*1 157 injury,3 legal plaintiffs may of other violation duties claimed dispute. grant Thus, have been. These are in matters partial summary per judgment negligence on the issue se was cor per negligence rect. There was se as it related Code section negligence respect focused on. There alsо been by plaintiff’s expert claimed, other duties Patton. Those as testified to medical Dr. dispute jury are in matters and must be left to the determine. par- granting Therefore, we affirm the trial court’s for the motion summary judgment
tial insofar as it establishes that the violation of per negligence except se, OCGA 43-26-9 is аs to Dr. Moorhead. dispute duty legal Plaintiffs have not shown without had he regard. grant partial summary judgment this against We reverse the summary judgment
him. We affirm the denials of made on defendants-appellants. behalf of all Judgment judg- 68546, 68547, 68549; in Case Nos. affirmed part part ment and reversed Case No. 68548. Bird- affirmed
song, J., P. J., concur. 5, Decidеd December Rehearings denied December 1984 and December Sidney Wheeler, F. ap- Williams, Ben S. Barre, Jr., K. Marc for (case 68546).
pellants no. Handley, Hugh (case appellant David A. Worsham, M. Jr., for 68547). no. George (case appellant Hart, W. Demorest, Lawrie E. no. 68548).
Daryll (case appellant 68549). Lovе, Gilleland, John no. Handley, Gary appellees. Hill, Gerald F.
68555. CUZZORT v. THE STATE. Judge. Beasley, Appellant aggravated was tried before a on two counts of sodomy young daughter. finding of his returned verdict appellant guilty Appellant’s of both counts. motion for new trial was appeals judgments denied and he from the of cоnviction and sen- jury’s tences entered on the verdicts. though capable causing Even injury. the violation of the statute was general grounds. Appellant enumerates the appellant standing had alone, victim, authorized longer charged. There no which he was the crimes with committed any requirement Seе be corroborated. (3) (288 Appel-
Motes expert evidence contradicted the medical lant’s contention *2 contrary, transcript. To victim’s is refuted physical that condition medical was not the victim established inconsistent necessarily of the acts that with the commission appellant. had to attributed “ appellate jury, court, to deter- not the ‘It is function weigh in the evi- conflict mine witnesses light appellate in the most the evidence The court views dence. ” jury’s [Cit.]’ it been rendered. verdict has favorable to the after (1) (297 359) (1982). After a Bowers v. could record, we find that a rational trier review thе entire proof reasonably at trial have found the evidence adduced from Virginia, beyond appellant’s guilt Jackson a reasonable doubt. 2781, LE2d U. S. 307 SC Appellant complains overruled an that the court mother asked when victim’s that the error the victim. He asserts also her conversation with about was reversible. trial scenario as follows. she told her examination that The victim testified on direct they father, after moved the sexual relations with her about porch, family grandmother’s home, her and that the on out of the they hospital. sheriff’s office and then the next went attorney asked victim and then cross-examined the Defendant’s anything girls questions her about about whether other told several you your happened He cross- told mama.” also that to them “before great mother at about the conversation her examined victim length: your you you your say Then, mother about it at
“Q. that told grandmother’s?
A. Yeah. Q.
Why you it, [name]? did tell her abоut A. I was scared. your porch Okay. on Q. who all was there that front Now your you mother?
mamaw’s when told this A. Me and mama. Anybody
Q. else?
A. . . . Huh-uh. you’ve your grandmother, Well, haven’t
Q. it with talked about you?
A. I I did. I know. guess don’t true,
Q. Okay. [name], ask- your grandmother Isn’t it started you you your about this before told mother? ing (Witness side.) shakes head from side
Q. You’re certain of that?
A. Yeah.” kept
He it. cross-examining her about examination, On acknowledged redirect she viсtim her, happened talked to mother about what had and that her up mother did not make story for her and that her Vickie friend helped the victim decide to tell her mother. examining doctor testified brought victim was
Tri-County by her mother Hospital and an officer from the Dade County Department Sheriff’s and that he gаve general physical ex- amination. He unusually further testified that en- vagina was larged, something indicating put repeated had been into it over times, although normal, and that the anus appeared that would not necessarily mean there had not lay been a violation an adult male organ. sex
Thе mother testified that she took the victim to the sheriff’s of- *3 fice because of a conversation she had had with the victim the before. objected Defendant on grounds hearsay when the mother was asked the “I question: detail, don’t you want to into go but — basically what was the .” The court allowed the mother tеstify to her, what the victim told which is prompted what the mother to take office, the victim to the sheriff’s after the court instructed the it that was for the purpose limited of explaining the mother’s conduct in taking the victim there. The court further explained that it was not be to considered information, truthfulness of the that is whether the content of what the victim said to the mother was true or not.
