text:
    A02A0375.
    THOMAS v. THE STATE.
    (561 SE2d 468)
   Mikell, Judge.

Viewed in the light most favorable to the jury’s verdict, the record shows that at approximately 9:00 p.m. on April 12, 2000, Deputy George W. Halliburton of the Crawford County Sheriff’s Department, acting undercover, purchased $20 worth of crack cocaine from Trederick Thomas. A jury convicted Thomas of selling cocaine, and the trial court sentenced him to ten years confinement and denied his subsequent motion for new trial. This appeal followed. In the sole error raised on appeal, Thomas argues that the court erred in denying his motion for a mistrial after the prosecutor improperly commented on Thomas’ failure to testify. We disagree and affirm.

“The decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial judge. OCGA § 17-8-75. His decision will not be overturned . . . absent a manifest abuse of discretion.” (Citations and punctuation omitted.) Grant v. State, 185 Ga. App. 497-498 (1) (364 SE2d 628) (1988). There was no such abuse of discretion in this case.

Thomas objects to the following statements made by the prosecutor during his closing argument:

[The defense attorneys] came in here today and really the only thing they had to throw at you in the way of a Defense was their cross-examination of the State’s witnesses. . . . Have you heard any witnesses take the witness stand today and place either one of these two Defendants at any other location on April 12th? Any alibi witnesses? Have you heard any evidence from any source that they’re not the ones who sold the agent cocaine? No, you haven’t. The only evidence you’ve heard has been the State’s evidence. . . . It’s all on the side of the State because the only evidence that these Defendants put up were these two tapes. Now, if you want to balance the scales of justice, which side does the weight come down the heaviest on? Which side does reasonable doubt settle on? Well, it settles on the side of the State. . . . They’ve had their day in court, they’ve had the opportunity to call in witnesses they want to call, to put up any evidence they want to put up, defend their case anyway [sic] they want to and there’s not anything anybody can do about it. . . . It’s simply a matter of do you believe the police officer because you haven’t heard anybody else testify. . . . You can’t evaluate anybody else’s testimony because nobody else testified. He’s the only one you get to place that burden on in that way.

Decided March 6, 2002.

Andrew S. Foster, for appellant.

Howard Z. Simms, District Attorney, Henry O. Jones III, Myra H. Kline, Assistant District Attorneys, for appellee.

In Lobdell v. State, 256 Ga. 769, 774-775 (10) (353 SE2d 799) (1987), the Supreme Court applied the following two-prong test:

reversal for improper prosecutorial conduct requires a finding that (1) the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or (2) the comment was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.

(Punctuation omitted.) Id., citing Lowe v. State, 253 Ga. 308, 309-311 (1) (319 SE2d 834) (1984); Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982); United States v. Rochan, 563 F2d 1246 (5th Cir. 1977). See also Salters v. State, 244 Ga. App. 219, 221-222 (2) (535 SE2d 278) (2000).

Applying this test to the case sub judice, we conclude that the prosecutor’s statements did not warrant a mistrial. “The argument[s] made in this case [do] not show a manifest intention on the part of the prosecutor to comment upon appellant’s failure to testify, nor were the remarks of such a character that a jury would . . . necessarily construe them as a comment on appellant’s failure to testify.” (Citations and punctuation omitted.) Perry v. State, 232 Ga. App. 484, 487 (2) (b) (500 SE2d 923) (1998). We have expressly recognized that the State has the right to argue that the defense failed to rebut or contradict evidence demonstrating guilt. Id. Accordingly, the trial court did not abuse its discretion in denying Thomas’ motion for a mistrial.

Judgment affirmed.

Andrews, P. J., and Phipps, J, concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0587.
    HALL v. THE STATE.
    (561 SE2d 464)
   Phipps, Judge.

Burnam Melvin Hall appeals his convictions of two counts of child molestation and two counts of distributing obscene material. He claims that the trial court erred by (1) not allowing him to present evidence that one of the alleged victims had made a prior false accusation of sexual misconduct against a different man, and (2) charging the jury on the entire statutory definition of distributing obscene material. Because both claims lack merit, we affirm.

The charges against Hall arose from separate incidents on different dates. With respect to the first incident, the State’s evidence showed that on April 1, 2000, 15-year-old T. H. was asleep on a mattress in the living room of her grandfather’s house. Her brother and his 16-year-old girlfriend, T. G., were sleeping on another bed in the room. T. H. awakened when her uncle, Hall, began touching her vagina under her clothes. She rolled over, and he touched her buttocks. She told him to leave her alone and pretended to go back to sleep. According to T. H., Hall then moved over to T. G. and put his hand down her pants. T. G. testified that she woke up to find Hall fondling her vagina and that he later inserted his finger there. T. H. told Hall to leave T. G. alone, at which point Hall left the room. At trial, Hall denied touching either girl inappropriately.

Hall was charged with two counts of child molestation for touching T. H.’s vagina and buttocks and one count of aggravated sexual battery for placing his finger in T. G.’s vagina. The jury found him guilty of the child molestation counts, but not of aggravated sexual battery.

With respect to the second incident from which Hall’s charges arose, Hall’s eleven-year-old stepgranddaughter, K. D. H., testified that two times while she was staying at his house, Hall played a videotape for her called “Bumam’s Dirty Movies” that featured naked adults engaging in sexual activities. Hall told her not to tell anyone what she had seen because he might be arrested.

K. D. H.’s eight-year-old sister, K. N. H., testified that once while she was playing at Hall’s house, he told her, “it’s time for you to look at this,” and showed her a movie of naked adults involved in sexual activities. K. N. H. testified that two other times, Hall showed her other movies of people engaged in sexual activities.

Investigator Mike Shinall of the Bartow County Sheriff’s Office testified that he searched Hall’s residence and found two videotapes, one of which was titled “Bumam’s Dirty Movies.” At trial, Hall stipulated that the videotapes were obscene, and he testified that they would not be appropriate for children to view. However, he denied showing the videotapes to K. D. H. or K. N. H.

Hall was charged with two counts of distributing obscene material for showing obscene videotapes to K. D. H. and K. N. H. and was convicted on both counts.

1. At trial, Hall sought to introduce evidence that before the charges arose against him, the alleged sexual battery victim, T. G., had falsely accused another man, W. P. (who was then T. H.’s mother’s boyfriend), of sexual misconduct. The trial court refused to permit the jury to hear such evidence.

Evidence that a victim in a sex offense case has made prior false accusations of sexual misconduct against others is admissible to attack the victim’s credibility and as substantive evidence tending to prove that the charged offense did not occur. Before admitting such evidence, however, the trial court must make a threshold determination outside the presence of the jury that there is a reasonable probability the prior accusations were false. A “reasonable probability” is defined as one “sufficient to undermine confidence in the outcome.” We will not disturb the trial court’s ruling absent an abuse of discretion, and we review the trial court’s determinations concerning the credibility of witnesses only for clear error.

T. G. testified that W. P. had touched her breasts and vagina. T. H. and her mother testified that T. G. had reported the incident to them, and defense counsel asked whether T. G. had later told them she had fabricated the allegations. T. H. denied that T. G. had recanted her story. T. H.’s mother could not remember whether T. G. had recanted, but she refused to state that she did not believe T. G. T. H.’s mother also testified that W. P. had told her he had been drinking on the night in question. W. P. denied touching T. G. in a sexual manner. He also claimed that he had not been drinking that night and that he had never told T. H.’s mother that he had.

The trial court ruled that this evidence did not establish a reasonable probability that T. G.’s accusations against W. P. were false. The court obviously determined that the testimony of T. G., T. H., and T. H.’s mother was more credible than that of W. P, and we cannot say that that decision was clearly erroneous.

2. Hall argues that the trial court erroneously charged the jury on the entire statutory definition of distributing obscene material, even though he was charged with committing the crime in only one way — by showing obscene videotapes to K. D. H. and K. N. H. We find no error.

Decided March 6, 2002.

Joshua D. Earwood, for appellant.

Generally, it is not error to charge an entire Code section even though only part of the section may be applicable. “However, error arises if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment.” No such reasonable probability exists here.

First, the trial court instructed the jury that the State was required “to prove every material allegation of the indictment” beyond a reasonable doubt and that a conviction would be authorized if the jury believed beyond a reasonable doubt that the defendant had “committed the offense alleged in a count.” A copy of the indictment went out with the jury. Thus, the jury instructions, read as a whole, properly limited the elements of the crime to those charged in the indictment. Second, K. D. H. and K. N. H. testified about only one method in which Hall distributed obscene materials — by showing them obscene videos. There was no evidence that he committed the crime in any other manner, and thus no possibility that the jury convicted him of doing so.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

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

       Hall also was charged with four counts of child molestation for touching K. D. H.’s breasts, buttocks, and vagina and for masturbating in her presence. The trial court directed a verdict of acquittal on the latter count, and the jury acquitted Hall of the other three counts.

        Smith v. State, 259 Ga. 135, 137-138 (1) (377 SE2d 158) (1989).

       Id.

       (Citation and punctuation omitted.) Palmer v. State, 248 Ga. App. 515 (1) (546 SE2d 886) (2001).

       Id.

       See Tyson v. State, 232 Ga. App. 732, 734 (2) (503 SE2d 640) (1998).

