text:
    A92A1772.
    RATLIFF v. THE STATE.
    (427 SE2d 85)
   Pope, Chief Judge.

Defendant was convicted of violation of the Georgia Controlled Substances Act, attempted robbery, driving with an unlawful blood alcohol level and driving without a license. Defendant’s enumerations of error relate solely to the conviction for driving with an unlawful blood alcohol level.

Defendant filed a timely motion requesting the production of scientific reports. After the jury was selected, but before the trial commenced, defendant filed a motion in limine requesting the court to rule that no evidence could be presented concerning the result of the intoximeter test administered to defendant on the night he was arrested on the ground the State had not complied with defendant’s request for production of scientific reports. The transcript of the hearing on defendant’s motion shows the State did not provide a copy of the intoximeter results to defendant. Defendant’s attorney, however, admitted the prosecuting attorney informed her of the result of the intoximeter test orally during a telephone conversation on “Sunday,” which appears to be the day before the trial was scheduled to commence. The trial court denied defendant’s motion in limine on the ground that an intoximeter test result is not a scientific report for purposes of OCGA § 17-7-211 and because defendant’s attorney was advised of the test result.

As defined within the Code section, “the term ‘written scientific reports’ includes, but is not limited to . . . blood alcohol test results done by a law enforcement agency or a private physician; and similar type reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.” (Emphasis supplied.) OCGA § 17-7-211 (a). Where, as here, the State intended to rely solely upon an intoximeter breath test to prove defendant’s intoxication, the printed result of that test is certainly a written scientific report. See Starnes v. State, 196 Ga. App. 262 (1) (395 SE2d 603) (1990); Johnson v. State, 194 Ga. App. 501 (3) (391 SE2d 132) (1990); Henson v. State, 168 Ga. App. 210 (1) (308 SE2d 555) (1983) (in which this court held that despite the State’s failure to provide a copy of intoximeter test results pursuant to the defendants’ motions for production of scientific reports, the defendants could not have been harmed because in each case the officer who administered the test provided defendant with a copy). Although the prosecutor represented at the hearing that the officer who conducted the test provided a copy of the written test results to defendant, that officer was a witness at trial but did not so testify. Thus, unlike the cases cited above, the State’s failure to produce the written report in this case is not saved by evidence that defendant was provided a copy of the results at the time the test was conducted.

Decided January 15, 1993.

Steven L. Harris, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

Defendant was provided, however, with a notation of the test results in writing on the Uniform Traffic Citation given to him. Even though he was not given a copy of the test print-out, this is sufficient to give defendant notice of the test result. “The document at issue is an operating record for [an] . . . intoximeter. It is a pre-printed form which is essentially a checklist of steps to insure proper operation of the machine. . . . [T]he document is essentially the recording of the officer’s working notes [which, pursuant to Hartley v. State, 159 Ga. App. 157 (2) (282 SE2d 684) (1981), are not required to be produced by the terms of OCGA § 17-7-211 (b)]. The complete results of the test — the reading of [.23 gms.] — were provided to [defendant] in writing on the Uniform Traffic Citation given to him. Therefore, it was not error for the trial court to allow the officer to testify concerning the results of the test.” Johnson v. State, 174 Ga. App. 579 (330 SE2d 791) (1985). Under the “right for any reason rule” the judgment of the trial court is affirmed.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A92A1777.
    SULLIVAN v. QUISC, INC.
    (427 SE2d 86)
   Pope, Chief Judge.

Plaintiff Christine C. Sullivan filed a complaint against defendant Quise, Inc., d/b/a Austin’s Fine Steaks & More, alleging she was injured when she slipped and fell in defendant’s restaurant. Plaintiff testified on deposition that she slipped at the entrance to the rest room area and assumed she slipped on the sloped threshold of the door where she fell. Plaintiff identified a licensed architect as an expert witness on her behalf. At deposition, the witness testified he observed the point where plaintiff fell and described it as a door threshold which is sloped to cover a transition in height of approximately two inches from the wood floor on one side of the threshold to the ceramic floor on the other side. The witness testified that in his opinion the threshold created a hazardous condition because it was a slope on which someone could slip. He testified the construction of the threshold did not violate any building code but stated that in his opinion it was poor construction. The witness admitted that several “Watch Your Step” signs were posted in the restaurant, including one posted to the right of the door opening where plaintiff fell.

Defendant moved for summary judgment. In response, plaintiff filed the affidavit of the expert witness in which he attested, contrary to his deposition testimony, that the design of the threshold violated the applicable building code. Plaintiff also filed the affidavit of a woman who attested she fell on the same sloped threshold on a date prior to plaintiff’s fall. The trial court granted defendant’s motion for summary judgment and plaintiff appeals.

Plaintiff argues the testimony of the expert witness and the evidence that another had fallen at his same spot creates an issue for jury determination concerning whether the threshold constituted a defective condition and that the evidence does not establish she had equal knowledge of the condition. We disagree. The conclusion of an expert witness on the ultimate issue of fact does not necessarily create an issue for jury determination. Clanton v. Von Haam, 177 Ga. App. 694 (340 SE2d 627) (1986); Barnett v. First Fed. Savings &c., 169 Ga. App. 396 (3) (313 SE2d 115) (1984). “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. . . . However, it is equally clear that the scope of what is admissible as expert opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his opinion as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.” (Citations and punctuation omitted.) Clanton, 177 Ga. App. at 695-696. In the case at hand, the ultimate issue is whether defendant was negligent in maintaining a hazardous condition on the property. In everyday life, persons are required to negotiate the floors, steps and doorways of buildings. It is within the experience and capacity of an average layman to determine whether a sloped threshold across the doorway in a restaurant is a hazardous condition. Thus, just as in Clanton, “[i]t does not appear . . . that any particular professional skill or specialized . . . knowledge would necessarily be required to penetrate a ‘shroud of mystery’ surrounding that issue.” Id. at 696. As in Clanton, the conclusions of the expert witness are not admissible on the ultimate issue of defendant’s negligence and his testimony does not preclude the grant of summary judgment in this case if it is otherwise proper.

Even if the slope of the threshold created a hazardous condition, that the condition was open and obvious is illustrated by the testimony of plaintiff’s own witness. His conclusions were based only upon a visual observation of the threshold in question on an occasion when he was an invitee of the restaurant and walked from the dining room into the rest room area. Thus, the condition could have been discovered and avoided by the plaintiff in the exercise of ordinary care and defendant is entitled to summary judgment because the facts show plaintiff’s equal knowledge of the condition. Contrary to plaintiff’s argument, the facts of this case are materially distinguishable from those in Espy v. Miller Bros. Co., 126 Ga. App. 98 (189 SE2d 911) (1972), in which we reversed the grant of summary judgment to defendant department store in a slip and fall case. In Espy, the allegedly dangerous condition of the metal stripping on the stairs where plaintiff fell was not apparent to a person walking on the stairs, whereas in the case at hand the slope of the door threshold was obvious to one walking up to it. Since the evidence in Espy showed the plaintiff lacked equal knowledge of the allegedly defective condition, evidence that others had similarly fallen created an issue of fact concerning the defendant’s superior knowledge. In the case at hand, however, the evidence that another person fell at the door threshold in no way overcomes the evidence of plaintiff’s equal knowledge of the condition. The existence of the door threshold and its sloped construction should have been obvious to plaintiff, as illustrated by the testimony of her expert witness, and there is no duty to warn of the obvious. See Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987) (in which we reversed the trial court’s denial of summary judgment to the defendant where the plaintiff slipped on a doorsill).

Decided January 15, 1993.

John M. Cullum, for appellant.

Don Smart, Allison K. Luke, for appellee.

Even if plaintiff could show that the maintenance of the threshold was negligence per se as a violation of the building code, she would nevertheless by precluded from recovering because of the equal knowledge rule. See Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988). Thus, the trial court did not err in granting summary judgment to defendant.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A1858.
    THE STATE v. LUTTRELL.
    (427 SE2d 95)
    Decided January 15, 1993.

      James L. Webb, Solicitor, Lawrence W. Daniel, Helen A. Roan, Assistant Solicitors, for appellant.
   Johnson, Judge.

Joanna Mae Luttrell was charged by accusation with criminal trespass. The case was scheduled for trial before a judge sitting without a jury. When the State’s witnesses failed to appear for trial, Luttrell made a motion to dismiss the charge for want of prosecution. The trial court granted the motion and entered an order dismissing the charge with prejudice for want of prosecution. The State appeals from the order, arguing that the court had no authority to dismiss the charge with prejudice.