“Q. us, you then, Could tell you what was it that were told that you led to take to the Sheriff’s Office? [victim]
A. She told me that was taking Clines her the bedroom of a night when was at work.”
It is that answer the appellant that contends was reversible error admit, i.e., inadmissible which unlawfully prejudicial to defendant.
However, even if sustained, should have been ad- mission of the answer, mother’s considering place content its and its in the context evidence, of all the including other evidence elicited defendant, was not reversible error. Since it is a non-constitutional error, the test that applies is whether it is highly probable error did 59, contribute to the Johnson v. judgment. 238 Ga. 61 (230 869) (1976); Teague (314 534, v. 537
910) (1984). It did not. constitutional, require not rever- it would if the error were
Even
beyond a reasonable
is harmlessness
In such cases the standard
sal.
(89
SC
23 LE2d
U.
Harrington
California,
v.
S.
doubt.
Florida,
SC
31 LE2d
284) (1969);
U. S. 427
Schneble
the mother’s
jury’s hearing
Considering everything,
doubt.
beyond
harmless
reasonable
statement was
or not the victim told
a. The
made an issue of whether
defendant
communication,
mother,
all about
by cross-examining her
her
opened
door to the later
testimony. He
prior
her mother’s
tell
it.
victim did
her about
as to whether the
question to the mother
testimony is
primary
b. A
reason for
exclusion
the trier
under oath before
cannot be tested
its truthfulness
is
sayer.
Its
thus not
of the
through the examination
fact
worthy
necessary to render
degree
able to be established
Glisson v.
in the
for the truth.
investigation
consideration
Peacon,
(1938);
d. While it certainly Had the issue, were. the viсtim’s conduct and truthfulness mother, would have 12-year-old grader told her fifth not her mother veracity. The fact that she did tell been relevant credibility. lends degree
e. The victim’s was corroborated physician’s examination. simple objected-to,
f. absent It obvious from *4 mother, vic- of single-sentence inconclusive answer the rаther The mother sexual conduct with defendant. tim told about some even great in detail and was not describe the conversation did not fact, testi- activity. only a she explicit As matter of sexual her to the taking was fied that the victim told her that the defendant damag- was less work. Her answer bedroom while the mоther was at inferences that have been the reasonable ing defendant than would ob- But was no from the there could have been drawn circumstances. sheriff the victim to the the mother took jection to the evidence that examination, the and that hospital then to the the next and the penеtration vagina, doctor examined her found evidence of and violating only and that she accused the father of her. This not allows by a reasonable the inference fact that victim told her mother about it but such almost demands the exercise of overwhelming common sense. The evidence is sо the child told say, her mother about for the mother “She told me that Clines was taking work,” her to bedroom a when I at night was inconsequential is cumulative and when viewed context all of the other evidence nearly up. which swallowed it The mother made this statement after being testify allowed to child did have a with sustаined, conversation her. Had the been reasonably could have inferred all from the and circumstances subse- quent activity that child told her mother much that, more than and the reasonable inferences could been much more damaging to defendant than the short statement.
3. We have the rechаrge, examined which prompted by jury question, and find no error. It correctly explained the instruction given the charge, respect elements of the crimes. Judgment J., Deen, McMurray, J., C. P. J., and Pope, affirmed. Banke, J., concur. P. judgment only. concurs in the Birdsong, J., P. Carley, Sognier, Benham, JJ., dissent. Decided December
Rehearing denied December III,
James Mеaney appellant. Jr., David Lomenick, L. District Attorney, Franklin, Herbert E. Jr., Assistant Attorney, District appellee. Judge, dissenting.
Contrary to the majority’s equivocation on the
issue
error vel
non,
opinion
it is my
was erroneously ad-
mitted. The position
that,
taken
the State is
insofar as evidence
any conduct,
may be
to explain
relevant
admissibility
that evi-
dence pursuant
to OCGA 24-3-2 is conclusively established.