       The jury charge, in relevant part, was as follows:
      [A] person commits [the offense of distributing obscene material] when he sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word knowing [a]s used in this section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter.
      This charge almost exactly tracks the language of OCGA § 16-12-80 (a).

        Green v. State, 249 Ga. App. 546, 555 (6) (547 SE2d 569) (2001).

       (Citation omitted.) Id.

       (Emphasis supplied.)

       See Johnson v. State, 245 Ga. App. 761, 762 (1) (538 SE2d 850) (2000).

       See Welker v. State, 273 Ga. 36, 38 (5) (537 SE2d 661) (2000).


author: Eldridge, Judge.

text:
    A02A0919.
    MOORE v. THE STATE.
    (561 SE2d 454)
   Eldridge, Judge.

Following a bench trial in the Superior Court of Bibb County, Reginald Moore was found guilty of theft by receiving — motor vehicle. He appeals and, in his sole enumeration of error, claims the evidence was insufficient to support his conviction. A review of the evidence shows the contrary, and we affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the verdict will be upheld.

The evidence shows that, on October 22, 2000, the victim in this case was paying for gas at the RaceTrac gas station on Harrison Road, U. S. 80, in Macon. Apparently, she left her keys in the lock of the car’s trunk after she retrieved her purse therefrom in order to pay for the gas. The victim testified that, when she exited the store, her car, a 1992 brown Lexus LS400, “wasn’t there where I left it.” A police report was filed, and the victim was reimbursed by the insurance company for the loss. Title to the car eventually went to State Farm Insurance.

Four months later, on February 8, 2001, Macon police officers were on patrol in and around Hall Street in Macon, a high crime area. They observed several men running from a brown Lexus; the men ran into 1287 Hall Street, a “dive” wherein marijuana was smoked, guns were traded, and illegal gambling occurred. The officers pulled over and approached the door of the house; it was ajar and a “very strong odor of marijuana” was detected coming from the house. Upon entering the house, several suspects were “trying to exit out the back door,” including appellant Moore. The men had been gambling. Moore and the others were arrested, and the vehicle identification number (“VIN”) of the Lexus was run through the National Crime Information Center (“NCIC”). The vehicle came back stolen from the RaceTrac victim. The arresting officer, S. Ellington, testified that he informed Moore and the other suspects the Lexus was stolen and that he intended to impound it. He testified that “[everybody knew the car was stolen.”

The Lexus was towed to Ackerman’s, an impound lot; a recovery report was issued; and the stolen vehicle information was taken off the NCIC’s computer. At trial, it was explained that

[i]f a car is recovered and taken out of the computer as stolen and it’s taken to Ackerman’s with the intent of safekeeping for the owner, the rightful owner to come and get the car, and if somebody without the owner’s consent comes and retakes the car, if anything, the car has been stolen again.

Moore bonded out of jail immediately. The next day, February 9, 2001, Moore went to Ackerman’s. He was in possession of a bill of sale for the Lexus, dated December 15, 2001, which showed that he had bought the Lexus from a “Brenda Davis” who resided at “2291 Northside Drive” in Macon. An employee of Ackerman’s testified that the bill of sale was certified; however, from our review, no seal imprint is seen on the copy kept by Ackerman’s and introduced at trial; in addition, the purported notary did not sign the document. Moore also had an insurance card on the Lexus issued on February 1, 2001, but the insurance had been taken out by Latonya Hill, Moore’s “god-sister.” Moore showed Ackerman’s a Georgia ID card, but, because he did not have a driver’s license, his girlfriend at the time, Kolita Ridgeway, provided Ackerman’s with a Georgia driver’s license. The Lexus was released to Moore.

In mid-February, “someone called and said that Reginald Moore was driving around in a stolen Lexus.” Although the stolen vehicle information had been removed from the computer when the Lexus was recovered, further investigation of the VIN by Macon Police Officer G. Jeffcoats showed that title to the Lexus belonged to State Farm Insurance. Jeffcoats contacted State Farm, and “they stated, yes, that they owned the car, that they had paid $16,800 for the car and they had never picked it up.” Further investigation at Acker-man’s showed that the Lexus was released to Moore. Jeffcoats obtained Ackerman’s copy of the bill of sale that Moore used to secure the release of the Lexus. With regard to the information contained therein, Jeffcoats could not locate a “Brenda Davis.” Investigation further showed that the address on Northside Drive was false.

At that point, Jeffcoats interviewed Moore about the Lexus. Moore told Jeffcoats that “he bought it from a guy in Atlanta.” He “stated that he did not know a Brenda Davis.” Moore told the officer that “he didn’t have a bill of sale for the car.” When shown the bill of sale he had used to secure the release of the Lexus, Moore told Officer Jeffcoats “that was in the car when he bought the car.” Moore was charged with theft by receiving stolen property.

At trial, Moore took the stand and testified in his own behalf. He claimed that he had rented the Lexus several times from an unknown man who hung around the “dive” on Hall Street; “|y]ou know, he was sneaking around and renting the car out from down there trying to get drugs.” Thereafter, he bought the Lexus from Brenda Davis, the alleged owner, for $7,800, although the car was valued at $9,000 even for salvage. Moore testified that he got “a great deal.”

Moore did not know Brenda Davis, did not know how to locate her, and had no idea whether she really owned the car. It was unexplained why Davis permitted a purported junkie to rent the Lexus to other people in order to obtain drug money. Moore testified that the sale took place on the street; Moore purchased the Lexus in front of the “dive” on Hall Street. Davis showed him the bill of sale, Moore signed it, he handed over the money, and she handed over the keys.

Moore further testified that, when he was arrested, he was carrying a fake insurance card that came from “someone I knew that printed those fake insurance cards,” although his god-sister had purchased insurance on the vehicle at the time Ackerman’s released it to Moore. Finally, Moore testified that Officer Ellington lied when he stated that Moore had been told when he was arrested at the gambling house that the Lexus was stolen. He also testified that Officer Jeffcoats lied when he stated that Moore had told him he did not know Brenda Davis; that he did not have a bill of sale for the car; and that he bought the car from a man in Atlanta.

Following the presentation of this evidence, the trial court made specific findings to support its verdict, which bear repeating in this sufficiency review:

These are the facts that certainly have influenced my decision. You bought the car essentially on the street corner from total strangers. I think that’s the testimony that you have given. The bill of sale, of course, is invalid. You’ve had two insurance cards, one of which you admitted was fraudulent. . . . Brenda Davis, whose name appears and whose address appears on a bill of sale, again somebody you did not know other than having seen on the street, the address was non-existent. You were buying a car at a time when you had no valid driver’s license to begin with. I mean you could not have gone to Butler Lexus to buy this automobile, that you didn’t have a driver’s license, and the car or market value of the vehicle, according to the expert testimony, was $15,912 and you indicated that you had paid something on the order of $7,800. Detective Jeffcoats and Officer Ellington gave testimony which you have indicated you believe to be untruthful. Again, I’ve got to be the judge of the credibility of the witnesses. I’ve got to decide who to believe and not to believe. Detective Jeffcoats has given testimony that you gave prior statements inconsistent with subsequent statements and inconsequent with your testimony today. I find that they are credible witnesses, that they did not have a reason and a motive to testify falsely. Consequently, I find that the State has proven beyond a reasonable doubt that under all the circumstances you either knew or you should have known that the Lexus was stolen.

Decided March 6, 2002.

Robert M. Bearden, Jr., for appellant.

Howard Z. Simms, District Attorney, Myra H. Kline, Assistant District Attorney, for appellee.

A person commits theft by receiving stolen property when he “receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” In agreement with the trial court’s factual presentation and in deference to its credibility assessment, we find the above evidence sufficient for a rational trier of fact to have found Moore guilty beyond a reasonable doubt of the offense as charged.

Judgment affirmed.

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

        Upshaw v. State, 249 Ga. App. 741, 745 (3) (549 SE2d 526) (2001).

       (Emphasis supplied.) OCGA § 16-8-7 (a).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Andrews, Presiding Judge.

text:
    A01A1805.
    ASKEW v. THE STATE.
    (564 SE2d 720)
   Andrews, Presiding Judge.

Jessie James Askew, Jr. was found guilty by a jury of armed robbery of a Morrison’s cafeteria in Warner Robins. Askew was also found guilty of three counts of kidnapping and three counts of aggravated assault committed against cafeteria employees during the robbery, along with three counts of possession of a firearm during the commission of these crimes. For the following reasons, we affirm the judgment entered on the convictions.

1. The evidence was sufficient to support Askew’s conviction on all of the charges. The State presented evidence that two robbers carrying firearms and wearing masks to conceal their identities entered the rear door of the business, forced employees at gunpoint into a walk-in cooler, and took over $4,000 from the business. Although the robbers fled the scene before police arrived, a Morrison’s employee knew and recognized Fernando Jackson as one of the robbers despite the mask and identified him to police. Jackson was arrested, admitted his involvement, and testified pursuant to a plea agreement with the State that Askew was the other robber. There was evidence that Askew worked at Morrison’s until shortly before the robbery. De-Shaun Maine, another Morrison’s employee, was produced as a witness by the State and was expected to testify that he knew Askew and recognized him as one of the robbers, as he had previously testified for the State before the grand jury. At trial, however, Maine changed his testimony and said he did not recognize Askew as one of the robbers. Evidence of Maine’s grand jury testimony identifying Askew as one of the robbers was introduced for purposes of impeachment.

