text:
    A02A0345.
    OASIS GOODTIME EMPORIUM I, INC. v. CROSSROADS CONSULTING GROUP, LLC.
    (565 SE2d 573)
   Blackburn, Chief Judge.

In this breach of contract action, Oasis Goodtime Emporium I, Inc. (“Oasis”) appeals from the trial court’s grant of summary judgment to Crossroads Consulting Group, LLC (“CCG”). Oasis contends that material issues of disputed fact necessitate resolution by a jury. Notwithstanding this claim, we affirm because Oasis failed to refute CCG’s evidence that established Oasis’ breach and the amount of damages due to CCG as a consequence of that breach.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Entertainment Sales Co. v. SNK, Inc. On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. Kelly v. Pierce Roofing Co. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact. OCGA § 9-11-56 (e). This Oasis failed to do.

When viewed in the light most favorable to Oasis as the respondent, the record shows that Guy Ron Holcomb, while company president and sole shareholder of Oasis, an adult entertainment business, decided to undertake a project that would result in the creation of an adult Internet system for Oasis. Holcomb hired Lauren M. Hines as the project manager of the website. Oasis planned to offer to its subscribers or customers adult theme videos and “live” chat room programs using performers at its club. But, during the development phase of the project, problems were encountered in fashioning the interactive component and in creating a workable firewall security system to prevent unauthorized access.

Oasis turned to CCG for assistance, and in late April 1998, Hines approved a work order for CCG to provide consulting services that included “discovery to establish a system plan for the Oasis Harem website.” On May 22, 1998, Holcomb signed another work order for additional consulting services by CCG including “to deliver a working prototype of a customer chat system, demonstrating the integration of live video and chatting in a web browser.” The work order projected that between May 20, 1998, and July 15, 1998, Oasis would require consulting services estimated at $23,625. On May 28, 1998, Hines approved an additional payment of $11,943 to CCG for an audit and firewall installation.

According to Hines, due to unforeseen problems largely attributable to system configuration and software incompatibility, the project required more time than anticipated. By the end of the summer, Oasis had not paid the first 20 invoices issued by CCG, and CCG was threatening to cease work unless it was paid. As a result, in October 1998, Holcomb, Hines, and CCG’s senior manager, Mark Munson, and Tom Dixon, computer project manager and consultant at CCG, met to discuss the situation. At the meeting, they reached a new agreement in which CCG would continue to work without demanding full payment of the arrearage and Oasis would make regular payments to CCG of $5,000 per week.

Hines testified that on January 28, 1999, she personally told Holcomb that CCG had completed the job and the website was ready to operate. She testified that the plan was to start up the website on Valentine’s Day, after Oasis engaged in certain promotional activity for it. According to Hines, delivery and final payment were scheduled to occur on February 14, 1999. Holcomb, however, suffered an untimely death on February 2, as the result of a motor vehicle accident.

It is undisputed that Barbara Holcomb, who succeeded Ron Holcomb as the sole shareholder in Oasis, decided to terminate the website project. Hines testified without dispute that Barbara Holcomb did not accept her offer to demonstrate the functioning of the site. Marion Wayne Stewart, Oasis’ accountant, testified that he participated in a decision made at the February 1999 meeting to abandon the website project. Stewart testified that due to the delay in its implementation, the concept was no longer viable since competitors were already on line with similar ventures. Stewart testified that even had the website been completely ready, he would have recommended against it because it was no longer a good business decision. Stewart testified that this opinion was “[s]hared by Barbara Holcomb.” After the February 1999 meeting, Hines’ services at Oasis were terminated.

CCG submitted billing to Oasis for a total in the amount of $119,144.66, that included 1,125 hours of consultant time and material charges of $7,997.80. Of that total, Oasis paid $24,096.08. After efforts to obtain the unpaid balance proved fruitless, CCG sued Oasis for breach of contract.

CCG sought summary judgment. CCG supported its motion with work orders, billing documents, affidavits, and depositions. In addition to Hines, John Polascik and Dixon also testified that CCG had completed a working prototype by January 1999. Polascik, the primary developer at CCG of the site, provided detailed testimony about the development and features of the site. Polascik testified that by late January 1999, “CCG had completed all of the programming on the Oasis Web Site Project, i.e., for the chat room, live video and e-commerce (or payment acceptance) features of the Oasis Web Site, and that the Oasis Web Site was ready to ‘go live’ (i.e., to activate the Oasis Web Site on the Internet) subject only to receiving certain information from Oasis.” Polascik also testified that as part of his duties, he, along with Hines, conducted a series of tests in late January, the results of which showed that “the system was fully workable and ready to go live.” According to Polascik, “Lauren and I planned to re-run the testing demonstration and launch the system into production shortly thereafter for Mr. Holcomb, but he died before we could run that follow-up demonstration for him.” Dixon also worked on the project. Dixon, who observed the January 1999 testing, also avowed that the system was “fully workable and ready to go live.”

To attempt to refute this evidence and to create a disputed issue as to whether the website had, in fact, been functional, Oasis offered the affidavit of Chris Martin, a computer consultant and friend of Brian Holcomb, son of Ron and Barbara Holcomb. Martin testified that at the family’s request he was in attendance at the meeting in February 1999. According to Martin, immediately after the meeting, Brian Holcomb and he had examined and tested the website. Martin testified that the website was not operational. According to Martin, “[tjhe web site would not allow interaction, meaning there was no way to pay with a credit card, or view any of the videos, or exchange information in the chat room.” Martin testified that the website did not work but served only as an advertisement informing would-be users that the website was under construction. Martin voiced his opinion that the website “was not complete, workable or ready to ‘go live’ in February 1999 at the time it was terminated.”

After conducting a hearing and reviewing the evidence, the trial court entered detailed findings, including that Oasis had breached its contract with CCG by failing and refusing to pay CCG for its services. Noting that the contract had been modified by mutual agreement in October 1998, the trial court observed that there was no scheduled date for completion and no cap on the dollar amount for the services provided by CCG. The trial court decided that CCG’s work on the website had been authorized by Oasis and was “reasonable and necessary” to the project. In light of Oasis’ breach, the trial court entered an order that awarded the unpaid balance of $95,048.58 plus interest to CCG.

In its sole enumerated error, Oasis contends that material issues of disputed fact precluded summary judgment. Oasis argues that CCG never delivered the product and did not abide by the contract terms. Specifically, Oasis claims that CCG breached the agreement by failing to complete the project by July 18. Oasis further claims that “CCG never delivered a working prototype of a customer chat system, demonstrating the integration of live-video and chatting in a web browser” as the contract required.

Without question, the parties entered an agreement for CCG to engage in development of the website for Oasis. Oasis’ sole evidence that CCG failed to fulfill its contractual obligations is the affidavit of Martin. But the trial court found Martin’s affidavit superfluous and so do we because Martin did not examine and test the final product and whatever tests he did perform were conducted at a different and later time from those of Hines and Polascik. Hines, Polascik, and Dixon each testified that the system was operational in January, while Martin claimed to have tested it in February. Moreover, since it is undisputed that Oasis aborted the project and declined delivery of the completed prototype, it is not clear how Martin could have performed any tests on the completed system. After Oasis elected to disclaim the contract, the prototype was never installed on the website that Martin purportedly tested. As the trial court noted,

Despite Oasis’ renewed payment default, CCG, in late January, 1999, completed a fully workable and ready to go live Website, thereby creating a working prototype of the Website. This fact is undisputably established of record by the affidavit testimony of representatives from both parties who personally participated in the testing of the Website in late January, 1999: Lauren Hines of Oasis and John Polascik of CCG. There is no admissible evidence of record to contradict the sworn affidavit testimony of Hines and Polascik that as of late January, 1999, the Website was “fully workable and ready to go live.”

In a footnote, the trial court observed, “Mr. Martin does not state what he did to test the Website, and whether he knew the appropriate codes or steps to perform such a test.” As to Martin’s affidavit, we note that it is axiomatic that “[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Citation and punctuation omitted.) Birnbrey, Minsk &c. v. Yirga.

Oasis also asserts that there are significant inconsistencies and major discrepancies between the affidavit of Hines and her report dated February 19, 1999. Citing the “Prophecy rule” as explained in Thompson v. Ezor, Oasis claims that Hines’ self-contradictory testimony should be ignored for purposes of summary judgment. Oasis points out that in her affidavit, Hines testified that in late January 1999, the website was ready to “go live” but in her written report in February, Hines seemed to say otherwise. In her report, Hines stated the following:

Currently all programming required for chat, live video and payment acceptance has been completed. There are system issues that CCG and Lauren Hines agree need to be addressed. All problems that have been encountered have been determined to be system related. At this time the system is believed to be stable enough to proceed with going live on-line pending a few software, web page and system corrections.

Decided May 15,2002.

Richard A. Gordon, Cammi R. Jones, for appellant.

Ellis, Funk, Goldberg, Labovitz & Dokson, Robert N. Dokson, David A. Webster, for appellee.

Pretermitting the question as to whether Hines was, in fact, a “party witness,” having examined the affidavit and the report, we find the “self-contradictory testimony rule” does not apply since the report does not fit within the ambit of “testimony.” See id. at 851-852 (2). Nothing in the report indicates that CCG did not perform any of its assigned taisks. In any event, Polascik avowed that testing demonstrated that “the system was fully workable and ready to go live.” Similarly, Dixon, who observed the January testing, vouched for the same in his testimony.

