs. Parr had died as a result of a collision. At approximately 2:30 p.m., the plaintiffs arrived at the hospital, where they were taken to a small chapel. They discussed with the coroner the specifics of the injuries to Mr. and Mrs. Parr. A hospital employee then asked the plaintiffs if they would like to see Mrs. Parr. After responding affirmatively, the family members were escorted by the hospital employee to a room in the emergency ward.

Upon entering the room, the plaintiffs allegedly found Mrs. Parr’s body lying naked on a hospital gurney, with breasts and genitalia exposed. Her arms, outstretched over her head, were left dangling over the end of the gurney. An intubation device protruded from her mouth, which was pooled with saliva and blood. Various tubes and IV devices were connected to her body. Her hair was matted with blood and vomit, and her face and body were caked with blood, broken glass, dirt, gravel, and grass.

Mrs. Parr’s mother, Frances Wages, attempted to get hospital employees to remove the intubation device and cover the decedent with a sheet, with limited success. Mrs. Wages also attempted to move Mrs. Parr’s arms so that they were not dangling off of the gurney. However, rigor mortis had set in and the arms were difficult to move. The arms did not lie flat against Mrs. Parr’s body, but instead protruded at an awkward angle; this problem also prevented the arms from lying flat when Mrs. Parr subsequently was placed in her coffin.

The plaintiffs filed suit against the hospital on March 24, 1997, alleging that the hospital negligently mishandled Mrs. Parr’s body; that the hospital’s failure to abide by its own policies regarding the handling of deceased patients, as well as standards adopted by a hospital accrediting agency, constituted negligence per se; and that, as a result of the hospital’s negligent treatment of Mrs. Parr’s body, they were traumatized and required psychological counseling and treatment. Barrow Medical Center responded, then moved for summary judgment.

The trial court granted partial summary judgment to Barrow Medical Center as to the complaint for negligent handling of a corpse. The trial court also ruled that the hospital’s alleged failure to abide by their own policies did not constitute negligence per se. The plaintiffs appeal the trial court’s order. Held-.

1. The plaintiffs first challenge the trial court’s determination that the complaint did not allege a cause of action for negligent mishandling of a corpse. The trial court relied upon McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495, 497 (306 SE2d 746) (1983), in reaching such conclusion. According to McCoy, a claim for negligent mishandling of a corpse is premised upon the presence of two elements. “The first is the ‘quasi-property’ right that exists in the dead body of a relative. The second is the negligent breach of a contract to carry out the expressed wishes of the next of kin regarding the disposition of that dead body[, i.e., burial, cremation, or anatomical donation]. See generally Rivers v. Greenwood Cemetery, 194 Ga. 524 (22 SE2d 134) (1942).” McCoy, supra at 497.

In this case, the trial court correctly determined that the first element was satisfied, since the plaintiffs were the decedent’s next of kin. As to the second element, the trial court found that “all relevant precedent indicates that the Plaintiffs must show the existence of some agreement where the family members of the decedent expressed their wishes regarding the disposition of the decedent’s body.” See also Louisville &c. R. Co. v. Wilson, 123 Ga. 62, 70-71 (51 SE 24) (1905) (“Wilson”); McCoy, supra; Mayer v. Turner, 142 Ga. App. 63 (234 SE2d 853) (1977). The trial court determined that the plaintiffs were unable to establish that they had entered into an express or implied agreement with the hospital regarding the disposition of Mrs. Parr’s body prior to their visit to the hospital to see the body. Accordingly, the trial court granted summary judgment to the hospital.

In challenging the trial court’s ruling, the plaintiffs point to language from McCoy which states that “[t]here exists a legal duty, enforceable by the next of kin, which requires that a party contractually obligated to handle a corpse, do so nonnegligently and with utmost dignity.” (Citations and punctuation omitted; emphasis supplied.) Id. at 497; see also Wilson, supra at 63, 66-67; Mayer v. Turner, supra. However, under such cases, the next of kin must be known and have asserted some proprietary interest in the corpse, and the defendant must have had a reasonable opportunity to comply with such expressed wishes after pronouncement of the cause of death, autopsy, postmortem investigation, or embalming. See Wilson, supra at 65-66. Such property right in a dead body is “subject of course to the necessity for proper disposition, and not to allow it to become a nuisance or injurious to the public welfare[.]” Wilson, supra at 68. Wilson discussed cases of dissection, dismemberment, and disinterment; under the facts of that case, the body in its shroud and coffin was allowed to become “soaked and otherwise mutilated.” Wilson, supra at 63. Mayer v. Turner, supra at 64, used the language of handling the corpse “with utmost dignity,” referring to Wilson. Mayer v. Turner, supra at 64, dealt with the knowing temporary burial of the body during the funeral in the wrong burial site. None of the cases dealt with the handling of the corpse immediately after death and prior to preparation for burial at a funeral home.

The plaintiffs assert that a contract for care of Mrs. Parr was created when she was transferred to Barrow Medical Center and the hospital undertook to provide emergency care, and that a duty arose under the contract to treat her body, after her death, “nonnegligently and with utmost dignity.”

However, we reject the plaintiffs’ argument and affirm the trial court’s determination that the plaintiffs have no standing to assert a violation of their personal, quasi-property rights to a corpse for any omission by the hospital that occurred prior to the time when the plaintiffs entered into an express or implied contract for the handling, transportation, or disposal of such corpse or asserted a proprietary claim on the body. Therefore, there was no error in the trial court’s grant of summary judgment.

However, even if a contract existed between the hospital and either Mrs. Parr or the plaintiffs, the plaintiffs are unable to show the violation of any general duty of care, such as that imposed by statute or common law, that would change the nature of this cause of action from a breach of contract to a tort. See OCGA § 51-1-1. The plaintiffs assert that Barrow Medical Center acted negligently when, in fact, the evidence showed that no action was taken within the hour following Mrs. Parr’s death; it is undisputed that the condition of her body when the family members saw her at approximately 2:30 p.m. was the same as that at the time the coroner certified her death at 1:33 p.m. Accordingly, the plaintiffs are unable to show that Barrow Medical Center employees, through their inaction in the hour following Mrs. Parr’s death, committed a tort by actively violating a general duty to the plaintiffs. OCGA § 51-1-1; Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363 (203 SE2d 587) (1973); R. F. Burton Co. v. Southern Marine Assoc., 130 Ga. App. 111 (202 SE2d 544) (1973); American Oil Co. v. Roper, 64 Ga. App. 743 (14 SE2d 145) (1941).

2. The plaintiffs also assert that Barrow Medical Center employees violated specific hospital policies regarding the care of deceased patients, as well as the standards of a hospital accrediting agency. According to the plaintiffs, Barrow Medical Center failed to abide by the first eight steps of their own policies regarding the procedures to be followed upon the death of a patient. Such policies read in part: “If it is determined that the [deceased] patient is not a coroner’s case, the following steps are to be taken:

1. Close the patient’s eyes.

2. Replace dentures in the patient’s mouth.

3. Place a pillow under the patient’s head or elevate the head of the bed slightly.

4. Remove any appliance, tubings, and dressings (if possible).

5. Bathe if necessary.

6. Cover body with sheet.

7. Ensure room is neat.

8. Adjust lights to a subdued level.”

The plaintiffs assert that violations of these policies constitute negligence per se under OCGA § 51-1-6. See St. Mary’s Hosp. v. Radiology Prof. Corp., 205 Ga. App. 121, 127 (3) (c) (421 SE2d 731) (1992). The trial court properly rejected that assertion, finding that “[n]either the [accreditation organization’s] standards nor Barrow Medical’s policy concerning the steps to be taken after a patient’s death was imposed upon Barrow Medical Center by a statutory enactment or common-law principle. Such protocols and procedures do not have the force and effect of a statute or an administrative regulation. The Court of Appeals has repeatedly held that ‘violations of private guidelines do not establish negligence per se.’ [Cits.]” See Butler v. South Fulton Med. Ctr., 215 Ga. App. 809, 812 (2) (452 SE2d 768) (1994); Schofield v. Hertz Corp., 201 Ga. App. 830, 831 (412 SE2d 853) (1991); Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (325 SE2d 844) (1984) (“Privately established ‘rules are admissible as illustrative of negligence, but the violation of such a rule is not negligence in and of itself.’ [Cits.]”). Accordingly, there was no error.

