author: Eldridge, Judge.

text:
    A97A2537.
    ALLEN v. THE STATE.
    (494 SE2d 229)
   Eldridge, Judge.

On February 25, 1996, at approximately 2:00 a.m. Officer Shawn R. Witmer, Clayton County Police Department, stopped Garth Desmond Allen, defendant-appellant, on Old National Highway for driving a 1995 Peterbilt tractor trailer at 77 mph in a 55 mph zone, as shown on the officer’s high Doppler radar unit. While conducting the investigation for speeding, Officer Witmer noted that the defendant’s eyes were glassy, red, and bloodshot and that he had a strong odor of alcohol on his breath and person. The defendant voluntarily submitted to a field sobriety test, which indicated impaired motor, balance, and horizontal gaze nystagmus response. With the defendant’s consent, the officer attempted to administer an alcosensor breath test. However, in the officer’s opinion, which was based on the lack of air exhausted from the machine, the defendant did not blow directly into the alcosensor machine, which would have indicated whether the defendant had been drinking alcohol. The officer testified that, in her opinion, defendant was under the influence of alcohol to the extent that it was less safe to operate a commercial vehicle.

The jury found the defendant guilty of driving under the influence and speeding. Notice of appeal was timely filed.

1. The defendant’s first enumeration of error is that the trial court erred by failing to grant defendant’s motion to suppress or exclude the alleged “refusal” to submit to the State administered breath test.

Officer Witmer testified that the defendant, through his conduct, refused to consent to a meaningful breath test, when she sought to administer the alcosensor test, not to test the blood alcohol level, but to screen to determine if he had consumed any alcohol and later the breath test: “When the individual is giving a sufficient enough sample it shows a plus sign on the screen. If he’s not giving a sample it doesn’t show anything. When he gives a sufficient sample for it to manually get a reading it gives two plus signs. If you get one plus sign you can push a — it’s called a button which will make the machine do itself. The whole time when I asked the defendant to blow, he was not blowing at all. He would blow around the tube. He would stick his tongue over the tube. He would fill his cheeks with air and just turn red in the face. It was obvious that he wasn’t blowing into the tube to give a sample. [Q:] If someone is blowing properly through the tube can you feel the air coming through the tube? [A:] Yes, ma’am, [Q:] If somebody is blowing improperly or blowing around the tube can you feel that, too? [A:] Yes. [Q:] When he took the State requested breath test was that administered on an Intoxilyzer 5000? [A:] Yes, ma’am, it was. [Q:] I should say when he attempted to take the State test. Could you describe for the Court what he was doing as far as avoiding giving a sample. [A:] Again, as you heard me say in the video the same thing, he would not blow long enough; he would not give a sufficient sample. You’re required to blow appróxi-mately five seconds and make the bell ring steadily during that five seconds. If anytime the bell does not ring, what is happening is there’s not a sufficient sample being put into the machine which would give the machine the opportunity to analyze that sample. Again, he would blow around it. Once he would start, the bell would ring; then he would stop blowing. He would fill his cheeks up with air again and act like he was blowing. Just — he wouldn’t blow.”

OCGA § 40-6-392 (a) (1) (B) provides in pertinent part, “In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. ... No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.” (Emphasis supplied.)

At the motion to suppress hearing, the defendant did not testify that he had any physical or medical difficulties that prevented him from providing adequate breath samples. He never testified that he fully complied with the breath test. The defendant testified, “I didn’t refuse it. No, I didn’t. I took the test.” However, the arresting officer/ test administrator testified unequivocally that defendant failed repeatedly to provide adequate breath samples and that the instrument did not produce a printed alcohol concentration analysis, which was objective evidence of his refusal. “The Implied Consent Law requires a meaningful submission to the test as otherwise the purpose of the law would be frustrated.” (Emphasis supplied.) Pfeffer v. Dept. of Public Safety, 136 Ga. App. 448, 450 (221 SE2d 658) (1975); accord Howard v. Cofer, 150 Ga. App. 579, 581 (258 SE2d 195) (1979). In addition, OCGA § 40-6-392 (a) (2) (B), unlike its predecessors, has criteria for providing an adequate breath sample. The defendant failed to satisfy such criteria. See Wyatt v. State, 179 Ga. App. 327, 329 (4) (346 SE2d 387) (1986).

Further, Bartnick v. State, 203 Ga. App. 369, 370 (416 SE2d 739) (1992), held, “Moreover, unlike [Burson v. Collier, 226 Ga. 427, 428 (2) (175 SE2d 660) (1970)] and [Dept. of Public Safety v. Orr, 122 Ga. App. 439 (177 SE2d 164) (1970)], this case is not a civil proceeding to suspend the license of a motorist for refusal to submit to a chemical test. It is a criminal case in which the issue is whether [the] defendant was operating [his] vehicle while under the influence of alcohol. Evidence of the defendant’s refusal to take a chemical test is relevant and admissible to the issue of defendant’s guilt. Wessels v. State, 169 Ga. App. 246 (2) (312 SE2d 361) (1983). Defendant was properly offered the opportunity to explain [his] refusal. Id. Thus, the trial court did not err in admitting evidence showing defendant refused to take the breath test ordered by the arresting officer.” “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.” OCGA § 40-6-392 (d). Since the defendant failed to show a medical or physical explanation why he was unable to take and complete the designated breath test, the trial court did not err in admitting evidence of such non-verbal refusal. See Bartnick v. State, supra at 370; OCGA § 40-6-392 (d); see also Rawl v. State, 192 Ga. App. 57, 58 (383 SE2d 903) (1989); Wessels v. State, supra at 247-248.

2. The defendant’s second enumeration of error is that the trial court erred by failing to grant his motion to dismiss the DUI charge against him based upon the State’s actions and inactions, which resulted in an alleged violation of defendant’s due process right to obtain exculpatory evidence for use in his defense.

(a) Defendant’s failure to complete the State administered test without justification negates the defendant’s statutory right to an alternative test. OCGA §§ 40-5-55; 40-5-67.1; 40-5-153; 40-6-392 (a) (3); see Lufburrow v. State, 206 Ga. App. 250 (425 SE2d 368) (1992); Rawl v. State, supra; Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985); Huff v. State, 144 Ga. App. 764 (242 SE2d 361) (1978). “[T]he State has the right to have its test performed before the defendant’s right to take a test attaches because a refusal to take the test constitutes a waiver of the right to an independent test.” (Emphasis supplied.) State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988); accord Duckett v. State, 206 Ga. App. 651 (426 SE2d 271) (1992). Such statutory scheme adequately safeguards the defendant’s equal protection and due process rights to gather exculpatory evidence, i.e., an independent blood test. However, such procedure mandates that the defendant voluntarily submit, first, to a State administered test.

(b) The statutory scheme of implied consent, State testing, and independent testing has been held to comply with and to protect due process and equal protection rights. State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996); Lattarulo v. State, 261 Ga. 124 (401 SE2d 516) (1991); Allen v. State, 254 Ga. 433 (330 SE2d 588) (1985); Lester v. State, 253 Ga. 235, 236-237 (1) (320 SE2d 142) (1984); Garrett v. Dept. of Public Safety, 237 Ga. 413 (228 SE2d 812) (1976); Melton v. State, 175 Ga. App. 472 (333 SE2d 682) (1985); Cogdill v. Dept. of Public Safety, 135 Ga. App. 339 (217 SE2d 502) (1975). Thus, not only has the defendant waived any statutory right to an independent test, but he has also waived any constitutional claim of equal protection and due process violation due to the State’s alleged failure to facilitate his taking an independent test, either while in custody or by expediting his early release in order to permit his obtaining his own independent test. By his refusal to cooperate with the State administered chemical test, the defendant has intentionally refused and rejected the very protection provided by the statutory system of testing whose rational legislative purpose assures due process and equal protection. The defendant has sought, instead, to thwart the implied consent statute by his own actions.

Any constitutional protection can be waived. However, the waiver must be knowingly and intelligently made. In this case, the defendant had been properly given his informed consent warnings, as well as informed of his right to an independent test of his choice. The defendant intentionally chose not to give an adequate breath sample. See generally Berry v. State, 267 Ga. 605, 610 (8) (481 SE2d 203) (1997); State v. McBride, 261 Ga. 60, 63 (2) (b) (401 SE2d 484) (1991). Thus, his due process claims are without merit.

(c) Defendant contends that he was deprived of the opportunity to gather exculpatory evidence by the delay in bonding out of jail. The stop was made at 2:01 a.m. and defendant bonded out at 8:30 a.m. Defendant delayed over another hour, until 9:40 a.m., before having an independent blood test performed.