The instant case, unlike State v. Fly, 193 Ga. App. 190 (387 SE2d 347) (1989), does not involve an improper appeal by the State from a judgment of acquittal. Instead, the State has appealed from an order of dismissal for want of prosecution. “The Civil Practice Act ([OCGA § 9-11-41 (b)]) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases.” (Emphasis in original.) State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978). See also special concurrence in State v. Owens, 189 Ga. App. 308 (375 SE2d 656) (1988). As the trial court had no authority to dismiss the accusation with prejudice, the dismissal cannot be upheld.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Chinedum T. Nwosu, for appellee.


text:
    A92A1960.
    BELCHER v. THE STATE.
    (427 SE2d 88)
   Pope, Chief Judge.

Defendant Daniel James Belcher was convicted of the offense of armed robbery and appeals.

1. Defendant was tried jointly with two co-defendants. He argues the trial court erred in denying his motion for a separate trial. “Since the grant or denial of a motion to sever is left to the discretion of the trial court [pursuant to OCGA § 17-8-4], its ruling will be overturned only for an abuse of discretion.” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). Defendant argues he was prejudiced by the fact that in the course of testifying in her own defense, co-defendant Janeile Marlow testified defendant was present at the scene of the crime. One of the grounds for showing that a joint trial would prejudice the defendant is that he will thereby lose the opportunity to present the exculpatory testimony of the co-defendant because the co-defendant would not be expected to testify at the joint trial. Id. In this case, however, the co-defendant did testify, allowing defendant the opportunity to cross-examine her concerning both her trial testimony and the in-custody statements she made. That the prosecutor admitted the evidence was stronger in regard to co-defendant Paul Johnson does not support defendant’s argument that he was entitled to a separate trial. “The mere fact that the case against [the co-defendant] was stronger than the case against [defendant] did not necessitate a separate trial.” Kelley v. State, 248 Ga. 133, 136 (281 SE2d 589) (1981). We find no abuse of discretion in the trial court’s denial of defendant’s motion for a separate trial.

2. Defendant’s remaining enumerations of error relate to the sufficiency of the evidence to sustain the conviction and the denial of defendant’s motion for directed verdict. The evidence, viewed in the light most favorable to the verdict, shows defendant had been living at the apartment of co-defendant Marlow with co-defendant Paul Johnson and another co-defendant, Marcus Johnson, who pled guilty to the crime and testified at trial. On June 17, 1991, defendant was a back seat passenger in a vehicle driven by co-defendant Marlow. Co-defendants Paul Johnson and Marcus Johnson were also passengers. Also in the vehicle was a gun defendant brought from his grandfather’s house. Marcus Johnson directed Marlow to pull into a convenience store parking lot and the two Johnson defendants, wearing bandannas across their faces, got out and used defendant’s gun to hijack a Mustang automobile from the owner who was a customer at the store. The two Johnsons drove off in the Mustang and Marlow followed them in the other vehicle in which defendant was still a passenger. According to an in-custody statement made by Marcus Johnson, about ten miles from where the car had been stolen, the Johnsons stopped in a residential neighborhood and went through the car. According to both Marcus Johnson and Marlow, the two vehicles drove on to Marlow’s apartment. According to both an in-custody statement made by Marlow and the trial testimony of Marcus Johnson, when the group arrived at her apartment certain personal property found in the car was thrown away. According to Marlow, the Mustang’s license tag was taken off and replaced with a dealer tag. In his in-custody statement, Marcus Johnson stated that prior to the theft of the Mustang the four co-defendants had discussed the need to do something to get money, including “thieving.”

On June 21, all four co-defendants were passengers in the Mustang when the police pulled the vehicle over and discovered it had been stolen. The gun used in the robbery was in the Mustang under the driver’s seat immediately in front of the seat in which defendant was riding.

Defendant argues the evidence shows only that he was present in the other vehicle at the time the Mustang was stolen and even the evidence of his presence at the scene was supplied only by the uncorroborated testimony of two co-defendants. The requirement of corroborating evidence to support the testimony of an accomplice does not apply where the evidence is supplied by the testimony of more than one accomplice. Ross v. State, 245 Ga. 173 (5) (263 SE2d 913) (1980).

We reject defendant’s argument that the evidence showed nothing more than his presence at the scene of the crime. The incriminating evidence supplied by the statements of the two co-defendants was corroborated by defendant’s conduct before, during and after the commission of the crime. “The conduct of a defendant before, during the time of, and after the commission of a crime, may be considered by the jury in establishing his intention and his participation, to determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction.” (Punctuation omitted.) Williams v. State, 222 Ga. 208, 220 (14) (149 SE2d 449) (1966). “ ‘It is not required that the corroboration of the testimony given by an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice be corroborated in every particular. (Cits.) The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the jury.’ [Cit.]” Ervin v. State, 128 Ga. App. 144, 145-146 (195 SE2d 782) (1973). It is our opinion that the evidence as a whole supplied sufficient corroboration of the statements of the co-defendants from which a jury could find, beyond a reasonable doubt, that defendant was a party to the armed robbery. Thus, the trial court did not err in denying defendant’s motion for directed verdict and the evidence was sufficient to support the jury’s verdict of guilty.

Decided January 15, 1993.

B. Thomas Cook, Jr., for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

Judgment affirmed. Corley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A2004.
    ADAMS v. THE STATE.
    (427 SE2d 90)
   Cooper, Judge.

Appellant was convicted by a jury on two counts of selling cocaine and appeals his conviction and sentence.

The evidence adduced at trial showed that on June 14, 1991, an undercover agent with the Southeast Georgia Drug Task Force was introduced to appellant by a confidential informant at a place called Cat’s Club in Vidalia. The agent testified that he asked appellant if he had any cocaine; that appellant asked him what he needed; that he told appellant he wanted a piece of rock cocaine worth $10; and that appellant then said, “We can do business.” The agent and appellant spoke first outside the club where they met, went inside the club briefly and then went to the agent’s car where they drank some beer together, and the sale of cocaine took place. At one point appellant asked the agent if he was the police, and the agent answered “no.” Appellant showed no reluctance to sell the cocaine, and when the agent mentioned he might want more later, appellant responded, “Just come back and see me, man.” This sale outside Cat’s Club occurred at approximately 9:30 or 10:00 p.m. Several hours later, at a little after 1:00 a.m. on June 15, 1991, the agent again saw appellant outside another nightclub called Bell’s. Again the agent and appellant drank beer together, and the agent purchased another, larger piece of cocaine for $20. Appellant testified and denied selling drugs to the agent or ever having seen him prior to the proceedings in this case.

1. Appellant first contends that the trial court erred in failing to charge the jury on entrapment. See OCGA § 16-3-25. Even though appellant denied committing the charged offenses, he was entitled to a charge on entrapment if the State’s evidence raised an entrapment defense. Gregoroff v. State, 248 Ga. 667 (285 SE2d 537) (1982). “The entrapment defense consists of the following three distinct elements: ‘(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. (Cits.)’ [Cit.]” Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350) (1992). “ ‘ “[T]here is no entrapment where the [agent] merely furnishes an opportunity to a defendant who is ready to commit the offense.” [Cit.]’ [Cit.]” Sibley v. State, 166 Ga. App. 142, 143 (1) (303 SE2d 465) (1983). In this case, the state agent testified that he asked appellant for cocaine. However, “ ‘[a]bsent other circumstances, it is generally held that where an officer simply makes a request, as to purchase contraband, and there is ready compliance, the defense of entrapment is not available.’ [Cit.]” White v. State, 168 Ga. App. 609, 610 (1) (309 SE2d 848) (1983). That the agent used an informant to introduce him to appellant, denied being a police officer and shared beer with appellant to engender his trust were not circumstances which, either alone or in conjunction with the agent’s request for drugs, were sufficient to give rise to an entrapment defense. See Lester v. State, 174 Ga. App. 886 (3) (332 SE2d 31) (1985); Sibley v. State, supra; Diana v. State, 164 Ga. App. 779 (2) (298 SE2d 281) (1982). Accordingly, the State’s evidence did not raise an entrapment defense, and the trial court did not err in failing to charge the jury on entrapment. See Edmondson v. State, 201 Ga. App. 566 (411 SE2d 879) (1991).

2. In his second enumeration of error, appellant argues that the two cocaine sales were merely two parts of a single transaction and thus support only one count of selling cocaine. This argument is without factual basis, as the two sales were independent of each other, occurring several hours apart and in different locations. The cases cited by appellant hold that defendants cannot be convicted and punished for both possession and sale based on evidence of a single transaction and are thus inapposite.