Decided November 6, 1998.

E. Gray don Shuford & Associates, E. Graydon Shuford, Norman H. Cuadra, for appellants.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Ashley P. Nichols, for appellee.

Judgment affirmed.

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

       Although Mrs. Parr was examined by the coroner due to the fact that she died within 24 hours of arrival at the hospital, the coroner completed his examination of Mrs. Parr and signed the death certificate at 1:33 p.m. Accordingly, this evidence indicates that Mrs. Parr was no longer considered a “coroner’s case” for the purposes of application of hospital policies.


source: Caselaw Access Project

license: Public Domain

text:
    A98A2197.
    GIBSON et al. v. DECATUR FEDERAL SAVINGS & LOAN ASSOCIATION.
    (508 SE2d 788)
   Eldridge, Judge.

On May 12, 1989, appellants John W. Gibson and Paula T. Gibson (“the Gibsons”) refinanced their home located at 2650 Whiteleigh Court in DeKalb County. The Gibsons took out a loan of $129,000 from Decatur Federal Savings & Loan Association and executed a note and security deed in its favor. First Union Mortgage Corporation (“First Union”) is successor to the interest of Decatur Federal by merger.

An independent contractor working for First Union erroneously marked the note “paid in full” and by written correspondence dated September 4, 1994, returned the original note to the Gibsons. It was undisputed by the parties that the Gibsons had not paid the outstanding balance on the loan. Upon receiving the erroneously satisfied note, the Gibsons ceased making payments on the debt. First Union received its last payment on the loan on August 17,1994, leaving a remaining principal balance of $124,397.76 due.

First Union attempted to negotiate with the Gibsons. However, the negotiations were unsuccessful and, on April 10, 1996, First Union filed an action for declaratory judgment and equitable relief seeking to reform the note so that no issues would exist that the Gibsons had a continuing obligation to repay the loan. On May 15, 1996, the Gibsons filed an answer and counterclaim. In their counterclaim, the Gibsons sought: (1) to quiet title to the property; (2) statutory penalties for First Union’s allegedly wrongful fáilure to release the Security Deed; (3) damages for libel arising out of First Union’s credit reporting on the loan; (4) punitive damages for “libeling the defendants and their title”; and (5) OCGA § 9-15-14 attorney fees.

On July 19, 1996, First Union filed a motion for summary judgment requesting that the court declare that the Gibsons remained obligated to repay the loan plus interest. This motion was not heard by the assigned judge, but was heard by a magistrate judge sitting by special designation as a superior court judge. An order was entered on October 2, 1996, denying First Union’s motion for summary judgment. The trial court granted a certificate of immediate review and, on November 22, 1996, the Supreme Court granted First Union’s application for interlocutory appeal.

On October 23, 1996, First Union filed a motion to tender, requesting that the trial court require the Gibsons to pay their overdue loan payments into the registry of the superior court. After oral argument on December 18, 1996, the trial judge orally granted First Union’s motion to tender. On December 19, 1996, the Gibsons filed a cross-appeal in the Supreme Court, alleging the superior court lacked jurisdiction to grant First Union’s motion to tender. On January 10, 1997, the trial court issued a written order on First Union’s motion to tender and required the Gibsons to pay their loan payments, starting with the January 1, 1997 loan payment, into the registry of the superior court.

Between January 10, 1997, and July 18, 1997, the Gibsons paid only two of the court-ordered loan payments into the registry of the superior court. On July 18, 1997, First Union filed a motion for sanctions based on the Gibsons’ failure to make the required payments. On September 17, 1997, the parties entered into a consent order. The Gibsons paid the remaining payments into the registry of the superior court, and First Union’s request for attorney fees was reserved until final ruling on this case.

On September 15, 1997, the Supreme Court issued its opinion, reversing the trial judge and finding that, as a matter of law, First Union was entitled to reformation of the note and that the Gibsons were not entitled to satisfaction of the security deed. The Supreme Court also held that the superior court retained jurisdiction to enter its ruling on the motion to tender. Decatur Fed. Sav. & Loan v. Gibson, supra.

Thereafter, on December 4, 1997, First Union moved for an award of attorney fees under the terms of the deed to secure debt and pursuant to OCGA § 9-15-14. On December 15, 1997, the Gibsons filed a motion for a temporary restraining order to enjoin First Union from foreclosing on their home and filed an amendment to their counterclaim seeking a set-off of any amount they might recover on the counterclaim against the amount they owed First Union.

On January 2, 1998, First Union filed a motion requesting summary judgment on the Gibsons’ counterclaim. On January 5, 1998, the Gibsons further amended their counterclaim and requested that the trial court enter a declaratory judgment finding that First Union was not entitled to interest on the note and deed to secure debt prior to September 15, 1997, the date of the Supreme Court’s opinion. On January 5, 1998, the trial court entered an order restraining the foreclosure conditioned on the Gibsons paying the principal portion of all their past due mortgage payments into the registry of the superior court.

The trial court held a hearing on April 15, 1998, on First Union’s motion for attorney fees. On April 20, 1998, the Gibsons filed a motion to recuse the trial judge, alleging that the trial judge’s conduct during the April 15, 1998 hearing showed a bias against them. The motion to recuse was denied by the trial judge on May 5, 1998. Thereafter, on May 13, 1998, the trial court granted First Union’s motion for summary judgment as to the Gibsons’ counterclaim. On the same day, the trial court entered an order granting First Union’s motion for attorney fees under both OCGA § 9-15-14 (b) and under the terms of paragraph 7 of the deed to secure debt, and set June 29, 1998, as the date to hear evidence as to the amount of attorney fees to which First Union would be entitled. It is from entry of the two May 13, 1998 orders and the order denying their motion to recuse that the Gibsons appeal.

1. The Gibsons allege that the trial court erred in entering the order of May 13, 1998, granting First Union attorney fees under OCGA § 9-15-14 (b) and under the terms of paragraph seven of the deed to secure debt.

(a) Paragraph seven of the deed to secure debt states: “7. Protection of Lender’s Rights in the Property; Mortgage Insurance. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender’s rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or to enforce laws or regulations), the Lender may do and pay for whatever is necessary to protect the value of the Property and Lender’s rights in the Property. Lender’s actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorney’s fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bare interest from the date of disbursement at the Note rate and shall be payable with interest, upon notice from Lender to Borrower requesting payment. . . .”

“The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. [Cit.]” CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 880 (494 SE2d 720) (1997).

The language of paragraph seven of the deed to secure debt is clear and unambiguous. The wording of paragraph seven makes it clear that the lender is only entitled to a reimbursement of expenditures that it may make to protect itself from actions over which the lender has no control, i.e., if the borrower, through no fault of the lender, fails to perform the covenants ánd agreements contained in the deed to secure debt or if a proceeding is initiated by the borrower or by a third party against the borrower that affects the lender’s rights in the property. In this case, First Union seeks attorney fees for a proceeding that it brought to correct an error that was made by its own internal operations. Such a proceeding is clearly not covered under the four corners of the deed to secure debt. Therefore, the trial court erred in awarding First Union attorney fees under paragraph seven of the deed to secure debt.

(b) However, there was no error in the trial court’s finding that First Union was entitled to recover attorney fees under OCGA § 9-15-14 (b). “Pursuant to OCGA § 9-15-14 (b), a trial court may assess attorney fees if it finds (1) that an attorney or party brought or defended an action that lacked substantial justification or (2) that the action was interposed for delay or harassment or (3) that an attorney or party unnecessarily expanded the proceedings by other improper conduct. An award under OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” (Citation and punctuation omitted; emphasis in original.) McKeen v. McKeen, 224 Ga. App. 410 (1) (481 SE2d 236) (1997).