Thus, the record supports the finding that CCG fully performed on the parties’ agreement but was only partially paid for its services. In fact, Oasis conceded in its brief that no payments were made to CCG after December 2,1998. In light of Oasis’ breach, CCG was entitled to be placed in the position it would have occupied but for that breach. See Gainesville Glass Co. v. Don Hammond, Inc. The amount of damages was readily calculable, arose from services provided by CCG during the fulfillment of the contract, and was supported by competent evidence. See Crawford & Assoc. v. Groves-Keen, Inc. Based on the foregoing, the trial court properly entered judgment for CCG.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669 (502 SE2d 263) (1998).

        Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996).

        Birnbrey, Minsk &c. v. Yirga, 244 Ga. App. 726, 728 (1) (535 SE2d 792) (2000).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

        Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000).

       Oasis offered evidence indicating that Hines was paid as an independent contractor and was not an employee.

        Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 644 (1) (278 SE2d 182) (1981).

        Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0723.
    PINEY GROVE BAPTIST CHURCH v. GOSS.
    (565 SE2d 569)
   Blackburn, Chief Judge.

In this personal injury action, Piney Grove Baptist Church (Church), an unincorporated association, appeals the trial court’s denial of its motion for summary judgment against Leslie Keith Goss, contending that the trial court erred by: (1) allowing Goss, a member of the unincorporated association, to sue the Church; (2) finding that an issue of fact remained as to whether the Church negligently selected and retained Goss’s father, Vernon Goss, to oversee the construction of an addition to the Church building, thereby resulting in Goss’s injury; and (3) finding that an issue of fact remained regarding the Church’s superior knowledge of an allegedly faulty platform used during construction. For the reasons set forth below, 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 de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that the Church decided to construct a new fellowship hall on its property. After receiving bids from several construction companies, the Church decided that it lacked funds to hire an outside firm, and volunteers from the congregation were asked to perform the construction. Goss’s father was ultimately chosen to oversee the construction project, and with a group of volunteers from the congregation, Goss’s father began work on the new addition.

During construction, the volunteers discovered that scaffolding was needed to finish the project. Rather than purchase scaffolding, however, Goss’s father designed and built a platform instead. In order to stabilize this makeshift platform, it, in turn, was nailed to the new walls which were under construction. When Goss climbed on top of this platform, it pulled away from the wall and collapsed, and Goss sustained numerous injuries to his feet, legs, and back. Goss subsequently brought suit against the Church on the basis of premises liability and respondeat superior, and the Church, in turn, filed a motion for summary judgment, which was denied. The Church now appeals this denial.

1. The Church contends that Goss was prohibited from bringing suit against it pursuant to Gilbert v. Crystal Fountain Lodge, arguing that this case mandates that a member of an unincorporated association cannot sue that corporation under any circumstances. We disagree.

In 1959, our legislature added OCGA § 9-2-25 to the Georgia Code. This Code section states: “Actions may be maintained against and in the name of any unincorporated organization or association for any cause of action for or upon which the plaintiff therein may maintain such an action against the members of the organization or association.” OCGA § 9-2-25 (a). The statute goes on to mandate: “The organization or association shall be suable in any cause of action.” OCGA § 9-2-25 (c). The statute also points out that

[w]here a judgment in such actions is rendered in favor of the plaintiff against the organizations or associations, the property of the organization or association shall be liable to the satisfaction of the judgment. No such judgment shall be enforced against the individual property of any member of an unincorporated association, unless the member has personally participated in the transaction for which the action was instituted and has been served with process as provided by law.

OCGA § 9-2-25 (d).

The clear implication underlying this statute is that, unlike a partnership, an unincorporated association may be treated as a separate legal entity from its members. Both the association and its individual members are thereby acknowledged to have separate rights and interests. The codification of this legal duality directly undermines the Church’s argument that no Church member could bring suit against it under any circumstances.

Moreover, Gilbert, supra, which predates OCGA § 9-2-25, is distinguishable from the case at hand. In Gilbert, a minister sued a mutual aid association of which he was a member for slander. Our Supreme Court held:

If, as the declaration alleges, the association was a partnership, the plaintiff was a member of it; and after diligent search, we have been unable to discover any authority supporting the theory that a man can slander himself, either when he speaks directly as an individual, or when he speaks indirectly through a partnership of which he is a member. Upon principle, we do not see how he could charge the partnership assets with the damages that might be recovered, he having an interest in the assets as part owner of the same. Nor can we see how he can escape the general rule that, in an action at law against a partnership, all the partners, so far as the partnership assets are involved, must be defendants. That rule, applied to this case, would require the plaintiff to sue himself. The equity powers of the court cannot be invoked to overcome this obstacle, for a court of equity has not, nor ever had, jurisdiction to decree damages for defamation or slander.

(Emphasis supplied.) Id. at 285.

There is no evidence in this case that the Church operated as a partnership. Moreover, we do not think that the sort of “partnership assets” referred to in Gilbert would include a comprehensive insurance policy such as the one at issue in this case. If it did, it would lead to the absurd result that each congregant of the Church would have to purchase an individual policy specifically covering his or her conduct on Church grounds. Here, the Church purchased the policy to protect both visitors and its members. The overly technical application of Gilbert proposed by the Church would largely make that insurance policy a nullity for congregants, despite the fact that their dues maintain the policy. We cannot condone such an unnecessary forfeiture.

2. The Church argues that the trial court should have granted its motion for summary judgment regarding Goss’s claim based on the negligent hiring of his father to act as construction foreman.

Pursuant to OCGA § 34-7-20, an employer must exercise ordinary care in the selection of employees, must not retain them after knowledge of incompetency, and must warn other employees of dangers incident to employment that the employer knows or ought to know but which are unknown to the employee. In order to sustain a claim for negligent hiring and retention, a claimant must show that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such propensity must consist of evidence substantially related to the injury-causing conduct. Generally, the determination of whether an employer used ordinary care in hiring an employee is a jury issue.

(Citations and punctuation omitted.) Tecumseh Products Co. v. Rigdon. These principles also apply where an organization solicits volunteers to perform projects on its behalf. See, e.g., Big Brother/Big Sister &c. v. Terrell.

In the light most favorable to Goss, the evidence presents a question of fact whether the Church negligently selected his father as foreman. It is undisputed that, prior to appointing Goss’s father to manage the construction project, the Church made no attempt to investigate his qualifications in any way. When Goss’s father volunteered, the Church merely accepted, without further inquiry.

And, although the record indicates that Goss’s father had some experience with residential construction, a question of fact nonetheless remains regarding his competence to undertake a project such as the one at issue. Goss’s father, himself, testified that he had “no background, experience, education, or training in commercial construction.” Keith R. Breedlove, a residential and commercial builder, testified that “[a] contractor with limited residential experience is not necessarily competent to complete a commercial construction project (such as a church addition).” In addition, Thomas M. Moore III, an engineer, reviewed the structure of the platform designed by Goss’s father and concluded that it was “wholly insufficient for its intended purpose.” This testimony clearly shows that a question of fact remained regarding the competence of Goss’s father.

3. Finally, the Church contends that the trial court should have granted summary judgment in its favor regarding Goss’s claim based on the law of premises liability. Specifically, the Church argues that Goss had equal knowledge of the danger posed by the platform from which he fell.

As an initial matter, premises liability cases are not susceptible to summary adjudication except where the evidence is “plain, palpable, and undisputed.” Robinson v. Kroger Co. This is not such a case.

An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip- and-fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner.

Decided May 15, 2002

Downey & Cleveland, Joseph C. Parker, Alan J. Gibson, for appellant.

Chandler & Britt, Luther H. Beck, Jr., Jackel, Rainey, Busch & Reed, Dana L. Jackel, Christopher L. Phillips, for appellee.

(Citations and punctuation omitted.) Gunter v. Patterson Bank

Here, Goss’s father testified that the platform which collapsed was “entirely of [his] design and choosing, and [he] directly oversaw its erection.” Prior to ascending the platform, Goss asked his father if it was safe, and his father assured him that the structure could support his weight. Goss then mounted the platform and fell. This evidence presents a question of fact whether the Church, through Goss’s father acting as foreperson, negligently created a hazard on the property which precipitated Goss’s injuries.

Although the Church contends that Goss assisted his father in constructing the platform and, therefore, had equal knowledge of its hazardous condition, the record shows that Goss’s assistance was minimal. It does not mandate a finding, as the Church contends, that Goss had equal knowledge of the platform’s design flaws as the Church.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Gilbert v. Crystal Fountain Lodge, 80 Ga. 284 (4 SE 905) (1887).

        Tecumseh Products Co. v. Rigdon, 250 Ga. App. 739, 740 (1) (552 SE2d 910) (2001).

        Big Brother/Big Sister &c. v. Terrell, 183 Ga. App. 496 (359 SE2d 241) (1987).

         Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

        Gunter v. Patterson Bank, 247 Ga. App. 555, 557-558 (544 SE2d 735) (2001).


text:
    A02A0752.
    A02A0753.
    ARMSTEAD v. THE STATE. JENKINS v. THE STATE.
    (565 SE2d 579)
   Blackburn, Chief Judge.

Following a jury trial, Kareem Anthony Jenkins and Yusaf Arm-stead appeal their conviction for armed robbery. Armstead asserts that: (1) the evidence was insufficient to support a conviction because it was based entirely on identification of Armstead by Gonzalez, the victim, and (2) the trial court erred by instructing the jury that the level of certainty shown by the witness in identifying Armstead could be considered in determining the reliability of that identification. Jenkins contends that the trial court erred in admitting hearsay evidence. We affirm.