3. Appellant also argues that the trial court improperly restricted his cross-examination of the agent concerning the identity of the confidential informant. Because the informant merely introduced the agent to appellant, disclosure of his identity was not required, and the trial court did not err in sustaining the State’s objection to questions aimed at disclosing his identity. Pennyman v. State, 175 Ga. App. 405 (2) (333 SE2d 659) (1985). Appellant’s assertion that he is entitled to know the identity and characteristics of the confidential informant because the agent’s identification of appellant as the seller of cocaine is based solely or primarily on the informant’s introduction of appellant to the agent as “Mr. Adams” is belied by the agent’s positive in-court identification of appellant as the man from whom he purchased cocaine. “ ‘[C]ross-examination of witnesses is a matter within the control and discretion of the trial court and it will not be interfered with unless such discretion is manifestly abused. (Cits.)’ [Cit.] This record discloses no such abuse. [Cit.]” Tomlin v. State, 170 Ga. App. 123, 124 (2) (316 SE2d 570) (1984).

Decided January 15, 1993.

Sarah M. Tipton-Downie, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

4. As related above, the evidence presented at trial was sufficient to allow rational jurors to find appellant guilty of two counts of selling cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A92A2095.
    JOHNSON v. THE STATE.
    (427 SE2d 93)
   McMurray, Presiding Judge.

Defendant was convicted of violating the Georgia Controlled Substances Act (two counts of sale of cocaine) and he appeals. Held:

In his sole enumeration of error, defendant contends the trial court erred in admitting into evidence State’s Exhibits 6 and 7, i.e., the Georgia Bureau of Investigation evidence receipts reflecting the chain of custody of the contraband in question. In this connection, he argues that the State failed to establish the chain of custody of the evidence receipts. Because a chain of custody did not need to be established for the evidence receipts, we perceive no error. See generally Green, Georgia Law of Evidence (3rd ed.), § 83, which states the rule that in criminal cases, when the physical evidence is of a fungible nature, the State must establish the chain of custody.

With regard to the contraband in question, defendant argues that the State failed to establish the chain of custody because the crime laboratory technician who examined the contraband was unable to remember which agent gave it to her without referring to a notation written on the official report. In this connection, defendant points out that the notation on the official report was made by a crime laboratory secretary, not the technician, and that the secretary did not testify at trial. This argument is without merit.

“The burden the state must carry to gain admission of evidence such as this is to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. Patterson v. State, 224 Ga. 197 (2) (160 SE2d 815). In this case, [defendant] produced no evidence of substitution or tampering. He depended solely on the absence at trial of one person who [may have] handled the contraband. . . . The trial judge ruled correctly that the contraband would be admitted and its weight left to the jury. ‘(I)t is not necessary that the state negative all possibility of tampering but only that it show it is reasonably certain there was no alteration — when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. (Cits.)’ [Cits.]” Johnson v. State, 143 Ga. App. 169 (1), 170 (237 SE2d 681). See also Usher v. State, 148 Ga. App. 719, 720 (2) (252 SE2d 677).

Decided January 15, 1993.

Jon G. Branan, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed. Cooper, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur in the majority opinion and do agree that, for the reasons stated, the trial court did not err in admitting the evidence receipts of the Georgia Bureau of Investigation, which admission was defendant’s sole enumeration of error. The majority opinion correctly states that the State has the burden of proof to gain admission of evidence, i.e., to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. However, to the extent that the majority opinion could be read to place the burden on a defendant to show a substitution or tampering with the evidence in order to exclude it, I respectfully show that the defendant has no such burden and is entitled to have the State’s evidence excluded upon a failure by the State to meet its burden of establishing the chain of custody. No such failure occurred in the instant case.


author: Andrews, Judge.

text:
    A92A2157.
    WATERS v. THE STATE.
    (427 SE2d 94)
   Andrews, Judge.

Waters was tried and convicted of armed robbery and burglary and appeals.

1. In his first enumeration of error, Waters claims that the trial court “erred by not striking the improper and prejudicial remarks of the prosecution in giving a curative instruction to the jury.” Although the enumeration as worded is unclear, Waters’ supporting argument seems to claim that the trial court erred in allowing testimony which put his character into issue.

Decided January 15, 1993.

B. Jean Crane, for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

First, Waters complains that the district attorney improperly placed his character in issue during his examination of a rebuttal witness, in that the witness referred to the fact that he had spoken with Waters while both men were in jail. Waters’ objection is that the reference to the fact that he was in jail improperly places his character in issue. This claim is without merit for a myriad of reasons, but because no objection was made at trial, we will not consider the merits of this argument here. See Mundy v. State, 259 Ga. 634 (4) (385 SE2d 666) (1989).

Secondly, Waters argues that the trial court erred in allowing his mother to testify that his brother was in jail and that this was improper since the jury could conclude that Waters was “guilty by association.” Again, there are a number of reasons this argument lacks merit.

One focus of defense counsel’s examination of Waters’ mother was the physical similarities between Waters and his brother. Defense counsel asked Waters’ mother if she thought this was a “case of mistaken identity.” On cross-examination, the State elicited the testimony from Waters’ mother that Waters’ brother was in prison at the time in question and thus could not have committed the crimes. We find no error in the allowance of this testimony.

2. In his second enumeration, Waters claims that for the above reasons, the trial court erred in denying his motion for new trial or motion for mistrial. Further, he claims that a mistrial was warranted in that the rebuttal witness discussed above used the term “jail mate” to refer to Waters. First, we are unable to find the objected-to term in the transcript. Further, for the reasons stated above, we find these arguments without merit.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1768.
    WILLIAMS v. THE STATE.
    (427 SE2d 59)
   Carley, Presiding Judge.

Appellant was brought to trial before a jury on a charge of selling cocaine. On appellant’s motion, however, a mistrial was declared. Although appellant sought to avoid retrial, his plea of double jeopardy was denied and a jury returned a verdict of guilty. He appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict and he enumerates as error only the denial of his plea of double jeopardy.

“ ‘Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. (Cit.)’ ” Beck v. State, 261 Ga. 826 (412 SE2d 530) (1992). Accordingly, it would not be error to overrule appellant’s plea of double jeopardy unless he had been “goaded” by the State into moving for a mistrial during his previous trial. “[A] stringent analysis of the prosecutor’s conduct in the first trial must be undertaken to determine if there was ‘prosecutorial overreaching.’ ” Studyvent v. State, 153 Ga. App. 161, 162 (264 SE2d 695) (1980).

The mistrial was prompted by the following circumstances: On direct examination, the investigating officer testified that, on the day he purchased cocaine from appellant, he had been accompanied by a confidential informant with whom he had been working. When asked to explain “why this person was called an informant,” the officer testified that “[a]n informant is someone who relays information to officers about certain activities, illegal activities . . . [who] assists the officer in meeting certain people that may be involved in illegal activities.” Although this testimony did not attribute any statement to the informant which was directly inculpatory of appellant, appellant nevertheless moved for a mistrial on the ground that it impermissibly placed his character into issue. See Anderson v. State, 252 Ga. 103 (312 SE2d 113) (1984). The trial court, apparently construing the testimony as indirectly intimating that appellant had become a “target” for the officer because of inculpatory information supplied by the informant, granted the mistrial. See Osborne v. State, 193 Ga. App. 276, 277 (3) (387 SE2d 383) (1989). But see Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (1990) (physical precedent only).

Even assuming that a mistrial may have been warranted and that curative instructions would not have been sufficient, the circumstances are not such as to demand that appellant’s plea of double jeopardy be granted. “[T]he standard is the intent of the prosecutor in connection with the misconduct.” State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41) (1987). Prosecutorial misconduct “ ‘that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . .’ [Cit.]” Fugitt v. State, 253 Ga. 311, 315-316 (E) (319 SE2d 829) (1984). “Intent is a question of fact for the court to resolve. [To authorize the grant of a plea of double jeopardy], the facts must warrant the conclusion that there was such an instigative intention.” State v. Whitehead, supra at 163. In the instant case, the trial court who heard appellant’s plea of double jeopardy obviously found no “instigative intention” and “the evidence supports the finding of the trial court.” Sanders v. State, 197 Ga. App. 867, 868 (1) (399 SE2d 734) (1990). It follows that appellant’s “plea in bar based upon double jeopardy was properly denied.” Potts v. State, 257 Ga. 402, 403 (359 SE2d 916) (1987).

Decided January 12, 1993

Reconsideration denied January 19, 1993.

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

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A92A1951.
    HOWARD v. THE STATE.
    (427 SE2d 96)
   Blackburn, Judge.

Michael Deon Howard was convicted of the offenses of armed robbery and possession of a weapon during the commission of a felony. His sole enumeration of error on appeal is that the trial court erred by denying his motion to suppress a pistol that was found during the search of his residence.

Howard, his sister, and his mother shared a single-family, three-bedroom house (hereinafter, “the residence”) in Macon, Georgia, which was rented in the name of Howard’s mother. According to Howard’s mother, she was the head of the household. Each of the three family members had his or her own bedroom. His sister and mother each paid one-half of the rent; Howard paid no part of the rent or other expenses, but he performed some household chores.