Based on the evidence previously set forth in this opinion that the Gibsons never disputed that the debt had not been paid in full by them, the trial court did not abuse its discretion by finding that the Gibsons’ defense lacked substantial justification and that their conduct during the course of the litigation was egregious, vexatious and harassing, and unnecessarily prolonged the litigation. Accordingly, there was no abuse of the trial court’s discretion in determining that First Union was entitled to an award of attorney fees under OCGA § 9-15-14 (b). See Mitcham v. Blalock, 268 Ga. 644, 647 (5) (491 SE2d 782) (1997).

2. The Gibsons allege that the trial court erred in granting summary judgment to First Union on the Gibsons’ counterclaim. We disagree.

The Gibsons argue that, at the time of the trial court’s ruling, they had pending counterclaims for: (1) libel for First Union’s reporting to various credit agencies that their loan was delinquent; (2) punitive damages for libel; (3) declaratory judgment on whether the accrual of interest on the indebtedness prior to the Supreme Court’s opinion had been waived or was estopped by the conduct of First Union; and (4) a set-off of such counterclaim against First Union’s monetary claim.

(a) The Federal Fair Credit Reporting Act, 15 USC § 1681 et seq., “preempts state defamation laws ‘to the extent that those laws are inconsistent with any provision of the Fair Credit Reporting Act[.]’ 15 USC § 1681t; see Bloom v. I.C. System, 972 F2d 1067, 1069 (II) (9th Cir. 1992).” (Punctuation omitted.) Nicholl v. NationsBank of Ga., 227 Ga. App. 287, 289 (488 SE2d 751) (1997). Under the Federal Fair Credit Reporting Act, anyone who furnishes information to a consumer reporting agency is immune from state law defamation actions “except as to false information furnished with malice or willful intent to injure such consumer” (Emphasis supplied.) 15 USC § 1681h (e).

The Gibsons claim that First Union should have reported their account as “disputed” as opposed to “delinquent.” However, the facts are undisputed that on January 1, 1995, when First Union reported that the Gibsons’ account was past due, the Gibsons had not made any payments on their loan since August 1994. The Gibsons were aware as early as December 27, 1994, that “under no circumstances [was] First Union willing to walk away from the debt.” Further, after receiving such notice, the Gibsons never made any attempts to pay the “disputed” payments under protest. In fact, the Gibsons vigorously opposed First Union’s motion to tender their loan payments into the registry of the superior court and, when the superior court ordered such payments to be made, made only two loan payments, forcing First Union to file a motion for sanctions.

The evidence is uncontroverted that First Union’s statement that the Gibsons were delinquent in their loan payments was true. The Gibsons have failed to carry their burden of showing that First Union made false statements to any consumer reporting agencies. Since the statement was true at the time it was made, First Union is subject to the qualified immunity created by 15 USC § 1681h (e).

Furthermore, even if First Union should have reported the loan as “disputed” as opposed to “delinquent,” defendants have failed to come forward with any evidence to show that First Union acted with malice or wilful intent to injure them. “Mere proof of inaccuracy in a credit report will not suffice. [The Fair Credit Reporting Act] does not impose strict liability, only liability for malicious or willful noncomplianceU [Cit.]” Tinsley v. TRW, Inc., 879 FSupp. 550, 552 (IV) (D. Md. 1995). Janet West Tedder, who is a legal support specialist for First Union, averred that when the Gibsons defaulted on their loan, First Union, as part of its regular course of business, reported the Gibsons’ default to three major credit bureaus to whom it regularly makes reports. The Gibsons put forth no evidence to contravene Ms. Tedder’s averment and show that the conduct of First Union was malicious or done with the wilful intent to injure them.

There was no error in the trial court granting summary judgment in favor of First Union on the Gibsons’ counterclaim for libel. Accordingly, the Gibsons’ claim that the trial court erred in granting summary judgment to First Union on their counterclaim for punitive damages is without merit.

(b) The Supreme Court found in Decatur Fed. Sav. & Loan v. Gibson, supra, that the Gibsons’ note had been cancelled by mistake and that the Gibsons had not satisfied the debt. The Supreme Court further found that First Union was “entitled to judgment as a matter of law as to its equitable action to reform the note.” Decatur Fed. Sav. & Loan v. Gibson, supra at 364. By the plain language of the opinion, it is clear that the Supreme Court’s intention was to place the parties in the same position they were in prior to First Union inadvertently marking the note satisfied, including the payment of all interest on the note.

Therefore, the Gibsons’ counterclaim seeking a declaratory judgment that the accrual of interest on the note prior to the Supreme Court’s opinion had been waived by First Union’s conduct was decided adversely to the Gibsons by the Supreme Court’s opinion and is res judicata. See OCGA § 9-12-40. Accordingly, there was no error in the trial court granting First Union’s motion for summary judgment on this counterclaim. See Mitcham v. Blalock, supra at 645-646 (2).

(c) Further, since the Gibsons were not entitled to any relief on their counterclaim, there was no error in the trial court granting summary judgment to First Union on the Gibsons’ counterclaim for a set-off against First Union’s monetary claim.

3. Lastly, the Gibsons allege that the trial judge erred in failing to refer to another judge the Gibsons’ motion to recuse or disqualify the trial judge.

Under Uniform Superior Court Rule (“USCR”) 25.3 “[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.” (Emphasis supplied.)

The affidavit of John Gibson, which accompanied the Gibsons’ motion to recuse, is legally insufficient and does not meet the standards for disqualification. “In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the party from obtaining a trial uninfluenced by the court’s prejudgment.” (Citations and punctuation omitted.) McBride v. State, 213 Ga. App. 857, 859 (4) (446 SE2d 193) (1994); Stevens v. Myers, 190 Ga. App. 61 (378 SE2d 334) (1989); USCR 25.2.

The Gibsons argue that, during the hearing on attorney fees, the manner in which the trial court conducted oral argument, statements the trial judge made as to the facts of the case, and the trial court’s ruling warrant recusal. However, John Gibson’s affidavit fails to show that the trial court’s conduct, statements, or ruling came from extra-judicial sources. From a review of the transcript of the hearing, it is clear that the statements and ruling are based on what the trial judge had learned from her participation in the case.

Further, the transcript of the hearing shows that the judge was fair and impartial to all parties. Therefore, the conduct alleged in the affidavit would not meet the requirement “that recusal would be authorized if some or all of the facts set forth in the affidavit are true.” USCR 25.3.

If all three conditions precedent set forth in USCR 25.3 are not met, the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear. “It is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious.” (Citation and punctuation omitted.) Henderson v. McVay, 269 Ga. 7, 9 (494 SE2d 653) (1998). Since the affidavit accompanying the motion for recusal and the grounds set forth therein were insufficient, the motion for recusal was properly denied by the trial judge without assigning it to another judge for a hearing.

Decided November 6, 1998

Gibson, Deal & Fletcher, James B. Deal, Caldwell & Watson, Harmon W. Caldwell, Jr., for appellants.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, Scott H. Michalove, for appellee.

Judgment affirmed in part and reversed in part.

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

        Decatur Fed. Sav. & Loan v. Gibson, 268 Ga. 362 (489 SE2d 820) (1997).


author: Blackburn, Judge.

text:
    A98A2356.
    JOYCE v. THE STATE.
    (509 SE2d 85)
   Blackburn, Judge.

Jamie C. Joyce appeals his convictions for kidnapping and sexual battery, following a jury trial, contending that the prosecutor violated the provisions of OCGA § 17-8-76 (a) in his closing argument to the jury and the trial court committed reversible error by not granting his concomitant request for a mistrial pursuant to OCGA § 17-8-76 (b). As we find that the prosecutor’s comments, viewed in context, served merely to instruct the jury that they were to consider Joyce’s guilt and not his punishment, we affirm.

OCGA § 17-8-76 (a) provides: “No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency.” If this rule is violated, “opposing counsel shall have the right immediately to request the court to declare a mistrial, in which case it shall be mandatory upon the court to declare a mistrial. Failure to declare a mistrial shall constitute reversible error.” OCGA § 17-8-76 (b).