When the defendant sought to admit evidence of his independent blood test, the State objected on relevancy grounds because the independent test had been made more than eight hours after the arrest. The trial court sustained the objection.

OCGA § 40-5-55 (a) reads, “[t]he test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state ... in violation of Code Section 40-6-391.” (Emphasis supplied.) OCGA § 40-6-392 (b) and (c) with regard to certain presumptions regarding blood alcohol concentrations, uses the language “[i]f there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed. . . .” Such language is used in subsections (b) (4), (c) (1), and (c) (2). However, such language does not limit the relevancy of longer periods as to the defense evidence; if such provision serves as a limitation of admissibility, then it serves to limit admission by the State only, because the State has the right to the first test, has control of the defendant, and should promptly act to gather evidence of blood alcohol concentration at the alleged time of the offense. See OCGA § 40-6-392 (a) (1); State v. Richardson, 186 Ga. App. 888, 889 (368 SE2d 825) (1988).

While the defendant’s testimony could not prove, identify, or interpret the results, the defendant could testify to taking the test and how long after the arrest the test was made. The defense would then require an expert witness to introduce and make relevant the test results. Since blood alcohol levels drop at a constant excretion rate over time when no further alcohol is ingested, when variations in metabolism are discounted, and when levels of alcohol already in the stomach but not yet absorbed through the intestines are considered, then an expert witness can calculate blood alcohol levels from a blood sample taken nine hours after arrest and plot a graph which shows the blood alcohol level at the time of arrest and each intervening hour until the test was performed, which is based on hourly bodily excretion rates. Such expert testimony would be relevant and admissible to allow the jury to infer from such circumstantial evidence the prior blood alcohol level at the time of arrest. Nothing in OCGA § 40-6-392 (a) (1) denies the defendant such right to tender the evidence, if the defendant shows that the evidence is relevant. See Cheevers v. Clark, 214 Ga. App. 866, 868 (2) (449 SE2d 528) (1994); see also Simon v. State, 182 Ga. App. 210, 211 (3) (355 SE2d 120) (1987); Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793) (1984).

However, in this case, the defense failed to show such relevance. The defendant’s testimony, alone, would clearly not be sufficient and would prove nothing. Thus, the trial court did not err in excluding such testimony.

Further, the defendant acquiesced in the trial court’s ruling when he failed to preserve the evidentiary ruling against the defense by making an offer of proof regarding what he expected to prove. The defendant failed to show that the testimony was relevant, material, and beneficial by demonstrating that the blood alcohol level of the defendant at the time of arrest was below the level set forth in OCGA §§ 40-6-391 (i) and 40-6-392 (c) and that, from the independent test made eight hours later, the earlier blood alcohol level could be calculated by an expert witness, who was, in fact, waiting to testify as to the relevance of the results. The defense failed to preserve such evi-dentiary ruling for appellate review through an offer of expert evidence showing by circumstantial evidence the defendant’s blood alcohol level at the time of his arrest. Ewing v. Johnston, 175 Ga. App. 760, 765-766 (2) (334 SE2d 703) (1985); accord Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 480 (382 SE2d 150) (1989); see also In re A. M. S., 208 Ga. App. 328, 330 (2) (430 SE2d 626) (1993); Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (2) (307 SE2d 759) (1983).

The trial court did not err in denying defendant’s motion to dismiss.

Decided November 4, 1997

Reconsideration denied November 18, 1997

Law Office of George A. Stein, Monte K. Davis, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.


source: Caselaw Access Project

author: Beasley, Judge. Judge Harold R. Banke, McMurray, Presiding Judge,

license: Public Domain

text:
    A97A1372.
    CARTER et al. v. SPELLS et al.
    (494 SE2d 279)
   Beasley, Judge.

In this lawsuit arising from a motor vehicle collision, plaintiffs Christopher and Janet Carter appeal the grant of partial summary judgment to defendant Johnny Spells on the Carters’ claim for punitive damages.

Evidence showed that as Christopher Carter drove his vehicle through an intersection in Valdosta, Spells’ truck entered the intersection on a red light and collided with Carter. The Carters contended punitive damages would be justified because Spells’ activities that evening, and other evidence showing his “reckless” and “violent” behavior, provided clear and convincing evidence of “that entire want of care which would raise the presumption of conscious indifference to consequences,” as required by OCGA § 51-12-5.1 (b). The trial court rejected this argument.

On appeal from a trial court’s grant of summary judgment, the record is reviewed de novo and the evidence construed in a light most favorable to the party opposing summary judgment to determine whether the trial court properly concluded no genuine issue of material fact existed and movant was entitled to judgment as a matter of law. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). As the party seeking summary judgment, Spells is not required to “affirmatively disprove” the Carters’ claim for punitive damages; “instead, [his] burden . . . may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the [Carters’] case. If [he] discharges this burden, the [Carters] cannot rest on [their] pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The question is whether the Carters produced evidence from which a jury could find Spells’ actions showed conscious indifference to consequences as alleged in the second amended complaint and as provided by OCGA § 51-12-5.1 (b). See Cullen v. Novak, 201 Ga. App. 459, 460 (2) (411 SE2d 331) (1991).

In automobile collision cases decided under OCGA § 51-12-5.1, punitive damages are not recoverable where the driver at fault simply violated a rule of the road. See, e.g., Bradford v. Xerox Corp., 216 Ga. App. 83 (453 SE2d 98) (1994) (defendant’s speeding did not warrant imposition of punitive damages absent evidence of other aggravating circumstances); Coker v. Culter, 208 Ga. App. 651 (431 SE2d 443) (1993) (punitive damages not warranted even though defendant was speeding on wet roads, had consumed some alcohol, and behaved abominably after collision); Cullen, supra (careless running of red light not sufficient aggravating circumstance).

On the other hand, punitive damages are recoverable under the statute where the collision resulted from a pattern or policy of dangerous driving. See, e.g., Boyett v. Webster, 224 Ga. App. 843 (482 SE2d 377) (1996) (cert. granted) (DUI in incident and on previous occasions); Cheevers v. Clark, 214 Ga. App. 866, 869 (4) (449 SE2d 528) (1994) (drunk driving in incident at issue as well as subsequent arrests for drunk driving); Holt v. Grinnell, 212 Ga. App. 520 (441 SE2d 874) (1994) (drunken driving); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (2) (435 SE2d 54) (1993) (a “policy” of excessive speed plus defendant struck plaintiff’s vehicle twice and kept pushing); J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 255 (2) (427 SE2d 499) (1992) (truck driver drove 20 miles despite serious mechanical problem which caused collision); Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992) (drunken driving); Day v. Burnett, 199 Ga. App. 494, 496 (2) (405 SE2d 316) (1991) (driving under the influence and in violation of a number of traffic safety laws). Cases which involve the less stringent standards of proof applicable before the effectiveness of OCGA § 51-12-5.1 also relate to aggravated circumstances of driving. See Harrison v. S & B Trucking, 179 Ga. App. 291, 292 (1) (346 SE2d 101) (1986) (excessive speeds of tractor-trailer “in conjunction with the other facts”); and Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985) (DUI in incident and on previous and subsequent occasions).

The Carters failed to demonstrate Spells engaged, that evening and earlier, in behavior connected with his driving which would show a conscious indifference to its consequences. While no one would condone, much less defend, Spells’ history of disruptive misdeeds and antisocial behavior, and the purpose of punitive damages for a tort is “to punish” or “penalize” the defendant for the tort committed “or [to] deter” the defendant from future similar acts (OCGA § 51-12-5.1 (c)), the award authorized by the legislature for the tortfeasor’s intent, motive, or attitude, as articulated in subsection (b) of the statute, has been construed as that which is related to the tort. It is this orientation of defendant in connection with the act at issue which aggravates the act’s wrongfulness. There is an element of contributing cause involved in the sense that these circumstances surrounding the act worsened the wrongfulness of it even if the aggravating circumstances did not increase the injuries inflicted. Compare Moore v. Thompson, supra, and Cheevers v. Clark, supra, where the drunk driving caused the accidents and other acts of drunk driving showed the defendants continued this forbidden and dangerous activity thereafter. Since Spells’ alleged tort occurred as a result of driving a vehicle, the aggravating circumstances would be those related to his driving.

Spells’ own testimony is the only evidence of his actions just before the collision. Spells testified he was stopped at the red light when a group of local boys who had earlier challenged him to a fight pulled beside his truck and bumped it with their car. The impact scared him and caused him to release his foot from the clutch, which sent the car into the intersection. Even then, he testified, he thought he could turn right and avoid colliding with Carter’s car. Christopher Carter’s testimony confirms that just before the collision, Spells’ truck was stopped at the red light and a darker vehicle was stopped beside it. A jury should decide whether Spells was negligent, but this evidence does not provide a basis for finding that Spells consciously and deliberately disregarded the interests of others when he entered the intersection. See Cullen, supra.

