text:
    A97A2162.
    ELDER v. THE STATE.
    (495 SE2d 596)
   Johnson, Judge.

A jury found John Douglas Elder guilty of theft by taking money from people he induced to invest in a business scheme and later converting the money to his own use. Elder appeals, and we affirm.

1. In his first enumeration of error, Elder contends the evidence was insufficient to support the verdict. Viewed in a light most favorable to support the verdict, the record shows that in July 1992, Elder met with the two victims and made numerous misrepresentations concerning his involvement in a process of turning trash into methane fuel (“gasification”) and a process of turning trash into fertilizer (“composting”). He stated gasification technology was presently commercially available and that the gasification device could process everything from tires to baby diapers. According to Elder, he had a contract with a gasification company, Future Energy Resources Corporation (“FERCO”), which held the gasification patents. He stated that investments made would be used to support his contract with FERCO and that his company, Environmental Concerns, Inc. (“ECI”), had all exclusive source contracts for gasification plants built now and in the future. Elder specifically stated that “ECI would not mean anything without the contracts currently being in hand right now with the FERCO organization on the gasification and the composting contracts on the other side.” In response to the investors’ concerns, Elder represented that all necessary environmental permits for the gasification process had been obtained. Elder further represented the existence of an exclusive contract with the ERTH Group to obtain sludge to fuel the gasification technology.

During a meeting, Elder presented potential investors with income return projections based principally on the yield of the gasification process. He also presented a document outlining the business structure of ECI. The business structure document also stated that Elder had existing contracts with FERCO. Elder represented that the investment timeframe was extremely limited, and there was a need to act within a week’s time. Based on Elder’s representations at the meeting, which was recorded and the tape introduced into evidence, one person wrote ECI a check for $100,000 and another wrote ECI a check for $50,000. According to one victim, Elder “was pretty convincing.” The other victim testified that Elder’s statements concerning the existence of exclusive source contracts, the fact that all the permits were in place, and the fact that this process could convert plastic and rubber into fuel were all important to her decision to invest because they showed that ECI would be effective.

Contrary to his representations, Elder knew there was no urgency to investing in ECI. Elder did not have existing contracts with FERCO and admitted to an investigator that his statements to the victims regarding FERCO contracts were misrepresentations. In fact, FERCO had not yet been formed in July 1992. While Elder did meet with individuals in January 1992 who ultimately formed FERCO and learned about gasification during that meeting, the January meeting did not result in any contract between Elder and FERCO. In fact, in March 1992, three months prior to Elder’s meeting with the victims, the individuals who ultimately formed FERCO told Elder to cease and desist from representing an association between FERCO and Elder.

Elder was also aware that FERCO did not have the gasification patents in July 1992 and that gasification technology was not commercially available at that time. As of the date of the trial, gasification technology remained in the experimental stage. Elder knew that FERCO did not possess the necessary environmental permits. Elder further knew that the gasification technology contemplated could not handle large volumes of plastic and rubber.

Regarding composting, Elder misrepresented his exclusive arrangements with the composting operation. He failed to inform the victims about his complete lack of success in obtaining sludge source contracts.

By October 1992, Elder had converted a substantial amount of the victims’ money to his own use. The victims wrote a letter to Elder on October 30, 1992, requesting a return of their investments and questioning Elder’s involvement in gasification technology and the existence of FERCO contracts. Elder responded with a November 7, 1992 letter stating that all contracts were in place as previously represented.

“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. The phrase “regardless of the manner in which the property is taken or appropriated” is broad enough to encompass theft by deception. Thus, a state may indict an individual for theft by taking, yet prove the elements of theft by deception. See, e.g., Stull v. State, 230 Ga. 99, 101 (1) (196 SE2d 7) (1973); Byrd v. State, 186 Ga. App. 446, 447 (1) (367 SE2d 300) (1988).

“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a). “A person deceives if he intentionally: (1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed. . . .” OCGA § 16-8-3 (b).

The evidence was sufficient for a rational trier of fact to find Elder guilty beyond a reasonable doubt of theft by taking. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Byrd, supra.

2. In his second enumeration of error, Elder asserts there was a material variance between the proof presented at trial and the allegation charged in the indictment. Count 1 of the indictment alleged that Elder “did unlawfully take $100,000.00 in United States Currency, the property of [victim 1] with a value exceeding $500.00[,] with the intention of depriving said owner of said property. . . .” Likewise, Count 4 of the indictment alleged that Elder “did unlawfully take $50,000.00 in United States Currency, the property of [victim 2] with a value exceeding $500.00, with the intention of depriving said owner of said property. . . .”