Viewing the facts in the light most favorable to the verdict, the record shows that the victim, Gonzalez, parked his car at a nightclub in Atlanta. A Ford Taurus pulled up beside Gonzalez’s car. Armstead, a passenger in the Taurus, walked up to the victim, pointed a gun at him, and demanded his money. Jenkins, the driver, exited the Taurus and removed from Gonzalez’s car the victim’s jacket, in which was located his wallet, checkbook, and other items. Then, Armstead and Jenkins got back into the Taurus and left the nightclub. Gonzalez reported the robbery to police and gave a statement to Officer England, providing two possible tag numbers for the Taurus. Later Detective Loy determined, based on Officer England’s report, that one of the tag numbers belonged to a Ford Taurus registered to Jenkins’ mother. Armstead and Jenkins were identified by Gonzalez in a photographic lineup as the persons who had robbed him. At trial, Gonzalez again identified Armstead as the gunman and Jenkins as the driver of the Taurus.

On appeal, the evidence is viewed in the light most favorable to the verdict; the appellant no longer enjoys the presumption of innocence. Jones v. State.

Case No. A02A0752

1. So viewing the evidence, we address Armstead’s first enumeration of error, the insufficiency of the evidence. “We do not determine the credibility of eyewitness identification testimony. Rather ‘the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.’ [Cit.]” Jones, supra, 214 Ga. App. at 788. OCGA § 24-4-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact.” Here the victim’s testimony alone is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt. Smith v. State.

2. Armstead also contends that the trial court’s instruction concerning eyewitness identification was erroneous. This charge was taken directly from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, pp. 39-40. This identification charge is based on the decision of the U. S. Supreme Court in Neil v. Biggers. which outlined five factors to be considered in evaluating the reliability of eyewitness identification: (1) the opportunity to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. The use of the fourth factor is questioned by Armstead.

The issue of whether the charge on “the level of certainty” of the identification is a reliable consideration has been stated among the enumerations of error in three recent Georgia cases. In DeLoach v. State, our Supreme Court held that the appellant, by requesting that the trial court give the charge, had waived his right to enumerate it as error on appeal. Two months later, the Supreme Court in Jones v. State chose not to reconsider the instruction. The Supreme Court found that giving the instruction was harmless error because: (1) there was other significant evidence of guilt introduced at trial, and (2) the trial court’s instruction covered the possibility of mistaken identification, the state’s burden of proving identity beyond a reasonable doubt, and the other factors stated in Neil. Id. This court decided Brodes v. State on the same basis as DeLoach, holding that the appellant had waived the right to assert an error in the charge.

We find no reversible error in the trial court’s charge. Our Supreme Court, having decided two prior cases in which this issue was raised, has not disapproved of this charge, and we decline to do so.

Armstead has not provided studies persuasive to this Court proving that jurors do not have common knowledge adequate to determining the issue of identification, nor has he shown a clear majority trend in case law holding such instruction is erroneous. The two Georgia cases which Armstead relies upon, Johnson v. State and Brodes, supra, do not specifically address this issue. Instead, these decisions clarify the discretion of the trial court to allow expert opinion on the reliability of eyewitness identification. Armstead offers only one other case as authority for asserting that the subject charge was error, United States v. Burrous. In that decision, the judge chose to give a charge in lieu of allowing expert testimony on various issues of eyewitness identification. Id. at 527. The charge was not mandatory and did not eliminate the certainty of the identification as a factor. Id. at 530, 532. The Burrous charge states that if a witness is positive of identification, this certainty does not relieve the juror of carefully considering that evidence. Id. at 532. While Burrous may be considered for its persuasive value, it is not binding on this Court.

In some jurisdictions, a specific cautionary charge on identification is discretionary, and the trial court is free to rely on general credibility and burden of proof instructions. See discussion in State v. Dyle. A number of jurisdictions have used or provided similar charges to the jury instruction recommended in United States v. Telfaire. Dyle, supra at 610. A portion of that instruction states that, ‘You may take into account . . . the strength of the identification.” Telfaire, supra at 558, Appx. (2). Among the 50 states, there is no consistency in whether “certainty” is part of the instruction. Some jurisdictions charge “the certainty” factor, while others have used alternative language on identification. States maintaining “certainty or positive” factor in instructions: State v. Robinson, State v. Warren, People v. Wright and McDoulett v. State. States opposed to certainty instruction: Commonwealth v. Santoli and State v. Long. State v. Long found that the charge in United States v. Telfaire would be sufficient under most circumstances, but suggested that it could be improved by elimination of some of the Neil v. Biggers assumptions and the addition of new factors based on recent empirical research.

It is within the common knowledge of a juror that the certainty of a witness’s identification does not necessarily reflect its accuracy, and the language of the instruction makes this clear. The current pattern jury instruction provides that the juror “may consider,” not “must consider,” the certainty of identification. Certainty is only one of the six factors in the pattern jury instruction. Another factor the juror may consider is the possibility of mistaken identity. The juror determines how much weight to give each of the factors. The charge also provides that identification is dependent on the credibility of the witness and that the testimony, facts, and circumstances of the case must identify the defendant beyond a reasonable doubt as the perpetrator.

In Johnson, supra, the Supreme Court has clarified that the trial court has discretion to allow expert testimony on this issue. In this manner, empirical research concerning identification reliability can be introduced and disputed. Based on such testimony, cross-examination of the witnesses, and argument of counsel, jurors, where it is appropriate in the case, will have the tools from which to determine the probative value of certainty in identification as a factor in its determination.

Case No. A02A0753

3. Jenkins contends that Gonzalez’s statement, which includes the tag numbers of the Ford Taurus, is inadmissible hearsay. Officer England testified as to what Gonzalez told him about the incident. Detective Loy testified about the tag numbers based on his review of the report Officer England prepared from Gonzalez’s statement.

“The admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” (Punctuation omitted.) Jackson v. State Following this standard, we find no abuse of discretion by the trial court in allowing this testimony.

By definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made. Clearly, the testimony of Officer England and Detective Loy, as to what the victim had advised Officer England at the scene of the crime and how he described the incident, falls within the Georgia definition of hearsay as acknowledged by the trial court.

The primary flaw of hearsay testimony is the lack of opportunity for the declarant to be cross-examined as to honesty, truthfulness, perception, and memory. There are many exceptions to the exclusion of hearsay testimony. Here, the record shows that Gonzalez, the declarant, testified at trial, as did Officer England, and that both were subject to a full cross-examination by defense counsel.

This Court has previously upheld the admissibility of hearsay if the declarant testified at trial and was subjected to a thorough and sifting cross-examination. In Dowdy v. State, the investigating officer was permitted to testify that the victim of a vehicle robbery had identified a truck parked at the defendant’s home as the one near the spot where he left his own vehicle. The testimony of two police officers as to the cashier’s description of the crime and of the perpetrator was admitted over a hearsay objection in Watson v. State Therefore, we find the court did not err in admitting this testimony.

Decided May 15, 2002.

Carl P. Greenberg, for appellant (case no. A02A0752).

Sharon L. Hopkins, for appellant (case no. A02A0753).

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgments affirmed.

Johnson, P. J., and Miller, J., concur.

        Jones v. State, 214 Ga. App. 788 (449 SE2d 330) (1994).

        Smith v. State, 246 Ga. App. 191, 192 (1) (539 SE2d 881) (2000).

        Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

        DeLoach v. State, 272 Ga. 890, 892 (2) (536 SE2d 153) (2000).

        Jones v. State, 273 Ga. 213, 218 (3) (b) (539 SE2d 143) (2000).

        Brodes v. State, 250 Ga. App. 323, 327 (3) (551 SE2d 757) (2001).

        Johnson v. State, 272 Ga. 254 (526 SE2d 549) (2000).

        United States v. Burrous, 934 FSupp. 525 (E.D. N.Y. 1996).

        State v. Dyle, 899 SW2d 607, 610 (Tenn. 1995).

        United States v. Telfaire, 469 F2d 552 (D.C. Cir. 1972).

        State v. Robinson, 165 N.J. 32, 37-38 (754 A2d 1153) (2000).

        State v. Warren, 230 Kan. 385, 397 (635 P2d 1236) (1981).

        People v. Wright, 45 Cal.3d 1126, 1139 (755 P2d 1049) (1988).

        McDoulett v. State, 685 P2d 978, 980 (Okla. Crim. 1984).

        Commonwealth v. Santoli, 424 Mass. 837, 845-846 (680 NE2d 1116) (1997).

        State v. Long, 36 Utah Adv. Rep. 11, 12-13 (721 P2d 483) (1986).

        Jackson v. State, 252 Ga. App. 268, 272 (4) (555 SE2d 908) (2001).

       See Milich, Ga. Rules of Evidence (1997), § 16.5, p. 251.

       Id. at § 16.4, p. 250.

        Dowdy v. State, 215 Ga. App. 576, 577 (2) (451 SE2d 528) (1994).

        Watson v. State, 214 Ga. App. 650, 651 (1) (448 SE2d 718) (1994).


author: Johnson, Presiding Judge.

text:
    A02A0195.
    GLASS v. THE STATE.
    (565 SE2d 500)
   Johnson, Presiding Judge.