The Carters point to Spells’ testimony that for several hours before the accident, he rode around Valdosta with his girl friend even though he knew the group of boys wanted to fight him. The Carters contend that, in addition, Spells’ history of fights and other disciplinary problems show his propensity toward violence and reckless behavior.

None of this circumstantial evidence overcomes Spells’ direct testimony that he did not voluntarily engage in or offer to engage in any fight that night. He consistently testified that, although he did consider accepting the boys’ challenge to fight, at his girl friend’s request he attempted to avoid his challengers. At one point he jumped a curb in leaving a bank parking lot after deciding not to get involved. As he left town to take his girl friend home, the group of boys followed him to the intersection at which the collision occurred. “[Circumstantial evidence has no probative value in establishing a fact when such evidence is consistent with direct and unimpeached evidence showing the non-existence of such a fact.” (Citation and punctuation omitted.) Red Top Cab Co. v. Hyder, 130 Ga. App. 870, 871 (204 SE2d 814) (1974). Nor does any of the evidence offered otherwise relate to the nature of his driving on this occasion.

Spells was later ticketed twice for speeding and no proof of insur-anee, but driving violations support punitive damages only when they demonstrate the defendant’s “ ‘wilfulness or reckless disregard of consequences.’ ” City of Monroe v. Jordan, 201 Ga. App. 332, 333 (2) (411 SE2d 511) (1991). This collision did not stem from speeding.

Summary judgment on this portion of the Carters’ claims was proper..

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur and concur specially. McMurray, P. J., Ruffin and Eldridge, JJ., dissent.

Judge Harold R. Banke,

concurring specially.

I concur specially to emphasize that the judicial system should not condone the transformation of ordinary traffic incidents into exercises in the wholesale assassination of defendants’ characters. Nothing in this case evidences the wilful misconduct necessary to sustain a punitive damages award. OCGA § 51-12-5.1 (b). It is undisputed that when Carter first observed Spells’ vehicle, it was stopped at an intersection. Then, when Spells’ vehicle pulled out into Carter’s lane of travel, Carter testified that he was unable to avoid colliding with the left front side of Spells’ vehicle. The investigating officer ticketed Spells only for failure to yield and no proof of insurance. There is absolutely no evidence that Spells was speeding or was driving recklessly at the time of the collision. In fact, according to Spells’ uncontroverted testimony, after another vehicle bumped his truck, he got scared and his foot slipped off the clutch pedal, causing him to move forward. Something more than the mere commission of a tort is always required to support an award of punitive damages. Cullen v. Novak, 201 Ga. App. 459, 460 (2) (411 SE2d 331) (1991). Negligence, even gross negligence, will not provide that support. Id.- In Cullen, we determined that the negligent running of a red light could not give rise to punitive damages. Id. Here, Spells’ actions were even less culpable. The Carters failed to satisfy their burden on summary judgment of showing some evidence of aggravating circumstances or wilful misconduct in support of their claim for punitive damages. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Further, the wilful misconduct or aggravating circumstances required for punitive damages “ ‘must relate to the tort being sued on. . . .’ [Cit.]” McNorrill v. Candler Gen. Hosp., 188 Ga. App. 636 (373 SE2d 780). The facts relied on by the dissent to support the punitive damages (subsequent speeding tickets and jumping or hitting a curb) appear unrelated to the conduct giving rise to the cause of action. See id. Nor do these specified actions demonstrate the wilfulness required to impose punitive damages, which again points to the danger of injecting extraneous character evidence rather than focusing on the actions which are truly at issue.

Decided November 18, 1997.

Loyce W. Turner, Jr., for appellants.

Young, Thagard, Hoffman, Scott & Smith, Henry P. Scott, for appellees.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this special concurrence.

McMurray, Presiding Judge,

dissenting. I respectfully dissent from the affirmance of partial summary judgment in favor of defendants as to the plaintiffs Christopher Carter’s and Janet Carter’s claims for punitive damages in their tort action against defendant John Spells, who ran a red light while driving his mother’s vehicle and collided with plaintiffs. I cannot improve upon the cogent dissent of Judge Johnson in Bradford v. Xerox Corp., 216 Ga. App. 83, 84-85 (453 SE2d 98), and so I adopt the same here. While I do not believe that evidence of defendant John Spells’ violent temper in unrelated matters not involving these plaintiffs is probative of any conscious disregard of the consequences as would support an award of punitive damages for this collision, there is also evidence that, on the night in question, defendant John Spells drove speedily and recklessly out of a parking lot into the street, jumping or hitting the curb as he did so. Also, there is evidence of subsequent speeding tickets. Standing alone, neither of these circumstances is sufficient to prove aggravating or outrageous circumstances. But in combination, they afford, in my view, an adequate “clear and convincing” eviden-tiary basis to authorize the imposition of punitive damages in this case, based on defendant John Spells’ demonstrated wilful and wanton disregard for the rules of the road in a manner directly affecting the safety of other members of the traveling public. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (2) (435 SE2d 54). As the propriety of any such exemplary award is for the jury to determine in the first instance, I respectfully dissent.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.


author: Smith, Judge.

text:
    A97A1498.
    BRASWELL v. BANK OF EARLY.
    (494 SE2d 277)
   Smith, Judge.

The Bank of Early brought suit against Jerry D. Braswell on a promissory note. In Braswell’s answer, he alleged that the suit was in reality a deficiency action. He maintained that because the note was secured by property that the bank repossessed and sold without accounting to him for the proceeds or otherwise complying with applicable law, the bank was precluded from recovering a deficiency balance. The trial court granted the bank’s motion for summary judgment. We agree with the trial court that the evidence of record established that Braswell, and not the bank, sold the collateral. Braswell’s allegations regarding the sale are therefore irrelevant, and we affirm the trial court’s grant of summary judgment to the bank.

The record shows that Braswell was a shareholder and employee of a corporation that owned a radio station in Blakely. The loan at issue, which was made to Braswell personally in 1991, was for the purchase of a replacement transmitter for the radio station. Braswell admitted signing the note and a security agreement, giving as security certain shares of stock in a Florida broadcasting corporation and the transmitter and related equipment. In 1992, some of the equipment was destroyed in a fire, preventing the radio station from broadcasting. The transmitter was at a separate location and was not destroyed, but after the fire, the radio station ceased operations and the corporate owner initiated bankruptcy proceedings. Braswell admitted he defaulted on the note. He testified on his deposition that he “understood” that when he failed to make payments on the note, the transmitter belonged to the bank. But he also admitted that he signed a bill of sale for the transmitter. In an affidavit presented in support of the bank’s motion for summary judgment, the purchaser stated that the transmitter was purchased from Braswell.

Braswell’s seven enumerations of error are essentially all challenges to the trial court’s grant of summary judgment to the bank on the ground that a fact issue remains as to whether Braswell sold the transmitter, as the bank alleged, or whether it was sold by the bank, as alleged by Braswell. We agree with the trial court that no issue of fact remains. The evidence of record is conclusive as to this issue, and it shows that Braswell sold the transmitter.

In an affidavit submitted in opposition to the bank’s motion for summary judgment, Braswell stated that he moved out of the county after the fire, and the transmitter was “in the control of the bank.” He argues on appeal that he signed the bill of sale merely as an “accommodation” to the bank and for the benefit of the purchaser, to clear up any “confusion” as to title to the transmitter. But the bill of sale is clear; it shows that Braswell sold the transmitter. And Bras-well’s explanations, by affidavit or otherwise, constitute “parol contemporaneous evidence,” which “is generally inadmissible to contradict or vary the terms of a valid written instrument.” OCGA § 24-6-1.

This Court was presented with a similar fact situation and an almost identical argument in Ambase Intl. Corp. v. Bank South, 196 Ga. App. 336 (395 SE2d 904) (1990). We held in Ambase that written agreements for the auction and sale of collateral clearly showed that the debtor was the seller, rendering irrelevant the debtor’s allegations that the sale by the creditor was commercially unreasonable. Id. at 337-338 (1). Here, as in Ambase, appellant’s attempt to show that the bank was the seller of the collateral directly contradicts the terms of an unambiguous written document — the bill of sale — and this evidence was therefore inadmissible. Id. Because the unambiguous writing shows that Braswell was the seller, his allegation that the sale was commercially unreasonable is similarly irrelevant.

Decided November 18, 1997.

Walter E. Baker, for appellant.

William H. Mills, Robert R. McLendon TV, for appellee.