Joyce moved for a mistrial based on the following statements made by the prosecutor in his closing argument: “And it’s like Mr. Ellis told you at the beginning; it’s like the judge is going to tell you, the only thing you decide here is guilt or innocence. The judge can be just as merciful as he wants; he can do whatever he wants. He decides the sentence. That’s why we elect the judge because he’s a wise man and that’s what he decides. The only thing you decide is guilt or innocence. And I hope that being a reasonable person in this community, and I’ve done everything I can do; Ms. Golden here has done everything she can do; Mr. Ellis has done everything that he can do; and now, ladies and gentlemen, we try to keep your community safe, and the only way we can do it is to depend on 12 people such as yourselves, because you live here. If you find [Joyce] not guilty, he’s going to walk out that front door.”

Decided November 6, 1998.

Starling & Starling, Melissa J. Starling, for appellant.

In the analogous case of Berrian v. State, 139 Ga. App. 571, 572 (228 SE2d 737) (1976), the defendant objected to the following statement made by the prosecutor: “That’s up to the judge when [the defendant is] convicted to say what will be done with him. Whether he will be given probation or whether he will get time or whether he will get a fine or what; that’s up to the court. What’s the duty you are sworn to do: find out the truth of the matter; give a true verdict according to the evidence; just guilty or not guilty. You won’t have anything to do with fixing any punishment. The court does take into account when they fix punishment, the age, prior circumstances of the accused and so forth, and so I say to you, let’s judge the case on the facts about what happened.” (Punctuation omitted.) This Court held: “Viewed in context, the state simply reminded the jury that they were not concerned with punishment and not that [the defendant] might not be required to suffer the full penalty of the law.” As such, no violation of OCGA § 17-8-76 was found.

The language objected to by Joyce is quite similar to that in Berrian, and we find that here, as there, the State’s language, viewed in context, merely served to remind the jury that they were to be concerned with Joyce’s guilt only, not his punishment. Moreover, we note that the trial court, in its closing charge to the jury, gave a curative instruction with regard to the prosecutor’s comments. Thus, even if the prosecutor’s comments were improper, “we cannot say as a matter of law that defendant was harmed in any way by the trial court’s handling of this matter.” Steele v. State, 181 Ga. App. 695, 696 (1) (353 SE2d 612) (1987).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Ellen S. Golden, Assistant District Attorneys, for appellee.


text:
    A98A2422.
    GORDON v. THE STATE.
    (508 SE2d 782)
    Decided November 6, 1998.

      Roy R. Kelly III, for appellant.
   Blackburn, Judge.

Roger Lee Gordon appeals his conviction for possession of cocaine, following a jury trial, contending (1) that there was insufficient evidence to support his conviction; (2) that police officers failed to give appropriate verbal notice pursuant to OCGA § 17-5-27 before entering his trailer to conduct a search; and (3) that the trial court erred by denying his motion to suppress crack cocaine found during the allegedly improper search. As Gordon has waived the right to raise these enumerations on appeal, we affirm.

1. In separate enumerations regarding insufficiency of the evidence, Gordon contends that the verdict against him is contrary to the law, the verdict is contrary to the evidence, and the verdict is strongly against the weight of the evidence. Gordon, however, has provided no argument or citations of authority with regard to these claims, and, as such, they are deemed abandoned. See Court of Appeals Rule 27 (c) (2).

2. Pursuant to a valid search warrant which did not contain a no-knock provision, Officer Tom Tillman went to Gordon’s trailer on March 14, 1997. Noticing that the family car was not in front of the trailer, Officer Tillman knocked on the door of the trailer, but he received no response. Finding the door unlocked, Tillman then entered the trailer with other deputies. Once inside, Officer Tillman found Gordon in the master bedroom and informed him that his trailer was being searched pursuant to a warrant. The search revealed the presence of cocaine.

Gordon now argues that this search violated OCGA § 17-5-27, contending that Tillman failed to give an appropriate verbal notice before entering his trailer. However, Gordon did not raise this argument before the trial court, and “[i]ssues and objections not raised at trial cannot be raised for the first time on appeal because they are deemed waived.” Brewer v. State, 224 Ga. App. 656, 659 (6) (481 SE2d 608) (1997).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.


text:
    A98A2474.
    BARBER v. THE STATE.
    (509 SE2d 93)
   Blackburn, Judge.

Jimmy Barber appeals his conviction for driving under the influence of alcohol, following a bench trial, contending that the evidence was insufficient to support the verdict against him. For the reasons set forth below, we affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Barber] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that Officer David Melton reported to the scene of a one-car accident on October 19, 1997. When Officer Melton arrived on the scene, he found Barber lying beside the road, about 20 feet from the vehicle which had been driven into a ravine. Officer Melton asked Barber if there was anyone else in the vehicle, and Barber replied that he was by himself. As Officer Melton questioned Barber, he observed that Barber reeked of alcohol, had slurred speech, and could not walk without assistance. Officer Melton then arrested Barber for driving under the influence and transported him to jail, where Barber refused a breathalyzer test. The keys to the car which had been wrecked were later found in Barber’s pocket.

Barber contends that his conviction for DUI was improper because the circumstantial evidence against him was insufficient to show that he had actually been driving the car, which he testified was driven by some individual he had met at a bar whom he could not identify. “A conviction for driving , under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. We have no yardstick to measure consistency or reasonableness, save the opinion of the [trier of fact], whose function it is to determine credibility of witnesses and questions of reasonableness.” (Punctuation omitted; emphasis supplied.) McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996). Under this standard, the evidence was sufficient to support the verdict against Barber. See Stephens v. State, 127 Ga. App. 416 (193 SE2d 870) (1972).

Decided November 6, 1998.

Andrews & Seery, Stanaland A. Seery, for appellant.

McGraw & McGraw, Joseph T. McGraw, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J, concur.


author: McMurray, Presiding Judge.

text:
    A98A1296.
    LEAGUE v. U. S. POSTAMATIC, INC. et al.
    (508 SE2d 210)
   McMurray, Presiding Judge.

Plaintiff-appellant Margery K. League brought this action against defendants-appellees U. S. Postamatic, Inc. (“Postamatic”) and its officers, Herbert M. Schwartz and John L. Rathbun, Jr., alleging defendants fraudulently “solicited, sold and distributed coin operated vending machines and scales . . .” in violation of the Georgia Sale of Business Opportunities Act (“SBOA,” OCGA § 10-1-410 et seq.), the Georgia Fair Business Practices Act (“FBPA,” OCGA § 10-1-390 et seq.), and in breach of warranty. According to the complaint, “[p]laintiff, along with her son, [non-party Harry M. League,] created Pennsylvania and Delaware corporations, Charity Vending of Pennsylvania, Inc. and Charity Vending of Delaware, Inc., respectively for the purpose of purchasing, owning and operating [digital, coin-operated vending machines and scales, hereafter] the Scales business. . . . On or about March 22, 1990, Plaintiff’s corporations, by and through Plaintiff’s son, Harry M. League[,] contracted with Defendant, Postamatic ... to purchase 200 Graco 2000 scales at. . . $1150.00 each and the exclusive . . . distributorship rights for the Scales in southeast Pennsylvania and northern Delaware. . . . The purchase price . . . was $230,000.00. ... Of [that] purchase price . . . (plus a location fee of $200.00 per location for 200 locations) paid to Defendant, Postamatic, Plaintiff paid $140,000.40. . . .” Although the scales were physically delivered, plaintiff alleged that delivery was not in compliance with the contractual definition of “ ‘Delivery,’ . . . when the scales were installed in working condition at locations approved by Defendants within ninety (90) days after execution of the Purchase Agreement. . . . [Alleging that] locations for placement of the Scales were never secured in total, [plaintiff claimed] the Scales were not ‘delivered’ . . ., with the result that Plaintiff’s Purchase Agreement was breached by Defendants entitling her to rescind the contract and receive 12% interest on her investment, along with a full refund. . . .” Plaintiff further contended that, “[to] the extent that some Scales were placed, the Scales did not perform as required, suffering from defective parts and operation. Additionally, the locations identified by Defendant, Postamatic . . . did not generate revenue which . . . approached the representations made by defendant, Postamatic. . . .”