According to testimony by Captain Robert Hernandez of the Macon Police, at about 10:00 a.m. on September 8, 1991, he went to the residence and arrested Howard pursuant to a warrant. After Howard was read his Miranda rights, he gave a statement denying involvement in the armed robbery. At about 1:00 p.m. on the same day, September 8, 1991, Hernandez returned to the residence and obtained the written consent of Howard’s mother to search the house. While searching Howard’s bedroom he discovered a pistol which allegedly was the pistol used in the armed robbery. Hernandez admitted that no exigent circumstances were present at the time he obtained the consent from Howard’s mother. Howard testified that as of the date of his testimony (December 19,1991), he was 22 years old, from which we infer that he was at least 21 years old at the date of the search.

Howard’s motion to suppress the pistol as evidence was denied by the trial court. On appeal he contends that the consent given by his mother was ineffective to permit a warrantless search of his room.

1. Howard argues that his mother did not have the authority to give a valid consent to search his bedroom. However, this contention is controlled adversely to Howard by Williams v. State, 166 Ga. App. 798, 800 (2) (305 SE2d 489) (1983). In Williams the police first arrested Williams and transported him to jail, then “went to the appellant’s residence, obtained the consent of appellant’s mother to search the two bedrooms used by the appellant and his brothers, and discovered several other stolen items. The residence was a mobile home which was being purchased jointly by the appellant’s mother and father. The appellant neither paid rent for his use of the residence nor contributed to the household expenses.” Id. at 799.

Williams’ motion to suppress the evidence seized during the warrantless search of his residence was denied. On appeal of that ruling, this court held that Williams’ mother had the authority to consent to the search of his bedroom. “A warrantless search of a residence may be authorized by the consent of any person who possesses a sufficient relationship to the premises to be inspected. United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974); Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977). It was uncontroverted that the appellant’s mother was a co-owner of the premises, and there was no landlord/tenant relationship between the appellant and his parents. Accordingly, we find that she was authorized to permit the officers to conduct the search.” Williams, supra at 800 (2).

The facts of the present case resemble those of Williams in all key respects. As in Williams, the police in this case arrested Howard, transported him to jail, then went to his residence and asked his mother for consent to search. Howard’s mother leased the premises, which is the substantial equivalent of Williams’ mother’s co-ownership, and, similar to Williams, there was no landlord-tenant relationship between Howard and his mother, in that Howard paid neither rent nor household expenses. Accordingly, we hold that Howard’s mother had a sufficient relationship to the residence to consent to a warrantless search of Howard’s bedroom.

2. Howard also argues that, unless exigent circumstances are present, police should not be permitted to use the consent of a third party in place of obtaining a search warrant. However, we find that this argument has no merit, since the “issue of consent is dispositive. ‘ “A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)” (Cit.)’ Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990).” Langston v. State, 202 Ga. App. 431, 432 (2) (414 SE2d 676) (1992).

Decided January 19, 1993.

J. Robert Daniel, for appellant.

Willis B. Sparks III, District Attorney, R. Jeffrey Lasseter, Thomas J. Matthews, Assistant District Attorneys, for appellee.

3. For the foregoing reasons, we hold that Howard’s mother was authorized to consent to the search of his bedroom, and that the trial court did not err by denying the motion to suppress the pistol that was discovered during the course of the search.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A1991.
    HILBURN v. THE STATE.
    (427 SE2d 97)
   Blackburn, Judge.

Following a jury trial, the appellant, James Hilburn, was convicted of driving without taillights in violation of OCGA § 40-8-23, and driving under the influence of alcohol in violation of OCGA § 40-6-391. On appeal, Hilburn contends that the evidence was insufficient to support his conviction.

According to the Bartow County deputy sheriff who arrested Hilburn, while on patrol during the evening of September 6, 1990, he noticed that a pickup truck traveling in the opposite direction had only one taillight functioning. When the deputy sheriff turned around to pursue it, the pickup truck accelerated. As he chased the truck for two to three minutes with his patrol car lights flashing and his siren on, the deputy observed only one occupant in the truck’s cab. When the truck finally came to a stop in front of a mobile home, that solitary occupant, whom the deputy positively identified as Hilburn, exited the truck from the passenger side which faced the trailer. Street lights illuminated the area and enabled the deputy to view Hilburn and particularly note his physical appearance and attire (long hair, beard, and wearing only cut-off blue jean shorts). Hilburn then ran behind the mobile home but was followed by the deputy, and then ran back to the front porch of the trailer, where the deputy confronted him and another individual. Hilburn denied being the driver of the truck, but refused to divulge the identity of anyone else as the driver. The deputy detected a strong odor of alcohol about Hilburn, and placed him under arrest. An intoximeter test administered shortly afterwards revealed a blood alcohol content of .18.

Decided January 19, 1993.

Culverhouse & Deems, T. Neal Brunt, for appellant.

Darrell E. Wilson, District Attorney, H. Gray Skelton, Jr., Assistant District Attorney, for appellee.

Hilburn testified and acknowledged his intoxication and presence in the pickup truck on the evening in question. However, he claimed that he had been only a passenger in the truck. The other individual with Hilburn when the deputy apprehended him had been a second passenger. Hilburn identified yet another individual as the driver, who had immediately run from the scene when he stopped the truck. Hilburn explained that he had refused to divulge the identity of the driver at the time, because the driver was on probation and had also been drinking, in violation of the terms of his probation. The individuals identified by Hilburn as the other passenger and the actual driver testified and corroborated Hilburn’s testimony.

“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 (1) (393 SE2d 737).” Plumm v. State, 201 Ga. App. 154, 155 (3) (410 SE2d 352) (1991). Questions of credibility of witnesses lie within the sole province of the jury, and this court may not substitute its judgment for that of the jury. Esco v. State, 199 Ga. App. 232 (2) (404 SE2d 584) (1991). Viewing the evidence in this case in accordance with the above standard, we find the evidence sufficient to authorize a rational trier of fact to find Hilburn guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2031.
    McINTYRE v. THE STATE.
    (427 SE2d 99)
   Andrews, Judge.

McIntyre was convicted by a jury of one count of child molestation, and two counts of aggravated child molestation, committed against his 13-year-old stepdaughter. The convictions were based primarily on the testimony of the stepdaughter, who was 17 years of age at the time of the trial and described in detail the acts of molestation as charged in the indictment.

1. Appellant claims the trial court erred in failing to grant a new trial based on newly discovered evidence from a boyfriend of the victim. When the molestation was alleged to have occurred, the victim was living with her mother and appellant. At trial, the victim testified that, while living with her mother and appellant, she told members of her family that she spent a weekend away from home having sexual relations with her boyfriend. She gave further testimony that these statements to her family about the sexual relations were false, and that she made these statements hoping that her parents would move her away from the boyfriend to her natural father’s house in another county, and away from the appellant. The asserted new evidence is that the boyfriend would contradict this testimony, and state that he and the victim did have sexual relations that weekend, and that the victim expressed no desire to move in with her natural father. Other evidence at trial showed that shortly after the weekend, the victim’s parents agreed that she should live with her father.

“To obtain a new trial because of newly discovered evidence, a movant must satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984); Young v. State, 194 Ga. App. 335 (1) (390 SE2d 305) (1990).” (Punctuation omitted.) Eliopulos v. State, 203 Ga. App. 262, 263 (416 SE2d 745) (1992); OCGA § 5-5-23. Appellant contends that the new evidence does not operate solely to impeach the credibility of the victim, but also tends to show that the victim was not motivated by any desire to move in with her father so she could escape from the appellant. Assuming that the new evidence has some benefit other than for impeachment purposes, it is not so material that* it would probably produce a different verdict. There was no abuse of discretion by the trial court in denying a new trial sought on this ground. See Wilson v. State, 193 Ga. App. 374, 375 (387 SE2d 642) (1989).

2. There was no error in the trial court’s refusal to admit evidence of polygraph test results favorable to the appellant in the absence of an express stipulation by the state as to admissibility. Prior to trial, the appellant submitted himself to a polygraph test without participation by the state, and without any stipulation with the state that the results would be admissible. Thereafter, appellant offered to submit himself to a state-conducted polygraph examination, but no further testing was done. Prior to and at trial appellant moved for admission of the test results. Evidence showed that the district attorney had on at least one prior occasion in another case elected to stipulate with another defendant to the admissibility of the results of polygraph test results. Appellant contends that, because the state had so stipulated in another case, it was estopped to refuse to stipulate to the favorable results in this case, and that appellant was denied his equal protection rights under the Georgia and United States Constitutions by the state’s refusal to stipulate in his case.