To prevail on summary judgment, the bank was required to demonstrate that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). Once the movant makes a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the respondent to come forward with evidence preventing the grant of judgment. Id. In the case of a suit on a note, “[w]hen signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Citation and punctuation omitted.) Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). Braswell’s admission that he executed the note and that he defaulted therefore established the bank’s prima facie case. Bras-well’s parol contemporaneous evidence was inadmissible to vary the terms of the bill of sale, and Braswell therefore failed to establish a defense. The trial court did not err in granting summary judgment to the bank.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

       Portions of the Commercial Code were substantially revised in 1996. The applicable substance of the statute relied upon in Jay Gleason Advertising Svc., former OCGA § 11-3-307 (2), remains unchanged, and is embodied in OCGA § 11-3-308 (b).


author: Blackburn, Judge.

text:
    A97A1686.
    In the Interest of J. L., a child.
    (494 SE2d 274)
   Blackburn, Judge.

The juvenile court adjudicated J. L. delinquent for acts which if committed by an adult would constitute arson, burglary, and reckless conduct. J. L. contends that the evidence adduced below was insufficient to sustain these findings because he was adjudicated based solely on the uncorroborated testimony of an accomplice. He also enumerates as error the admission of his custodial statement into evidence, claiming it was induced in hope of benefit. For the reasons set forth below, we affirm the adjudications of the juvenile court.

“On review, [the] evidence is examined under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the evidence and all reasonable inferences from the evidence are construed in favor of the juvenile court’s findings.” In the Interest of S. S., 224 Ga. App. 301 (480 SE2d 327) (1997).

1. J. L. argues that the evidence was insufficient to sustain the adjudications. Specifically, he claims that there was no evidence to support the testimony of A. G., his co-defendant, in violation of OCGA § 24-4-8.

The facts show that a fire was set in a chicken coop and in an uninhabited house trailer on the same property in Dawson County which was entered without permission. Fire investigators determined that the burning in the trailer was accomplished by a blowtorch-type device consisting of a can of Lysol and a match. The trailer itself was not destroyed.

In the course of investigating these events, law enforcement personnel questioned a youth named A. G, who admitted setting some of the fires in the trailer and informed the investigating officer that J. L. had accompanied him into the trailer and, using a can of Lysol and a match, had set most of the fires in the trailer. A. G. was adjudicated on these offenses prior to J. L.’s adjudication, and he testified at J. L.’s hearing. J. L. did not testify in his own behalf. J. L. had told a police officer, during interrogation, however, that he had been in the trailer with A. G. and the officer so testified. Another friend of J. L.’s testified that J. L. had volunteered to him that he had started some fires in the subject chicken coop.

OCGA § 24-4-8 provides, in part, that in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient” to establish a fact, but that “corroborating circumstances may dispense with the necessity for the testimony of a second witness.” This statute is applicable in juvenile cases. See In the Interest of J H. M., 202 Ga. App. 79, 80 (413 SE2d 515) (1991). J. L. contends that no such circumstances existed in this case. We disagree.

“[0]nly slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict.” Mosier v. State, 223 Ga. App. 75 (476 SE2d 842) (1996). “[W]hether certain evidence amounts to ‘corroboration’ of guilt and whether that evidence independently amounts to corroboration of guilt may be questions of law for the court.” (Emphasis omitted.) In the Interest of P. A. W., 224 Ga. App. 329, 331 (1) (480 SE2d 347) (1997).

Here, A. G.’s testimony is supported by J. L.’s statement to police that he had been in the trailer with A. G. and the testimony of J. L.’s friend that J. L. had volunteered to him that he had started some fires in the subject chicken coop. In addition, two investigators testified that when they entered the trailer on the night of the fires, it smelled like aerosol spray or cleaning solvent. A. G.’s statement that J. L.’s father had commented that both J. L. and A. G. smelled like smoke when they returned home on the night of the fires is hearsay and has no probative value. Barnett v. State, 194 Ga. App. 892, 893 (392 SE2d 322) (1990). J. L.’s father did not testify.

The fact that J. L.’s mother testified that J. L. was with her on the evening of the trailer fires is of no consequence, as the trier of fact resolves all conflicts in the evidence. “Decisions as to the credibility of witnesses are in the province of the trial court; this Court determines only the sufficiency of the evidence.” In the Interest of D. L. S., 224 Ga. App. 660, 661 (482 SE2d 418) (1997). “[Ijnsofar as the participation and identity of the accused [are] concerned, there must be independent corroborating evidence which tends to connect the accused with the crime.” (Punctuation omitted; emphasis in original.) Searcy v. State, 162 Ga. App. 695, 696 (1) (291 SE2d 557) (1982). The evidence here satisfies this standard. Accordingly, the holdings of the juvenile court must be affirmed.

The evidence was also sufficient under the standard of Jackson v. Virginia, supra, to sustain J. L.’s adjudication for reckless conduct, a misdemeanor under OCGA § 16-5-60 (b). A. G.’s testimony is sufficient to establish, beyond a reasonable doubt, that J. L. engaged in what would be reckless behavior if he were an adult, and that he endangered A. G. when he lit a match to a stream of Lysol, created a torch-like device, and then used that device to start fires. J. L.’s adjudication for reckless conduct is therefore affirmed.

2. J. L. contends his custodial statement, that he had been to the trailer with A. G., was inadmissible because it was induced in hope of benefit.

The record indicates that in the process of attempting to interview J. L., a sheriff’s investigator informed J. L. and his mother that J. L. “needed to tell the truth because it would mean a lot in the end.” J. L. then made his statement regarding having been in the trailer with A. G. The juvenile court determined that J. L. had made a knowing and voluntary waiver of his rights and had given a statement which was not induced in hope of benefit. In examining this finding, we apply the clearly erroneous standard of review. Clay v. State, 209 Ga. App. 266, 268 (1) (433 SE2d 377) (1993).

Decided November 18, 1997.

Summer & Summer, Chandelle T. Summer, for appellant.

Lydia J. Sartain, District Attorney, Tracy W. Loggins, Assistant District Attorney, for appellee.

OCGA § 24-3-50 provides that in order for a confession to be admissible, “it must have been made voluntarily, without being induced by another by the slightest hope of benefit.” J. L. argues that the statement by the officer that J. L. needed to tell the truth “because it would mean a lot in the end” implicitly suggested that special consideration, such as a benefit later in court, would be forthcoming if J. L. made a statement. We cannot agree.

J. L.’s statement was voluntarily made and was not induced in hope of benefit. “Encouraging a suspect to tell the truth does not constitute hope of benefit so as to render involuntary any statement made thereafter.” Henry v. State, 265 Ga. 732, 736 (4) (c) (462 SE2d 737) (1995) (officer’s encouraging defendant to tell the truth and stating that things will just “get worse if you lie” did not constitute hope of benefit). Furthermore, “[a] reward of lighter punishment is generally the ‘hope of benefit’ to which . . . OCGA § 24-3-50 refers.” (Punctuation omitted.) Peinado v. State, 223 Ga. App. 271, 273 (1) (c) (477 SE2d 408) (1996). This argument is without merit, and the juvenile court’s determination that J. L.’s statement was voluntarily made is not clearly erroneous.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1776.
    BUFFINGTON v. THE STATE.
    (494 SE2d 272)
   Judge Harold R. Banke.

Herbert Buffington was convicted of possession of cocaine. In his sole enumeration of error, he argues that the trial court erred in denying his motion to suppress.

This case arose after Buffington pulled into an apartment complex and waved at two police officers who were patrolling the area in response to complaints about drug-related activity. They watched Buffington enter a building where an undercover drug buy previously had taken place and leave shortly thereafter. As Buffington drove away, they followed him, using a parallel exit.

As Buffington drove down the one-way access road, he eased into a left turn lane without signaling. When the officers stopped him for failure to signal, Buffington “was nervous and just fidgety.” After initiating a pat-down search “for safety,” one of the officers felt a cylindrical object in Buffington’s pocket and immediately knew it was a crack pipe, based on his five years on the force and his experience of handling over 100 such pipes. After examining it, the officer determined that it had been used and arrested Buffington for possession of drug paraphernalia and loitering for drugs. At that point, the officer conducted a search incident to arrest which revealed three chunks of crack cocaine weighing a total of 1.5 grams in Buffington’s pocket.

Prior to trial, Buffington moved to suppress the cocaine, arguing that the officers lacked probable cause to detain and search him. After a hearing, the trial court denied the motion. At the bench trial, Buffington stipulated to the above-stated facts presented at the suppression hearing and the court adjudicated him guilty. Held:

The trial court did not err in denying the motion to suppress. The temporary detention of a motorist based upon probable cause that he violated a traffic law does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures, even if a reasonable officer would not have made the stop absent an ulterior motive. Whren v. United States, 517 U. S._(116 SC 1769, 135 LE2d 89, 101) (1996). In other words, if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail. See Jackson v. State, 267 Ga. 130, 131 (5) (a) (475 SE2d 637) (1996).