In verified answers, defendants Postamatic and Herbert M. Schwartz admitted that Harry M. League contracted with U. S. Postamatic, Inc. to purchase certain scales and the right to distribute those scales, “but denied the material allegations of breach of contract and fraud. Defendant John L. Rathbun fell into default but was ultimately granted permission to open that default. After substantial discovery, cross-motions for summary judgment were filed. In support of their motions, defendants showed the following undisputed facts:

Plaintiff attended a meeting in her son’s office, where defendant John L. Rathbun “pointed out the profitability of this venture. And he assured [plaintiff and her son] that the minimum that [they] would make would average about $20 per machine per week.” She “contributed a significant amount of money to this venture,” by writing checks to her corporation, Charity Vending, but she never entered into any signed purchase agreement with defendant Postamatic, either personally or as an officer of any corporate party. Rather, the purchase agreements were executed by Harry M. League. Harry M. League already had recovered essentially the same damages as plaintiff now seeks, in a prior action brought in the Superior Court of Cobb County, Georgia. Pursuant to a consent order of settlement and dismissal, Postamatic, Harry M. League, Herbert M. Schwartz, and John L. Rathbun “consented to and agreed to dismiss the claims, counterclaims, and cross-claims against the other . . . with prejudice.” Under the terms of the settlement, Harry M. League received $300,000 cash and a paid up $125,000 life insurance policy on defendant Herbert M. Schwartz, totalling $425,000. But plaintiff herself made the initial down payment of $27,025 on March 22, 1990, with her personal check drawn to the order of Postamatic. It is further undisputed that plaintiff herself never gave any defendant any written notice of claim that she was victimized by defendants’ alleged violation of the SBOA or FBPA. The only written notice of rescission was sent by Stephen C. Steele, Esq. of the law firm of Moore & Rogers, on behalf of “[his] client, Harry M. League. . . .”

Plaintiff appeals from the order of the trial court denying her motion for partial summary judgment and granting summary judgment to all defendants. Held:

1. Plaintiff instituted this action on April 16, 1996. But in her deposition taken March 17, 1992, as part of Harry M. League’s counterclaim, she acknowledged that the last time Charity Vending operated any scales was “[o]ver a year . . . ago,” i.e., sometime in 1991. Consequently, any claim for rescission of an implied simple contract formed by plaintiff’s March 22, 1990, payment of $27,025 directly to defendant Postamatic is barred by the applicable four-year statute of limitation. OCGA § 9-3-25. A claim for conversion is similarly barred by OCGA § 9-3-32. See Talley-Corbett Box Co. v. Royals, 134 Ga. App. 769, 770 (1) (216 SE2d 358).

2. Plaintiff contends the trial court erred in granting summary judgment on her claim under the SBOA, arguing that she either was not obliged to give notice or that she was a third party beneficiary of the notice given by Stephen C. Steele, Esq. on behalf of Harry M. League.

(a) We agree that plaintiff meets the definition of a “Purchaser,” i.e., “any person who is solicited to become obligated, or does become obligated, under any agreement.” OCGA § 10-1-410 (9). But, assuming the truth of her allegations against defendants, one legal consequence of pursuing any SBOA-authorized remedy in her own name is that plaintiff must comply with the one-year written notice requirement imposed by OCGA § 10-1-417 (a) before she is “entitled to receive from the seller all sums paid to the seller.” “[T]he statutory right to rescind the transaction and recover [the] investment derived from the [SBOA is not] available to [a plaintiff who has] not notified the seller of [the] exercise of that right within one year.” Hornsby v. Phillips, 190 Ga. App. 335, 339 (4), 340 (378 SE2d 870). Plaintiff’s contention that she is not obligated to give any notice is without merit.

(b) The question becomes whether the plaintiff can benefit from the notice given by her son, through counsel. We think not.

Attorney Steele confirmed that he had no attorney-client relationship with plaintiff at the time he notified defendants of Harry M. League’s tender back of the scales and demand for the return of any sums invested. The maxim that the express mention of one thing amounts to the exclusion of another applies in these circumstances. ‘When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred. [Cit.]” Black’s Law Dictionary, p. 692 (4th ed. 1951). Consequently, we conclude no genuine issue of material fact exists as to whether plaintiff complied with the notice requirement of OCGA § 10-1-417 (a). She did not.

3. OCGA § 10-1-417 (b) provides that “[t]he violation of any provision of [the SBOA] shall constitute an unfair or deceptive act or practice in the conduct of a consumer act or practice or consumer transactions under Part 2 of this article, the ‘Fair Business Practices Act of 1975,’ and shall authorize an affected participant or purchaser to seek the remedies provided for in Code Section 10-1-399 and in subsection (a) of Code Section 10-1-417.” But “[n]o action shall be brought under this part. . . [m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation. . . .” OCGA § 10-1-401 (a) (1). It follows that any valid claim plaintiff had under the FBPA also is time-barred.

Decided October 26, 1998

Reconsideration denied November 9, 1998

Newton M. Galloway & Associates, Newton M. Galloway, Dean R. Fuchs, for appellant.

Varner, Stephens, Humphries & White, James T. White, S. Wade Malone, Eddie L. Graham, for appellees.

4. A judgment that is correct for any reason will be affirmed on appeal. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). The trial court did not err in granting summary judgment to all defendants, for the reasons discussed above. The denial of plaintiff’s motion for partial summary judgment is moot.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Pope, Presiding Judge.

text:
    A97A0548.
    BELT v. THE STATE.
    (509 SE2d 113)
    Decided November 9, 1998.

      John T. Rutherford, Lloyd J. Matthews, for appellant.

      Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998), our decision in Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997), is hereby vacated. In accordance with the opinion of the Supreme Court, the judgment of the trial court is affirmed.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Johnson, P. J., Beasley, Blackburn, Smith, Ruffin and Eldridge, JJ., concur.


text:
    A98A1188.
    MOORE v. THE STATE.
    (509 SE2d 108)
   Pope, Presiding Judge.

Appellant Tharda Moore was convicted on one count of burglary with intent to rape and one count of aggravated assault with intent to rape. Moore appeals from the denial of his motion for new trial.

Moore raises three enumerations of error all relating to the trial court’s failure to instruct the jury on the elements of rape, the underlying offense of the two charges against him. The State concedes that the trial court committed error in failing to charge the jury on rape. The State also concedes that this error is reviewable by this Court under OCGA § 5-5-24 (c) even though Moore’s trial attorney raised no objection to the charge as given. However, the State contends that this error was harmless because, based on the entire record, the evidence of Moore’s guilt was overwhelming. See Lewis v. State, 180 Ga. App. 890 (351 SE2d 100) (1986).

The evidence shows that on the night in question, the victim was dozing on a sofa in the front room of her house when she awoke to see a man entering the house. They began to struggle. The man was wearing a blue towel wrapped around his face, leaving only his eyes visible. In the struggle, which began in the victim’s front room and continued outside to her front porch, the victim’s tee shirt, bra and shorts were removed, leaving her in only her underwear. The man hit the victim several times, and in attempting to scratch the man back, the victim managed to pull the towel off his face. The man then threatened to kill her. But the victim was able to break free and run to a neighbor’s for help. As she was running to her neighbor’s, the victim saw the man drive off in a red car.

The victim called the police and reported that her attacker had driven away in a red car, and that he had been wearing a blue towel around his face. Shortly thereafter, a police officer responding to the dispatcher’s call about the incident, spotted Moore driving a red car one block from the scene of the attack. When he stopped Moore, he noticed a blue towel lying on the seat with a reddish stain on it. The officer took Moore back to the victim’s house where she identified him as her attacker. The towel found in Moore’s car was sent to the GBI crime lab for analysis. The reddish stain was determined to be the victim’s blood.

While this evidence strongly supports the jury’s findings, we find that the judge committed reversible error in failing to instruct the jury on the underlying offense of rape. Kelley v. State, 201 Ga. App. 343 (3) (411 SE2d 276) (1991) (setting aside conviction for burglary with the intent to commit rape due to trial court’s failure to charge jury on underlying offense of rape); Phelps v. State, 192 Ga. App. 193 (1) (384 SE2d 260) (1989) (reversing conviction of burglary with intent to commit rape where court failed to charge the jury on the underlying offense of rape). “The failure to define the elements of rape in the charge was error. It is the duty of the judge, with or without request, to give the jury an appropriate instruction on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant. As defendant’s intention to rape was an essential element of the crime with which he was charged, the court’s failure to legally define rape constitutes reversible error.” (Citations and punctuation omitted.) Phelps v. State, 192 Ga. App. at 195.