Elder’s argument that the indictment charged the wrong offense, that is, theft by taking instead of theft by deception, fails. This argument has been addressed and decided adversely to Elder in numerous cases due to the broad language in the theft by taking statute. See Stull, supra; Byrd, supra.

Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978), does not demand a different result. “[U]nlike the trial court in Walker, the trial court in this case ‘did not charge the jury that theft by taking could consist of the unlawful appropriation of property lawfully obtained, and thus there is no possibility that the jury based its verdict on that theory rather than the theory alleged in the indictment.’ [Cit.]” Bell v. State, 220 Ga. App. 293, 294 (1) (469 SE2d 714) (1996). Moreover, as we found in Division 1, the evidence was sufficient to enable a rational jury to conclude beyond a reasonable doubt that Elder deceived the victims into giving him investment checks and that such deception constituted an unlawful taking. No fatal variance existed in this case. See Spray v. State, 223 Ga. App. 154, 156 (1) (476 SE2d 878) (1996); Bell, supra.

3. In his third enumeration of error, Elder contends the trial court erred in denying his motion for new trial. However, Elder does not address this enumeration of error in his brief by including citation of authority or argument. Therefore, to the extent this enumeration of error attempts to include issues not addressed in Elder’s preceding two enumerations of error, this enumeration is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Decided January 8, 1998.

Kennedy & Kennedy, Reid G. Kennedy, Roderick H. Martin, for appellant.

Thomas J. Charron, District Attorney, Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to the Attorney General, Kevin H. Hudson, Assistant Attorney General, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A2370.
    BROWER v. THE STATE.
    (495 SE2d 600)
   Pope, Presiding Judge.

Robbie Eugene Brower appeals the trial court’s denial of his motion to withdraw a “best interests” guilty plea to aggravated assault with a hammer, which he entered under the procedure set forth in North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). The trial court rejected Brower’s claims that his plea was involuntary and resulted from his attorney’s coercion, promises, and ineffective assistance. We affirm the trial court’s denial of his motion to withdraw the plea.

Alford held that “[a]n individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the crime.” 400 U. S. at 37. The court found that even though Alford claimed his innocence, the trial judge could accept his guilty plea in light of the strong evidence against him and the circumstances showing he understood the plea was in his best interest. Alford, 400 U. S. at 38. The courts of this state follow Alford’s analysis. See Freeman v. State, 211 Ga. App. 716, 717 (1) (440 SE2d 490) (1994) (not error to accept plea despite defendant’s claim of innocence “when the defendant intelligently concludes it is in his best interest and the judge has inquired into the factual basis for the plea and sought to resolve the conflict between the plea and the claim of innocence”).

1. The trial court was entitled to find Brower entered his plea knowingly and voluntarily, with an intelligent desire to avoid the risks of trial. The case was scheduled for trial the day Brower entered his plea. The judge intensely questioned Brower, who said he understood the maximum penalty for his offense was 20 years and the minimum penalty a suspended sentence. Brower stated he was pleading without any agreement regarding his sentence. The judge explained Brower’s rights, including his entitlement to counsel and a jury trial, and Brower said he understood those rights. No one used any threats or promises to make him enter his plea, Brower told the court. The prosecutor stated that eyewitnesses would say Brower was in a dispute with the victim, went to his van and pulled out a hammer, and hit the victim in the head with it, piercing the victim’s scalp and causing him to suffer seizures. Brower testified under oath and admitted he fought with the victim but adamantly denied striking bim in the head with a hammer. On cross-examination, when the prosecutor suggested that police would come to court “with a bloody hammer,” Brower again denied using any hammer but asked, “After this is over with, can I get my hammer back?” Despite his claim of innocence, Brower said he desired to enter an Alford plea rather than take the risks of a jury trial at which he could “win big or lose big.” These facts show the plea was voluntarily, knowingly, and intelligently entered, and the trial court did not abuse its discretion in accepting it. See Craig v. State, 192 Ga. App. 148, 149 (384 SE2d 240) (1989). Contrary to Brower’s argument, the trial court did seek to “resolve the conflict” between Brower’s plea and his claim of innocence. See Freeman, 211 Ga. App. at 717. The court specifically found that a factual basis existed for the plea despite Brower’s denial of responsibility. See McCants v. State, 222 Ga. App. 75, 79-80 (3) (473 SE2d 514) (1996).