The results of a polygraph examination are not admissible in Georgia in the absence of an express stipulation by the parties for admissibility. State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). The rule is based on the scientific unreliability of such tests (see Moss v. Central State Hosp., 179 Ga. App. 359, 361 (346 SE2d 580) (1986)). We find no merit in appellant’s contentions. See McGraw v. State, 199 Ga. App. 389, 393 (405 SE2d 53) (1991); Sustakovitch v. State, 249 Ga. 273, 275 (290 SE2d 77) (1982).

3. Appellant contends the trial court should have granted his motion for a mistrial made after it was discovered during the trial that one of the jurors was wanted on a local outstanding misdemeanor warrant. In support of a mistrial, appellant’s counsel argued that the juror may have been worried about being arrested, therefore he may not have been paying attention to the evidence in the case. The trial judge ordered that the juror not be arrested on the warrant during the course of the trial. There was no evidence that the juror was aware of the warrant, nor any evidence that the juror was not attentive, or had otherwise engaged in any irregular conduct. The trial court asked if defense counsel wished to examine the juror to determine if there was any problem, but counsel declined to do so.

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986); Martin v. State, 242 Ga. 699, 701 (251 SE2d 240) (1978). On the present record, there was no sufficient showing of any irregularity in the juror’s conduct. Accordingly, there was no burden on the state to prove lack of harm, and no need to question the juror. Compare Cas tro v. State, 186 Ga. App. 248, 249 (367 SE2d 42) (1988).

Decided January 19, 1993.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

4. The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


text:
    A92A2071.
    WHIPPLE v. THE STATE.
    (427 SE2d 101)
   Johnson, Judge.

Brian Roy Whipple and Michael Shane Nash were jointly indicted and tried for possession of cocaine with intent to distribute and possession of cocaine while on public school property. Whipple was found guilty of the lesser included offense of possession of cocaine and acquitted of the “school drugs” charge. Nash was acquitted on all charges. Whipple appeals from his conviction.

1. Whipple argues that the evidence presented at trial was insufficient to support the verdict. We agree.

On the day of his arrest, Whipple drove to his girl friend’s high school to give her a ride home. The car he was driving belonged to the girl’s mother. Nash was riding in the car’s passenger seat. The girl’s father also had access to the car. In reliance on a telephone tip from a confidential informant, the police asked Whipple for permission to search the car. Whipple consented orally and in writing to the search. Cocaine was found hidden in the headrest of the passenger seat where Nash had been sitting. Whipple testified that he had no knowledge of the presence of any drugs in the car. The police admitted not only that they did not see who placed the drugs in the headrest, but also that they never saw Whipple or Nash in actual possession of the cocaine. Consequently, the State tried to prove that Whipple was guilty beyond a reasonable doubt by showing that he was in constructive possession of the cocaine.

The State relied on the rebuttable presumption that one who is in possession of an automobile is the owner of what is contained therein. “However, as to automobiles, the rule does not apply where there is evidence in the case . . . that others have had access to it.” (Citations, punctuation, and emphasis omitted.) In the Interest of C. A. A., 187 Ga. App. 691, 692-693 (371 SE2d 247) (1988). Where it is established that other persons had equal access to the vehicle, “the application of a presumption of possession of any contraband found in it istnot a sound, abstract principle of law and is a dangerous rule for the numerous owners of motor vehicles.” (Citations and punctuation omitted.) Id. at 693. Here there was evidence that several people had access to the car equal to Whipple’s access. Most obviously, Nash was in the car at the time of the arrest and the drugs were found in the headrest of the seat he was occupying. Moreover, the car was owned by the mother of Whipple’s girl friend, and the girl’s father had access to the car.

Decided January 19, 1993.

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Dealvah E. Hill, Assistant District Attorneys, for appellee.

“[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Murrell v. State, 200 Ga. App. 231, 233 (1) (407 SE2d 460) (1991).

We recognize that the factfinder is usually in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976); Hurston v. State, 202 Ga. App. 311, 313 (1) (414 SE2d 303) (1991). Nonetheless, having eliminated the presumption of possession, what remains is Whipple’s mere presence near hidden cocaine. As a matter of law, that presence is not enough to support a finding of criminal possession of the contraband beyond a reasonable doubt, to the exclusion of every other reasonable hypothesis. Whipple’s conviction cannot be sustained under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In light of our holding in Division 1 above, it is unnecessary for us to address Whipple’s remaining enumerations of error.

Judgment reversed. Pope, C. J., and Parley, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A92A2141.
    MEELER et al. v. NATIONAL INSURANCE ASSOCIATION.
    (427 SE2d 103)
   McMurray, Presiding Judge.

Plaintiff National Insurance Association seeks a declaratory judgment that it is not obligated, under an automobile insurance policy it issued to defendant James E. Ramsey, to provide coverage or to pay the amount of any verdict or judgment arising from a certain motor vehicle collision involving defendant John Scott Ramsey. Defendants Natalie Meeler and Anita Meeler filed an action against John Scott Ramsey and James E. Ramsey alleging that Natalie Meeler sustained severe injury in a collision as the result of the negligence of John Scott Ramsey. Defendants John Scott Ramsey and James E. Ramsey contend that they are insured under the policy issued by plaintiff to James E. Ramsey. Plaintiff contends that the insurance policy provides no coverage on behalf of John Scott Ramsey or James E. Ramsey for the claims made against them by Natalie Meeler and Anita Meeler.

Plaintiff moved for summary judgment and defendants Natalie Meeler and Anita Meeler filed an opposing motion for summary judgment. Defendants Natalie Meeler and Anita Meeler appeal the grant of plaintiff’s motion for summary judgment and the denial of their motion for summary judgment. Held:

The issues presented before the superior court and argued again on appeal relate in large part to the proper construction of the insurance policy at issue. Unfortunately, insufficient information as to the language of this contract has been included in the evidence of record. The only purported copy of the insurance policy contained in the record is incorporated in plaintiff’s statement of material facts as to which there is no genuine issue to be tried which was filed pursuant to Rule 6.5 of the Uniform Superior Court Rules. While the statement as to the language of the entire insurance policy was not contested, this does not constitute an admission that the statement is correct. The statement is intended to facilitate the summary judgment decision-making process and is not analogous to a request for admissions under OCGA § 9-11-36. Waits v. Makowski, 191 Ga. App. 794, 796 (2) (383 SE2d 175). While one paragraph of plaintiff’s statement of material facts as to which there is no genuine issue to be tried is admitted to contain a portion of the insurance policy at issue, the admitted paragraph does not contain all portions of the insurance policy germane to the decision of the issues on appeal. The movant has the burden to prove the non-existence of any genuine issue of material fact. Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670). Due to the absence of evidence as to the terms of the contract at issue, the grant of summary judgment in favor of plaintiff must be reversed and the denial of the motion for summary judgment submitted by defendants Natalie Meeler and Anita Meeler must be affirmed. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65).

Decided January 19, 1993.

Reynolds & McArthur, Bradley J. Survant, for appellants.

Dennis, Corry, Porter & Gray, William E. Gray II, Pamela J. Byrd, for appellee.

Judgment affirmed in part and reversed in part. Cooper and Blackburn, JJ., concur.


text:
    A92A2191.
    DAY v. BROWN et al.
    (427 SE2d 104)
   Andrews, Judge.

Day, acting pro se, brought a suit naming as defendants, Brown, Dykes, and the DeKalb County Police Department. Brown and Dykes, the only defendants involved in this appeal, were sued in their capacities as DeKalb County police officers for actions taken while in the performance of their official duties. In general terms, the complaint alleges that while acting under color of state authority, the officers illegally took Day’s gold chain and certain other unspecified personal property belonging to the plaintiff. Both officers filed answers denying that they illegally took any property from the plaintiff, and showing that certain property, including a gold chain, was taken from Day’s residence pursuant to their execution of a duly issued search warrant. The defendants moved for dismissal of the action based on its failure to state a claim under OCGA § 9-11-12 (b) (6), and based the defense of the statute of limitation applicable to actions brought pursuant to 42 USC § 1983 for deprivation of constitutional rights. The trial court made no ruling on the basis of OCGA § 9-11-12 (b) (6), but granted the defendants’ motion to dismiss the action, finding that it was barred by the statute of limitation applicable to actions brought pursuant to 42 USC § 1983.