In fact, the trial court’s charge could have led the jury to conclude that the offense of aggravated assault could serve as the underlying felony on the burglary charge. The trial judge charged that “[t]he offense of burglary in our law reads as follows: a person commits the offense of burglary when without authority that person enters any building or dwelling house of another with the intent to commit a felony. The offense of aggravated assault constitutes a felony and I will define that a bit for you in a moment.” As the jury’s verdict simply found Moore guilty of burglary without a further explanation, we are unable to determine what the jury found to be the underlying offense for that charge.

While the trial court did charge that “[t]he intent to rape is a material element of the aggravated assault as charged in this case,” the court never defined the offense of rape. Without such a definition, the jury was left without any instruction on an essential element of the offenses charged. We find the trial court’s failure to charge on the elements of rape to be error.

Further, we do not find the evidence of Moore’s guilt to be so overwhelming as to render this error harmless. While there may be overwhelming evidence to support a conviction for burglary and assault, the evidence is not overwhelming as to the specific intent to commit rape as required for the crimes charged. A jury question exists under the evidence as to whether the attacker intended to rape the victim as defined under the law, or whether the attacker had the intent to commit some other sexual offense, such as sodomy or sexual battery.

Accordingly, we reverse the trial court’s denial of Moore’s motion for new trial.

Judgment reversed.

Beasley and Ruffin, JJ., concur.

Decided November 9, 1998.

Michael S. Marr, for appellant.

J David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

       OCGA § 5-5-24 (c) provides: “[Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.”


author: McMurray, Presiding Judge. Eldridge, Judge,

text:
    A98A1618.
    KELLEY v. THE STATE.
    (509 SE2d 110)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated assault upon a peace officer. Although defendant notified the State before trial of his intent to raise an insanity defense and proffered expert testimony at trial in support of this defense, the trial court refused to charge on insanity reasoning that insanity is an affirmative defense which is not available to defendant because he denied committing the charged offense. We agree with the trial court’s analysis.

The evidence adduced at trial reveals that defendant, while standing outside his female friend’s home at 10:30 in the evening on March 5, 1997, pointed a loaded pistol at two law enforcement officers who appeared at the scene in response to an emergency call. Officer Tony Thomason of the Griffin, Georgia Police Department testified that he observed defendant holding a revolver when he arrived at the scene; that he shot at defendant because defendant was pointing the revolver at Officer Thomason’s patrol partner, and that he fired a second round at defendant because defendant turned and aimed the revolver at him. Officer Thomason testified that defendant was arrested after these shootings.

Defendant admitted at trial that he was holding a revolver when the officers arrived, but denied aiming the gun at the officers. To this extent, defendant testified that, “I never aimed the gun at either officer.” Defendant explained that he was pointing the revolver in the air when he first observed the officers; that he was under stress and contemplating suicide at the time and that he “never saw either of the officers until they came around and arrested [him].” Defendant testified that he did not realize “what was happening” until he heard a command for him to “drop the gun” and the sound of gunfire. Defendant admitted on cross-examination that he told an interrogating officer that he “didn’t have the guts to take myself out, so I thought I’d let the Griffin Police Department do it and they missed.”

The State’s attorney clarified defendant’s version of the incident during the following cross-examination: “[STATE’S ATTORNEY:] So the point of it was to make yourself such a threat to these police officers that they shot and killed you; isn’t that what you were after that day? That’s what you told the police, sir. . . . Either that’s what you were after or it wasn’t. You can tell me either way. I’ll ask it this way, how about this, you were trying to kill yourself. You couldn’t get the — whatever it takes to do that to yourself. And you pointed the gun. at the policeman in the hopes they would shoot and kill you. True or false? [DEFENDANT:] False. I never pointed the gun at the police officers. [STATE’S ATTORNEY:] You deny pointing the gun at them? [DEFENDANT:] I didn’t point the gun at them in the statement. [STATE’S ATTORNEY:] Where did you point the gun? [DEFENDANT:] Over the neighbor’s house. [STATE’S ATTORNEY:] Why? Was there something you wanted to shoot there? [DEFENDANT:] No. [STATE’S ATTORNEY:] Then why point it over the neighbor’s house? [DEFENDANT:] Because that’s where it ended up when I swung around. [STATE’S ATTORNEY:] Well, I won’t just end up in this chair. I’ll go and sit there because I want to sit down here. . . . So why did the gun end up pointed over the neighbor’s house in what you have to say? [DEFENDANT:] That’s where it got to when the officers fired the weapon. [STATE’S ATTORNEY:] That’s where it got to? [DEFENDANT:] Yeah. They fired the weapon. Where I happened to have been looking was over at the neighbor’s house. I got out of the way and threw the gun out of the way.”

Defendant’s expert, Dr. Jack Farrar, a clinical psychologist, testified that defendant suffers with personality disorders which render him suicidal and incapable of discerning right from wrong when “he’s under a high degree of stress. . . .” Dr. Farrar also testified that defendant’s psychological disorders sometimes cause him to lose touch with reality; that defendant’s actions on March 5, 1997, indicate that defendant (while contemplating suicide) was then experiencing such an episode, and that defendant’s impaired condition during the alleged offense rendered him incapable of discerning right from wrong. Dr. Farrar opined that defendant was in a dazed condition at the time — “what psychologists call disassociate and not be aware of right or wrong or probably be aware of what’s going on at all in the real world . . .” — and that defendant did not regain his composure until after commission of the charged offense, when Officer Thomason’s gunfire “shook him back into reality.”

This appeal followed entry of defendant’s judgment of conviction and sentence. Held,-.

1. Defendant contends the trial court erred in failing to give his oral request to charge on insanity pursuant to OCGA § 17-7-131 (b) (3). We do not agree.

“ An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. . ..’ ” Brown v. State, 267 Ga. 350 (2), 351 (478 SE2d 129). See OCGA § 16-1-3 (1). ‘Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence.’ . . . Brown v. State, 250 Ga. 66 (295 SE2d 727) (1982).” Harris v. State, 256 Ga. 350, 354 (6), 355 (349 SE2d 374). See Mosher v. State, 268 Ga. 555, 559 (491 SE2d 348). “ [A] plea of not guilty by reason of insanity is a plea of confession and avoidance — it admits the facts pleaded in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense. (Cits.)’ Moses v. State, 167 Ga. App. 556, 559 (307 SE2d 35) (1983)[, overruled on other grounds in Nagel v. State, 262 Ga. 888 (427 SE2d 490)].” Awtrey v. State, 175 Ga. App. 148, 151 (3) (332 SE2d 896).

In the case sub judice, defendant did not admit to committing any act which constitutes aggravated assault upon a peace officer. He therefore did not establish the evidentiary foundation for charging on the affirmative defense of insanity. See generally Gooch v. State, 259 Ga. 301, 302 (2) (379 SE2d 522), and Williams v. State, 237 Ga. 399, 400 (228 SE2d 806). “It is well settled that (a) request to charge the jury must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence.’ Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404). A trial judge does not err in refusing to give a requested charge that, inter alia, is not adequately adjusted or tailored to the case or is not reasonably raised or authorized by the evidence. Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919).” Gill v. State, 229 Ga. App. 462, 464 (4), 465 (494 SE2d 259).

2. Defendant next contends the trial court erred in asking defendant’s expert witness whether defendant committed aggravated assault. This enumeration presents nothing for review as defendant did not object when the trial court asked defendant’s expert witness whether defendant committed aggravated assault. Newton v. State, 226 Ga. App. 501, 503 (3) (486 SE2d 715).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur. Eldridge, J, also concurs specially.

Eldridge, Judge,

concurring specially.

I concur completely in the majority opinion and write only to emphasize the factual basis upon which we have determined that Kelley did not, in fact, raise the affirmative defense of insanity.