A jury found Bruce Lamar Glass guilty of rape and aggravated sexual battery. This out-of-time appeal was filed following our opinion in Glass v. State. The appeal alleges (1) the evidence was insufficient to support the verdict, (2) the trial court erred in admitting similar transaction evidence, (3) the trial court erred in its similar transaction charge, (4) the trial court erred in refusing to allow Glass to present evidence of the victim’s first offender plea, (5) the trial court erred in denying Glass’ Batson challenge and in improperly conducting a hearing on the issue, (6) a mistrial should have been granted when a state’s witness interjected racial remarks in the presence of the jury, (7) a mistrial should have been granted when a state’s witness placed Glass’ character into evidence, (8) the trial court erred in allowing the state to question Glass’ character witnesses about an incident in another state, (9) the state’s attorney committed seven instances of prosecutorial misconduct, and (10) Glass received ineffective assistance of counsel. Because each of these enumerations of error lacks merit, we affirm Glass’ convictions.

1. Glass challenges the legal sufficiency of the evidence. On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence; moreover, this Court only determines the legal sufficiency of the evidence; we do not weigh the evidence or determine the credibility of witnesses. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve, and as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld. Viewed in the light most favorable to support the verdict, the evidence shows that the 16-year-old victim worked full time at a car wash. Glass, a 34-year-old male, was the manager who hired her. On March 3, 1997, the victim agreed to accompany Glass to his new home in Cobb County to unpack boxes until 1:00 p.m. Glass offered her and her co-worker $50 each for a few hours work. Once en route, however, Glass announced that the co-worker needed to rest before working late that evening and dropped the co-worker off at his home.

Though the victim felt uncomfortable, she remained in Glass’ car and continued with the plan to work at Glass’ residence. He drove more than an hour to an area unfamiliar to her. Upon arrival, the victim unpacked kitchen items as agreed. She then began unpacking items in the bedroom closet. As the victim unpacked these boxes, Glass began to unbutton her outer shirt. The victim objected, and Glass stopped. Later, however, Glass began rubbing the victim’s shoulders. Instead of stopping when the victim asked him to stop, he touched the victim’s breast under her shirt. He then removed his hands, and the two engaged in small talk.

Glass encouraged the victim to sit closer to him, told her to relax, and intermittently rubbed her shoulders as they chatted. Then, he pushed the victim facedown on the bed and continued to rub her shoulders over her protests. Glass unclasped the victim’s bra and silenced her screams by choking her, again instructing her to relax and remain calm to avoid injury. Glass then thrust his hand into the victim’s jeans and forced his fingers into the victim’s vagina. After this, Glass allowed the victim to sit up, but he made her lie down on his chest. He stroked her, telling her she was soft and pretty. Because Glass stands six feet five inches and weighs approximately 210 pounds, the victim feared for her life.

When the pager attached to the victim’s jeans displayed 1:00 p.m., she reminded Glass it was time to go. At this point, Glass pushed her down, took her pants off, ripped off her underwear, and penetrated her vagina with his penis. The victim struggled, but Glass was too strong. After he ejaculated, Glass insisted that the victim take a “good” shower. He provided her with soap and watched her as she complied.

A medical examination revealed substantial physical evidence of the rape. Vaginal swabs revealed the presence of spermatozoa. DNA testing identified Glass as its source. The examining physician also observed recent lacerations, consistent with digital or penile penetration, both at the entrance to and inside the victim’s vagina. The doctor testified that in his experience such injuries are rare and almost certainly indicate the use of force. He also noted a fresh bruise to the victim’s left buttock.

The state produced additional evidence of force, introducing the victim’s tom panties and broken pager chain. And, the detective who took the original rape report corroborated the victim’s testimony. This detective observed the “hysterical” and frightened victim crying “uncontrollably,” and noted that her face and neck appeared red and blotchy. The detective saw a fresh injury to the victim’s neck, an abrasion consistent with physical pressure applied to the chain she wore.

Initially, Glass denied any sexual contact with the victim. At trial, however, Glass recanted his prior statements, claiming he was scared because he was an African-American accused of raping a Caucasian woman. He testified that the sexual encounter with the victim was consensual, and he denied having rough sex with the victim. However, he could not explain the victim’s injuries or emotional state.

To rebut Glass’ claim of consent, the state admitted evidence of a subsequent similar transaction. While on bond awaiting trial for the victim’s rape, Glass met and briefly dated Lorna Taylor. Taylor, an army sergeant who was visiting Marietta before assuming a new post, testified that Glass raped her in his master bedroom on September 14, 1997, 11 days after the incident at issue in this case. When she resisted his advances, Glass told her to “just shut up . . . and just relax.” Afraid she would be injured or killed, she submitted without a struggle to Glass’ verbal and physical assault. During the attack, Glass told Taylor she was soft, and he digitally penetrated her vaginal area. After he ejaculated, he forced her to take a bath and watched her do so, giving her Tone soap and telling her “to wash down there.”

Once Glass allowed Taylor to leave, she immediately telephoned the police. A detective testified that she appeared to be very afraid. The detective also found corroborating evidence in Glass’ home. He located the bar of Tone soap in the bathtub, its empty wrapper in the sink. In addition, the detective photographed the box of Epsom salts on the bathroom counter, a portion of which Glass had initially added to the bath water, along with its residue in the bathtub.

During a pretrial telephone conversation with an investigator, Glass asserted, “[I]t’s a conspiracy, it’s blackmail. I confided in her and she is blackmailing me because she wanted me to drive her to Virginia.” He testified at trial that his sexual relation with Taylor was consensual.

While Glass challenges the credibility of the victim and Taylor by pointing out inconsistencies in their testimony, it is not the function of an appellate court to weigh the evidence, determine the credibility of the witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, the evidence must be viewed in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

A person commits rape when he has carnal knowledge of a female forcibly and against her will. Aggravated sexual battery is committed when a person intentionally penetrates with a foreign object other than the sexual organ of a person the sexual organ of another without the consent of that person. In this case, the credibility issues were resolved adversely to Glass by the jury, and we find the evidence was sufficient to authorize a rational trier of fact to find Glass guilty beyond a reasonable doubt of rape and aggravated sexual battery.

2. Glass contends the trial court erred in admitting evidence of the incident with Taylor, which the trial court ruled a subsequent similar transaction. Specifically, he argues that the incident did not satisfy the standard set forth in Williams v. State. We find no error.

In Williams, the Supreme Court detailed three affirmative showings which the state must make before similar transaction evidence can be introduced: (1) identify an appropriate purpose for the introduction of the independent offense or act, (2) show a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter, and (3) present competent evidence that the defendant committed the independent offense or act. The decision to admit a similar transaction into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.

Glass first asserts that the Taylor incident was not admissible because it placed his character into issue. However, it is well established that evidence of an independent offense or act may be admitted to show a defendant’s bent of mind, course of conduct, motive, intent, or lack of mistake. The state offered evidence of the Taylor incident to establish Glass’ course of conduct, particularly to prove the bent of mind and intent necessary to overcome the defense of consent, and to corroborate the victim’s testimony. These are permissible purposes to justify evidence of other crimes, especially in cases of sexual assault. Moreover, acts occurring after the date of the crime charged can be just as probative as those that have transpired previously.

As for Glass’ claim that the Taylor incident was not admissible because of certain dissimilarities with the present incident, “a transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences.” And, in cases involving sexual offenses, that rule is to be liberally construed. Here, the incident with Taylor was similar to the present incident in several striking respects so as to warrant its admission. Glass was acquainted with both women and took them both to his residence. The victims rebuffed his sexual advances, but Glass physically overpowered them while instructing them to relax. Glass digitally penetrated and then raped both women, telling each one during the attack that she was soft. After he ejaculated, he made both victims wash their bodies while he watched them. In addition, he claimed both incidents were consensual. These similarities were sufficient to merit the jury’s consideration of the Taylor incident.

Glass next argues that the evidence is inadmissible because the state failed to produce competent evidence that Glass committed any crime against Taylor. Specifically, he argues that more than one year had passed without any formal charges made against him. However, prosecution is not a prerequisite to the presentation of similar transaction evidence. “It is the similarity of the facts of the defendant’s . . . conduct to the facts of the case being tried that is the critical element of this type of evidence, not the adjudication of any charges which might have been brought as a result of the . . . conduct.” The trial court did not abuse its discretion in finding the subsequent sexual assault on Taylor sufficiently similar to the charged offense to be probative for the allowable limited purpose for which it was admitted.

3. Glass next contends that the trial court erred in its similar transaction charge to the jury because the language in the charge expanded the limited purposes for which similar transaction evidence can be used. In support of this contention, Glass relies on the case of Rivers v. State. However, the error which caused reversal in Rivers was not duplicated here. In Rivers, the jury was permitted to use the similar acts to show “the crimes charged in the case” or any “element of the offense charged in this indictment.” Here, the trial court twice limited the jury’s consideration of the similar transaction evidence to the state of mind and knowledge or intent of the defendant. In addition, the trial court instructed the jury that “[s]uch evidence, if any, may not be considered by you for any other purpose.” There was no error.

4. Glass contends the trial court erred in granting the state’s motion in limine to prevent evidence of the victim’s 1998 first offender plea for the felony of possession of methamphetamine. According to Glass, since the victim was still serving her probated sentence at the time she testified at trial, her first offender case was still pending and she did not yet have first offender status. This being the case, Glass argues he should have been able to cross-examine the victim concerning the criminal charge because it was still pending against her. We disagree.

Contrary to Glass’ contention, the first offender record of a person currently serving a first offender sentence may not be used to impeach the first offender on general credibility grounds because no adjudication of guilt has been entered. Since Glass has not made any showing that the victim’s first offender record could have been used to impeach her for a constitutionally protected reason, the trial court did not err in excluding evidence of the victim’s first offender plea.