The State also produced circumstantial evidence implicating Askew in the robbery. There was evidence that Askew and Jackson lived in the same house with Jackson’s father. Jackson’s father testified that Askew’s girlfriend came to the house shortly after the robbery and located and took what appeared to be a large sum of money hidden in a freezer at the house. Other evidence showed that Askew had access to his girlfriend’s car on the day of the robbery and that a car similar to the girlfriend’s car was seen leaving the scene of the robbery. When police searched the girlfriend’s car, they found ammunition in the car suitable for the type of firearms seen used in the robbery. Evidence also showed that Askew owned firearms similar to those used in the robbery.

The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Askew was guilty of the charged offenses. OCGA §§ 16-8-41; 16-5-40; 16-11-106; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Askew contends the trial court erroneously excluded evidence impeaching the testimony given by Jackson.

Prior to trial, Maine, who knew both Askew and Jackson, received a letter by mail purportedly written by Jackson from jail stating that Jackson was falsely accusing Askew of being involved with him in the robbery. The letter states that Jackson and another named individual committed the robbery and that Jackson was falsely accusing Askew as revenge for prior difficulties he had with Askew. After the letter was brought to the attention of defense counsel and the prosecutor, the State filed a motion in limine to exclude the letter claiming it was not authentic and that Jackson denied having written it.

A pre-trial hearing was held on the motion at which Askew presented evidence which he claims authenticated the letter and supported his contention that the letter was admissible to impeach Jackson’s testimony. Although Askew claims the trial court granted the State’s motion and excluded the letter, the record does not support this claim. The record shows only that the trial court stated it was not inclined to admit the letter. The court further stated, however, that “I’m not saying at this point that it is absolutely to be excluded because I don’t know . . . what the total circumstances are going to dictate . . . [a]nd there may be something else that says to me that it should come in. . . .” There is nothing in the record showing that the trial court subsequently excluded the letter or that Askew attempted to introduce the letter during the trial. Accordingly, this issue was not preserved for appellate review. Cunningham v. State, 240 Ga. App. 92, 96 (522 SE2d 684) (1999).

3. Askew contends the trial court erred by refusing to charge the jury that a witness for the State violated the rule of sequestration by discussing testimony with another witness.

While cross-examining Officer Hudgens, defense counsel elicited testimony that the officer discussed aspects of his upcoming testimony with another officer who had previously testified for the State in the case. At the request of defense counsel, the trial court allowed a proffer of testimony from Officer Hudgens outside the presence of the jury detailing the nature of the discussion. The proffer showed that the discussion was about whether the officers had seen anyone leaving Morrison’s when they arrived at the scene of the robbery, a point which was not raised in Hudgens’s testimony. Defense counsel made no attempt to introduce the proffered testimony before the jury, but requested that the trial court instruct the jury .there had been a violation of the rule of sequestration and also instruct the jury “about the question he [Hudgens] and the officer talked about.”

We find no error in the trial court’s refusal to give the requested instruction regarding the nature of the question discussed. This was not an obvious violation of the sequestration rule where a witness whose credibility was at issue because of the violation had been sitting in the courtroom during the trial, so the appropriate remedy was to admit testimony before the jury as to the violation. Childress v. State, 266 Ga. 425, 432 (467 SE2d 865) (1996). Testimony was admitted before the jury on Hudgens’s cross-examination that a violation had occurred, but no attempt was made to admit the proffered evidence regarding the actual question the officers discussed. Accordingly, it would have been improper for the trial court to give what would have amounted to hearsay testimony regarding the question discussed by the officers in the course of the requested charge. Id. Although Askew was entitled to request the trial court to instruct the jury that the violation could be considered in weighing the witness’s credibility, no request was made for this instruction and the trial court was not required to give it sua sponte. Quijano v. State, 271 Ga. 181, 183 (516 SE2d 81) (1999). Moreover, even if such a request had been made and the trial court erroneously refused to give the instruction, the testimony involved was not so crucial to the State’s case that harm requiring reversal could be shown.

4. Askew claims the trial court erred in admitting an incriminating statement he gave to police because he was not advised of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

We find no error in the trial court’s conclusion that the statement was admissible without Miranda warnings because Askew was not in custody when he gave it. A suspect is entitled to Miranda warnings only when subjected to State interrogation while in custody or deprived of freedom in any significant way. Driver v. State, 248 Ga. App. 439, 440 (546 SE2d 549) (2001). Askew voluntarily came to the police station after hearing that he was a suspect in the robbery. Upon request, he gave a written statement denying involvement in the robbery and giving his whereabouts on the day of the robbery. The officer who requested the statement testified that Askew was not under arrest at the time and was free to leave. Even if, as Askew contends, he was a prime suspect when he came to the police station and police had probable cause to arrest him, this does not compel the conclusion that he was in custody at the time he gave the statement. Hendrix v. State, 230 Ga. App. 604, 605 (497 SE2d 236) (1997). There was evidence showing that Askew was not in custody, and the trial court’s admission of the statement as voluntary and noncustodial was not clearly erroneous. Id. at 606.

5. The trial court did not err by refusing to grant a new trial on the basis of newly discovered evidence.

A year after the trial, Jackson, who testified at the trial that he and Askew committed the robbery, recanted his testimony and gave an affidavit stating that he lied at the trial, that Askew did not participate in the robbery, and that he wrote the letter to Maine referenced in Division 2, supra, stating that he was falsely accusing Askew.

That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that [his] former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication.

(Citations and punctuation omitted.) Johnson v. State, 236 Ga. App. 764, 765 (1) (513 SE2d 291) (1999); Drake v. State, 248 Ga. 891, 894 (287 SE2d 180) (1982) (post-trial statement by a State’s witness that his trial testimony was false is not grounds for a new trial). There is no evidence that Jackson has been convicted of perjury, and Askew has presented no other evidence showing there is no doubt that Jackson’s testimony at the trial was “pure fabrication.” The trial court properly denied the motion.

6. The trial court did not abuse its discretion by ruling that defense counsel could not continue to cross-examine Jackson about an alleged improper conversation he had with the prosecutor after Jackson denied during the cross-examination that any such conversation occurred. Moore v. State, 251 Ga. 499, 501 (307 SE2d 476) (1983). Askew proffered nothing showing that a more extensive inquiry could produce relevant evidence despite Jackson’s flat denial. See Johnson v. State, 270 Ga. 234, 235 (507 SE2d 737) (1998).

7. Askew claims the trial court erred in failing to grant his motion for a new trial on the basis that the State engaged in misconduct by: (1) telling Jackson to lie at trial and allowing him to give false testimony, (2) improperly withholding the taped statement of a witness which contained exculpatory evidence, and (3) placing Askew’s mother on its witness list for the sole purpose of using the rule of sequestration to prevent her from being in the courtroom to support her son.

Jackson testified at Askew’s trial that he and Askew committed the robbery, and on cross-examination by defense counsel, he denied meeting with prosecutors and being told to give false testimony. The allegations that a prosecutor told Jackson to lie at Askew’s trial and knowingly allowed him to give false testimony are based on the affidavit given by Jackson a year after the trial in which he recanted his trial testimony. For the reasons stated in Division 5, supra, the affidavit was not a sufficient basis for the grant of a new trial.

As to the taped statement, the record shows that the State provided a copy of the statement to defense counsel as soon as it was discovered, and by agreement of the State and defense counsel the jury heard the entire statement. There is no evidence that the State engaged in any misconduct and no evidence that Askew’s defense was prejudiced.

Finally, the State gave a reasonable explanation as to why it listed Askew’s mother as a potential witness. There was no evidence of misconduct.

The trial court did not err by denying the motion for new trial.

8. Askew contends the trial court erred by allowing a police officer to give hearsay testimony based on the statement of Askew’s girlfriend, who was a nontestifying co-defendant.

A police officer testified on direct examination that from sources other than Jackson he learned that ammunition found in the girlfriend’s car was put in the car during the approximate period of time that Askew and Jackson used the car in the robbery. The State concedes that, apart from getting this information from Jackson, the officer’s knowledge was based on hearsay statements made by Askew’s girlfriend. Even if this testimony was erroneously admitted, we find no harmful error. It was cumulative of testimony given by Jackson, and, excluding the inadmissible hearsay, other evidence against Askew was sufficient to support the convictions. Livingston v. State, 268 Ga. 205, 210-212 (486 SE2d 845) (1997).

9. Askew, who is African-American, contends the trial court erred in rejecting his claim under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), that the State violated his Equal Protection Clause rights by exercising its peremptory strikes during jury selection to intentionally exclude African-Americans from the jury on the basis of race.

A Batson challenge initiates a three-step process requiring first that the party challenging the strikes establish a prima facie inference that the strikes were exercised with racially discriminatory intent. If a prima facie case of racial discrimination is established, under the second and third steps, the burden of production shifts to the proponent of the strikes to give race-neutral reasons for the strikes, and the trial court then considers the reasons given and decides whether the challenger has proven discriminatory intent. During this process, the burden of persuasion as to discriminatory intent does not shift from and remains with the challenger.