2. Brower claims his trial attorney provided ineffective assistance by promising him that the court would impose only a probated sentence. At the hearing on Brower’s motion to withdraw the plea, the attorney denied this allegation, and the trial court was not required to believe this claim. See Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997) (when considering claims of ineffective assistance, trial court determines witness credibility). Moreover, “[t]he [guilty plea] transcript indicates that [Brower] indicated that he had not been promised anything in exchange for his plea. ‘A person cannot avoid the legal consequences of his acts even if based on good faith reliance on the advice of counsel.’ [Cit.] Thus, [Brower’s] testimony as to what his counsel informed him about the anticipated sentence in exchange for his guilty plea would have no bearing on the court’s decision to deny his motion to withdraw the guilty plea.” Craig, 192 Ga. App. at 149-150. The court did not err by finding Brower failed to meet his burden of proving ineffective assistance. See King v. State, 215 Ga. App. 139, 141 (2) (449 SE2d 870) (1994).

3. In two enumerations, Brower claims he entered the guilty plea because his attorney wrongly led him to believe his extensive criminal record would be introduced into evidence against him at a jury trial. There is a presumption that the attorney provided reasonably effective counsel. Brown v. State, 216 Ga. App. 312, 313-314 (1) (454 SE2d 596) (1995). The attorney was not questioned on this issue, and the trial court was not required to believe Brower’s testimony that counsel told him the jury would hear of his prior criminal acts. See Randolph, 225 Ga. App. at 324.

Decided January 8, 1998.

William A. Dowell, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

Brower’s trial attorney did inform him that his prior record would be used against him in sentencing, and counsel was correct in so doing. The State provided Brower notice that, if he were found guilty at trial, it would introduce evidence of his long criminal record in aggravation of punishment. The court could have considered him a recidivist and sentenced him to the maximum 20 years even though the indictment contained no recidivist count. See Jefferson v. State, 205 Ga. App. 687, 688 (3) (423 SE2d 425) (1992). “In the specific context of a challenge to a guilty plea based on counsel’s ineffectiveness, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Citation and punctuation omitted.) King v. State, 215 Ga. App. at 141. The trial court could properly conclude that any misunderstanding Brower had regarding the use of his prior criminal record did not alter his decision to plead guilty rather than risk a guilty verdict and harsh sentence. See id.

4. Brower’s remaining enumeration claims trial counsel provided ineffective assistance when he failed to investigate the case, prepare for trial, and request scientific testing of the hammer. Trial counsel was not questioned on these specific issues but testified he had been prepared to try the case. As Brower did not show what his attorney should have done differently and did not show how these alleged errors affected his decision, the trial court did not abuse its discretion in denying these claims of ineffective assistance. See Dixon v. State, 267 Ga. 136, 138 (2) (475 SE2d 633) (1996).

5. Given the evidence in this case, the denial of Brower’s motion to withdraw his guilty plea caused no manifest injustice.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Beasley, Judge.

text:
    A98A0403.
    HOOPER v. TAYLOR.
    (495 SE2d 594)
   Beasley, Judge.

On December 3, 1993, Mary Helen Stallworth Hooper filed an application for a year’s support in the Probate Court of Rockdale County. None of the interested persons allegedly notified of the application filed objections. On January 18,1994, the court entered a final judgment on the application granting an award to Hooper.

Over two years later, in September 1996, Claudette Hooper Taylor filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) on the ground that she did not have valid service of the citation because the certified mail was not properly addressed. The probate court held an evidentiary hearing on the issue of service and publication and denied the motion to set aside.

Taylor appealed to the superior court (OCGA §§ 5-3-2 and 5-3-29), which heard argument and set aside the award of a year’s support.

Hooper filed a direct appeal to this Court on the ground that it is a final order. Hooper enumerates as error the court’s finding a lack of due process, when it was shown that plaintiff complied with the service statute, OCGA § 53-5-8. •

1. “It is the duty of this court on its own motion to inquire into its jurisdiction. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230). In the absence of an order dismissing the case, the grant of a motion to set aside a judgment on jurisdictional grounds, like the grant of a motion for new trial, leaves the case still pending in the trial court below and is not a final judgment. Mayson v. Malone, 122 Ga. App. 814, 815 (178 SE2d 806). Because the judgment is not final, a direct appeal under OCGA § 5-6-34 (a) is not authorized and appellant has failed to follow the proper procedure for an interlocutory appeal. OCGA § 5-6-34 (b). . . . [Ajbsent a certificate of immediate review and application to this court for authorization to appeal, [Hooper’s] direct appeal from the grant of an OCGA § 9-11-60 (d) motion to set aside is unauthorized and must be dismissed. Laff Lines, Ltd. v. Dimauro, 186 Ga. App. 24, 25 (366 SE2d 375).” (Citations, punctuation and emphasis omitted.) Guy v. Roberson, 214 Ga. App. 391, 392 (1) (448 SE2d 60) (1994).