5. Glass contends the trial court erred by denying his Batson challenge. The record reveals that after the state used its peremptory challenges to strike the only two African-American jurors on the jury panel, the trial court on its own initiative began the Batson analysis. It asked the state the reason for its strikes, and the state gave race-neutral reasons. According to the record, one of the African-American jurors struck by the state had a brother who was convicted of shooting someone, served time in prison, had his probation revoked, and was on house arrest. The other African-American juror struck by the state had her only son incarcerated for two years on felony drug charges. Since such personal experiences might bias a juror against the state, familial involvement with the criminal justice system constitutes a race-neutral reason for striking a potential juror.

The trial court then invited Glass’ trial counsel’s response, and he argued that the state’s reason was pretextual because it was not applied to Caucasian jurors. At this point, the state noted that it had struck at least one similarly situated Caucasian juror and distinguished the circumstances of the accepted jurors from the excused jurors. As for other Caucasian jurors not struck by the state, the state explained that it was a question of degree; the state retained jurors who knew very little about the circumstances of the criminal case, seemed pleased with the outcome, or indicated only an arrest or a misdemeanor conviction within the family attenuated as to time.

After further discussion, the trial court allowed the peremptory strikes to stand, concluding that the state set forth racially neutral reasons for striking the two African-American prospective jurors. We find no procedural error in the court’s Batson analysis.

6. The trial court did not err in refusing to grant a mistrial when a state’s witness noted on redirect that Glass had made racial remarks about Caucasians to her. The record shows that the witness was asked what Glass said after she made a comment about a sign in his garage which indicated parking was for African-Americans only. The witness replied, “He just made different comments about white people.” The trial court sustained Glass’ objection and instructed the jurors to disregard the last question and response. The trial court told the jury, “That will not be evidence and you should not consider it as evidence.”

“It is undeniably the right of every person accused of crime in this State to have a fair and impartial trial, free from any demonstration or disorder of a nature calculated to affect prejudicially the jurors trying his case.” However, given the circumstances of this case, we are not prepared to say that the refusal of the trial judge to declare a mistrial, after giving curative instructions, was erroneous. “Motions of this character are addressed to the discretion of the trial judge; and, unless it can be shown that such discretion has been abused and some positive injury done by the occurrence complained of, the discretion of the trial judge will not be controlled.” And, we have previously held that curative instructions were an adequate remedy when a witness places the defendant’s character into evidence. Here, we do not find that the trial court abused its discretion in refusing to grant a mistrial.

7. Glass contends the trial court erred in refusing to grant a mistrial when a state’s witness placed his character into evidence. We find no error.

The record shows that in response to questioning regarding why Taylor did not pursue criminal action against Glass, a detective testified: “She again stated that she did not wish to pursue criminal action against Mr. Glass; that in talking to family members, they had told her that he needed psychiatric care more than he needed jail; that he had had a slight prior problem and he had —.” At this point, Glass’ trial counsel requested a mistrial. The trial court denied the request for a mistrial, but instructed the jury to “disregard the last response. It will not be evidence in the case.”

As we stated above in Division 6, whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. Curative instructions are an adequate remedy when a witness improperly places a defendant’s character into evidence by testifying about his prior convictions or bad acts. In this case, the detective’s reference to Glass’ need for psychiatric care and any prior problems which Glass may have had was given in the context of Taylor’s decision not to pursue her action against Glass. The comments were actually Taylor’s comments and not those of the detective, and the comments regarding psychiatric care were cumulative of other testimony previously given by Taylor at trial. Moreover, the trial judge promptly instructed the jury to disregard the testimony. Under these circumstances, we conclude that the trial court did not abuse its discretion in deciding to give a curative instruction to the jury rather than grant a mistrial.

8. Glass asserts the trial court erred in allowing the state to question his character witnesses regarding a sexual assault complaint against Glass in Glendale, Arizona. The prosecutor asked these witnesses, “[w]ould it change your opinion of Mr. Glass if you knew that in April of 1995 in Arizona he was investigated for the sexual assault of a [victim] that occurred in his home?” Glass argues the state had no factual basis for the complaint. We disagree.

The record shows that in its similar transaction motion, the state provided the names of three Glendale, Arizona, investigators, a physician, and the name and address of the sexual assault victim. At trial, the prosecuting attorney read from the police report, which documented Glass’ description and date of birth. And, the prosecutor stated on the record that Glass had been the subject of a rape investigation and that the victim was available as a witness. It is well established that where the state can show that a reliable basis exists, the prosecuting attorney can inquire whether a character witness has heard about arrests, convictions, and uncharged specific bad acts of the defendant. Since there is no indication in the record that the state did not have a factual basis for its question to the character witnesses, the question was proper to test the witnesses’ knowledge of Glass.

9. Glass contends his motion for new trial should have been granted because of prosecutorial misconduct committed during his trial. He alleges seven instances of misconduct.

(a) Glass contends the assistant district attorney called one of Glass’ key witnesses and dismissed him from attending the trial, intentionally misleading the witness and preventing him from testifying on behalf of Glass. However, the record shows that the witness volunteered to testify on Glass’ behalf, but chose to leave town on a business trip after Glass’ attorney instructed him to appear. According to the witness, he told Glass’ attorney he wanted to testify and that he did not need a subpoena because he was happy to come testify. Glass’ attorney then called the witness and instructed him to come to court on a specific day. Subsequently, an assistant district attorney called to interview the witness and told him that the district attorney’s office did not need him. The witness then left the jurisdiction without contacting the defense, with whom all his previous contact had been, for any further instruction or clarification.

This telephone conversation did not amount to a knowing and improper excusal by the state. The assistant district attorney merely indicated that the witness was not needed as a state’s witness. He did not instruct the witness to avoid a subpoena from the defense. And, in fact, the witness had not received a subpoena from the defense. We find no prosecutorial misconduct.

(b) Glass contends prosecutorial misconduct occurred when the prosecutor stated during voir dire that there were two victims in the case. However, he does not give us any record citation for this argument, and he does not provide any citation of authority in support of this argument. Therefore, this argument is deemed abandoned.

(c) Glass next asserts prosecutorial misconduct occurred when the prosecutor solicited racial remarks from a witness. Once again, however, Glass has failed in his two-sentence argument to provide any citation to the record or any citation of authority. We presume Glass is referring to the comment discussed in Division 6. This comment was vague, and Glass has provided no evidence that the prosecutor intentionally solicited any racial comment from the witness. “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” This Glass has failed to do. There was no error in denying Glass’ motion for new trial on this ground.

(d) Glass contends prosecutorial misconduct occurred when the prosecutor asked his character witnesses whether their opinions would change if they knew he was investigated for sexual assault in Glendale, Arizona, or if he had murdered someone. As for the question regarding the sexual assault in Arizona, the prosecutor’s question testing the opinions of character witnesses provides no basis for a claim of prosecutorial misconduct. There is no dispute that Glass introduced evidence of good character through his witnesses. Therefore, it is clear the state was permitted to impeach Glass’ character witnesses by asking questions related to bad acts committed by Glass which the state could prove. Although the character witnesses stated they did not know of the bad acts, this testimony is still evidence which the jury may consider for impeachment purposes.

As for the prosecutor’s question regarding murder, the record reveals that the prosecutor asked one of Glass’ character witnesses whether she would alter her opinion after hearing about the sexual assault investigation in Arizona. The following colloquy then took place:

A: When I have an opinion of someone, unless something
has been done to me, my opinion will not change.
Q: Okay. So as long as a person doesn’t directly do something to you, your opinion’s not going to change?
A: Whatever I think about an individual?
Q: Uh-huh.
A: I’m a very positive person. I like to keep that.
Q: Okay. Well, surely something would change your opinion.
I mean, what if you found out that he murdered somebody, would that change your opinion?
A: It depends.
Q: Nothing further.

Clearly, this rhetorical question does not amount to prosecutorial misconduct given the context of the question.

(e) Glass next contends that prosecutorial misconduct occurred twice during closing argument when the prosecutor stated that Glass was out on bond and “did it again” and when the prosecutor again mentioned the word murder when discussing Glass! character witnesses. However, the record shows that Glass failed to object to either instance complained of on appeal. Consequently, these arguments are not preserved for our review. The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.

(f) Glass also asserts an alleged instance of prosecutorial misconduct occurring during closing argument to which his trial counsel did object. Specifically, Glass argues that the prosecutor attempted to ask the jurors to put themselves in the position of a party or to compare the situation of a party with their own. The trial court sustained Glass’ objection. Given the circumstances surrounding the comment, Glass has not borne his burden to show error affirmatively and to persuade us that such alleged misconduct prejudiced his right to a fair trial.

10. Glass asserts his counsel was ineffective because he failed to (a) challenge the array of jurors, (b) make a proper Batson challenge, (c) subpoena crucial witnesses, (d) request a continuance to obtain a key witness, (e) file a motion in limine requesting the state to refrain from using the term “rape,” (f) subpoena the victim’s psychiatric history, (g) move for a mistrial when a witness testified to the ultimate issue, (h) renew an objection and ask for a mistrial after Taylor made prejudicial remarks in the presence of the jury, (i) object and move for a mistrial when the state asked a character witness an irrelevant question, and (j) request first offender treatment.

To establish a claim of ineffective assistance of counsel, Glass must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. To succeed in his claim, Glass must overcome the strong presumption that his counsel’s performance fell within the broad range of reasonable professional conduct and that his counsel’s decisions were made in the exercise of reasonable professional judgment. We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Absent clear error and harm, we will affirm the trial court’s finding that Glass did not receive ineffective assistance of counsel. With these principles in mind, we turn to the specifics of Glass’ claims.