Here, the arresting officer observed that Buffington failed to signal when he pulled into the left turn lane. The trial court was entitled to believe the officer’s testimony that Buffington executed this maneuver in front of another vehicle, notwithstanding this information’s absence from the police report. Anderson v. State, 267 Ga. 116, 118-119 (2) (475 SE2d 629) (1996). The failure to signal under these circumstances violated OCGA § 40-6-123 (b). Compare Clark v. State, 208 Ga. App. 896, 897 (1) (432 SE2d 220) (1993) (finding no violation of OCGA § 40-6-123 where no cars were behind a vehicle which failed to signal while continuing straight onto an exit ramp and the interstate curved). Thus, the stop did not violate the Fourth Amendment. See State v. Wright, 221 Ga. App. 202, 203-204 (3) (470 SE2d 916) (1996).

Once Buffington was stopped for failing to signal, the officer was entitled to execute a pat-down search for weapons. Mashburn v. State, 186 Ga. App. 488, 489 (367 SE2d 881) (1988); see Pennsylvania v. Mimms, 434 U. S. 106, 109-110 (98 SC 330, 54 LE2d 331) (1977). When the officer felt the crack pipe in Buffington’s pocket and immediately recognized it as a drug-related object (OCGA § 16-13-32.2 (a)), a warrantless seizure was permissible. Minnesota v. Dickerson, 508 U. S. 366, 375-376 (113 SC 2130, 124 LE2d 334) (1993); Andrews v. State, 221 Ga. App. 492, 493 (471 SE2d 567) (1996) (physical precedent only).

Decided November 18, 1997.

Peters, Roberts, Borsuk & Taylor, R. Stephen Roberts, for appellant.

J. Tom Morgan, District Attorney, Benjamin M. First, Robert M. Coker, Assistant District Attorneys, for appellee.

The discovery of this device provided the officer with probable cause to arrest Buffington for possession of cocaine (OCGA § 16-13-30 (a)) or possession of drug-related objects (ÓCGA § 16-13-32.2 (a)). See Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995) (pipe encrusted with residue sufficient to support possession charge); State v. Sparks, 205 Ga. App. 438, 439 (422 SE2d 293) (1992). The officer also had probable cause to arrest Buffington for violating the county ordinance on loitering, which prohibited loitering while in possession of any instrument whose customary purpose is for using controlled substances. See OCGA § 15-10-63 (d) (permitting arrests prior to the time of trial for violation of county ordinances relating to loitering). The officers were then entitled to examine the remaining contents of Buffington’s pockets pursuant to the search incident to arrest doctrine. State v. Tinsley, 194 Ga. App. 350, 351 (1) (390 SE2d 289) (1990). Having viewed the evidence in the light most favorable to the trial court’s findings, as we must, we find the denial of the motion to suppress was not clearly erroneous. Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       OCGA § 40-6-123 (b) states: “A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.”


text:
    A97A1907.
    BLACKWELL v. THE STATE.
    (494 SE2d 269)
   Judge Harold R. Banke.

Leroy Blackwell was convicted of child molestation and aggravated child molestation. He enumerates three errors on appeal.

This case arose after Blackwell moved into an efficiency apartment in a residence which also housed a child care facility. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). The four-year-old victim stayed at the child care facility. After Blackwell moved in, he befriended the victim.

Not long thereafter, the victim began acting differently. He was afraid to go to the bathroom alone and wanted others to turn on the lights for him. Soon thereafter, when Blackwell stopped at the victim’s home, instead of being excited to see his friend, the victim hid behind his mother’s legs and ignored Blackwell’s request to shake his hand. Later, the victim tearfully told his mother, “Leroy ain’t my buddy no more. . . . Leroy hurt me.” The victim explained that Blackwell placed his finger in the victim’s rectum and “humped” him while they were in Blackwell’s bedroom. The victim also told his mother that Blackwell “peed” in his mouth and the pee was white.

At trial, the State introduced evidence that Blackwell had been sentenced as a first offender for lewd and lascivious assault on a minor in a Florida court. The arresting officer testified that Blackwell admitted to simulating intercourse by moving on top of his reclining five-year-old nephew. This similar transaction evidence was offered to show bent of mind and intent. Held:

1. Before admitting the similar transaction evidence, the trial court fully satisfied the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Thus, the admission of the similar transaction evidence was not error.

We reject Blackwell’s contention that the evidence was irrelevant because his intent was not at issue in that he denied committing the crime. In the area of sexual offenses, the rules regarding the admissibility of similar transactions are most liberally construed. Wells v. State, 208 Ga. App. 298, 300 (2) (b) (430 SE2d 611) (1993). One of the elements of child molestation the State had to establish was that the act was committed “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). The similar transaction bore a sufficient connection to that element of the offenses being tried, so that proof of the former tended to prove the latter. Williams, 261 Ga. at 642 (2) (b).

Banks v. State, 216 Ga. App. 326, 328 (2) (454 SE2d 784) (1995) does not mandate a contrary result. Banks turned on the fact that the similar transaction was not sufficiently similar to the crime charged. Id. Such is not the case here. We likewise reject Blackwell’s contention that the admission of the similar transaction evidence was contingent on proof that his guilty plea was counseled. Jones v. State, 195 Ga. App. 569, 570 (2) (394 SE2d 387) (1990). Proof of a conviction is unnecessary. Id.

2. Blackwell challenges the trial court’s decision to prohibit him from cross-examining the victim’s mother about her prior denial of any knowledge that the victim was previously sodomized by his seven or eight-year-old brother.

There are few exceptions to the long-standing rule barring introduction of evidence of prior unrelated molestation. Chastain v. State, 180 Ga. App. 312, 313 (349 SE2d 6) (1986); see Proper v. State, 208 Ga. App. 471 (1) (431 SE2d 133) (1993). In Hall v. State, 196 Ga. App. 523, 524-525 (2) (396 SE2d 271) (1990), we held that evidence of prior molestation by another perpetrator was admissible to show other possible causes for the victim’s injuries and symptoms of child molestation accommodation syndrome such as bedwetting, nightmares, and hostility to adults. We subsequently reversed a child molestation case due to the exclusion of evidence that the victims, who had physical manifestations of past sexual abuse, had been previously molested by other perpetrators. Lemacks v. State, 207 Ga. App. 160, 161 (427 SE2d 536) (1993).

Hall and Lemacks, however, are distinguishable. Here, the victim exhibited no physical or psychological injuries which would warrant the admission of proof that they were caused by someone other than Blackwell. Furthermore, evidence of unrelated molestation is not admissible simply to show the victim was confused. Proper, 208 Ga. App. at 471-472 (1). Under these circumstances, we cannot say the trial court abused its discretion in excluding the evidence. Grif-feth v. State, 224 Ga. App. 462, 465-466 (4) (480 SE2d 889) (1997).

Blackwell also contends that he was entitled to impeach the mother’s denial that she knew the victim had previously been molested by his older brother. The record shows that notwithstanding the court’s exclusion of evidence of this purported act and the State’s strict compliance with this ruling on direct, Blackwell implicitly raised the issue in his cross-examination of the victim’s mother. Blackwell edged into forbidden ground by following his suggestion that the victim absorbed the sexually precocious knowledge from others with an inquiry about whether the mother was saying that the victim had never before been exposed to anything of this nature. Although every party has a right to a thorough and sifting cross-examination, here Blackwell’s questioning exceeded its authorized scope by skirting the trial court’s decision. See State v. Battaglia, 221 Ga. App. 283, 284 (1) (470 SE2d 755) (1996). The right to impeach does not extend to the circumstances of this case, where excluded evidence was artfully elicited on cross-examination.

3. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find each element of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Testimony that the four-year-old victim told his mother that Blackwell “peed” in his mouth and the pee was white was sufficient to establish the elements of aggravated child molestation. OCGA § 16-6-4 (c); see OCGA § 24-3-16 (child hearsay statute); Letlow v. State, 222 Ga. App. 339, 343 (3) (474 SE2d 211) (1996). Testimony that the victim told his mother that Blackwell placed his finger in the victim’s rectum established the essential elements of child molestation. OCGA § 16-6-4 (a). Blackwell in effect seeks a reweighing of the evidence and a reassessment of the witnesses’ credibility. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Decided November 18, 1997.