2. The case is still pending in superior court because the appeal to it was a de novo investigation. See OCGA § 5-3-29. As such, and the case not having been dismissed, Hooper may continue pursuit of a year’s support. See Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972) (trial court erred in remanding remaining proceedings to court of ordinary related to application for a year’s support). See also Ledford v. Farrow, 134 Ga. App. 591 (215 SE2d 344) (1975) (error to remand case to court of ordinary where appeal taken from ordinary’s denial of application to set aside probate of will).

Decided January 8, 1998.

Eugene D. Butt, for appellant.

Talley & Sharp, Daniel S. Digby, for appellee.

Appeal dismissed.

Pope, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A97A2047.
    LARKIN v. THE STATE.
    (495 SE2d 605)
   Judge Harold R. Banke.

Enumerating two errors, Samuel D. Larkin, a City of Atlanta police officer, appeals his conviction for obstruction of a law enforcement officer.

The evidence, when viewed in a light to support the verdict, showed that the underlying events arose after Paula Larkin, the appellant’s wife, pulled into a parking place at a Hi-Fi Buys store. After she blew the car’s horn, a confrontation erupted between her passengers, Larkin and his brother-in-law, Twain Wellons, and some individuals walking through the parking space. Larkin leaped out and grabbed one of the men. Wellons jumped out armed with a gun in his hand. When Officer Michael Wyatt responded to the altercation, one of the victims reported that the male in the back seat had pulled a gun. Larkin falsely informed Wyatt that the gun involved in the confrontation was his own service revolver located under his jacket in its holster. The other individuals at the scene insisted that the gun in Larkin’s shoulder holster was not the one the passenger had used. At this point, Larkin stated that the handgun, his “back-up weapon” was in his vehicle, blocked Wyatt’s access to the car and refused to surrender the gun. Wyatt summoned his supervisor for assistance. When the backup officers arrived, Larkin hindered them from arresting Wellons. Investigators subsequently determined that the weapon used in the incident was not Larkin’s service revolver but a gun reported as stolen. In a separate proceeding, Wellons pleaded guilty to theft by receiving. Held:

1. The trial court did not err in denying Larkin’s motion for directed verdict as to the offense of misdemeanor obstruction of a law enforcement officer. The essential elements of that crime are: (1) knowingly and willingly obstructing or hindering, (2) any law enforcement officer, (3) in the lawful discharge of his official duties. OCGA § 16-10-24 (a). The State’s evidence showed that Larkin lied about the gun to Wyatt, denied Wyatt access to the weapon, refused Wyatt’s command to return to his car, created a disturbance, and hindered police from arresting his brother-in-law. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain the denial of the motion for directed verdict. See Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996) (denial of directed verdict reviewed by sufficiency standard).

Larkin’s reliance on such outdated cases as Moccia v. State, 174 Ga. App. 764 (331 SE2d 99) (1985) is misplaced. Misdemeanor obstruction no longer contains the element of violence. Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596) (1995).

2. Larkin contends that the trial court committed reversible error by admitting testimony about the stolen gun and State’s Exhibits 6 and 7. He claims that the admission of this irrelevant evidence was highly prejudicial and likely contributed to his conviction. See Hill v. State, 177 Ga. App. 850, 851 (1) (341 SE2d 322) (1986); OCGA § 24-2-1.

The testimony that Larkin lied about the use of his service revolver and admitted to owning a gun later determined to have been stolen was admissible as part of the res gestae. OCGA § 24-3-3. The fact that this evidence may have indicated the commission of a separate crime or incidentally placed Larkin’s character in issue did not render it inadmissible. Martin v. State, 219 Ga. App. 277, 280 (2) (c) (464 SE2d 872) (1995).

Although Larkin claims that the trial court erred in admitting Exhibit 6, the record shows that it was admitted without objection which forecloses appellate review. Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994). In any event, this exhibit, a copy of Wellons’ guilty plea to pointing a pistol at another, was admissible to impeach Paula Larkin who testified that Wellons never had a gun during the incident. OCGA § 24-9-82. See Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992).