Griffeth v. State, 224 Ga. App. 462, 463 (2) (480 SE2d 889) (1997). We need not address Askew’s claim that the trial court erred by concluding he failed to establish a prima facie case of racial discrimination. Even though the trial court reached this conclusion, it nevertheless required the State to give race-neutral reasons for exercising three of its six strikes against African-American potential jurors.

The State struck one juror because he did not give honest answers to questions regarding prior arrests, the second juror because he had a personal relationship with one of Askew’s attorneys, and the third juror because she did social work for a state agency. The State expressed concerns that the first juror may be biased against the State because of negative involvement with law enforcement, that the second juror would favor Askew because he knew one of his attorneys, and that the third juror may be favorable to the defense because of her involvement in social work. These were clear and reasonably specific explanations for the strikes based on factors other than race and thus satisfied the requirement to give race-neutral reasons. Alford v. State, 224 Ga. App. 451, 457-458 (480 SE2d 893) (1997); Haynes v. State, 234 Ga. App. 272, 276-277 (507 SE2d 151) (1998); Carter v. State, 249 Ga. App. 354, 356 (548 SE2d 102) (2001). The trial court did not err in finding the State’s strikes were exercised without racially discriminatory intent and in denying the Batson claim.

10. There is no merit to Askew’s contention that he was improperly convicted in violation of OCGA § 24-4-8 on the uncorroborated testimony of Jackson, who claimed to be his accomplice. In addition to Jackson’s testimony that he and Askew committed the robbery, the State produced ample corroborating evidence. See Division 1, supra.

11. Contrary to Askew’s contention, the trial court properly sentenced him to life imprisonment without parole. Based on evidence that Askew had four previous felony convictions, he was sentenced pursuant to the recidivist provisions of OCGA § 17-10-7 (c) which provides:

[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

OCGA § 16-8-41 (b) provides that “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” OCGA § 16-8-41 (d) provides that “[a]ny person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” It follows that the trial court was mandated in this case to sentence Askew to life imprisonment without parole. Howard v. State, 233 Ga. App. 724-725 (505 SE2d 768) (1998).

Decided February 15, 2002

Reconsideration denied March 7, 2002

Rodney E. Davis, Eugene Felton, Jr., for appellant.

Kelly R. Burke, District Attorney, Amy E. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       The statement was later introduced by the State at trial because it was inconsistent with alibi testimony produced by Askew.


author: Miller, Judge.

text:
    A01A1935.
    PHILLIPS et al. v. SOUTH WEST MECHANICAL CONTRACTORS, INC. et al.
    (561 SE2d 471)
   Miller, Judge.

Alleging negligence, Tina Phillips and James Stacy sued South West Mechanical Contractors, Inc., Arthur Payton, Michael Mahlum, and John Doe for the death and suffering of their son resulting from a vehicle accident. South West, Payton, and Georgia Farm Bureau Mutual Insurance Company successfully moved for summary judgment. Phillips and Stacy now appeal this ruling, and upon review, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant need not produce any evidence, but must only point to an absence of evidence to support at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmov-ant.” (Citation omitted.) Berry v. Hamilton, 246 Ga. App. 608 (541 SE2d 428) (2000).

So viewed, the evidence reveals that while driving on Georgia Highway 400, Payton experienced problems with the dump truck he was driving for his employer, South West. Payton pulled over into the emergency lane and halfway into the grass to the right of the emergency lane to investigate the problem. Payton and his supervisor determined that there was a fuel problem, and both left the dump truck in the emergency lane to get a fuel filter. Upon returning and realizing that replacement of the fuel filter did not correct the problem, the two men spoke with the owner of South West and were told to leave the truck as the owner would come the next day to replace the fuel pump. Approximately thirty-six hours later, after midnight, the decedent and another teenager were traveling along Georgia Highway 400 on a stolen one-passenger all-terrain vehicle (ATV), without a headlight, and in excess of 65 mph. The driver of the ATV and a third teenager had stolen the ATV the previous day, and the passenger, the decedent, was aware of this fact. The ATV veered into the emergency lane and struck the left rear of the dump truck. Both youths were thrown from the vehicle, and the decedent, who was riding on the back of the ATV, was thrown onto the highway, struck by an unknown vehicle, and killed.

The appellants’ enumerations claim that the court erred in finding certain issues of fact or erred in failing to find certain issues of fact. We point out that the trial court is not required to make findings of fact and conclusions of law in ruling on a motion for summary judgment. Thompson v. City of Fitzgerald, 248 Ga. App. 725, 729 (3) (548 SE2d 368) (2001); Thomas v. DeKalb County, 227 Ga. App. 186, 188 (1) (489 SE2d 58) (1997). Therefore, upon our de novo review, we will consider the appellants’ enumerations to determine if the grant of summary judgment was improper.

1. Appellants argue that South West was negligent in leaving the dump truck on the side of Georgia Highway 400.

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

(Citation omitted.) Berry, supra, 246 Ga. App. at 608-609. The mere fact that an accident has occurred and a plaintiff was injured affords no basis for recovery unless the plaintiff carries her burden of proof and shows that the accident was caused by specific acts of negligence of the defendant. Id. at 609. Although questions of negligence are ordinarily for the jury, plain and palpable cases can be decided by summary adjudication. Quiktrip Corp. v. Fesenko, 228 Ga. App. 287, 288-289 (491 SE2d 504) (1997). This is such a case. Here, there is no evidence that South West was negligent in leaving the disabled dump truck partially in the emergency lane and partially off-road. Appellants contend that South West violated OCGA §§ 40-6-200 (d) (proper parking) and 40-6-203 (a) (1) (I) (prohibited parking), but under OCGA § 40-6-204, these Code sections “shall not apply to the driver of any vehicle which is disabled while on the roadway in such a manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” It is uncontradicted that the dump truck was disabled, and we find no legislative authority or case precedent to support the argument that leaving the truck for 36 hours on Georgia Highway 400 constituted negligence. Nor is any negligence per se shown, as the dump truck was not parked in the highway in such a way as to obstruct traffic or in the emergency lane in violation of a statute. See, e.g., Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990).

Notably, in Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 639-640 (1) (519 SE2d 722) (1999), this court stated that by driving a disabled truck out of the travel lanes and onto the emergency lane, the plaintiff was attempting to prevent a collision. Therefore, we see no legal duty to which South West failed to conform. As appellants have pointed to no specific evidence giving rise to a triable issue, the grant of summary judgment to South West was proper. See OCGA § 9-11-56 (e).

2. The appellants also named John Doe as a defendant in their complaint in order to seek uninsured motorist coverage from their insurer, Georgia Farm Bureau. They further argue that they are entitled to uninsured motorist benefits for the collision between the ATV and the dump truck.

(a) Appellants argue that the separate collision between the ATV and the dump truck entitled them to uninsured motorist coverage. It is undisputed that the decedent was an insured under the automobile policy. The exclusion to the policy, however, states that “[Georgia Farm does] not provide Uninsured Motorists Coverage for ‘property damage’ or ‘bodily injury’ sustained by any person: ... 3. Using a vehicle without a reasonable belief that that person is entitled to do so.”

The appellants cite Maryland Cas. Co. v. Rhoden, 170 Ga. App. 704 (318 SE2d 175) (1984), to support the argument that they are entitled to uninsured motorist coverage because the “reasonable belief” exclusion does not apply. In Rhoden, the automobile owner’s daughter was a passenger in an automobile being operated by her friend. Id. Neither the daughter nor her friend had permission to use the vehicle. Id. A collision subsequently occurred, and the daughter was injured. Id. The insurance policy contained a “reasonable belief” exclusion similar to the one at issue in this case. Id. This court held that even though the daughter could not recover for her own injuries, the father could recover because the policy also stated that an “insured” is “[ajnyone for damages he is entitled to recover because of bodily injury sustained by another insured.” (Punctuation omitted.) Id. at 706. Rhoden is distinguishable, however, because the father sued in his own capacity as an “insured” to recover damages that he suffered. Here, the parents of the decedent sued as heirs of his estate to recover benefits that the decedent would be entitled to under the policy.

Under Georgia law, “an insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others.” (Footnote omitted.) Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996). Here, the policy clearly excludes coverage where the insured uses a vehicle without a reasonable belief that he was entitled to do so, and the evidence establishes that the decedent was fully aware that the ATV was stolen and that he did not have permission to use it. Therefore, the exclusion must be given effect even if beneficial to the insurer and detrimental to the insured. See Jefferson Ins. Co. of New York v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998). “We will not strain to extend coverage where none was contracted or intended.” (Citation omitted.) Id.

(b) The appellants also contend that they are entitled to uninsured motorist coverage due to the negligence of John Doe in strildng the decedent. Law enforcement determined that the decedent was struck by another automobile. The autopsy report revealed that the decedent was still alive prior to being struck by the John Doe vehicle. There is, however, an absence of evidence showing that John Doe’s acts or omissions constituted negligence. There were no eyewitnesses to the collision and no other evidence presented as to how it occurred. “The purpose of the uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.” (Citations omitted; emphasis in original.) Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313, 315 (2) (529 SE2d 439) (2000).