“A person shall not be found guilty of a crime if, at the time of the act . . . the person did not have mental capacity to distinguish between right and wrong in relation to such aci[.]” (Emphasis supplied.) OCGA § 16-3-2. However, in the face of defense evidence that an indicted act did not even occur, a defendant’s mental state in relation to such non-existent act does not matter. Clearly, whether one knows if an indicted act was right or wrong is irrelevant if one did not commit the act. See generally Clark v. State, 245 Ga. 629 (266 SE2d 466) (1980). It is for this reason the affirmative defense of insanity requires the admission of the act in order to make relevant the defendant’s mental state in relation to the act and in order to carry the burden of proof with regard thereto.

However, here, the defendant took the stand at trial and flatly denied — repeatedly — that he committed the indicted act of pointing a pistol at a police officer:

[Q:] Did you ever aim the gun at either officer?

[A:] I never aimed the gun at either officer. . . .

[Q:] And you pointed the gun at the policemen in the hopes they would shoot and kill you. True or False?

[A:] False. I never pointed the gun at the police officers.

[Q:] Where did you point the gun?

[A:] Over the neighbor’s house. . . .

[Q:] Did you commit a crime back on March 5th?

[A:] Only against myself.

[Q:] What do you mean?

[A:] Well, I attempted to kill myself. I believe that’s —

[Q:] Let me rephrase my question. Did you commit the crime of aggravated assault of police officer —

[A:] No, sir; I did not.

A review of Kelley’s trial testimony shows that he was adamant that he had committed no crime; that he was holding the gun because he was suicidal; that the officers had shot at him for no reason; that when he realized that the police were shooting at him, he fell on the ground and threw the gun under a nearby car; and that it was the police officers who had mishandled the situation: “I think if they would have handled it a little less coarsely this all would have been settled with no shots being fired at me or anybody.”

Decided November 9, 1998.

Sharon S. Whitwell, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Further, the defense called Dr. Jack Farrar, a clinical psychologist, who interviewed Kelley two weeks prior to trial. Dr. Farrar testified that at the time of the incident, Kelley did not know right from wrong. However, this testimony was directed only to Kelley’s desire to kill himself. As to the indicted act, Dr. Farrar specifically testified that Kelley “was not at all doing anything aggressive toward the officers.” When asked directly (and without objection) by the trial court whether Kelley committed the act of aggravated assault, i.e., pointing a pistol at the officers, the doctor replied, “I don’t believe he did.”

In this case, the defense to the indicted act of pointing a pistol at a police officer was not insanity; it was a denial that the indicted act even occurred. Accordingly, as a defense, Kelley’s mental state in relation to an act that he denied doing was irrelevant and thus was not the proper subject of a charge to the jury. Gill v. State, 229 Ga. App. 462, 465 (494 SE2d 259) (1997).

       This Code subsection provides that “[i]n all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.”

       See also Leland v. Oregon, 343 U. S. 790 (72 SC 1002, 96 LE 1302); Patterson v. New York, 432 U. S. 197 (97 SC 2319, 53 LE2d 281); Spivey v. State, 253 Ga. 187, 188 (2) (319 SE2d 420); Grace v. Hopper, 234 Ga. 669 (217 SE2d 267), cert. denied at 423 U. S. 1066; Marlowe v. State, 187 Ga. App. 255 (1) (370 SE2d 20); Loumakis v. State, 179 Ga. App. 294, 299 (9) (346 SE2d 373).

       The other two witnesses called by the defense, Kelley’s girlfriend and his mother, testified that Kelley was a “good man” who would never do the indicted act. “If you’d give him all the money in the world to pull a trigger he wouldn’t have done it on anyone but himself.”


author: Beasley, Judge.

text:
    A98A1716.
    SEESE v. THE STATE.
    (509 SE2d 94)
   Beasley, Judge.

Seese was convicted of two counts of aggravated assault (OCGA § 16-5-21). He enumerates as error the trial court’s failure to give, sua sponte, jury charges on alibi and identification. Seese also claims ineffective assistance of counsel.

On December 6, 1995, at about 11:00 p.m., Seese walked along a sidewalk toward a car parked in the parking lot of Applebee’s Restaurant on Marietta Parkway. The car was occupied by Charman Hob-good and William Young, both of whom had just returned to their parked car from Christmas shopping. Hobgood saw Seese approaching and noticed he had a gun in his hand. When Seese passed in front of the car, just a hood-length from Hobgood, he raised his arm and pointed the gun toward the windshield. Hobgood exclaimed: “That man’s got a gun!” Young told Hobgood to act like she did not see Seese. The frightened couple pretended to be kissing, hoping that Seese would ignore them and walk on. Young saw Seese walk to some bushes and aim the gun at him and then at Hobgood. Seese repeated this motion and then walked away. Hobgood and Young called the police.

The police immediately suspected Seese, who lived in a house behind Applebee’s and was arrested in 1993 for carrying a gun on the restaurant premises. Young was able to pick Seese out of a photographic line-up and to identify him at trial. Hobgood identified Seese at trial but could not make a positive identification from police photographs.

Seese testified that he was not at Applebee’s on the night of the assault. He claimed to have been at O’Shea’s bar, located near Applebee’s on Franklin Road, from 10:00 p.m. until 2:00 a.m. The investigating officer, who interviewed Seese shortly after the incident, testified that Seese was unable to tell him when he arrived at O’Shea’s or when he left. On cross-examination, Seese admitted he had been drinking heavily that night and that he did not recall what he told the investigator.

1. In his first two enumerations of error, Seese contends the trial court erred in failing to give a jury charge on his sole defense of alibi. The court did not give a charge on alibi because, although Seese’s attorney initially requested the charge, he withdrew it. Seese’s attorney did not reserve exceptions to the charge as a whole when the court inquired.

Seese waived any right to enumerate this as error. “ Tn order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure . . ., of reserving the right to object on motion for new trial or on appeal.’ ” Here,, as in Phillips v. State, defense counsel neither objected nor reserved the right to later object. “ ‘[Ujnder such circumstances, (appellant) has waived the right to raise the issue on appeal.’ Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).”

Moreover, alibi is not an affirmative defense, either under statute or common law. It generally challenges the assertion of defendant’s presence at the scene of the crime, obviously a necessary element. As established in Rivers v. State it was not error for the court to fail to charge specifically on alibi absent a request. The rationale is that “since the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.” We have held that even if alibi is “the sole defense,” a request must be made.

2. The second enumeration contends the trial court erred in failing to give a charge on identity. Seese neither requested the charge nor reserved exceptions to the charge as a whole when the court inquired. Again, he failed to preserve error, if any, for our review.

3. Seese argues for the first time on appeal that he was denied effective assistance of counsel because his trial attorney did not request jury charges on alibi or identity and failed to reserve exceptions to the charge. Following his trial, Seese was appointed new counsel who filed a motion for new trial. The motion, which did not allege ineffective assistance of counsel, was denied. Seese then filed a motion for reconsideration and argued that he was denied effective assistance due to the failure to request a jury charge on the misdemeanor offense of pointing a gun at another, OCGA § 16-11-102. The court denied the motion, which ruling is not appealed. There is now new counsel yet again.

“[Seese] through appellate counsel raises a second claim of ineffective assistance of counsel against trial counsel, basing that claim on grounds which are different from those supporting the original claim of ineffective assistance. ... A defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised is deemed waived.” The appellate court reviews alleged trial court errors, so the trial court must first be asked to rule. Because Seese’s first new counsel had the opportunity to raise these additional allegations of ineffective assistance of counsel in his motion for new trial and (to the extent it is a valid means procedurally) motion for reconsideration, but failed to do so, “his challenge to the effectiveness of his trial counsel [on these grounds] is procedurally barred, and no remand is required.”

Decided November 9, 1998.

William R. Carlisle, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, Maria B. Golick, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        Phillips v. State, 162 Ga. App. 471, 472 (5) (291 SE2d 776) (1982). See also Weathers v. State, 202 Ga. App. 849, 852 (3) (415 SE2d 690) (1992); Burgess v. State, 162 Ga. App. 212 (3) (290 SE2d 554) (1982).