Nor do we find that the admission of Exhibit 7, consisting of the original indictment, the nolle prosse, and the transfer order to state court was reversible error. Larkin’s counsel asked repeated questions to officers about which charges the police filed and how long the case had been pending, and about delays in bringing the charges. After defense counsel elicited the fact that the State did not institute the obstruction charges until after Larkin filed an internal affairs complaint about the treatment of his family, the trial court ruled that the State was entitled to explain the procedural history of the case since defense counsel had opened the door by insinuating that the initiation of the obstruction charges was retaliatory. The prosecutor was permitted to state in her place the history of the case, the transfer from superior court to state court, and that it was her decision, not the police department’s, to bring the obstruction charges. Under these circumstances, we are not able to find that the trial court abused its discretion. See Sorrells v. State, 267 Ga. 236, 239 (2) (476 SE2d 571) (1996).

Decided January 9, 1998

Daniel F. Byrne, for appellant.

Samuel D. Larkin, pro se

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

Judgment affirmed.

Beasley and Smith, JJ., concur.

       The indictment charged Wellons with aggravated assault, pointing a pistol at another, and theft by receiving. It charged Larkin with simple battery and theft by receiving. Part of the exhibit showed that when Wellons pleaded guilty to theft by receiving, he stated that Larkin was unaware that the handgun had been stolen.


author: Ruffin, Judge.

text:
    A97A2273.
    THOMPSON v. THE STATE.
    (495 SE2d 607)
   Ruffin, Judge.

A jury found Kelvin Thompson guilty of possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. Thompson appealed, asserting that the trial court erred in denying his motion to suppress because the arresting officer did not have a reasonable, articulable suspicion for conducting an investigative stop. For reasons which follow, we affirm.

“ ‘In reviewing a trial court’s decision on a motion to suppress[,] . . . our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.’ [Cits.]” (Emphasis omitted.) State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

Viewed in this light, the relevant facts of this case are as follows. The arresting officer was Dale Pope, who during his career as a police officer had made between 200 and 300 drug arrests. On the evening of the stop, Officer Pope was patrolling a known drug area as part of the Athens-Clarke County Police Department’s “West Side Initiative.” According to Pope, under the West Side Initiative a group of officers was assigned to the area because of shootings and loitering and to deter drug traffic. At approximately 6:42 p.m., Officer Pope noticed Thompson and another individual standing together in the middle of the street. Pope stated that as he pulled closer he saw the individuals attempting to exchange something in “what appeared to be a drug transaction.” According to Officer Pope, when the individuals saw his marked police car they “left skiddishly [sic] in different directions,” with Thompson walking toward a house on the street corner. Officer Pope asked Thompson where he was headed, and Thompson responded that he was going to his uncle’s house on the corner. Pope’s suspicions were further aroused because he knew the individual who lived in the house, and when he asked Thompson for his uncle’s name, Thompson looked puzzled and could not provide an answer. Under the circumstances, Officer Pope decided that he needed to pat Thompson down for weapons to ensure his safety. As Pope patted down the outside of Thompson’s clothing, he felt what appeared to be a handgun in the stomach area. He then reached underneath Thompson’s clothing and retrieved a .22 caliber semiautomatic Colt pistol from the waistband of Thompson’s pants. Officer Pope arrested Thompson for carrying a concealed weapon, and in a subsequent search another officer found a plastic bag holding six smaller plastic bags containing marijuana.

Thompson asserts that Officer Pope lacked a reasonable, articulable suspicion for the stop because although Pope stated that he saw the individuals attempting to exchange something in “what appeared to be a drug transaction[,]” he also stated that he did not actually observe anything change hands. Thompson contends that the exchange was susceptible to many innocent interpretations such as offering a cigarette or exchanging phone numbers. We find, however, that Thompson’s behavior, coupled with evidence that he was standing in the middle of the street in a known drug area and the fact that he did not know the name of his uncle whom he was going to visit, were sufficient to provide Officer Pope with a reasonable, articulable suspicion of criminal conduct. See Lambright v. State, 226 Ga. App. 424, 426-427 (1) (487 SE2d 59) (1997).