Sam B. Sibley, Jr., for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       During cross-examination, Blackwell asked if the victim’s statements to his mother were inconsistent, which she denied. Blackwell then asked if the mother suggested a statement to the victim. In denying this, the mother stated, “[n]obody suggested it to him. My son don’t even know such stuff — I don’t have no such stuff on TV in front of my children.” Blackwell then asked, “[a]re you saying that your child has never been exposed to anything of this nature in the past?” As Blackwell immediately began questioning the mother about her older son’s sexual history, the State successfully objected to this line of questioning.


text:
    A97A2085.
    WILSON v. THE STATE.
    (494 SE2d 267)
   Blackburn, Judge.

James Boyd Wilson, Jr. appeals from the denial of his motion and plea in bar of procedural double jeopardy with regard to his indictment on a charge of theft by receiving. Wilson contends that, despite his own confession to theft by taking, the subsequent confession of his minor nephew to the crime prior to the original indictment put the district attorney on notice of the grounds for a charge of theft by receiving against Wilson which should have been pursued in the original proceedings. “The appellate standard of review of a grant [or denial] of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” State v. D'Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996).

Wilson was indicted on one count of theft by taking in the August 1996 Term of the Troup County Superior Court. The ensuing trial resulted in a hung jury, and the court declared a mistrial on October 2, 1996. Wilson was subsequently reindicted on the original count of theft by taking, as well as an additional count of theft by receiving stolen property.

OCGA § 16-1-7 (b) provides: “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” This procedural aspect of double jeopardy, therefore, prevents successive prosecutions for crimes (1) arising from the same conduct, (2) known to the proper prosecuting officer, and (3) subject to jurisdiction in the same court. For procedural double jeopardy to attach, all three prongs must be satisfied.

Decided November 18, 1997.

Kenneth D. Teal, for appellant.

The facts show that on May 16, 1996, Wilson was arrested for the theft of a pistol from the house of an elderly neighbor. The following day, Wilson voluntarily gave a written confession in which he admitted to taking the gun. On July 8, 1996, Wilson’s minor nephew, James Roy Brockway, made a written confession that he had actually taken the pistol and that Wilson “took the rap” to protect him.

Wilson and Brockway testified at trial that Wilson had not been at the victim’s house at all on the day that her gun had been stolen, that Brockway stole the pistol in the morning, and he gave it to Wilson later that afternoon. Under these facts, double jeopardy does not bar prosecution of the theft by receiving charge. Based on Wilson’s own testimony at trial, two separate crimes, theft by taking and theft by receiving, were committed by two separate individuals at two separate times in the day. See, e.g., Welch v. State, 172 Ga. App. 476 (323 SE2d 622) (1984) (double jeopardy not applicable when crimes are divisible). Accordingly, procedural double jeopardy would not apply to the count of theft by receiving brought against Wilson, and we need not consider the other two factors.

Wilson’s reliance on Curry v. State, 248 Ga. 183 (281 SE2d 604) (1981), does not change this result. In Curry, the crimes in question were committed by a single individual at one point in time; therefore, the Curry facts satisfied the “same conduct” prong of procedural double jeopardy. As discussed above, the facts of the present case clearly do not.

While the trial court correctly determined that Wilson’s procedural double jeopardy plea should be denied, its decision was based solely on the second prong of the procedural double jeopardy test relating to what information was known to the prosecuting attorney. It is unnecessary to address this issue, however, as Wilson’s plea fails the first prong of the procedural double jeopardy test as discussed above, and a ruling that is right for any reason will be affirmed. Ely v. State, 192 Ga. App. 203, 205 (4) (384 SE2d 268) (1989).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Aileen R. Page, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A2247.
    HERNDON v. THE STATE.
    (494 SE2d 262)
   Birdsong, Presiding Judge.

Joseph Andre Herndon appeals his conviction of criminal attempt to commit armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He enumerates 12 errors. Held:

1. The trial court never ruled whether appellant was denied his right to counsel, at a critical stage of the criminal process, that is, at arraignment. This enumerated constitutional error, as crafted, is not preserved on appeal. Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582). Further, the trial court ruled that appellant’s motion raising this issue was untimely; this specific ruling has not been enumerated as error. Compare Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

2. Appellant asserts the trial court erred in refusing to dismiss the indictment based on the State’s failure to provide proper notice of arraignment. See generally Presnell v. State, 159 Ga. App. 598 (284 SE2d 106); Hicks v. State, 145 Ga. App. 669 (244 SE2d 597). Examination of those pages of the record cited by appellant fails to reveal that appellant made a specific objection in proper form as to lack of timely notice; this issue is not preserved for appellate review. See Unden v. State, 218 Ga. App. 463, 465 (4) (462 SE2d 408). Moreover, this Court will not cull the record on behalf of a party in search of error. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463).

3. Appellant asserts the trial court abused its discretion in failing to allow him to “opt in” to statutory discovery provisions (OCGA § 17-16-1 et seq.). Assuming without deciding such an abuse occurred, appellant nonetheless must establish prejudice to obtain conviction reversal; both error and harm must be affirmatively shown by the record to authorize a reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901). Appellant does not assert that any relevant information was withheld from him throughout the course of the trial which would have, in any specific manner, affected the outcome of his case. Rather, he merely asserts he was prevented from pretrial access to certain discovery information, regarding witness statements, investigative reports and four similar transaction incidents, and makes the bare claim that no “meaningful assessment of the evidence could be made and preparations of arguments concerning dissimilarities could be properly considered,” thereby denying appellant due process of law. This Court will not speculate whether any belated discovery deprived appellant of his right to a fair trial; appellant failed to carry his appellate burden of establishing how he has been harmed by the trial court’s ruling. Robinson, supra. Also, under the circumstances here attendant and in view of the overwhelming evidence of appellant’s guilt, any error in denying appellant pretrial discovery was harmless as it is highly probable that such ruling did not contribute to the verdict. Compare Coney v. State, 198 Ga. App. 272 (1) (401 SE2d 304).

4. Appellant asserts the trial court erred in admitting the deposition of the robbery victim as he was denied his right to a thorough and sifting cross-examination of the alleged victim during the taking of the deposition pursuant to OCGA § 24-10-130. The deposition commenced, the State completed its direct examination, and the defense commenced cross-examination asking over 160 questions. Subsequently, the victim became ill, and she and her husband requested the prosecutor to terminate the deposition. At trial, the victim’s doctor confirmed that it was his medical opinion that the victim should not testify at trial, as it posed an unacceptable risk to her health and that of her unborn baby. The trial court ruled that the witness was not totally unavailable as she had given direct and partial cross-examination testimony at the deposition and that she was not “totally unavailable right now.” The trial court then considered whether the deposition could be recommenced under court-controlled conditions (see, e.g., OCGA § 24-10-130 (g); Ga. Const, of 1983, Art. VI, Sec. I, Par. IV). Appellant, however, objected to the recommencement of the deposition. After the trial court ruled that the uncompleted deposition was admissible and granted appellant’s objection to the recommencement of the deposition, appellant attempted to withdraw his objection. Appellant’s counsel contended at trial that she had witnessed the victim responding to signals from her husband who was present at the deposition, and that appellant was denied the opportunity to explore such bias and prejudice by the premature termination of the deposition. Although we recognize that curtailment on cross-examination of an accused’s opportunity to test a witness thoroughly for bias and prejudice may result in error, under the unusual facts attendant this case, appellant’s remedy was not to have the entire deposition stricken but to have it recommenced under court supervision. By objecting to the recommencement of the deposition, appellant aided in bringing about the trial court’s ruling. It is a well-settled appellate rule that one cannot complain of a ruling of or trial procedure utilized by the trial court which the party’s own trial tactics or conduct procured or aided in causing. Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192), citing Alexander v. State, 200 Ga. App. 411, 412 (408 SE2d 485).

5. Appellant contends the trial court erred in admitting the deposition of the victim when the requirements of OCGA §§ 24-10-130 and 24-10-135 were not met. This enumeration is without merit.

(a) At a motion hearing, after asserting inter alia appellant’s right to speedy trial and prior to the taking of the deposition, appellant’s counsel expressly stated to the trial court: “[w]e’re willing to waive our days notice. ... If [the prosecutor] can provide me with an affidavit from his witness and from the doctor then I have absolutely no objection at all to the taking of the deposition at any time convenient to the prosecutor and myself.” The affidavits were obtained and the deposition scheduled. At the deposition, appellant’s counsel stated: “If I may put on the record, we have agreed to take this deposition pursuant to the new Georgia criminal discovery statute, 24-10-130.” Appellant thereafter participated voluntarily in the taking of the deposition until the victim became ill and the deposition was prematurely terminated. Assuming without deciding the statutory procedures were not adequately complied with, self-induced error cannot be a ground for reversal. Ray v. State, 266 Ga. 896, 897 (1) (471 SE2d 887). Further, appellant’s own trial tactics and conduct procured or aided in causing the taking of this deposition. See Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

(b) As appellant has asserted two errors in a single enumeration contrary to OCGA § 5-6-40, we elect not to address his claim that the deposition was taken contrary to the requirements of OCGA § 24-10-135. Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820). Further this error was induced and aided by appellant’s own tactics and conduct. Ray, supra; Williams, supra.