1. We agree with the trial court that to the extent the complaint may be interpreted as an action under 42 USC § 1983, cognizable by the courts of this state, it is barred by the two-year limitation period of OCGA § 9-3-33. Because Congress provided no specific statute of limitation to govern actions brought pursuant to 42 USC § 1983, the United States Supreme Court has endorsed the policy of borrowing the state limitation period governing analogous actions under state law. Henson v. American Family Corp., 171 Ga. App. 724, 731 (321 SE2d 205) (1984). In applying this policy, the Supreme Court has concluded that “based upon the legislative history of § 1983 and the wide array of claims now embraced by that provision, that § 1983 confers a general remedy for injuries to personal rights. . . . [Since such claims] are best characterized as personal injury actions ... a State’s personal injury statute of limitations should be applied to all § 1983 claims.” Owens v. Okure, 488 U. S. 235 (109 SC 573, 102 LE2d 594, 600) (1989) (citations and punctuation omitted); Wilson v. Garcia, 471 U. S. 261 (105 SC 1938, 85 LE2d 254) (1985). Thus, whether the 42 USC § 1983 action is based on a personal injury claim, a claim of conversion, or any other type of claim, the applicable limitation period is the two-year period for personal injury set out in OCGA § 9-3-33. See Shrader v. Hopkins, 195 Ga. App. 639, 640 (394 SE2d 538) (1990); Williams v. City of Atlanta, 794 F2d 624 (11th Cir. 1986). Since the complaint was filed more than two years after the accrual of the stated cause of action, the 42 USC § 1983 claim was barred by the applicable statute of limitation. OCGA § 9-3-33.

Decided January 19, 1993.

Roger C. Day, pro se.

2. However, the complaint may also be interpreted as alleging a cause of action under state tort law. The trial court’s order of dismissal did not address the contention that the complaint should be dismissed because it otherwise failed to state a claim under OCGA § 9-11-12 (b) (6), and we cannot conclude that the dismissal order should be affirmed because the complaint could also have been dismissed on that ground. See Spiezio v. American Gen. Fin., 204 Ga. App. 350, 352 (419 SE2d 149) (1992) (a judgment right for any reason will be affirmed). As the record stands, we are unable to say with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his general allegations. See Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982). Accordingly, the trial court erred by dismissing the entire complaint.

Judgment affirmed in part and reversed in part. Birdsong, P. J., and Beasley, J., concur.

Melinda B. White, Albert S. Johnson, for appellees.

       We assume, without deciding, that the allegations of appellant’s pro se complaint were sufficient to state a claim pursuant to 42 USC § 1983. To state such a claim, a plaintiff “must allege that the defendant is a person who deprived him of a constitutional right while acting under color of state law or custom.” Davis v. City of Roswell, 250 Ga. 8, 9 (295 SE2d 317) (1982).


text:
    A92A2325.
    RUSSELL v. THE STATE.
    (427 SE2d 106)
   Blackburn, Judge.

The defendant, Kelvin Russell, a.k.a. Calvin Davis, was convicted by a jury of four counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal, the defendant contends that the evidence was insufficient to support his conviction.

At trial, Agent Woodruff testified that he was asked by the Brooks County Sheriff’s Department to conduct an undercover narcotics investigation within the county. He met the defendant at an apartment complex through a confidential informant on February 7, 1991. Agent Woodruff further testified that on that date he asked the defendant if he knew of anyone selling drugs. The defendant replied that he did and Agent Woodruff followed him to an apartment complex where several unidentified young men were standing. According to Agent Woodruff, the defendant asked one of the men if he had a “fifty” and the young man handed a plastic zip-lock bag of “crack” cocaine to the defendant. The defendant in turn handed the plastic bag to Agent Woodruff. Agent Woodruff subsequently handed the defendant $50 of official state funds.

On February 21, 1991, Agent Woodruff saw the defendant on the corner of Culpepper and Screven Streets and asked him if he had a “forty.” The defendant replied that he had to go and get it. After Agent Woodruff circled the block at the suggestion of the defendant, the defendant was unable to find any drugs. Agent Woodruff testified that defendant later directed and accompanied him to two apartment complexes in search of the cocaine. At the second complex, the defendant obtained the “crack” cocaine and handed it to Agent Wood-ruff. Agent Woodruff gave the defendant $40 in state funds and the defendant took the money to the individual from whom he had received the drugs.

Agent Woodruff later saw the defendant on February 25, 1991, and testified that he asked the defendant if he had $60 in “crack” cocaine. The defendant sat in the back seat of Agent Woodruff’s vehicle and pulled out a small matchbox containing several pieces of crack cocaine, handing them to Agent Woodruff as they rode to an apartment complex. Agent Woodruff again handed the defendant the appropriate amount of money in state funds.

Agent Woodruff further testified that he saw the defendant on March 20, 1991 on Screven Street in front of Taylor’s Clothing Store in Brooks County. Although Agent Woodruff had earlier discussed a drug sale with another individual known to Agent Woodruff through a previous investigation, the defendant appeared with this individual on this date and was present during this transaction. This individual handed Agent Woodruff ten pieces of “crack” cocaine packed in blue tissue paper and Agent Woodruff subsequently handed the defendant $125 in official state funds at the suggestion of the defendant. All of the items were marked contemporaneously with each transaction and were taken to the crime lab for identification.

Decided January 19, 1993.

James F. Council, Jr., for appellant.

H. Lamar Cole, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

In the defendant’s sole enumeration of error, he contends that the evidence produced at trial was insufficient to support his conviction.

On appeal of a criminal conviction, the standard of review is whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). In this appeal of Counts 1, 2, and 4, the evidence is in conflict as to whether the appellant sold cocaine to Agent Woodruff. Agent Woodruff testified that he gave money to the defendant for the purpose of obtaining cocaine. The defendant denied selling any drugs to Agent Woodruff but admitted that he sold cocaine to the informant and acknowledged receiving money from Agent Woodruff on March 20, 1991. He further admitted that he signed a statement indicating that he sold and participated in the sale of cocaine to Agent Woodruff. “The question of witness credibility ... is for the jury. [Cit.] . . . [T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991). The jury resolved the conflict in the evidence against the defendant and this court may not substitute its judgment for that of the jury. We have reviewed the evidence in the light most favorable to the prosecution and conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A2413.
    QUEEN v. THE STATE.
    (427 SE2d 107)
   Birdsong, Presiding Judge.

Hoyle Grady Queen III has filed a direct appeal of his judgment of conviction and sentence. In the interim between trial and the date of this opinion, appellant filed a State Bar complaint against his defense counsel asserting a claim of ineffective assistance of counsel. Appellant’s counsel thereafter filed a motion for leave to withdraw with the superior court. Appellant’s counsel asserts to this court, in support of his amended motion for extension of time to file enumerations of error and appellate brief and his amended motion for remand, that the issue of his continued representation as appellate counsel must be resolved as he believes his client wishes to pursue this matter on appeal and said counsel cannot assert such a claim on appeal against himself.

The amended motion for remand is granted subject to the following direction. In the event the motion to withdraw is granted by the superior court and any newly appointed counsel for appellant does file on appellant’s behalf a timely claim of ineffective assistance of counsel and requests a hearing on said issue, the trial court shall hold the requisite hearing and enter those findings necessary to a prompt and effective resolution of this issue. The Clerk of this court shall forthwith remove this appeal from the appellate docket, without prejudice to appellant, and return it to the Clerk of the Superior Court of Fannin County. Upon resolution of the issue of appellate counsel representation and of any subsequent issue of inadequacy of counsel, which may be timely raised (compare Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115)), and as a matter in aid of our jurisdiction, appellant may re-initiate his appeal of this case by timely refiling his original notice of appeal within 30 days of the trial court’s order of disposition. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.

Appeal vacated and case remanded, without prejudice, with direction. Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., concur. Carley, P. J., Beasley, Johnson and Blackburn, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

A motion for new trial was made and denied, and a timely notice of appeal was filed therefrom within 30 days. OCGA § 5-6-38 (a). After the appeal was docketed in this court, trial counsel, who was appointed to represent defendant on appeal, advised by motion in this court that he had filed in the trial court a motion to withdraw as counsel, because of conflict of interest. The record before us has not been supplemented with this motion.

Assuming that a motion to withdraw is granted, that new counsel is appointed, and that new counsel wishes to raise a claim of ineffectiveness of trial counsel, it would have to be by extraordinary motion for new trial because it is too late to amend the original motion for new trial. It has already been denied. An extraordinary motion is permitted by OCGA § 5-5-41. If it is denied, and appellant wishes to pursue the direct appeal of the original judgment as well as the denial of the extraordinary motion, it would have to be upon an amended notice of appeal which adds the denial of the extraordinary motion to the original and timely notice of appeal.

Decided January 19, 1993.

James L. Bass, for appellant.

Roger Queen, District Attorney, for appellee.

In the event new counsel is not appointed or does not see fit to file a challenge to trial counsel’s effectiveness, the case would simply be returned to this court and docketed once again on the original and timely notice of appeal.

I am aware of no authority which would allow or require that the original notice of appeal be “refiled.” Ga. Const. of 1983, Art. VI, Sec. I, Par. IV, does not authorize us to suspend the statutory rules of procedure.

The case should be remanded for the trial court to rule on the motion to withdraw, when our record shows that there is one. We should not direct what should occur thereafter.