(a) Glass argues that his trial counsel was ineffective by failing to challenge the jury array. He points out that the jury panel had thirty-two Caucasian members and only two African-American members. However, “[t]here is no constitutional guarantee that. . . grand or petit juries, impaneled in a particular case[,] will constitute a representative cross-section of the entire community.” To successfully challenge a jury array based on racial composition, purposeful discrimination must be shown That burden is not carried by merely presenting evidence that a single jury panel contained a disproportionately small percentage of African-Americans compared to the population at large. Rather, the proper inquiry “concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case.”

Here, Glass failed to establish any flaw in the selection process, such as manipulation, misuse, or systematic exclusion of African-American jurors in Cobb County’s jury selection process. Rather, the evidence all points to the fact that Cobb County’s method of selecting jury panels avoids against intentional discrimination. Thus, even if Glass’ jury panel was underrepresentative of African-American jurors, Glass has not established that his trial counsel could have challenged the jury array successfully. We find no unprofessional lapse from trial counsel’s deliberate choice not to pursue a written challenge to Glass’ jury array.

(b) Glass argues that his trial counsel was ineffective because, during the Batson hearing, he failed to argue that the state used familial criminal history as a ruse and failed to enumerate similarly situated Caucasian jurors not struck by the state. However, the record shows that Glass’ trial counsel did, in fact, urge this ground at trial. And, the record further shows that at least one similarly situated Caucasian juror was struck by the state. As for other Caucasian jurors not struck by the state, the state explained that it was a question of degree; the state retained jurors who knew very little about the circumstances of the criminal case, seemed pleased with the outcome, or indicated only an arrest or a misdemeanor conviction within the family attenuated as to time. Glass’ trial attorney was not ineffective in this regard.

In addition, Glass has not shown, nor does the record indicate, that the conclusion of the trial court would have been different had the Batson hearing occurred subsequent to a timely motion by his trial counsel rather than on the court’s own initiative.

(c) Glass asserts his trial counsel failed to subpoena certain witnesses whose testimony was crucial to the defense. The record, however, is devoid of any evidence suggesting that the testimony of these witnesses would have bolstered the defense or changed the outcome of the trial. Decisions concerning which defense witnesses to call are a matter of trial strategy, within the exclusive province of trial counsel, after consultation with the client. We affirm the trial court’s finding that trial counsel’s tactical decision did not amount to deficient performance.

(d) Glass contends his trial counsel was ineffective for failing to request a continuance or ask for an attachment of Joe Cosby, a witness under subpoena. It is undisputed that Cosby failed to appear pursuant to Glass’ subpoena. However, trial counsel testified at the hearing on Glass’ motion for new trial, “we lost him and couldn’t find him . . . and we were trying to determine whether or not his testimony was going to be that important that we wanted to postpone the case in order to try and find him.” Ultimately, trial counsel made the decision to proceed to trial in Cosby’s absence. We do not find that this strategic decision amounted to ineffective assistance of counsel. While defense counsel testified that Cosby would have testified about a prior false allegation by the victim, the allegation was for sexual harassment rather than any physical attack, the defense attorney asked at least one other witness about this complaint at trial, and the victim had never made a prior complaint to the authorities about sexual assault.

(e) Glass asserts his trial counsel was ineffective for failing to file a motion in limine to prohibit the use of the term “rape” because his defense at trial was consent. While such a motion could have been filed, we do not find the failure to file such a motion to constitute ineffective assistance of counsel in this case. Here, the trial court gave both pretrial and post-trial instructions clearly forming the issue for the jury’s determination. The jury was instructed to decide whether the victim consented to sex or was raped.

(f) Glass asserts his trial counsel was ineffective for failing to subpoena the victim’s psychiatric counseling records. However, while speculating that “it is possible that the alleged victim suffered from excessive lying, had difficulty distinguishing between fact and fiction, suffered from hallucinations, or any number of other mental illness,” Glass has produced no evidence of necessity to overcome the victim’s privilege of confidentiality. He has not shown that the victim’s mental condition or treatment was relevant to, or affected the credibility of, her rape allegations. In the absence of such evidence, Glass has failed to demonstrate that trial counsel had any reason to obtain the victim’s psychiatric history. This claim of ineffective assistance of counsel lacks merit.

(g) The record shows that upon being questioned regarding the victim’s prior consistent statements to him, a detective began a narrative concerning what the victim told him. At the end of the narrative, the detective stated, “Her pager and pager chain was damaged during the assault, but then he, of course, was successful in his rape of [the victim].” Glass contends his trial counsel was ineffective for failing to object and move for a mistrial after the detective testified to the ultimate issue in the case. We find no error requiring reversal.

At the hearing on Glass’ motion for new trial, trial counsel testified that while he would normally object where testimony involved the ultimate issue, he might have preferred not to call attention to the testimony and have ignored the testimony for strategic reasons. Absent evidence to the contrary, the decision not to object to certain evidence is presumed strategic and provides no basis for an ineffective assistance claim. The trial court was authorized to find that the decision not to object was reasonable trial strategy.

(h) Glass contends his trial counsel was ineffective for failing to renew a motion for mistrial after the trial court gave curative instructions to disregard testimony that Glass “just made different comments about white people.” First of all, as we found in Division 6, the trial court did not err in refusing to grant a mistrial after the witness made the objected-to comment. It is highly doubtful under the circumstances that trial counsel’s attempt to renew his motion for mistrial would have been effective; thus, Glass cannot show the requisite harm necessary to prevail on this claim.

Moreover, Glass has not made an affirmative showing that trial counsel’s failure to renew the motion for mistrial was indicative of ineffectiveness and was not merely an example of a conscious and deliberate trial strategy. Absent evidence to the contrary, we must presume that trial counsel’s decision was a matter of trial strategy based on his assessment that the court’s curative instruction was sufficient. In the present case, this was a decision in the exercise of professional judgment which did not fall below an objective standard of reasonableness.

(i) Glass contends he received ineffective assistance of counsel because his trial attorney failed to object and move for a mistrial when the state asked his character witness whether she would alter her opinion if she found out Glass had murdered someone. As we previously discussed in Division 9 (d), this rhetorical question does not amount to prosecutorial misconduct given the context of the question. Thus, Glass’ trial counsel had no basis for an objection, and we cannot find that he was ineffective for failing to object to the comment.

Moreover, Glass’ trial counsel testified in the hearing on Glass’ motion for new trial that while he would normally object to anything that sounds like murder, “[s]ometimes you don’t want to call attention to it.” Thus, absent evidence to the contrary, we must presume that trial counsel’s failure to object was due to a matter of trial strategy or tactics and not due to his ineffectiveness.

(j) Glass asserts trial counsel was ineffective for failing to request first offender treatment for Glass. However, Glass has offered no proof that his trial counsel disregarded any instruction to request first offender treatment. As the record reflects, trial counsel knew he had a right to request first offender status, but chose not to because, based on the nature of the charges, he did not believe the trial judge would grant the request. The trial judge’s sentence of 40 years lends credence to trial counsel’s judgment. We find no unprofessional lapse from trial counsel’s deliberate choice not to pursue first offender status for Glass.

Decided May 3, 2002

Reconsideration denied May 16,2002

Louise T. Hornsby, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Amy H. McChesney, Assistant District Attorneys, for appellee.

Moreover, the grant or denial of first offender treatment is entirely within the discretion of the trial court. Yet, Glass has failed to demonstrate that the trial court would have favorably considered a request for such treatment. He has, therefore, failed to show any harm even if we do find that trial counsel was ineffective in this regard. This claim of ineffectiveness of counsel lacks merit.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       248 Ga. App. 91 (545 SE2d 360) (2001).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Patterson v. State, 233 Ga. App. 776 (1) (505 SE2d 518) (1998).

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

        Dominguez-Vega v. State, 253 Ga. App. 562 (1) (560 SE2d 56) (2002); McIntosh v. State, 247 Ga. App. 640, 641 (1) (545 SE2d 61) (2001).

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

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-6-22.2 (b).

        Banks v. State, 250 Ga. App. 728, 731 (4) (552 SE2d 903) (2001).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       Id.

        Banks, supra at 730 (3); Lowe v. State, 245 Ga. App. 659, 660 (2) (538 SE2d 552) (2000).

        Lamb v. State, 273 Ga. 729, 731 (1) (546 SE2d 465) (2001).

        Culver v. State, 230 Ga. App. 224, 229 (3) (496 SE2d 292) (1998); McBee v. State, 228 Ga. App. 16, 18-19 (1) (491 SE2d 97) (1997).

        Scott v. State, 219 Ga. App. 906, 908 (3) (467 SE2d 348) (1996).

       (Citations omitted.) Lamb, supra.

        Roberts v. State, 242 Ga. App. 621, 626 (2) (530 SE2d 535) (2000); Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

        Davis v. State, 269 Ga. 276, 278 (2) (496 SE2d 699) (1998); see also Jones v. State, 159 Ga. App. 634 (1) (284 SE2d 651) (1981) (no error in admitting evidence of prior rape charge resulting in acquittal).

       236 Ga. App. 709 (513 SE2d 263) (1999).

       (Emphasis omitted.) Id. at 710 (1).

        See Nickerson v. State, 248 Ga. App. 829, 833 (2) (d) (545 SE2d 587) (2001); Griffin v. State, 241 Ga. App. 783, 785 (4) (a) (527 SE2d 577) (2000).

        Davis, supra at 277 (2).