6. Appellant did not receive certain evidence, which he deems exculpatory, until trial. There is no Brady violation when the information sought becomes available to the accused at trial. Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580).

7. The trial court did not err in admitting evidence of three similar transactions; the foundation requirements of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) were met. “ ‘Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it,’ ” allowing the admission of the evidence for jury consideration under appropriate instructions. Hefner v. State, 224 Ga. App. 612, 614 (2) (481 SE2d 599).

8. The trial court did not abuse its discretion in admitting in evidence a videotape of a police detective’s interview of the victim prior to trial. The victim had testified by way of deposition, and although the deposition was terminated prior to its completion, according to appellant’s contentions on appeal, the remaining unaccomplished cross-examination primarily would have focused on questions pertaining to the victim’s bias and prejudice and as to the conflicting testimony of other witnesses regarding the way the perpetrator was dressed. Rules of evidence being framed with a view to facilitate the discovery of truth, OCGA § 24-1-2, under the attendant circumstances, the videotape could be introduced to bolster the victim’s deposition testimony admitted at trial; the requisite safeguards for such admission were substantially complied with in this case. See Alford v. State, 224 Ga. App. 451, 455 (2) (480 SE2d 893). Moreover, in addition to the victim’s deposition testimony, appellant cross-examined the detective in detail regarding the victim’s pretrial statements and, in initially objecting to the admission of the videotape, characterized it as being “duplicative of the testimony taken in the deposition.” Admission of evidence, even if erroneous, constitutes harmless error where substantially similar facts are admitted in evidence. See Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328).

9. The trial court did not err in charging that a handgun is a firearm under Georgia law. OCGA § 16-11-106 (b) contains no requirement that the State must prove that the firearm be capable of being fired. Smith v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906). “Proof the gun was functional was not required on the weapons charges.” Thomas v. State, 226 Ga. App. 441, 443 (4) (487 SE2d 75) (possession of firearm during commission of a crime; possession of firearm by convicted felon).

10. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of all of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

11. The aggravated assault offense merged into the criminal attempt to commit armed robbery offense. Appellant was charged with the offense of criminal attempt to commit armed robbery in that he “entered the premises of Blimpie’s, brandished a .22 pistol at Hina Patel, and demanded money.” He also was charged with aggravated assault, at the same date and place in that he did “make an assault upon the person of Hina Patel, with a .22 pistol, a deadly weapon, by pointing said pistol at Hina Patel and threatening to shoot her.” The victim testified, by way of deposition, that appellant entered the store and, following a brief conversation about the store’s specials, “[appellant] pull out the gun and he doing like this and he told me like give me all the money or I’m going to shoot you.” The victim stated she could not open the register and ran to the back of the store, whereupon appellant fled the crime scene. The victim further testified that the appellant, after asking for the store special, took out the gun and “he just put [it] like this.” (Note: The record does not describe what type of motions appellant was making with the gun when he was “doing like this” and when “he just put [it] like this.”) The victim, however, clarified that during this sequence of events the appellant asked her for money and said, “[g]ive me all the money otherwise I’m going to shoot you.” The victim made a pretrial videotaped statement to the police in which she stated that, after appellant entered the store and inquired about the special, “he take out gun and I see gun . . . and he explain leave me all the money or I’m going to shoot you otherwise.” This evidence does not establish that appellant first brandished the pistol and subsequently pointed the pistol at the victim during the course of two separate criminal acts. Rather, the facts establish only that appellant entered the store, pulled out the pistol, pointed the pistol at the victim, threatened her life and demanded money.

The cases cited by the State are factually distinguishable and not controlling. As “the same facts were used both to prove attempted armed robbery and aggravated assault,” the aggravated assault conviction does in fact merge with the criminal attempt to commit armed robbery. Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639); compare Redding v. State, 193 Ga. App. 50, 52 (4) (386 SE2d 907). The aggravated assault conviction must be set aside and appellant resentenced. Hambrick, supra at 151.

12. Appellant was convicted on February 28, 1997; his trial counsel filed a notice of appeal on March 14, 1997, and an amended notice of appeal on March 25, 1997. A new appellate counsel was appointed and entered appearance on April 25, 1997. New counsel filed a second amended notice of appeal on April 28,1997, which did not affirmatively assert the issue of inadequacy of counsel; the issue was raised for the first time in appellant’s enumeration of errors and appellate brief. Compare Murray v. State, 261 Ga. 824, 825 (2), n. 2 (413 SE2d 453). It would appear that new counsel, consistent with the necessity for raising an inadequacy claim at the first available opportunity, should have filed a motion for stay of direct appeal and, if appropriate, requested remand to the trial court for a hearing of the inadequacy issue. Cf. Atkinson v. State, 170 Ga. App. 260 (1) (316 SE2d 592). Henceforth, in like circumstances, we will require such a procedure. However, in the interest of justice, we will remand this case to the trial court with direction that a hearing be conducted as to appellant’s inadequacy claims. Compare Concepcion v. State, 200 Ga. App. 358, 362 (7) (408 SE2d 130). Following the trial court’s disposition of this issue, appellant shall have 30 days in which to initiate an appeal of the trial court’s ruling pertaining thereto. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.

Decided November 18, 1997.

Virginia W. Tinkler, for appellant.

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

Judgment affirmed in part and reversed in part; case remanded with direction.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2347.
    GILL v. THE STATE.
    (494 SE2d 259)
   Birdsong, Presiding Judge.

Appellant John Darryl Gill, Sr. appeals his conviction of aggravated assault, terroristic threats and acts, possession of a firearm during the commission of a crime, aggravated stalking, suspended license, open container, and two counts of DUI. He enumerates four errors. Held:

1. Appellant’s first enumeration of error is without merit. “ ‘The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.’” Cantrell v. State, 212 Ga. App. 288, 289-290 (2) (441 SE2d 879). In view of the circumstances hereafter discussed, appellant has failed to establish such breach of discretion.

Appellant, over objection by the State, repeatedly cross-examined the victim of the aggravated assault, appellant’s estranged wife, regarding the wife’s refusal to grant appellant his court-ordered visitation privileges with his children. Among the questions posed to the wife was why she wanted to prevent appellant from talking to and visiting with his children. During the course of the cross-examination, appellant also elicited from the wife hearsay responses regarding physical injury inflicted upon appellant by members of her family. Thereafter, appellant asked the wife how long she had been withholding visitation privileges from the husband. The wife responded that privileges had been withheld since the second weekend when the three-year-old child came home and stated that his “mouth had got taped up.” Appellant posed a hearsay objection; the trial court overruled the objection. Thereafter, the wife continued to explain that she also had withheld visitation privileges because, following the first weekend visitation, the child came home “showing me how to roll a joint.” Appellant moved for a mistrial and, upon inquiry from the trial judge, replied affirmatively when asked if his grounds were based on the testimony that the child had come home and showed the witness how to roll a joint. The trial court denied the mistrial motion, and appellant elected not to request a cautionary instruction.

Although the wife testified that the child had showed her how to roll a “joint” after visitation with appellant, the wife did not testify before the jury that appellant had rolled a “joint” in the child’s presence or had been responsible for such act. The trial court did not abuse its discretion in denying the mistrial motion. In any event, in view of the limited nature of the testimonial disclosure when balanced against the evidence of record, it is highly probable this information would not contribute to the jury’s verdict.

Additionally, appellant’s trial tactics in questioning the wife extensively about her denial of visitation privileges to appellant and the inherent tacit assertion, arising from such questioning, that visitation was withheld without valid reason, aided in eliciting the hearsay responses from the wife as she attempted to explain the basis for her conduct. A party cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing. Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309). “[D]efense counsel may not take chances propounding questions which may elicit damaging answers and then demand reversal on appeal.” Hutson v. State, 216 Ga. App. 100, 102 (5) (453 SE2d 130).