Here, the appellants have failed to come forward with any evidence which raises a question of fact as to John Doe’s negligence. See Etheredge v. Kersey, 236 Ga. App. 243, 245 (510 SE2d 544) (1998). The only fact the appellants point out is that after the decedent was struck by John Doe’s vehicle, another vehicle approached and was able to avoid striking the decedent’s body. This inference is not evidence of John Doe’s negligence without further evidence of how long after John Doe struck decedent did the second vehicle approach, or how long after the decedent was thrown from the ATV did John Doe strike him. “When a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” (Citations omitted.) Page v. Atlanta Center, 219 Ga. App. 422, 424 (465 SE2d 456) (1995). And as stated earlier, the mere fact than an accident happened affords no basis for recovery unless it is shown that the accident was caused by specific acts of negligence. Berry, supra, 246 Ga. App. at 609. Therefore, as there is no evidence that appellants are legally entitled to recover damages from an uninsured motorist, the trial court did not err in granting summary judgment to Georgia Farm Bureau. Cf. Hicks v. Doe, 206 Ga. App. 596, 598 (4) (426 SE2d 174) (1992).

Decided March 7, 2002.

Hinton & Powell, Douglas R. Powell, Debra K. Haan, Dietrick, Evans, Scholz & Williams, Scott E. Tinnon, for appellants.

Price, Pyles, Dangle, Parmer & Rooks, Robert F. Dangle, Fain, Major, Wiley & Brennan, Charles A. Wiley, Jr., James A. Rice, Jr., William P. Tinkler, Jr., for appellees.

3. Appellants’ argument that they are entitled to punitive damages against South West is without merit, as such a claim was derivative of the negligence claim against South West. See Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 67-68 (3) (537 SE2d 670) (2000). As we held in Division 1 that South West was entitled to summary judgment on the appellants’ negligence claim, summary judgment was also proper for the appellants’ claim for punitive damages. See id. at 68 (3).

4. In light of our holding in Division 1, appellants’ remaining enumerations are moot.

Judgment affirmed.

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

       John Doe was named as a defendant so the appellants could seek uninsured motorist coverage from their insurer, Georgia Farm Bureau Mutual Insurance Company.


text:
    A01A2476.
    DEPARTMENT OF TRANSPORTATION v. FEDERAL EXPRESS CORPORATION.
    (561 SE2d 470)
   Miller, Judge.

Charles Smith was killed in an accident in which the vehicle he was driving collided with a Federal Express Corporation vehicle. Smith’s widow filed a wrongful death action against Federal Express and others. Federal Express settled with Smith’s widow and in turn filed a complaint for contribution against the Georgia Department of Transportation (DOT) due to its negligence in the construction, operation, and design of the intersection where the collision occurred. The trial court denied DOT’s motion to dismiss the complaint on the grounds of sovereign immunity, and DOT appeals.

Under the Georgia Tort Claims Act,

[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.

OCGA § 50-21-23 (a). A “loss” is defined as “personal injury; disease; death; . . . including lost wages and economic loss to the person who suffered the injury, disease, or death; . . . and any other element of actual damages recoverable in actions for negligence.” OCGA § 50-21-22 (3). The Act also lists certain possible exceptions to the state’s liability. See OCGA § 50-21-24. One of the listed exceptions provides that the state shall have no liability from “[t]he plan or design for construction of or improvement to highways, roads, [or] streets, . . . where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” OCGA § 50-21-24 (10). Federal Express in this case, however, presented unrebutted evidence that the plan and design for the intersection were not in substantial compliance with generally accepted engineering or design standards. For this reason, this exception does not apply.

DOT argues that the loss suffered by Federal Express is not the type of loss set forth in the statute, because contribution is not included within the statutory definition of losses, and because Federal Express is suing DOT on account of the economic loss it sustained when it settled with Smith’s widow. DOT’s arguments are misplaced because Federal Express is not seeking contribution for its loss but for the loss suffered in the death of Smith. Contribution is not listed as a “loss” under the statute because contribution is simply an avenue through which a recoverable loss is pursued against a joint tortfeasor, in this case, the state. See OCGA § 51-12-32 (a). As a joint tortfeasor, DOT “shall be liable for such torts in the same manner as a private individual or entity would be . . . under like circumstances.” OCGA § 50-21-23 (a). It follows that in this case, DOT as a joint tortfeasor would be liable for the loss in the death of Smith. Thus, as the means by which that loss is recovered, contribution would not be listed as a loss itself. Just as DOT could have sought contribution from Federal Express had DOT been the named defendant in the underlying action, Federal Express may sue DOT for contribution arising out of the same loss. See Dept. of Transp. v. Montgomery Tank Lines, 253 Ga. App. 143, 145 (558 SE2d 723) (2001).

Decided March 7, 2002

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, for appellant.

Bovis, Kyle & Burch, John H. Peavy, Jr., Ratcliffe, Smith & Grin-stead, James W. Smith, for appellee.

Unlike Dept. of Human Resources v. Coley, 247 Ga. App. 392, 393 (1) (544 SE2d 165) (2000), where an exception listed in OCGA § 50-21-24 applied, there is no applicable exception here. Thus, as Federal Express is seeking contribution based on negligent maintenance and design of the intersection, which would fall under the limited waiver provision of OCGA § 50-21-23 (a) as a tort of a state officer or official, the state’s sovereign immunity is waived, and the trial court did not err in denying the DOT’s motion to dismiss this action. See Montgomery Tank Lines, supra.

Judgment affirmed.

Andrews, R J., and Eldridge, J., concur.


author: JOHNSON, Presiding Judge.

text:
    A01A1923.
    TAYLOR v. THE STATE.
    (561 SE2d 833)
   JOHNSON, Presiding Judge.

Hendrick Taylor was convicted in Douglas County of possessing marijuana and trafficking in cocaine. He appeals, arguing that evidence seized from his apartment should have been suppressed, that venue in Douglas County was never established, and that the state improperly commented on his silence and introduced evidence of his association with other people who possessed cocaine. We find no reversible error and therefore affirm Taylor’s convictions.

1. On appeal, we view the evidence in the light most favorable to upholding the trial court’s judgment on a motion to suppress. Moreover, the trial court determines the credibility of witnesses, and we must accept the trial court’s findings on credibility and disputed facts unless such findings are clearly erroneous.

The evidence in the instant case, viewed in favor of the trial court’s denial of Taylor’s motion to suppress, shows that on April 19, 1996, Douglas County law enforcement officers received a complaint that marijuana was being smoked in an apartment building. The next day, the officers received another complaint about marijuana again being smoked in the same building. Officers went to the building to investigate the complaints.

At the building, the officers smelled marijuana and saw two young men come out of an apartment. The officers smelled marijuana on the young men’s clothing and emanating from the apartment. The officers asked for permission to search the apartment and were told by the young men that the apartment belonged to Taylor. Another officer then arrived and also smelled marijuana on the two young men. This officer asked the young men to retrieve the marijuana from the apartment.

One of the men, without saying anything, turned and entered the apartment. The officer, concerned for his safety and that the young man might try to destroy evidence, followed him. The officer took two steps into the apartment, where he saw a pistol on a television near the door. The young man picked up a plastic bag containing marijuana from the dining room table and handed it to the officer.

The officers obtained and executed a search warrant for the apartment. In the apartment, they found electronic scales commonly used to weigh illegal drugs, ten one-ounce “cookies” of crack cocaine, a pound of cocaine, several pounds of marijuana, records of drug transactions, and a pistol.

Taylor, who was on probation for possessing cocaine with intent to distribute, disappeared for six months. He was eventually apprehended during a traffic stop. Taylor testified that he did not own the drugs, and he presented evidence of his good character.

Contrary to Taylor’s claims, the officers lawfully seized evidence from his apartment. The officers had probable cause to suspect that marijuana was in the apartment based on their smelling of marijuana coming from the apartment, their smelling of marijuana on the clothes of the two young men as they left the apartment, and the complaints that marijuana was being smoked in the building. Moreover, once the young man went back into the apartment, the officer acted properly in following him to ensure that he did not destroy any evidence. When the officer saw the pistol and bag of marijuana in the apartment, he had probable cause to search the place — and the search warrant based on the officers’ observations was valid. Because the officers acted lawfully in seizing evidence from the apartment, the trial court did not err in denying Taylor’s motion to suppress.

2. Venue must be proved beyond a reasonable doubt. The evidence in the instant case, contrary to Taylor’s claims, was sufficient to establish venue in Douglas County. A Douglas County sheriff’s investigator testified at the motion to suppress hearing that the apartment building which included Taylor’s apartment was located in Douglas County. During the trial, the same investigator testified that the cocaine seized from Taylor’s apartment was one of the biggest cocaine seizures in Douglas County in two years. Moreover, the search warrant for Taylor’s apartment, which was admitted into evidence, plainly states that the apartment is located in Douglas County. And one of Taylor’s own character witnesses testified that she and Taylor had rented and lived in the apartment in Douglas County. The jury was authorized to find that venue in Douglas County was proven beyond a reasonable doubt.

3. Taylor testified at trial that the drugs found in the apartment were not his. On cross-examination the court allowed the prosecutor to ask Taylor if, during the six months between the search of his apartment and his arrest, he ever went to the police to explain that the drugs were not his. Taylor argues that this was an improper comment on his right to remain silent.