I am authorized to state that Judge Johnson and Judge Blackburn join in this opinion.


text:
    A92A1739.
    DAILEY v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (427 SE2d 109)
   Cooper, Judge.

In 1991, appellee sued appellant for premium payments due on two policies of multiple peril crop insurance issued by appellee to appellant. Appellant filed an answer and counterclaim, alleging in paragraphs 1 through 5 of the counterclaim that appellee was liable to him in the amount of $66,000 for failure to investigate a loss reported in 1989. In the remaining two paragraphs in the counterclaim, appellant alleged that appellee was liable for fraud. Appellee moved for partial summary judgment on paragraphs 1 through 5 of appellant’s counterclaim on the ground that the claim was barred by the contractual 12-month limitation period in the policy. The trial court’s grant of appellee’s motion is enumerated as error.

Decided January 20, 1993.

Kitchens, Wolfson, Smith & Hannan, B. Miles Hannan, for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, Sherry S. Harrell, for appellee.

The policies of insurance issued to appellant contained the following provision: “You cannot bring suit or action against us unless you have complied with all of the policy provisions. If you do enter suit against us you must do so within 12 months of the occurrence causing the loss or damage.” “There is no question that contractual limitations are valid and will be enforced by the courts. [Cit.]” Desai v. Safeco Ins. Co. of America, 173 Ga. App. 815, 816 (328 SE2d 376) (1985). Appellant does not contest the validity of the contractual limitation period but argues that paragraphs 1 through 5 of his counterclaim allege a cause of action for recoupment which is not barred by the limitation period. We disagree. “It is true that a statute of limitation is not a bar to a recoupment defense. . . . The rationale for the non-applicability of a statute of limitation to a defense in the nature of recoupment is that the defense arises out of the very contract which the plaintiff wishes to enforce. [Cit.]” (Indention omitted.) Hodges v. Community Loan &c. Corp., 133 Ga. App. 336, 343 (210 SE2d 826) (1974), reversed on other grounds, 234 Ga. 427 (216 SE2d 274) (1975). However, appellant seeks to assert a claim against appellee for appellee’s alleged failure to investigate a claim made by appellant pursuant to the policy. Appellant’s claim is totally unrelated to the action brought by appellee for non-payment of premiums and bears no direct relationship to appellant’s obligation to pay the premiums due on the policies issued by appellee. Consequently, we conclude that appellant’s claim is in the nature of an action for set-off and is subject to the contractual statute of limitation stated in the policy. See Hodges, supra at 344.

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


text:
    A92A1863.
    THOMAS v. THE STATE.
    (426 SE2d 923)
   Blackburn, Judge.

Howard Emmitt Thomas was convicted by a jury of trafficking in cocaine and possession of marijuana with intent to distribute, and was sentenced to consecutive sentences of twenty and ten years in confinement for the crimes. He appeals, contending that the evidence was insufficient to support the conviction.

On January 29, 1992, a roadblock was operated at the intersection of Georgia Highways 94 and 76 in the City of Morven, Georgia, by Michael Weldon, the Morven Chief of Police, and Jimmy Norton, a Georgia Public Service Commission employee. At about 11:10 p.m. Thomas, who was driving west on Highway 94 toward Moultrie, Georgia, encountered the roadblock. He was driving a 1992 Mercury Topaz car which had been rented in Orlando, Florida, by his uncle, and for which Thomas was listed on the rental agreement as an authorized driver. The rental agreement provided that the car was to be returned to the rental agency in Orlando by January 27, 1992, which meant that at the time of the stop at the roadblock the car was two days overdue for return.

Weldon testified that he discovered from the rental agreement that the car was two days overdue for return to the rental agency. Weldon said that he asked Thomas where he was going, to which Thomas replied that he was going to Moultrie to pick up his niece, but that Thomas then “act[ed] nervous,” avoiding eye contact and giving no response when asked for the niece’s name and telephone number. Weldon testified that he noticed that a beeper (a paging device) was in the car, and that there was no noticeable clothing or luggage in the car. His suspicions aroused, Weldon asked Thomas whether he had “anything illegal” (Weldon’s words) or “any contraband or any weapons or anything like that in the car” (Norton’s words). According to Weldon and Norton, Thomas replied in the negative, but agreed to let Weldon search the car. Weldon and Norton testified that when Thomas got out of the car they observed a large bulge in the front of his pants, at which point Weldon searched the car. Weldon testified that he found what appeared to be two marijuana cigarette butts in the ashtray. After smelling one and deciding it was marijuana, he placed Thomas under arrest for possession of marijuana.

According to Weldon and Norton, Weldon began patting defendant down, but when he tried to check the bulge in his pants Thomas broke and ran north up Highway 76, chased by Norton. Weldon said that, after securing the Topaz by taking its keys and locking the doors, he also gave chase. A resident of Morven, Edward Powers, testified that he saw part of a man’s flight through the city during the period when Thomas was fleeing. He saw the man run west along Fifth Avenue from its intersection with Highway 76, running in front of a fire station on the south side of Fifth Avenue. Powers said he lost sight of the man when the man turned the corner of the building, but he heard him step “on some old tin that was laying there.” As Weldon drove by Powers, he pointed Weldon in the direction he had seen the man run. Weldon said he proceeded west along Fifth Avenue and, as he passed the fire station and came even with a car owned by another resident of Morven, Roy Reams, which was parked in a yard on the north side of Fifth Avenue, he looked south and saw Thomas headed back toward Highway 94, toward the Topaz.

Thomas was apprehended at the Topaz and was searched again. By that time, Weldon and Norton said the bulge in Thomas’ pants was gone. Norton left the scene shortly thereafter to go off duty, and Weldon summoned the assistance of Special Agent Alfred Anderson, a member of the Lowndes County/City of Valdosta drug suppression unit, who was the handler of the unit’s drug detection dog. Weldon and Anderson used the dog to search the Topaz, but found no drugs. Anderson testified that they did find a bag of charcoal in the trunk. Anderson further testified that charcoal was often used by persons in the drug business to throw drug detection dogs off the scent of drugs.

Weldon and Anderson testified that, assisted by Powers, they then walked the area where Thomas had fled. During this search a plastic bag was discovered on the ground near Roy Reams’ car. The bag was at “the front of the car” (Anderson’s words); “right up under the bumper” of the car and “right at the corner of the bumper” (Weldon’s words); and “up on the back of the side up under the bumper” and “[o]n the passenger’s side up under” the car (Powers’ words). There was evidence that the owner left the car parked at that location for long periods without moving it, and that there was nothing to restrict anyone’s access to the area near the car. However, there was also evidence that it had rained that night, and that, according to Weldon, the bag “would have been wet if it had been there earlier,” but that the bag was dry.

A forensic chemist from the Georgia Bureau of Investigation State Crime Laboratory testified the bag contained 16.8 grams of marijuana in 29 bags, 48.7 grams of 90 percent pure crack cocaine in a single bag, and cigarette papers.

Two days after the arrest, on January 31, 1992, Weldon went to the jail where Thomas was being held, read Thomas his Miranda rights, and questioned him. Weldon obtained no written statement from Thomas, but according to Weldon Thomas orally admitted as follows that the bag containing cocaine and marijuana and the marijuana cigarette butts belonged to him: “I asked him what did he do for a living, did he work? And he said that he hustled stuff. I said what do you mean, what kind of stuff? He said T-shirts, hats, anything to make a dollar. I asked him what are you doing with a beeper and he said for communications. I said what do you mean for communications? He said that’s so his mama or daddy could get a hold of him. I asked him was the drugs that I found, was that his. And at that time, he said no. I asked him why was he headed to Moultrie and he said to pick up his niece.”

Weldon said that after more questioning Thomas “changed his mind,” “said, look, man, I was carrying the stuff to Moultrie, ... referring to the drugs,” where “he said he was going to sell them on the streets. He said he wasn’t carrying them to nobody in particular, he was just going to carry them over to Moultrie and try to sell them. I then asked him how much did he pay for the drugs and he said $900.” Weldon further testified that “I asked him how, you know, if he didn’t work, did he get a check, and he said no. I asked him well, then, how did you come up with $900 to buy the dope with to come up here and resell. He said that he saved up his money that he got from hustling. ... He said he was going to go to a motel [in Moultrie] and stay there until he sold the drugs and he would return then to Orlando.”

Thomas testified at trial, contradicting much of the testimony by Weldon, Norton, and Powers. He said that he had been driving from Orlando, Florida, his place of residence, to Moultrie to visit a cousin. According to him, after he stopped at the roadblock Weldon “asked me did I have a driver’s license and insurance. So, I handed him my driver’s license and I handed him this [rental] agreement right here. And all he did was look at my license and look at the agreement and give it right back to me, and asked me can I search your car and I said no. He said — he pointed up in front of me and he said pull up over there. So, when I pulled up over there, he came up to me and said get out of the car. I got out of the car and by me telling him no that he couldn’t search my car, I felt when he told me to get out that he was going to produce a warrant or something, to go get a warrant or something. But, he jumped right in the car, he jumped right in the car behind, you know, once I got out. And I asked him, I told him again what are you searching my car for. And he said see, you guys here driving these kind of cars here with these out-of-state tags from Florida is bringing drugs in our state or in my county, like that. And he got out of the car and begin to search me, begin to search me.”