We similarly find that there was sufficient evidence to support Officer Pope’s pat-down of Thompson. Under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), “ ‘a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. (Cit.)’ [Cit.]” Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995). A “ ‘policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. . . . The purpose of this limited search is . . .to allow the officer to pursue his investigation without fear of violence. ... So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.’ [Cit.] The question is whether ‘a reasonably prudent man in the circumstances would be warranted in the belief that his safety . . . was in danger.’ [Cit.]” Id., citing Terry, supra.

Decided January 9, 1998.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

In this case, the trial court’s finding that the stop and search met the standard in Terry was not clearly erroneous. The evidence showed that the area in which Officer Pope stopped Thompson was known for shootings and that Pope was in fact patrolling the area in part because of the shootings. Officer Pope was alone as he attempted to investigate what appeared to be a hand-to-hand drug transaction, and the suspect, Thompson, was acting skittishly. Under these circumstances, the trial court was authorized, to find that Officer Pope’s limited protective search was authorized. See Hodges, supra.

Judgment affirmed.

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


text:
    A97A2408.
    In the Interest of A. M. R., a child.
    (495 SE2d 615)
   Beasley, Judge.

Susan Lamont, while in jail for disorderly conduct, consented to the placement of her seven-month-old daughter A. M. R. (d.o.b. 01/28/ 94) in a foster home pending Lamont’s compliance with a reunification plan. After two and one-half years of noncompliance, the juvenile court conducted a lengthy hearing and terminated Lamont’s parental rights.

The court heard evidence that since the placement Lamont had been arrested for various criminal offenses, consistently failed to abide by the reunification plan, moved twelve times back and forth between Georgia, Florida, and New York, lived with two men other than her husband, relinquished custody of her five-year-old son to her admittedly abusive husband, rarely visited A. M. R., and abandoned the child within a week on one occasion to live with a boyfriend. She obtained a psychological evaluation (mandated two years earlier by the reunification plan) which showed various mental maladies, including depression and a borderline personality disorder.

Three errors are asserted. First, the evidence did not support the court’s finding of a medically verifiable deficiency of her mental health that rendered her unable to provide for the child under OCGA § 15-11-81 (b) (4) (B) (i). Second, the evidence did not support the court’s finding she failed to communicate or to make a bona fide attempt to communicate with the child under OCGA § 15-11-81 (b) (4) (C) (i). Third, she was not afforded appointed counsel at all stages of the proceedings as required by OCGA § 15-11-30.

1. To terminate parental rights under OCGA § 15-11-81 (a), “[t]he trial court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. Such conduct or inability may be proved by showing, inter alia, that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. A deprived child is one who is without proper parental care or control.” (Citations and punctuation omitted.) In the Interest of M. E. C., 228 Ga. App. 9 (1) (491 SE2d 107) (1997).

In making this determination, the court may consider numerous factors. One is a "medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-81 (b) (4) (B) (i). A second could be evidence of past physical, mental, or emotional neglect of the child or of another child by the parent. OCGA § 15-11-81 (b) (4) (B) (v). A third may be whether the parent has unjustifiably failed to communicate meaningfully with the child for a period of one year or longer while the child was in state custody. OCGA § 15-11-81 (b) (4) (C) (i). A fourth could be whether the parent has complied with the reunification plan in the last year. OCGA § 15-11-81 (b) (4) (C) (iii). •

The court found deprivation based on these four particular factors. Challenging only two of them, Lamont does not question the court findings of her arrests, the filthy and confrontational living environment in which she raised the child, her New York indictment for failing to care for her son who was found abused, and her failure to abide by the reunification plan by, among other things, failing to provide a stable home and income.

"The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.” (Citations and punctuation omitted.) M. E. C., supra, 228 Ga. App. at 10 (1).

(a) Medically Verifiable Deficiency. Lamont contends the evidence did not support a finding that a medically verifiable deficiency of her physical, mental or emotional health rendered her unable to provide for the needs of A. M. R. She cites the lack of expert testimony and the absence in the psychological evaluation of any opinion that her mental problems interfered with her ability to provide care and support for the child.

The psychological report of the county mental health center was admitted without objection. It detailed findings that Lamont (a) had poor insight, (b) had poor judgment, (c) lacked impulse control making it difficult for her to control anger, (d) made repeated suicidal gestures, (e) suffered from depression as a result of a history of early sexual abuse, (f) had a history of unstable relationships and was more concerned with the loss of male relationships than with her children (she made a pact with a boyfriend that she would give up her son if he would give up his child), (g) engaged in manipulative and acting out behaviors, and (h) exhibited the classic symptoms of a borderline personality disorder. Lamont adamantly denied any problems and refused treatment. Her prognosis was poor, and she intended to remain for the indefinite future on social security payments which she received for mental disability demonstrated by her suicidal gestures.