Even if we assume that there was an improper comment on Taylor’s silence, such an impropriety does not automatically require reversal and may be harmless error. In determining whether an error was harmless, we consider the facts, the context of the error, and the prejudice caused by the error juxtaposed against the strength of the evidence of the defendant’s guilt. The evidence of Taylor’s guilt was overwhelming. Several pounds of marijuana and several hundred grams of cocaine were found in his apartment, along with records documenting his drug sales. There was also similar transaction evidence of Taylor’s prior conviction for selling cocaine. Given the strength of the evidence of his guilt, any error in the state’s brief questioning about Taylor’s failure to come forward was harmless.

4. Taylor cites the cases of Hill v. State and Johnson v. State to support his claim that the trial court erred in allowing the state to introduce evidence that he associated with two individuals who had cocaine convictions. In Hill and Johnson, prosecutors cross-examined the defendants about their association with others who had drug convictions. This court held that such questioning was improper because it was not relevant to any issues in the cases and it improperly impugned the defendants’ character. Unlike the improper questioning in Hill and Johnson, however, the evidence to which Taylor objects in the instant case was not introduced merely to impugn his character, but was relevant to the central issue in the case of whether Taylor was involved in dealing drugs.

After Taylor put on evidence of his good character and denied involvement with the drugs found in his apartment, the prosecutor cross-examined him about receipts that officers had found in the apartment which show that he had given money to two men who were incarcerated for cocaine distribution convictions. This evidence was relevant to support the state’s theory that Taylor was involved in cocaine trafficking and to contradict Taylor’s testimony that although he had previously been involved in selling cocaine, he was no longer involved in the drug trade. Even though the evidence may have incidentally impugned his character, it was admissible. The admissibility of evidence is a matter which rests within the trial court’s sound discretion, and because the court here did not abuse its discretion in admitting relevant evidence, we find no error.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided February 19, 2002

Reconsideration denied March 8, 2002

Winn, Price & Winn, Frank C. Winn, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

        Sanders v. State, 247 Ga. App. 170 (543 SE2d 452) (2000).

       Id.

       See Bigby v. State, 250 Ga. App. 529-530 (1) (552 SE2d 129) (2001); Patman v. State, 244 Ga. App. 833, 835-836 (537 SE2d 118) (2000); State v. Folk, 238 Ga. App. 206, 208-209 (521 SE2d 194) (1999).

       See Cates v. State, 232 Ga. App. 262, 264 (501 SE2d 262) (1998).

        Jones v. State, 272 Ga. 900 (537 SE2d 80) (2000).

       See Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000) (testimony of single witness sufficient to establish venue).

       See Jones v. State, 246 Ga. App. 596, 597 (2) (539 SE2d 602) (2000); Moore v. State, 246 Ga. App. 163, 165 (2) (539 SE2d 851) (2000).

       See Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991) (comment on defendant’s failure to come forward to explain innocence not allowed).

        Allen v. State, 272 Ga. 513, 515 (5) (530 SE2d 186) (2000).

       Id. at 515-516 (5).

       See Chapman v. State, 263 Ga. 393, 394 (1) (435 SE2d 202) (1993).

       176 Ga. App. 509 (336 SE2d 276) (1985).

       202 Ga. App. 590 (415 SE2d 189) (1992).

        Hill, supra at 510 (3); Johnson, supra at 591 (1).

       See also Busbee v. State, 210 Ga. App. 17, 18 (435 SE2d 60) (1993) (what is forbidden is for the state to introduce in the first instance evidence whose sole probative value is that it shows a defendant’s bad character).

       See Scott v. State, 207 Ga. App. 196, 204 (2) (427 SE2d 537) (1993) (testimony that defendant associated with a woman who sold drugs impugned defendant’s character, but was nevertheless admissible because it was relevant to other issues).

        Pardo v. State, 215 Ga. App. 317, 318 (4) (450 SE2d 440) (1994).


author: Johnson, Presiding Judge.

text:
    A01A2417.
    LIGON v. BARTIS.
    (561 SE2d 831)
   Johnson, Presiding Judge.

This is the second appearance of this case before this Court. Louis Ligón filed a personal injury action against Larry Bartis after Bartis’ car rear-ended Ligon’s car. Ligón believed that his attorney settled the case without his consent and refused to cooperate after the settlement agreement was reached. Bartis moved to enforce the settlement. The trial court granted Bartis’ motion, but eventually vacated that order. Instead, the trial court entered judgment in favor of Ligón in the amount of $23,750, as set out in the settlement agreement. Ligón appealed, raising due process and constitutional challenges to the judgment. This Court rejected Ligon’s arguments because Ligon’s attorney had apparent authority to settle the case, and because the constitutional arguments had not been preserved for review.

After this Court affirmed the judgment in the case, Bartis paid the judgment amount into the court registry. Ligón refused to accept the payment. On Bartis’ motion, the trial court then entered a final order authorizing satisfaction of judgment, so that court records would not show that Bartis had an unsatisfied judgment against him. Ligón filed this appeal from the final order, asking that we vacate the order, reverse the prior judgment, and require a jury trial.

1. Ligón raises 17 enumerations of error, nearly all of which relate to his claims as to how his federal and state constitutional rights were violated when the settlement was signed and reduced to a consent judgment. He argues that the laws allowing settlements entered into by attorneys with apparent authority violate citizens’ rights and that the laws need to be changed. He argues that his due process, property, jury trial, and equal protection rights were violated. He does not mention the prior appeal, in which he raised the same issues.

Decided February 19, 2002

Reconsideration denied March 8,2002

Louis L. Ligón III, pro se.

Although the “law of the case rule” has been statutorily abolished, a ruling by the Court of Appeals in a case is binding upon all subsequent actions in the same case, unless the evidence originally submitted was insufficient and the deficient evidence is later supplied. There has been no change in the evidentiary posture of this case. Accordingly, our earlier ruling is binding, and Ligón is prohibited from relitigating his claims.

2. Bartis asks that we assess frivolous appeal penalties against Ligón for filing this appeal. Even though nearly all of the issues raised here were decided in an earlier appeal, this appeal is from a subsequent order of the trial court. We decline to impose sanctions under the circumstances. However, we inform Ligón that the issues raised here and in the earlier appeal have now been reviewed, and any attempts to appeal to this Court for further review may result in the imposition of sanctions.

3. Ligón contends that the trial court entered the final order without regard to the fact that he had filed in the trial court a motion to stay proceedings based on his having filed a petition for writ of cer-tiorari in the United States Supreme Court. He implies that the trial court erred, but does not support the enumeration with any argument or citation to authority or recitation of facts. This is not the type of meaningful argument contemplated by Court of Appeals Rule 27 (c) (2). We are authorized to disregard or treat as abandoned the issue for failure to comply with this Court’s rules of practice. We point out, however, that while the actual granting of a writ of certio-rari by the United States Supreme Court operates as a stay, the mere filing of a petition for certiorari does not. Ligón presents no grounds for reversal.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Downey & Cleveland, George L. Welborn, William I. Aynes, James N. Farris, for appellee.

        Ligon v. Bartis, 243 Ga. App. 328 (530 SE2d 773) (2000).

       Id. at 329-330.

        Nolan Road West v. PNC Realty Holding Corp. &c., 248 Ga. App. 248, 249 (1) (544 SE2d 750) (2001); Day v. State, 242 Ga. App. 899, 900 (1) (531 SE2d 781) (2000).

       See South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998).

       See OCGA § 5-6-6; Court of Appeals Rule 15 (b).

       See Jenkins v. State, 240 Ga. App. 102, 103 (1) (522 SE2d 678) (1999).

       See Collins v. Newman, 237 Ga. App. 861-862 (1) (517 SE2d 100) (1999).

        Owens v. Hewell, 222 Ga. App. 563, 565 (474 SE2d 740) (1996).


author: Pope, Presiding Judge.

text:
    A01A1794.
    MIRALIAKBARI et al. v. PENNICOOKE et al.
    (561 SE2d 483)
   Pope, Presiding Judge.

A Burger King manager refused to let employee Zohreh Miraliakbari leave or even use the telephone to care for her six-year-old son who suffered a broken bone at school. Miraliakbari brought claims of intentional infliction of emotional distress and false imprisonment against Burger King and the manager, Rita Pennicooke. She also brought a claim, as next friend, on behalf of her son. The trial court granted summary judgment to the defendants, holding that the mother’s claim was precluded by the Workers’ Compensation Act, the facts did not show outrageous conduct sufficient to sustain an emotional distress claim, none of Pennicooke’s actions were directed at the son, and the facts did not support false imprisonment. Miraliak-bari appeals.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Miraliakbari argues that the Workers’ Compensation Act does not provide the exclusive remedy for her claim of intentional infliction of emotional distress because those claims are not covered by the provisions of the Workers’ Compensation Act. See OCGA § 34-9-11 (a). We agree.