        Slade v. State, 270 Ga. 305, 306 (1) (509 SE2d 618) (1998); Griffeth v. State, 230 Ga. App. 298, 300 (496 SE2d 309) (1998).

       See Medina v. State, 247 Ga. App. 821, 822 (1) (a) (545 SE2d 366) (2001).

       (Citation and punctuation omitted.) Sparks v. State, 232 Ga. App. 179, 181 (2) (501 SE2d 562) (1998).

       See Fletcher v. State, 273 Ga. 737, 738 (2) (545 SE2d 921) (2001).

       (Citations and punctuation omitted.) Sparks, supra.

       See Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

       See Mosier v. State, 218 Ga. App. 586, 589-590 (4) (462 SE2d 643) (1995); Sanders v. State, 181 Ga. App. 117, 121 (2) (351 SE2d 666) (1986).

        Sims, supra.

       Id.

        Medlock v. State, 264 Ga. 697, 698-699 (449 SE2d 596) (1994).

       See Strickland v. State, 223 Ga. App. 772, 778 (2) (479 SE2d 125) (1996); Chisholm v. State, 199 Ga. App. 746-747 (1) (406 SE2d 112) (1991).

       See Court of Appeals Rule 27 (c) (2), (3).

       (Citation and punctuation omitted.) Roberts v. State, 267 Ga. 669, 671 (3) (482 SE2d 245) (1997).

       See Division 8, supra.

       See Strickland, supra.

        Ledford v. State, 264 Ga. 60, 67 (18) (a) (439 SE2d 917) (1994); see also Scott v. State, 242 Ga. App. 553, 556 (3) (530 SE2d 257) (2000); Tuten v. State, 242 Ga. App. 223, 224-225 (4) (529 SE2d 221) (2000).

        Ledford, supra; Scott, supra.

       See Hayes v. State, 236 Ga. App. 617, 619 (3) (512 SE2d 294) (1999) (a “golden rule” objection is misplaced if counsel’s argument asks the jurors to put themselves in the place of someone other than the victim or the defendant).

        Lamb v. State, 267 Ga. 464, 465-466 (5) (479 SE2d 719) (1997).

        Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991).

        Williams v. State, 248 Ga. App. 316, 322 (7) (546 SE2d 74) (2001).

        Hammond, v. State, 264 Ga. 879, 880 (1) (452 SE2d 745) (1995).

       See Guertin v. State, 243 Ga. App. 322, 323 (1) (533 SE2d 159) (2000).

        Campbell v. State, 240 Ga. 352, 356 (II) (5) (240 SE2d 828) (1977); Singleton v. State, 229 Ga. App. 135, 136 (1) (493 SE2d 556) (1997).

       See McElroy v. State, 244 Ga. App. 500, 503 (2) (b) (536 SE2d 188) (1999).

       See id.

        Patterson v. Balkcom, 245 Ga. 563, 565 (1) (266 SE2d 179) (1980); Lane v. State, 239 Ga. App. 230, 231 (2) (b) (520 SE2d 705) (1999).

       See generally Campbell, supra; Riddles v. State, 251 Ga. App. 525, 526-527 (1) (554 SE2d 737) (2001).

       See McElroy, supra.

       See Trammel v. State, 265 Ga. 156, 157 (2) (454 SE2d 501) (1995).

        Williams, supra, 248 Ga. App. at 322 (7) (a).

       See McIntosh, supra at 644 (4).

        Marks v. State, 237 Ga. 277 (1) (227 SE2d 334) (1976).

       See Bobo v. State, 256 Ga. 357, 358-360 (3) (349 SE2d 690) (1986).

       See Davidson v. State, 232 Ga. App. 250, 252-253 (2) (501 SE2d 510) (1998).

       See generally Morris v. State, 226 Ga. App. 535, 539 (2) (b) (488 SE2d 685) (1997).

        Cunningham v. State, 244 Ga. App. 231, 234 (3) (535 SE2d 262) (2000).

        See Allen v. State, 272 Ga. 513, 516 (6) (b) (530 SE2d 186) (2000).

        Gazaway v. State, 210 Ga. App. 540, 541-542 (1) (c) (436 SE2d 738) (1993).

        Swint v. State, 250 Ga. App. 573, 574 (552 SE2d 504) (2001).

        Martin v. State, 268 Ga. 682, 686 (10) (492 SE2d 225) (1997).

        Threlkeld v. State, 250 Ga. App. 44, 46 (2) (550 SE2d 454) (2001).


author: Phipps, Judge.

text:
    A02A0896.
    COOK v. THE STATE.
    (565 SE2d 487)
   Phipps, Judge.

Deangelo Cook appeals the trial court’s denial of his motion to correct his sentence. Cook contends that the sentence of life without parole for armed robbery was not permitted under the laws in effect when he committed the crimes. We disagree and affirm.

In April 1993, Cook and two accomplices robbed a bank while using a pistol. Cook was indicted for armed robbery and possession of a firearm by a convicted felon. The State also charged Cook with being a recidivist, and at trial the State presented evidence of his four prior felony convictions. In January 1994, a jury found Cook guilty of armed robbery, and the trial court sentenced him as a recidivist to life imprisonment without parole. We affirmed Cook’s conviction on direct appeal.

In November 2000, Cook filed a “Motion to Correct and Set Aside Illegal Sentence,” arguing that the recidivist sentencing statute in effect when he committed the armed robbery — OCGA § 17-10-7 — did not allow a sentence of life without parole. According to Cook, life without parole was not authorized at that time. That, however, is mcorr6ct

Decided April 19, 2002

Reconsideration denied May 16, 2002.

Deangelo Cook, pro se.

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

In April 1993, OCGA § 17-10-7 (b) provided that

[a]ny person who, after having been convicted . . . for three 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.

Although the armed robbery statute provides for a potential sentence of death, Georgia’s appellate courts have recognized that such a penalty would be unconstitutional. Thus, armed robbery is not considered a capital felony for the purpose of recidivist sentencing, and Cook’s sentence was governed by OCGA § 17-10-7 (b). As his armed robbery conviction was his fifth felony conviction, the trial court was authorized to sentence him to the maximum sentence of life imprisonment, with no eligibility for parole. It follows that the court did not err in denying Cook’s motion to correct his sentence.

Judgment affirmed.

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

       Cook also was convicted of being a felon in possession of a firearm, but that count is not at issue in this appeal.

        Cook v. State, 221 Ga. App. 831 (472 SE2d 686) (1996).

       (Emphasis supplied.)

       See OCGA § 16-8-41 (b).

       See Collins v. State, 239 Ga. 400, 402-403 (2) (236 SE2d 759) (1977); Harper v. State, 203 Ga. App. 775, 776 (417 SE2d 435) (1992).

        Getty v. State, 207 Ga. App. 736, 737 (429 SE2d 100) (1993).

       See id.; Moore v. State, 251 Ga. App. 295 (554 SE2d 204) (2001).


text:
    A02A0227.
    POWELL et al. v. NORMAN ELECTRIC GALAXY, INC. et al.
    (565 SE2d 591)
   Blackburn, Chief Judge.

Appellants Eva and John Powell (the “Powells”) appeal, arguing that the verdict of the trial court is contrary to law and that the trial judge erred in failing to charge the jury on punitive damages. We affirm.

The Powells and appellee Norman Electric Galaxy, Inc. (“Norman”) are owners of adjoining properties on Washington Road in Richmond County. Norman’s property, identified as 2605 Washington Road, was acquired by Norman in May 1990, from Mark Investment Company. The Powell property, identified as 2607 Washington Road, was acquired by the Powells in April 1991, from Mark Investment Company.

The dispute between the parties stems from a trespass of the Powells’ 2607 Washington Road airspace caused by the overhanging of an outdoor advertising sign owned by Pabian Outdoor Advertising, Inc. (“Pabian”). This sign was the subject of a ground lease between Norman and Pabian, under which Norman leased the premises known as “2605 Washington Road” to Pabian. The lease neither expressly nor impliedly includes any portion of the Powell property at 2607 Washington Road. The lease confirms that Pabian is “the owner of the advertising signs, structures and improvements erected or made” by Pabian. Only Pabian had the right to remove or alter the signs, structures, and improvements. Norman had no ownership interest in or control over the sign, including its erection and placement.

The pole and base for Pabian’s sign were placed and installed solely on Norman’s property at 2605 Washington Road. At some point, Pabian placed part of the sign across the property line between Norman and the Powells so that the sign encroached upon and trespassed into the Powells’ airspace at 2607 Washington Road. The record makes clear that Norman had no involvement in the placement of the sign within the Powells’ airspace.

In March 1992, Pabian employees, without the consent of the Powells, went onto the Powell property with a crane to perform work and repairs on the Pabian sign. Mr. Powell warned Pabian’s employees not to replace the sign in such a way that it would be overhanging his property. When this request was ignored, Powell called the Richmond County Sheriff’s Department and the county zoning office and filed a complaint against Pabian for placing the sign within his airspace. No complaint was made against Norman. The Powells filed suit against Norman and Pabian in March 1993, alleging trespass and property damage.

In November 1995, Pabian sold its assets, including the sign, to Lamar Advertising (“Lamar”). From that date, Lamar was the owner of the sign and the assignee of Pabian to the subject ground lease. At trial, a Lamar employee testified that: Lamar owned the sign and the supporting pole and brackets; it was the responsibility of the sign company, not the landowner, to erect and place outdoor signs so as not to trespass on adjoining property; and Norman, as the landowner, could not touch the sign.