This evidence and Lamont’s erratic behavior provided ample reason to find Lamont’s mental deficiency rendered her unable to care for A. M. R., even though the report itself did not discuss the impact of her mental condition on her child-care ability. Testimony from social workers confirmed this impact.

(b) Failure to Communicate. Lamont contends she made reasonable efforts to visit and otherwise communicate with A. M. R., given Lamont’s residence in New York and her limited income. This argument was better directed to the factfinder than to this tribunal. We review only the sufficiency of the evidence to determine whether a rational factfinder could find clear and convincing evidence the parent made little attempt to communicate with or visit the child.

The reunification plan was updated every six months and sent to Lamont because it mandated that she visit the child as often as possible, hopefully monthly. Even though Lamont agreed to this plan, she visited her child only twice in the first six months — once right after her release from jail and once five months later. Her explanation is that she was out-of-state, having gone to live with relatives or boyfriends in Florida and then New York. Yet on at least one occasion she was actually in the local Bulloch County Department of Family & Children Services office but made no attempt to visit A. M. R. During the next six months, Lamont committed to visiting A. M. R. on her birthday, but failed to visit then or at any time.

During the following six months, at Lamont’s request, A. M. R. was placed with a relative in New York, where Lamont was living. Even though Lamont committed to care for A. M. R., within a week she abandoned the child in favor of living with a boyfriend in New York and then later in Florida. The relative returned the child to Bulloch County DFACS, and for the next 18 months until the termination hearing Lamont did not visit the child a single time. She claims a lack of travel funds, but during this time she was occasionally in Georgia as she traveled betweén Florida and New York. Nor did she request any travel funds from Bulloch County DFACS, which were potentially available. During the sporadic times she called the foster home, usually collect, she focused not on the child but on herself, and the last time upset the child. Cards were also infrequent, with none in the six months prior to the hearing.

The evidence supported the finding that Lamont failed to make bona fide attempts to communicate with her child in a meaningful, supportive, parental manner.

2. OCGA § 15-11-30 (b) provides that a party including a parent, see Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 410-411 (229 SE2d 66) (1976), “is entitled to representation by legal counsel at all stages of any proceedings alleging . . . deprivation and if, as an indigent person, he is unable to employ counsel, he is entitled to have the court provide counsel for him. If a party appears without counsel, the court shall ascertain whether he knows of his right to counsel and to be provided with counsel by the court if he is an indigent person. The court may continue the proceeding to enable a party to obtain counsel and shall provide counsel for an unrepresented indigent person upon his request.” See Wilkins v. Dept. of Human Resources, 255 Ga. 230 (337 SE2d 20) (1985); K. E. S. v. State of Ga., 134 Ga. App. 843, 846-847 (1) (A) (216 SE2d 670) (1975). No state or federal constitutional right to counsel is involved because a parental termination action is a civil matter, not a criminal proceeding. See In the Interest of B. G., 225 Ga. App. 492, 495 (2) (b) (484 SE2d 293) (1997); Bergmann v. McCullough, 218 Ga. App. 353, 356 (4) (461 SE2d 544) (1995).

Lamont complains she was not provided appointed counsel until shortly before the 1997 termination hearing. But she did not request counsel until then, even though she was specifically informed of her right to such in the summons she received for the initial September 1994 deprivation hearing and was repeatedly informed of a right to be represented at her case reviews.

Decided January 9, 1998.

Jack B. Williamson, Jr., for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Gary L. Mikell, for appellee.

Lamont does not identify any proceeding at which she appeared unrepresented. Where one is not represented by counsel, to appear means to appear in person. Black’s Law Dictionary (5th ed.), p. 89; see Bryan v. Ga. Pub. Svc. Comm., 238 Ga. 572, 575 (234 SE2d 784) (1977). Lamont concedes she received the summons for the deprivation hearing but did not attend. The only other court involvement prior to the termination hearing was when it approved case plans, without a hearing. Lamont agreed to the first case plan before it was submitted to the court. The other case plans were submitted after case reviews. Each case plan, all of which were received by Lamont, notified her she had five days to request a hearing before the court if she disagreed with the plan, and if she did not request a hearing the plan would be submitted to the court and issued in the form of a court order. She made no such request.