According to Thomas, he had no drugs with him, had no bulge in his pants, and threw no drugs under any car. He also maintained that, contrary to Powers’ testimony, during his flight from Weldon he had neither stepped on any tin nor even gone past the area where the bag was found. When asked why he ran from Weldon, he replied that “I ran because when he pushed me — well, when he started searching me, he slammed me up against the car. I said, I told you you don’t have no right to search me, like that. And he said, well, the hell I don’t, this is South Georgia, and Pm the chief of police in this town and I do what I want to do. So, when he did that, I told him again you don’t have no right to search me. So, he took his stick, his nightstick and started beating it in the side of my ribs right here. I just fear my life [sic], you know, I was scared so I ran.”

When asked why he had a beeper, Thomas claimed that he worked for his parents, who had a janitorial service, and that he had the beeper for communication. He denied having made the statement Weldon contended he made during the jail interview. He further contended that he had not put the bag of charcoal in the trunk of the Topaz, and had not used the ashtray during the trip from Orlando. He also denied having told Weldon that he had a niece in Moultrie.

In rebuttal testimony, Weldon denied having beaten Thomas with a stick.

The trial court instructed the jury on both actual and constructive possession, and the jury returned a verdict of guilty as to the counts charging Thomas with trafficking in cocaine and possession of marijuana with intent to distribute. We note that Thomas was acquitted of charges of obstruction of an officer and misdemeanor possession of marijuana.

On appeal, Thomas contends in his only enumeration that the evidence was insufficient as a matter of law for any rational trier of fact to find the essential elements of the offenses charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). He argues that the state did not carry its burden of proving that he ever had actual or constructive possession of the plastic bag, in that there was no physical evidence to connect him with the bag other than a possibility of spatial proximity which is not enough to support the conviction, see Murrell v. State, 200 Ga. App. 231, 232-233 (1) (407 SE2d 460) (1991). He says that no witnesses were produced to support the state’s theory that he had been near the site where the plastic bag was found, or to show that anyone saw him remove any item from his clothing or place anything near the car where the plastic bag was found. Although he acknowledges the testimony that he had a bulge in his pants, he points out that no contraband was seen inside his pants or retrieved from them, and argues that the circumstantial evidence regarding the bulge was not sufficient to “exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. See Byers v. State, 204 Ga. App. 552, 554-556 (3, 4) (420 SE2d 23) (1992).

The state asserts that the evidence against Thomas was not wholly circumstantial, since he gave a statement admitting his possession of the plastic bag, see Stewart v. State, 163 Ga. App. 735, 737 (1) (259 SE2d 112) (1982). The state further asserts that, when examined in the light most favorable to the verdict, the evidence was sufficient to meet the test of Jackson v. Virginia.

We agree with the state in both respects. Although Thomas’ testimony contradicted much of the state’s evidence, our review of that evidence in the light most favorable to upholding the verdict shows that the state adequately established more than mere presence at the scene and mere spatial proximity to the plastic bag. See Murrell, supra; Byers, supra. The evidence introduced at trial, construed most favorably to the state, included the following: Thomas had marijuana cigarette butts in the ashtray of his car. He gave false information to Weldon that he was going to see a niece in Moultrie. When Weldon attempted to retrieve the bulge in Thomas’ pants, he fled, and the bulge was gone when he returned to his car. Although Thomas testified that he ran to avoid a beating by Weldon, Weldon testified that he did not beat defendant. The plastic bag was found along the route indicated by the observations of Weldon, Norton, and Powers. Although the car where it was found was often parked there for long periods, the bag was exposed to the elements and displayed no moisture from that evening’s rain, authorizing the conclusion that the bag had only recently been placed under the car. A bag of charcoal, which is sometimes used by persons transporting drugs to throw drug detection dogs off the scent, was found in the trunk of Thomas’ car.

Decided January 22, 1993.

Mark Thedieck, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Based on the foregoing facts, the inferences most favorable to the verdict are that Thomas bolted during Weldon’s search of his person because the bulge was caused by the plastic bag and he did not wish Weldon to retrieve it; that he threw it away during his flight; and that the same bag was retrieved by Weldon and Anderson soon afterward.

Finally, independent of the above facts and inferences, there is the fact that Thomas himself admitted to having possessed the cocaine and marijuana with intent to distribute.

Given the foregoing, we find that the evidence was sufficient to permit a rational trier of fact to find Thomas guilty beyond a reasonable doubt of trafficking in cocaine and possession of marijuana with intent to distribute.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2109.
    MADARIS v. THE STATE.
    (427 SE2d 110)
   Blackburn, Judge.

The appellant, Michael Madaris, was convicted of one count of armed robbery, for which he was sentenced to ten years’ imprisonment. On appeal, he contends that the trial court erred in admitting into evidence testimony recounting prior consistent statements of the victim, and in denying his motion for new trial on the ground that the verdict was strongly against the weight of the evidence.

At the trial, the victim testified that shortly before midnight on May 24, 1991, he was about to close the convenience store which he managed, when an individual entered the store wielding what appeared to be a sawed-off shotgun and demanding that the victim give him the money in the cash register. Initially, the victim thought it was a joke, because he recognized the robber as a frequent customer of the store. When he realized that the robber was serious, he complied with his demands. After receiving the cash register receipts, the robber fled on foot, and the victim notified the police. A composite drawing was created from the victim’s description of the robber.

Approximately six months after the robbery, in a chance meeting at a hospital emergency room, the victim recognized the appellant as the man who had robbed the store. He contacted the police and positively identified the appellant as the robber, and the appellant was arrested. During the trial, the victim again positively identified the appellant.

The trial testimony also showed that an apartment complex was situated about 150 yards from the convenience store. The apartment complex records indicated that the appellant had resided with his wife and child at that complex from July 1990 until around June 4, 1991, when they evacuated the premises with an arrearage of rental payments in the amount of $2,475.

The appellant did not testify, but several family members and one family friend testified in support of his alibi defense. Specifically, the appellant’s wife, mother, stepfather, father-in-law, mother-in-law, two sisters-in-law, uncle, three aunts, and the family friend all stated that the entire family had gone to Jackson Lake for the Memorial Day weekend. They accounted for the appellant’s presence from around 5:30 p.m. or 6:00 p.m. on Friday, May 24, 1991, until the following Sunday evening. The family members also testified that the appellant had moved in with his in-laws around the middle of May 1991.

1. At trial, four police officers, and a friend of the victim who was with him when he recognized the appellant at the hospital emergency room, testified that the victim had emphasized that he was absolutely positive of his identification of the appellant as the robber. Counsel for the appellant objected to the admission of this testimony by the victim’s friend and one of the police officers only, on the grounds that it constituted inadmissible hearsay.

The Supreme Court has held that both prior inconsistent statements and prior consistent statements of witnesses are admissible as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). The appellant concedes that the testimony objected to in this case is admissible under Gibbons and Cuzzort, but he contends that those two cases should be overruled, which is beyond the authority of this court. “[Wjherever the Supreme Court has set up ‘an established marked line, though crooked,’ we have no power to overrule it.” Minor v. City of Atlanta, 7 Ga. App. 817, 819 (68 SE 314) (1910).

Decided January 22, 1993.

Couien & Cowen, Martin L. Cowen III, for appellant.

Robert E. Keller, District Attorney, Gina C. Shuman, Deborah C. Benefield, Assistant District Attorneys, for appellee.

2. The appellant also contends that the trial court should have granted his motion for new trial on the grounds that the verdict was strongly against the weight of the evidence. OCGA § 5-5-21 authorizes a trial court to grant a new trial for that reason, but such a matter is addressed to the trial court’s discretion alone. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988). This court will consider only the sufficiency of the evidence. Daniel v. State, 180 Ga. App. 687, 688 (1) (350 SE2d 49) (1986).

On appeal, this court must review the evidence in the light most favorable to support the verdict and determine whether any rational trier of fact could have found the appellant guilty beyond a reasonable doubt of the offense as charged. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Determinations of witness credibility, weighing the evidence, and resolutions of conflicts presented by the evidence are within the province of the jury. Hargrove v. State, 202 Ga. App. 854 (415 SE2d 708) (1992). In the instant case, the jury decided those evidentiary conflicts adversely to the appellant, and viewing the evidence in accordance with the above standard, we find it sufficient to support the appellant’s conviction.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.