This is the second appearance of this case before this Court. In the trial court, prior to the first appeal, the Powells argued that, although Norman and Pabian originally had a leasehold right to maintain the overhanging billboard based on a ground lease to which the Powell deed was subject, that right terminated when Norman and Pabian executed a new lease with new terms. On cross-motions for summary judgment, the trial court ruled in favor of Norman and Pabian and dismissed the complaint.

In Powell v. Norman Elec. Galaxy, we held that “[b]ecause the new lease contains different terms, it is a novation, the right to occupy the airspace above Powells’ property expired, and the Powells are entitled to summary judgment as to the liability of Pabian.” (Emphasis supplied.) We also held that “[plaintiffs’ motion, which sought judgment only as to liability and not on the issue of damages, properly leaves the latter for jury resolution.” Id. at 102 (2).

Upon the return of the case to the trial court, the Powells sought and obtained a judgment on the remittitur. In accordance with our decision, the trial court ordered Pabian, and not Norman, to cease the trespass of the Powell airspace and to remove the sign encroaching on the Powells’ airspace.

The case proceeded to trial on March 12, 2001. At the commencement of the trial, the trial court interpreted our decision in Powell v. Norman Elec. Galaxy to find, as a matter of law, that liability was established against Pabian for its trespass, but that Norman could assert the remaining defenses available to it. At the conclusion of trial, the jury found in favor of the Powells and against Pabian and awarded $43,400 in general damages, $18,052 in attorney fees, and $250,000 in punitive damages. The jury found that Norman had no liability. The Powells’ motion for new trial was denied on July 2, 2001.

1. The Powells argue that the trial judge misconstrued and misinterpreted our decision in Powell v. Norman Elec. Galaxy and that both Norman and Pabian are liable to them since Pabian profited by appropriating a property right belonging to the Powells without paying compensation, and Norman profited by selling or leasing a property right which it did not have. Their argument finds no support in our prior decision. In Powell v. Norman Elec. Galaxy, we did not hold, as the Powells assert, that the Powells were entitled to judgment against not one but both defendants, but, rather, in explicit language, that “the Powells are entitled to summary judgment as to the liability of Pabian.” Id. at 100 (1).

Decided May 16, 2002.

William R. McCracken, for appellants.

Lambert & Roffman, M. Joseph Reitman, Jr., Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellees.

There was also ample evidence to support the jury’s determination that Pabian was solely liable for the trespass to the property owned by the Powells. The rights conveyed by Norman through the ground lease with Pabian are limited to use of the property at 2605 Washington Road. The lease does not grant Pabian any right to occupy any of the Powells’ property at 2607 Washington Road. Under OCGA § 44-7-11, a tenant such as Pabian has no rights beyond the use of the land actually conveyed or rented.

Pabian was the exclusive owner of the sign, it controlled the placement of the sign across the Powell property line, and it erected the sign with no input or control on the part of Norman. Pabian had the responsibility to see that the sign did not encroach or trespass on property that it did not lease, and it was thus Pabian that was responsible for creating the trespass upon the Powell property. Under OCGA § 44-7-14, Norman, as landlord, was not responsible for Pabian’s illegal use of the Powells’ property.

In sum, the trial court did not err since Powell v. Norman Elec. Galaxy did not establish, as a matter of law, that Norman was liable to the Powells, and the jury was also authorized to find that Norman was not liable for the trespass of Pabian.

2. Since the trial judge did not err in denying the Powells a new trial, it follows that the Powells cannot succeed in arguing, as they do in their second enumeration of error, that the judge erred in failing to charge the jury on punitive damages as to Norman.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Powell v. Norman Elec. Galaxy, 229 Ga. App. 99, 100 (1) (493 SE2d 205) (1997).


text:
    A02A0253.
    LANDERS v. THE STATE.
    (565 SE2d 585)
   Johnson, Presiding Judge.

Mac Landers was convicted of criminal attempt to commit burglary, possession of a firearm by a convicted felon, and carrying a concealed weapon. On appeal, he argues that the evidence was not sufficient to support the attempt to commit burglary conviction, that the trial court erred in denying his motion to suppress the firearm, and that defense counsel was ineffective for failing to object when the state offered the firearm for admission at trial. Each of these arguments is without merit, so we affirm the convictions.

1. On appeal we must view the evidence in a light favorable to the verdict, and we determine whether the evidence is sufficient to enable any rational trier of fact to find the existence of the offense charged beyond a reasonable doubt.

So viewed, the evidence shows that the victim awoke at 3:25 a.m. when she heard someone hitting and pushing her front door. The victim looked out of her window and saw a man’s shadow at the door. The man had gotten past the latched door on the screen porch. The victim immediately called police, who arrived in less than two minutes.

When the officer arrived, he saw Landers standing on the victim’s lawn, facing the darkened house. No one else was in the area, and the street was quiet. According to the officer, Landers appeared to be looking for a way inside. Upon seeing the officer, Landers turned and began walking away very quickly. The officer ordered him to stop, and he did. The officer asked Landers, who lived in another part of town, what he was doing there. In a slurred mumble, Landers replied that he was looking for a party. Landers was unable to give an address for the party. And though Landers said he had relatives in the area, he was not able to give their addresses.

The officer then handcuffed Landers and conducted a pat-down search for safety. He found a fully loaded handgun and four bullets in Landers’ pockets. When the officer checked the victim’s house, he discovered that the screen door on the front porch had been ripped near the latch.

At trial, Landers denied having told the officer that he was looking for a party; in fact, he denied having made any statement at all to the officer. When asked on cross-examination why he did not say anything to the officer when he was stopped, Landers responded, “Well, there wasn’t nothing for me to say. He had me.”

Landers urges that the state failed to produce any direct evidence linking him to the offense of criminal attempt to commit burglary. He contends that the fact that he was standing next to the victim’s house when police arrived on the scene does not prove that he was the man who had been trying to enter the house two minutes earlier.

Even if we characterize the evidentiary posture of the state’s case as purely circumstantial, a jury issue was formed, and we will not substitute our judgment for that of the jury. The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence excludes every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of his innocence. In this case, the circumstances were sufficient to exclude every other reasonable hypothesis save that of Landers’ guilt of criminal attempt to commit burglary. The evidence was sufficient to sustain the conviction.

2. Landers claims the trial court erred in not suppressing the handgun found in his pocket during his detention because the officer did not have probable cause to arrest Landers at the time he effected the arrest. Landers urges that the officer had not witnessed any crime and had not even spoken to the victim before arresting him. Because the arrest was not lawful, he says, the search incident to it was unlawful. Moreover, he argues, the officer was not authorized to pat Landers down for weapons as part of a brief investigatory stop because he had no basis for believing Landers was dangerous. There was no error.

An arrest is valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officer were sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense. The test of probable cause requires merely a probability, less than a certainty but more than a mere suspicion or possibility, that the accused committed or was committing an offense.

Given the facts encountered by the officer, a reasonable person would believe that the lone man standing in the yard at about 3:30 a.m., facing the darkened house from which the emergency call had just come, and who had no plausible explanation for being in the area, was the same man who attempted to break into the house moments earlier. Had the officer released Landers at that time so that police could secure a warrant, he had no assurance that he would be able to find Landers or that any inculpatory evidence Land-ers had with him would later be available. The search was authorized pursuant to a lawful arrest.

Furthermore, even if the officer had exceeded his lawful authority by arresting Landers when he did, the recovery of the weapon was lawful. A brief investigative stop of Landers was justified by a reasonable and articulable suspicion that Landers was attempting to commit a burglary.

Likewise, there was evidence to justify the officer’s pat-down of Landers pursuant to that stop. A law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. A policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger.

In this case, the stop occurred at about 3:30 a.m., the officer was alone on a quiet street as he attempted to investigate what appeared to be an attempted burglary, the suspect had started to leave abruptly upon seeing the officer, and the suspect was unable to give plausible answers to the officer’s questions. Under these circumstances, the trial court was authorized to find that the officer’s limited protective search was lawful. The trial court did not err by denying Landers’ motion to suppress.

3. Failure to make a meritless objection cannot be evidence of ineffective assistance of counsel. Inasmuch as the handgun was properly admitted, Landers’ claim that trial counsel was ineffective for failing to object to its admission after the motion to suppress was denied is without merit.

Decided May 16, 2002.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Susan L. Henderson, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Hanson v. State, 232 Ga. App. 352, 354 (2) (a) (501 SE2d 865) (1998).

       Id. at 353 (2) (a).

       Id. at 353-354 (2) (a); Pope v. State, 240 Ga. App. 803, 804-805 (1) (522 SE2d 291) (1999).

       See Ware v. State, 198 Ga. App. 24, 26 (1) (400 SE2d 384) (1990).

        Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996).

        Price v. State, 270 Ga. 619, 621-622 (2) (513 SE2d 483) (1999).

       See State v. Wilson, 179 Ga. App. 334 (346 SE2d 111) (1986).

       See Davis v. State, 203 Ga. App. 227-228 (1) (416 SE2d 771) (1992).

       See generally Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

        Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995).

        Thompson v. State, 230 Ga. App. 131, 132-133 (495 SE2d 607) (1998).

       Id. at 133.

       Id.

       See Holmes v. State, 222 Ga. App. 642, 644 (476 SE2d 37) (1996).

       See Hunt, supra.

        Demetrios v. State, 246 Ga. App. 506, 513 (7) (b) (541 SE2d 83) (2000).

       See generally Bogan v. State, 249 Ga. App. 242, 246 (2) (e) (547 SE2d 326) (2001).