2. Appellant’s second enumeration of error, as crafted, is without merit. At trial a police captain testified as to testimony which appellant voluntarily gave at a committal hearing during direct examination by his counsel. The police captain stated appellant had testified that “he took a back route, due to the fact he knew his license [was] suspended and the police here knew him and that he made a practice to come that way, and he took a back route to Blackshear.” At trial appellant contended the testimony placed his character in issue because it revealed that the police knew him. The mere fact the police recognize or know where a defendant lives does not place that defendant’s character in issue. Childs v. State, 202 Ga. App. 488, 489 (2) (414 SE2d 714). On appeal, appellant enumerated that the trial court erred in denying his mistrial motion because the testimony was “admitted for the sole purpose of placing the [a]ppellant’s character into issue.” This incriminating statement in its totality had some relevance regarding the charge of suspended license. Additionally, evidence that the appellant was attempting to avoid police detection immediately before or during the commission of a crime, just like evidence of flight following a crime, is circumstantial evidence of consciousness of guilt. Cf. Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646) (flight). “£ “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.” ’ ” (Emphasis omitted.) Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471). We cannot conclude the State introduced this evidence, as contended by appellant, solely for purposes of placing appellant’s character in issue. The trial court did not abuse its discretion in denying appellant’s mistrial motion.

3. Appellant contends the trial court erred in denying his motion for directed verdict on the DUI counts “when the State did not prove compliance with the implied consent statute’s mandatory language.” See generally OCGA § 40-5-67.1. The record discloses that appellant expressly stipulated, at trial, not only as to the chain of custody as to the blood sample taken but also that the blood was taken at a certain time and date, and that implied consent was given. Subsequently, the State did not introduce testimony concerning the warnings given and relied upon the stipulation when appellant moved for a directed verdict. Appellant did not assert to the trial court that the scope of the stipulation as to implied consent was inadequate; rather, appellant informed the trial judge that he had not made any stipulation as to implied consent. This argument in effect only joined the issue before the trial court as being whether the stipulation in fact was made, rather than identifying any issue as to scope of the stipulation.

Appellant now makes an admission in judicio in his appellate brief that “defense counsel stipulated to the blood chain of evidence and that implied consent was given.” See generally State v. Griffin, 204 Ga. App. 459 (419 SE2d 528) and cases therein cited; Weir v. McGill, 203 Ga. App. 431, 432 (3) (417 SE2d 57). However, he contends that the stipulation, which was never withdrawn with the trial court’s consent, did not encompass the exact language employed in the implied consent, and therefore the State failed to prove compliance with OCGA § 40-5-67.1. This contention is without merit for two independent reasons. First, inherent in the stipulation that “implied consent was given,” is that a “valid” implied consent was given. Secondly, appellant cannot contend, for the first time on appeal, that the stipulation was inadequately worded. “One cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing.” Williams v. State, 205 Ga. App. at 446 (2); accord Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192), citing Alexander v. State, 200 Ga. App. 411, 412 (408 SE2d 485).

4. Appellant’s specific enumeration that the trial court erred in failing to give his justification charge request is without merit. Appellant’s proposed justification charge was virtually a verbatim recitation of the language of OCGA § 16-3-21. After reviewing the request to charge the trial court concluded that it was not adjusted to the evidence and declined to give it. Examination of the appellate record reveals that the trial court correctly concluded that the justification charge request was not adjusted to the evidence. It is well settled that “[a] request to charge the jury must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence.” Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404). A trial judge does not err in refusing to give a requested charge that, inter alia, is not adequately adjusted or tailored to the case or is not reasonably raised or authorized by the evidence. Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919).

Decided November 18, 1997.

JohnR. Thigpen, Sr., for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

Appellant has not reasonably raised within the scope of his enumeration of error whether the trial court erred in failing sua sponte to give some form of justification charge, based upon a claim of self-defense or defense of another. Accordingly, this issue is not before us on appellate review. See, e.g., Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2470.
    SHABAZZ v. THE STATE.
    (494 SE2d 257)
   Blackburn, Judge.

Asmar Shabazz appeals his conviction for possession of cocaine with intent to distribute, contending the evidence was insufficient to support the verdict. He also claims the trial court erred in denying his motion for mistrial following testimony regarding the circumstances surrounding his arrest. For the reasons set forth below, we affirm.

1. Shabazz contends the evidence was insufficient to show that the cocaine in question belonged to him. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jack son v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. 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.” (Citations and punctuation omitted.) Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

David Perry, an investigator with the Albany/Dougherty County Drug Unit, testified that, while he and two other officers were involved in a sting operation, he saw Shabazz and another individual walking together. As there was an outstanding arrest warrant for Shabazz, the officers pulled their car over and Perry told Shabazz to stop. Perry testified that Shabazz threw something away with his right hand and then said “I don’t have anything.” Another officer went to the spot where Shabazz threw the item and found what appeared to be a large chunk of rock cocaine, approximately two and one-quarter inches long, wrapped in plastic. Perry testified that there was nothing else in the area but rocks and dirt. Shabazz stipulated at trial that the substance found was in fact cocaine.

Perry testified that the amount of cocaine indicated an intent to distribute. He testified that the cocaine weighed 5.2 grams, enough to make several rocks of cocaine with a street value of $520. He testified that individuals who possess cocaine for their own use usually have no more than two or three rocks, worth $20 per rock.

Viewed in the light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Shabazz was guilty of possession of cocaine with intent to distribute. See Hayes v. State, 203 Ga. App. 409, 410 (417 SE2d 45) (1992); Davis v. State, 200 Ga. App. 44 (406 SE2d 555) (1991).

2. Shabazz contends the State violated an order in limine and impermissibly placed his character into evidence by presenting testimony that he was arrested on an outstanding drug warrant. Before the start of trial, Shabazz moved to prevent the State’s witnesses from testifying that the outstanding arrest warrant related to drug charges. The court granted the motion, instructing the State merely to indicate that “he was arrested because they had an outstanding warrant for him,” without referring to’the specific charges. Shabazz’s attorney and the prosecutor agreed to this procedure.

During the trial, while describing the circumstances surrounding Shabazz’s arrest, Officer Perry testified that “we all identified him as Asmar Shabazz and we knew we had an outstanding warrant for his arrest.” Shabazz’s attorney moved for a mistrial, claiming that Perry’s use of the word “we” violated the ruling in limine by insinuating that the outstanding warrant was a drug squad warrant. The trial court denied the motion, and Shabazz appeals this ruling.

Decided November 18, 1997.

John L. Tracy, for appellant.

Kenneth B. Hodges III, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

A trial court’s ruling on a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. See Muzquiz v. State, 260 Ga. 547, 548 (5) (b) (397 SE2d 703) (1991). Under the above facts, the trial court did not abuse its discretion in denying Shabazz’s motion for mistrial. Perry’s use of the word “we” did not violate the trial court’s order or impermissibly place Shabazz’s character into evidence. As the court indicated in denying the motion, Perry did not state that the warrant was a drug squad warrant or discuss the charges contained therein. Accordingly, the trial court did not abuse its discretion in refusing to grant a mistrial. See generally Hicks v. State, 160 Ga. App. 893, 894 (1) (288 SE2d 604) (1982).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2582.
    PARKS v. TEXAS COMMERCE BANK.
    (494 SE2d 276)
   Blackburn, Judge.

Texas Commerce Bank filed a dispossessory action against Johnny Parks, alleging that he was a tenant at sufferance following the bank’s purchase of certain property at a foreclosure sale. Following a trial, the State Court of DeKalb County entered an order granting a writ of possession to the bank. Parks appeals, claiming that the foreclosure sale violated the automatic stay provisions of the U. S. Bankruptcy Code because of the pendency of his wife’s Chapter 13 bankruptcy proceeding.

As an initial matter, we note that Parks has not filed separate enumerations of error as required by Court of Appeals Rule 22 (a), but has merely filed a two-page brief asserting that the foreclosure sale violated the automatic stay. Moreover, his brief does not comply with the provisions of Court of Appeals Rule 27. Parks’ appeal is thus subject to dismissal under Court of Appeals Rule 26 (a).

Nevertheless, we have elected to exercise our discretion to consider the merits of this appeal and find that Parks has failed to affirmatively show error by the record. As the record does not include a transcript of the trial, we do not know what evidence was presented to the trial court. The copy of the wife’s bankruptcy petition found in the record does not indicate that the subject property was part of the wife’s bankruptcy estate. Although Parks claims that he and his wife were co-debtors with respect to the bank’s debt, there is no evidence of this in the record. Accordingly, we must assume that the evidence authorized the trial court’s determination that Parks was not protected by the automatic stay provisions of 11 USC § 362 (a) or the co-debtor stay provisions of 11 USC § 1301 as a result of his wife’s bankruptcy. See Burnette v. McCarter, 211 Ga. App. 781, 783 (3) (440 SE2d 488) (1994) (appeal with enumerations of error dependent upon consideration of evidence heard by trial court will, absent a transcript, result in affirmance).

Decided November 18, 1997.

Johnny Parks, pro se.

Morris, Schneider & Prior, Larry W. Johnson, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.