The only injury that Miraliakbari allegedly suffered is a nonphysical one — the emotional distress arising from Pennicooke’s refusal to allow her to communicate with or care for her injured son under the threat of the loss of her job. The Workers’ Compensation Act provides no remedy for a psychological injury unless “it arises naturally and unavoidably . . . from some discernible physical occurrence.” (Citations and punctuation omitted.) Southwire Co. v. George, 266 Ga. 739, 741 (470 SE2d 865) (1996). See also Betts v. MedCross Imaging Center, 246 Ga. App. 873, 875-876 (1) (542 SE2d 611) (2000) (Act may provide remedy if psychological injury arises from fear of a future physical injury). The case of Oliver v. Wal-Mart Stores, 209 Ga. App. 703 (434 SE2d 500) (1993), is on point. In that case, the plaintiff’s only claim was intentional infliction of emotional distress, and it did not arise out of a physical injury; therefore, a tort claim was not barred. Id. at 704. Cf. Abernathy v. City of Albany, 269 Ga. 88, 90-91 (495 SE2d 13) (1998) (psychic trauma not preceded or accompanied by a physical injury is not compensable under the Act). Accordingly, we hold that the trial court erred in granting summary judgment on Miraliakbari’s claim of intentional infliction of emotional distress based on the exclusivity provisions of the Act.

There is nothing in Potts v. UAP-GA. AG. CHEM., 270 Ga. 14 (506 SE2d 101) (1998), inconsistent with this holding.

2. Miraliakbari contends the trial court erred by finding that the defendants’ conduct was not extreme and outrageous as a matter of law. To sustain a claim for intentional infliction of emotional distress requires proof of the following four elements: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.” (Citations omitted.) Northside Hosp. v. Ruotanen, 246 Ga. App. 433, 435 (541 SE2d 66) (2000). Extreme and outrageous mean exactly that:

[I]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

(Citations omitted.) Id. “Evidence of a defendant’s malicious purpose or of a defendant’s wanton disregard of a plaintiff’s rights may be considered in evaluating whether or not the objected-to behavior can reasonably be characterized as outrageous or egregious. [Cit.]” Gordon v. Frost, 193 Ga. App. 517, 521 (1) (388 SE2d 362) (1989). But, “£ “major outrage in the language or conduct complained of is essential to the tort.” ’ ” Id. at 522 (1), quoting Restatement (Second) of Torts, § 46 (1), comment f. Finally, whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991).

Construed in favor of Miraliakbari, the facts show that Miraliakbari, a single mother, is from Iran and does not speak English fluently. She is educated, having obtained a master’s in accounting in Iran. On the day prior to the main incident, Miraliak-bari had asked to leave work early to care for her sick son. The following day, six-year-old Shamin was injured at school sometime before lunch. School staff members tried unsuccessfully to call Mira-liakbari at the Burger King where she worked at the drive-through window. They then left a message with a friend of Miraliakbari’s, who also could not get through to Burger King. That friend called an acquaintance named Payam Jafari who worked near the Burger King, and Jafari went there to tell Miraliakbari that “something has happened to your son. You got to go to school.” This occurred at about 12:00 and 12:30 during the busy lunch hour at the restaurant.

Miraliakbari asked her supervisor, Pennicooke, for 20 minutes so that she could go pick up her son. Pennicooke refused. Jafari then offered to pick up the boy, and Miraliakbari went outside to her car to give Jafari the relevant information. Pennicooke then yelled and screamed, “Where are you? What’s happening?” At some point, Pen-nicooke told her that if she left she would be fired, and she repeated that two or three times during the whole episode.

About 20 minutes later, Miraliakbari realized that she had given Jafari an incorrect telephone number and asked Pennicooke to allow her to use the business telephone. Pennicooke refused despite hearing that Miraliakbari’s son had an accident at school. When Mirali-akbari attempted to use the phone anyway, Pennicooke unplugged it. She told Miraliakbari to stop crying and take orders and that if she touched the phone, she would be fired.

Miraliakbari was shaking, visibly upset, and crying until Pen-nicooke finally allowed her to use the phone to speak to her sister and school officials at about 2:00 p.m. She learned that her son had been injured but that he would be fine. At that time, the official asked to speak to Pennicooke, but Pennicooke refused saying, “I don’t want to talk to anyone”; then she hung up on the official and told Miraliakbari to go back to work. Although she had a car, Miraliak-bari did not leave because she was afraid of losing her job. She still did not know exactly what had happened to her son.

At 3:00 p.m., Miraliakbari’s sister and Jafari arrived with the boy and told Miraliakbari that her son had been in a car wreck and that his arm was broken. The boy had not yet been taken to a doctor because her sister did not have information about insurance nor know where to go. At that time, Miraliakbari decided to leave and care for her son, despite the consequences.

Miraliakbari felt humiliated and ashamed and thought she was being treated like a dog or a slave. She did not suffer any physical injury and she was never physically prevented from leaving, but she alleges that she suffered nightmares, depression, and loss of sleep.

Pennicooke admitted that she did not attempt to verify that Miraliakbari had an emergency situation despite the fact that a company procedure required it. She explained that she acted the way she did because she did not believe Miraliakbari even though she knew that Miraliakbari was entitled to care for an injured child under the federal Family & Medical Leave Act. She believed that Miraliakbari’s son was home sick based on the fact that he had been sick the previous day and based on a statement from a trusted employee that the child was still sick and at home. The day after the child’s injury, Pen-nicooke received confirmation that he had indeed been injured, and she sent a message to Miraliakbari that she would not be fired. But, Miraliakbari never returned to work. Two weeks later, when she returned for her paycheck, Miraliakbari learned that she had been terminated.

Pennicooke’s behavior was reckless and possibly wanton. See Hendon v. DeKalb County, 203 Ga. App. 750, 758 (5) (417 SE2d 705) (1992) (“wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent”) (citations and punctuation omitted). She failed to follow procedures requiring her to investigate the claim of emergency. However, while certainly rude, we find that Pennicooke’s actions do not rise to the level of outra-geousness necessary to support a claim of intentional infliction of emotional distress.

Although the existence of a special relationship in which one person has control over another, such as the employer-employee relationship, may contribute to the outrageousness of the situation, it is not dispositive. Troncalli v. Jones, 237 Ga. App. 10, 15 (514 SE2d 478) (1999). Further, “it is not enough that appellant’s conduct in a given situation is intentional or that it is wilful and wanton. In order to warrant recovery . . . , the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. [Cits.]” (Emphasis omitted.) Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988). In other words,

[T]he liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of. . . filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.

(Punctuation and emphasis omitted.) Id., quoting Restatement (Second) of Torts, § 46 (1), comment d.

In this case, there is no evidence of malice, intent to harm, or retribution. Compare Yarbray, 261 Ga. at 706. Rather, Pennicooke’s reckless behavior resulted from a misplaced belief that Miraliakbari was merely attempting to get extra time off of work. As stated by the trial court,

while the conduct may be viewed as harsh and insensitive, the supervisor’s responsibilities to oversee the workplace and the employee’s obligations to perform her duties do not make such conduct so extreme as to go beyond all reasonable bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Miraliakbari could have left (and eventually did leave) despite the threat of the loss of her job. That would have obviated any stress or mental suffering arising from her inability to care for her child. Without more, this tort is not meant to apply to such an occurrence. We conclude the trial court did not err in granting summary judgment on Miraliakbari’s claim of intentional infliction of emotional distress.

3. Miraliakbari contends the trial court erred by dismissing her son’s claim, which she filed on his behalf, for the pain and suffering he endured during the time his mother was prevented from obtaining medical care for him. However, Burger King owed no duty to Shamin and had not assumed one. This fact distinguishes Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 (254 SE2d 864) (1979), where the employer assumed a duty to the employee’s wife to notify the employee that his wife was in labor and needed a ride to the hospital. In this case, Burger King did not assume any duty relative to Shamin. Nor did Pennicooke take any action directed toward Shamin.

Furthermore, Miraliakbari concedes that the school was authorized to consent to medical treatment for the child when she was unavailable. Therefore, any possible causal link between Pen-nicooke’s refusal to allow her to leave work and her son’s continued pain and suffering is broken. The trial court did not err by granting summary judgment on this claim.

4. Miraliakbari also contends the trial court erred by granting summary judgment on her claim of false imprisonment. She claims that the threat of loss of a job constitutes sufficient force or fear to form the basis of a claim for false imprisonment.

“False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. The restraint used to create the detention must be against the plaintiff’s will and be accomplished by either force or fear. J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813 (344 SE2d 701) (1986).

“The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.” [Cit.]

Greenbaum v. Brooks, 110 Ga. App. 661, 663 (1) (139 SE2d 432) (1964).

There is ho indication in the facts of this case that Miraliakbari was faced with a reasonable apprehension that force would be used to keep her at work. In fact, she admits that she was not physically prevented from leaving. Rather, she was only told that she would lose her job if she left. Furthermore, she eventually left under the same threat, which shows that she was free to leave all along.

It is true that the exercise of dominion over someone’s property may serve as an exercise of dominion over that person. See Wallace v. Stringer, 250 Ga. App. 850, 854 (1) (b) (553 SE2d 166) (2001). But, we find no authority in Georgia applying this rule to the threat of loss of an at-will, nonpublic job. Compare Sykes v. City of Atlanta, 235 Ga. App. 345, 346 (3) (509 SE2d 395) (1998) (“public employee has a property right interest in a job if the employee may be dismissed only for cause”) (citations omitted). Nor do we find Georgia authority for the proposition that fear of losing one’s job constitutes the necessary fear of personal difficulty to support a claim for false imprisonment. Our holding is consistent with foreign authority holding that the threat of discharge of an at-will employee cannot constitute the basis of a false imprisonment claim. See Foley v. Polaroid Corp., 400 Mass. 82, 90-93 (508 NE2d 72) (1987).