§
Based
upon the
State,
Court decisions in Momon v.
Supreme
recent
482) (1982)
Teague
252 Ga. 534
910) (1984),
argument
advanced
State
the instant
in Noles v.
specifically
case was
rejected
the advances ion, my opin why In that conclusion. it reaches several reasons misunderstanding upon predicated majority’s of reasons are the Supreme hearsay in Momon and the Court decisions rule and of the Teague. that, relevant, if the of the existence I contest in of an out-of-court conversation What do not proved. hearsay. That is not specifics majority’s challenge the of I is the conclusion that do excep § 24-3-2 an admissible under OCGA as a conversation are such thereby explained hearsay is even if the conduct to be rule tion supra. State, v. Noles issue in the case. See not itself a rеlevant primar- testimony majority holding harmless, the In was doing, ily In so the of the victim. focuses on issue bolstering majority ignores “prejudicial victim’s effect of the the the hearsay. testimony” Parker v. from the admission of that can result If “door” to the “opened” was conversation with the issue of the victim’s by appellаnt case, if in instant and the victim’s was the thereby response by proper attacked, would have been the State the specifics prove However, the the existence of such a conversation. opposed conversation, to its the as the ex- of the victim’s contribution to istence, question specifics brought of were never into testimony by admis- in the mother would be conversation sible the form only if was a rele- the mother’s conduct OCGA 24-3-2 under upon pres- disagree majority’s the I reliance vant issue. also with victim and her mother as of both the ence cross-examination authority harm- to be the erroneous admission parties trial, in a is If a conversation are witnesses less. both condoning not the admission testi- even more reason for mony by of them. one majority’s simply
Also, conclusion that I cannot understand the unusually enlarged physician’s an va- the gina examination which showed testimony regarding аppel- way, corroborated, in Appel- being he tried. lant’s commission of the crimes which was sodomy, rape charged not or child molestation! lant was majority regarding single legitimate point raised testimony given by the mother as that was harmless error to rant appellant’s graphic explicit so as to war- conversation is not victim’s authorizing case, However, I the evidence as view the reversal. solely the uncorroborated consists conviction supra. Although Compare v. corroboration Noles of of victim. sufficiency determining in is not a factor victim’s necessarily be a lack of corroboration must such “totality applying standard for of the evidence” consideration determining probable highly admis- that the erroneous whether it is Johnson sion of harmless. certain evidence is nonetheless See (1976). my opinion, In the “totality Ga. testimony which, evidence” the instant case is the victim’s Noles, rather being than manner corroborated lawful State, supra. Parker v. hearsay. bolstered inadmissible Unlike majority, appellate do not believe an court should *6 engage Therefore, I “weighing” the evidence. cannot conclude that it is highly probable jury would have accorded the victim’s tеstimony, direct appellant’s guilt, which was the sole evidence credibility same bolstering without the inadmissible as the jury obviously did I hearsay. with such this reach conclusion notwith standing necessarily was not or ex graphic plicit. The harm lies the bolstering and corroborative effect of the hearsay, It explicitness. not its weigh should the evi dence and determine issues of hearing after all of the rele vant and admissible of the Appellant witnesses. has not had the opportunity weigh the evidence and determine of the witnesses under appropriate these circum stances. Under the holding majority, of the he will nevеr have that opportunity. “totality Since the of the evidence” of the consists un corroborated and victim, bolstered of the would not hold that highly probable it is the error is harmless. Accordingly, I must dissent from the majority’s weigh decision to from its conclusion that the error was not harmful.
I am authorized to that Presiding Judge state Birdsong, Judge Sognier Judge join Benham this dissent.
68571. PATE v. FEDERATED MUTUAL INSURANCE
COMPANY. Judge. In February appellant-insured injured in an automo- $5,000 bile He collision. received basic no-fault benefits from the appellee-insurer. 13, 1983,
On April
appellant’s counsel sent a
to appellee
letter
regarding the collision of February
letter,
1980. In
apрellant’s
this
Flewellen
Co.,
v. Atlanta Cas.
counsel
cited
holding cases, please provide these my application client’s for in- covering surance the time period of the In accident. the event application located, cannot be or the application provide fails to separate rejection written benefits, please additional no-fault