       Id.

       Id.

        Johnson v. State, 174 Ga. App. 751, 752 (2) (330 SE2d 925) (1985).

       250 Ga. 288, 299-300 (8) (298 SE2d 10) (1982).

       See Griffin v. State, 267 Ga. 586 (1) (481 SE2d 223) (1997) (there are affirmative defenses, such as accident, in addition to those statutorily enumerated; State has burden to disprove affirmative defense).

        Rivers, supra at 300; OCGA § 5-5-24 (c) is not implicated.

        Johnson, supra.

        Hamby v. State, 158 Ga. App. 265 (3) (279 SE2d 715) (1981).

        Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993). See also Stone v. State, 229 Ga. App. 367, 370-371 (2) (494 SE2d 48) (1997).

        Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994) (no challenge to effectiveness at trial level at all).


author: Ruffin, Judge.

text:
    A98A0812.
    DANIEL v. DANIEL.
    (509 SE2d 117)
   Ruffin, Judge.

Sharon and Russell Daniel were divorced in August 1992, with Sharon receiving primary physical custody of their minor child. On September 11, 1995, Russell filed a petition for change of custody. A temporary hearing was held on April 19, 1996, following which the trial court entered a temporary order allowing Sharon to retain primary physical custody. After a bench trial on February 6, 1997, the trial court entered a final judgment awarding Russell sole physical and legal custody of the child. Sharon appeals, asserting numerous errors. Because these asserted errors are without merit, we affirm.

1. In several enumerations, Sharon Daniel argues that the evidence did not support the trial court’s change of custody. We do not agree.

A parent who has been awarded custody pursuant to a divorce decree has a prima facie right to retain such custody, and a trial court in a modification action should ordinarily favor such parent. Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439) (1995); see also Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975). In order to change custody, the trial court “must affirmatively find . . . either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory.” (Citations and punctuation omitted.) Ormandy, supra at 781 (1). “Whether there are changed conditions affecting the welfare of the child occurring after the rendition of a former final custody judgment which will warrant changing custody is essentially a fact question in each individual case. And if there is reasonable evidence in the record to support the decision made by the . . . court in changing or in refusing to change custody or visitation rights, then the decision of that court must prevail.” (Punctuation omitted.) Dearman v. Rhoden, 235 Ga. 457, 459 (4) (219 SE2d 704) (1975); see also Crumbley v. Stewart, 238 Ga. 169-170 (231 SE2d 772) (1977). But see Bisno v. Bisno, 238 Ga. 328 (232 SE2d 921) (1977) (noting that there are limits to trial court’s discretion).

In this case, there was reasonable evidence supporting the trial court’s decision to transfer custody to the father. When the Daniels were divorced in August 1992, Sharon was a smoker. In November 1993, the child was diagnosed with asthma. At that time, Sharon and the child were living in an apartment with Sharon’s boyfriend, who also smoked. After the child was diagnosed with asthma, Sharon continued to smoke in front of the child until January 1994, when she broke up with her boyfriend and moved into a new apartment. After she and the child moved into the new apartment, Sharon continued to smoke approximately ten cigarettes per day, although she testified that she smoked only in the bathroom or outside. She claimed that she stopped smoking altogether in November 1996, about three months before trial. However, she later admitted that she had “broken down” on occasion and smoked since then. The trial judge expressly stated that she did not believe Sharon’s testimony that she had stopped smoking. The child’s medical records showed that she had made several trips to the doctor for asthma or other respiratory-related matters in the approximately three years before trial.

The fact that the child was diagnosed with asthma after the divorce clearly constitutes a change in circumstances making the mother’s smoking a factor relevant to the child’s welfare. Neither party contests the fact that smoking can be an irritant to an individual with asthma. Although there was no direct medical testimony that the mother’s smoking aggravated the child’s condition, there was evidence that the child had to go to the doctor on several occasions because of her asthma or other respiratory problems. While the mother claimed she smoked only in the bathroom, the trial court could reasonably conclude that smoking up to ten cigarettes a day in the bathroom of a confined apartment is likely to cause irritation to the child. Moreover, the fact that the mother continued to smoke inside the apartment for almost three years after the child was diagnosed suggests that she was not adequately concerned about the child’s health. Indeed, the trial court noted that, at the temporary hearing almost a year earlier, it had advised the mother to quit smoking for the child’s health, but that the mother had disregarded this advice. Furthermore, there was evidence that for a long period of time the mother did not know the name of the child’s doctor and had not spoken with him about the child’s asthma.

It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is reasonable evidence to support it. See Dearman, supra. Because there was reasonable evidence to support the trial court’s ruling, we cannot say that it abused its discretion in transferring custody to the father. The fact that the guardian ad litem recommended against a transfer of custody does not change this result, since there was evidence to support the trial court’s judgment.

2. Sharon Daniel contends the trial court erred in considering plaintiff’s Exhibits 2, 8, and 9, the child’s medical records, because, although these records were tendered into evidence, the trial court never expressly admitted them. This contention is without merit. When the medical records were tendered into evidence, the judge asked if Sharon’s attorney had any objections. The attorney responded that she wanted to look at the documents first, but never raised any subsequent objection to the documents. In her colloquy with counsel during closing arguments and while giving her oral ruling, the judge referred to the medical records, clearly indicating that she considered the records admitted into evidence. At no time did Sharon’s attorney indicate that the trial court’s consideration of the records was improper because they had not been formally admitted. Thus, it is apparent that all parties understood the records had been admitted without objection, and the trial court did not err in considering them.

3. Sharon Daniel contends the trial court erred in considering evidence that she kept pets in her apartment as an adverse change in material circumstances, because this issue had not been raised in the pleadings or at the pre-trial conference. However, Sharon does not point to any place in the record where she objected to the trial court’s consideration of such evidence. See Jones v. State, 232 Ga. App. 505 (502 SE2d 345) (1998) (failure to object when evidence is offered constitutes waiver of objection). Moreover, the trial judge’s findings of fact indicate that the presence of animals was not a factor affecting her decision to transfer custody to the father. See Chester v. State, 162 Ga. App. 10, 11 (3) (290 SE2d 117) (1982) (“Harm as well as error must be shown before reversal is appropriate”). Accordingly, this enumeration is without merit.

Decided November 10, 1998.

Shelby A. Outlaw, for appellant.

Arline S. Kerman, for appellee.

4. Sharon Daniel contends the trial court erred in considering “evidence” purportedly given at the April 19, 1996 preliminary hearing, arguing that no evidence was in fact presented at that hearing. However, the order entered after the hearing indicates that the court heard from both parties, and no transcript of the hearing is included in the record on appeal. Because there is no transcript to support Sharon’s factual contentions regarding the hearing, this enumeration presents nothing for this Court to review. See Burnette v. McCarter, 211 Ga. App. 781, 783 (3) (440 SE2d 488) (1994) (appeal with enumerations of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in affirmance).

5. Sharon Daniel argues that the trial court erred by not ruling on her counterclaim to hold Russell Daniel in contempt for failing to pay child support required by the original divorce decree. However, the transcript reflects that at the beginning of the hearing, Sharon’s attorney asked the trial court to “focus on two questions: one, has there been such a negative change of circumstances such that the present home environment of the child warrants a change of custody. And number two, A, should Russell pay child support and, B, how much.” The entire trial was concerned with the issue of custody, and Sharon did not seek a ruling on her counterclaim. Indeed, after announcing its ruling on the custody issue, the trial court specifically asked counsel, “Is there anything further?” and Sharon’s attorney did not request a ruling on the counterclaim. Accordingly, the trial court did not err in failing to rule on the counterclaim. See Purcell v. Joyner, 231 Ga. 85, 86 (1) (200 SE2d 363) (1973) (counterclaim abandoned by failure to prosecute during trial).

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.

       Prior to this exchange, the judge had admitted certain medical records without objection. Although it is not clear from the transcript, Sharon contends that this ruling referred only to plaintiff’s Exhibit 7, which appears to consist of medical records from Georgetown Pediatrics. These records are also included in Exhibit 8.