Finally, the fact that Pennicooke may have acted in violation of the Family & Medical Leave Act or any private duty to Miraliakbari by threatening to fire her is not relevant to whether she was detained by force or fear.

5. Miraliakbari contends the trial court erred by finding “that no private duty arose by statute pursuant to OCGA § 51-1-8 when it held that Appellees’ actions in denying Appellant her rights under the Family and Medical Leave Act, . . . and OCGA § 19-7-2 failed to state a cause of action.”

First, we find no such finding by the court. Second, Miraliakbari stated only five counts in her complaint: (1) intentional infliction of emotional distress; (2) intentional injury to Shamin; (3) punitive damages; (4) attorney fees; and (5) false imprisonment. The trial court granted summary judgment on each of these counts, and in Divisions 1 through 4 we have affirmed that decision. We fail to see any remaining issue or that this enumeration is relevant to the claims already eliminated. Accordingly, this enumeration is without merit.

Decided March 8, 2002

Maurice J. Bernard III, for appellants.

Zirkle & Hoffman, Charles B. Zirkle, Jr., Benjamin E. Pellegrini, Nancy C. Collins, Devon A. Petree, Dawn E. Carpenter, for appellees.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A1899.
    MABLETON PARKWAY CVS, INC. v. SALTER.
    (561 SE2d 478)
   Miller, Judge.

Where a court has ordered the defendant corporation to designate a witness under OCGA § 9-11-30 (b) (6) to respond to inquiries in certain areas known to the corporation, does the designated witness’s lack of knowledge in these areas justify a finding of contempt against the corporation? We hold that it does and affirm this portion of the court’s contempt order. However, we reverse that portion requiring the corporation to disclose settlement amounts paid in other cases, as such confidential information is irrelevant to this case.

When reviewing a trial court’s findings on a motion for contempt for failure to obey a discovery order, we construe the evidence in favor of those findings and will not disturb them if there is any evidence to support them. So construed, the evidence shows that Mableton Parkway CVS, Inc. misfilled a prescription for Frances Salter, who then allegedly suffered damages. Salter sued CVS and in April 1999 sought to depose a representative of the corporation (to be designated under OCGA § 9-11-30 (b) (6)) about other suits against the defendant arising out of similar facts. Specifically, Salter asked that someone be designated who had “Knowledge of the facts and circumstances surrounding Defendant’s involvement in any civil action in State or Federal Court in Georgia (other than this civil action) concerning [similar torts] in the last five years.” Arguing that such information was irrelevant, CVS sought a protective order to preclude this inquiry, which the court in October 1999 denied when it ordered CVS to designate and produce such a witness.

Despite requests from Salter, CVS did not designate a representative until late March 2000. The deposition took place in April 2000. The representative described generally the allegations in nineteen of twenty-five responsive lawsuits identified by CVS, but could not describe the allegations in the remaining six. Reciting only the nature of the allegations contained in the 19 lawsuits, the representative could not, with regard to any of the suits, (1) say whether CVS had filed an answer, (2) identify others having knowledge at the corporation, (3) identify the pharmacists or supervisors involved or whether any were disciplined, (4) comment on the current status of the case, (5) describe the corporation’s position in the lawsuit, or (6) state whether an incident report had been filed. Nor could the representative even confirm that the list of 25 lawsuits was complete. Indeed, CVS later identified additional suits.

Salter moved to have CVS held in contempt for failing to comply with the court’s order and sought a $100,000 sanction, an order compelling the designation of witnesses having the requisite knowledge, and an award of attorney fees. The court granted the motion and ordered CVS to produce witnesses having knowledge of the requested areas and to pay Salter’s attorney fees in bringing the contempt motion. The court sua sponte also ordered that the designated witnesses identify any amounts paid to settle these other cases. No $100,000 sanction was imposed. CVS appeals, arguing that the evidence does not support a contempt finding and that the portion requiring CVS to identify settlement amounts is error.

1. A trial court may sanction a party who wilfully violates or disobeys a court discovery order. A showing of actual wilfulness is not required, only a conscious or intentional failure to act. In making this determination, the court considers the time period described in the court order and the entire time period beginning with the service of the discovery request and ending with compliance. “Events transpiring during this entire time period are probative of whether appellant acted with conscious indifference to the consequences of failure to comply with the order compelling [the discovery].”

Here the evidence showed that Salter served the Rule 30 (b) (6) notice of deposition in April 1999, resulting in CVS immediately filing for a protective order. Salter responded by moving to compel the deposition. In October 1999 the court denied the protective order and ordered that CVS designate a person to respond to the requested inquiries. The order specified no time period. Despite entreaties from Salter, CVS dragged its feet, repeatedly breaking promises and waiting until late March 2000 to designate a witness. The deposition took place in April 2000, one year after the original notice of deposition was served and six months after CVS was ordered to do so.

The deposition notice had specified that the representative have “Knowledge of the facts and circumstances surrounding Defendant’s involvement in” Georgia civil actions alleging torts similar to this case. Although CVS acknowledged there were 25 such lawsuits, the designated representative could not give the most elementary information regarding CVS’s involvement in the suits, including whether CVS had filed an answer, what CVS’s position was, what CVS pharmacists were involved, what the current status of the case was, whether an incident report had been filed, or who at CVS could answer such questions. He could not identify the nature of the allegations in six of the lawsuits and most disturbingly could not even confirm whether the list of twenty-five suits was complete. Indeed, over the next nine months CVS identified more suits.

CVS clearly did not obey the court’s discovery order. Nevertheless, on appeal CVS contends that producing a witness who had some rudimentary knowledge of the allegations in 19 of the incomplete list of 25 lawsuits complied with CVS’s understanding of the requirement that the witness have knowledge of the facts and circumstances surrounding CVS’s involvement in the suits. A witness who cannot even state whether CVS filed an answer let alone what CVS’s position is in the case or what the case’s status is can hardly be said to have knowledge of CVS’s involvement in the case. Combined with his utter lack of knowledge on six of the suits and the incomplete nature of the list, this evidence supported the court’s finding that CVS wilfully disobeyed the court’s discovery order.

The sanction imposed was hardly burdensome. In fact, it was limited only to attorney fees when the court had a large number of tools within its arsenal to resolve this issue, including striking the answer. The “contempt order” was in effect nothing more than another order compelling compliance with the notice of deposition, plus an award of some $3,600 in attorney fees (representing the fees incurred in bringing the motion), as would be authorized in an order compelling compliance. The court’s discretion is particularly broad when dealing with a party’s failure to obey a discovery order. “[We] will not interfere with the exercise of that discretion absent a clear abuse.” We discern no clear abuse here and therefore affirm the order with the exception of the matter discussed in Division 2.

Decided March 8, 2002.

Hawkins & Parnell, Warner S. Fox, Matthew F. Barr, for appellant.

Trace M. Dillon, for appellee.

2. We find that the trial court abused its discretion by compelling CVS to disclose the amounts it has paid in settling similar tort cases in Georgia. OCGA § 24-3-37 generally prohibits the admission of settlement negotiations. This furthers the policy of encouraging settlements, as the possibility that the settlement negotiations or amounts paid in settlement could be used against the defendant would obviously have a chilling effect on a defendant’s willingness to pursue settlement. “The purpose of this Code section is to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits.”

Salter never sought this information in the court below, as such is clearly outside the scope of relevance in the discovery of this case. Nor is Salter able on appeal to articulate how the information would be relevant to this case. As no evidence or rationale supports its holding, the court’s sua sponte ordering of the disclosure of settlement amounts was an abuse of its discretion and must therefore be reversed. The remainder of the order is affirmed.

Judgment affirmed in part and reversed in part.

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

       See Potter v. American Medcare Corp., 225 Ga. App. 343, 346 (484 SE2d 43) (1997); see also Resource Network Intl. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242, 244 (1) (f) (501 SE2d 573) (1998).

       The defendant initially pled in its answer that Reveo Discount Drug Centers, Inc. was the proper defendant, then represented at the contempt hearing that the defendant should be CVS Pharmacy, Inc., and then reversed positions at the hearing to reconsider contempt and stated that the correct defendant was Reveo Discount Drug Centers, Inc. Since defendant and Reveo are subsidiaries of CVS Pharmacy, Inc. and the discovery has been answered as if the parent were the defendant, and since the defendant has taken shifting positions on the matter, the matter is of little import in deciding the merits of the sanctions order at issue.

        Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438-439 (2) (254 SE2d 825) (1979); Resource Network Intl., supra, 232 Ga. App. at 242 (1).

        Resource Network Intl., supra, 232 Ga. App. at 242 (1).

       Id.

       (Punctuation and footnote omitted.) Id.

       See OCGA § 9-11-37 (a) (4) (A).

        Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745-746 (1) (360 SE2d 70) (1987).

       (Citations and punctuation omitted.) Id. at 745 (1).

        Citadel Corp. v. Sun Chem. Corp., 212 Ga. App. 875, 877 (2) (443 SE2d 489) (1994).

       (Citation and punctuation omitted.) Computer Communications Specialists v. Hall, 188 Ga. App. 545, 546 (1) (373 SE2d 630) (1988).