The statute requires the court to inform an unrepresented party of her right to appointed counsel, but only if that “party appears without counsel.” OCGA § 15-11-30 (b). Lamont made no such appearance. Nor did she request counsel, although the summons for the deprivation hearing informed her of this right. A request is required before an appointment is made. OCGA § 15-1Í-30 (b). In the summons for the termination hearing, Bulloch County DFACS for a second time informed Lamont of her right to appointed counsel. See OCGA § 15-11-26 (e). At her request, Lamont was appointed counsel and was represented at the termination hearing. That is the only time she appeared in person at a court proceeding.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A2477.
    MORROW v. THE STATE.
    (495 SE2d 609)
   Beasley, Judge.

After a bomb was found in the crawl space under his ex-wife’s home in 1995, Willard Anthony Morrow was convicted of criminal attempt of arson in the first degree (OCGA §§ 16-7-60 and 16-4-1), criminal possession of explosives (OCGA § 16-7-63, repealed as of May 1, 1996, Ga. L. 1996, p. 416, § 2), and criminal possession of an explosive device (OCGA § 16-7-64, also repealed). The issues are whether the trial court erred in (i) not granting a new trial on the grounds the verdict was decidedly against the weight of the evidence, (ii) admitting evidence of prior difficulties between Morrow and his ex-wife, and (iii) permitting the testimony of the fire chief, who was not formally tendered as an expert, about the incendiary nature of the substances used in the bomb and its potential effects.

1. Whether to grant a new trial based on the weight of the evidence rests solely within the trial court’s discretion. See OCGA § 5-5-21; Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993); Madaris v. State, 207 Ga. App. 145, 147 (2) (427 SE2d 110) (1993). The appellate courts review only the sufficiency of the evidence, in the light most favorable to the verdict, to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Willis, supra, 263 Ga. at 598; Madaris, supra, 207 Ga. App. at 147. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), enunciates the standard.

The evidence showed that Morrow and his wife were divorced following two episodes of violent behavior by him toward her in February 1995. She received the marital home in the property settlement over Morrow’s objection. He threatened to burn the house and stated that if he did not get it, no one would.

Early on the morning of April 20,1995, the ex-wife smelled natural gas fumes when she arrived home from her nightshift job. She had turned off the gas to the entire house some days earlier. She contacted emergency services, and firemen soon arrived. They found someone had turned the gas back on and then, using a pipe wrench, had disconnected the gas pipe from the furnace so that it was spewing gas freely into the crawl space under the house. They also discovered an open five-gallon bucket in which two propane cylinders and a bag of chlorine sat in over two gallons of gasoline.

On a piece of wood straddling the top of the bucket was a glass jar containing a small metal lid on wet expanding white particles. Stripped wires attached to the top of the jar were connected to a live electrical outlet. Black gunpowder was in the torn bottom half of a plastic ziplock bag next to the jar. If the white particles had absorbed enough liquid to raise the metal lid to the bare wires, an electrical arc would have occurred, igniting the gasoline and natural gas fumes and causing an explosion and a fire that would have destroyed the house and damaged nearby residences. The bomb was disarmed and removed.

Police found in Morrow’s vehicle the matching top half of the ziplock bag, a pipe wrench, wiring tools, chlorine, white particles consistent with those found in the jar, and black gunpowder particles of the same size and make as those from the bomb site. Early that morning Morrow, in an apparent attempt to establish an alibi, had checked himself into a hospital claiming chest pains, but the treating physician found no evidence of such.

There was ample evidence from which a jury could find guilt beyond a reasonable doubt.

2. The State complied with the procedural requirements of Uniform Superior Court Rule 31.3 by giving Morrow written notice before trial of its intent to introduce evidence of prior difficulties between Morrow and his ex-wife, including his threat to burn the house and his recent altercations with her. Barrett v. State, 263 Ga. 533 (2), 534-535 (436 SE2d 480) (1993). Morrow contends that the prior difficulties were not similar to arson and were so prejudicial as to outweigh their probative value.

(a) Prior difficulties are admissible if they are similar to the crime charged or if they have a sufficient logical connection to the crime. Giles v. State, 211 Ga. App. 594, 596 (2) (440 SE2d 48) (1993); Bohannon v. State, 208 Ga. App. 576, 580 (2) (b) (431 SE2d 149) (1993) . “[T]he true test of admissibility is not the number of similarities between the crimes, but whether the evidence of prior incidents was substantially relevant for some purpose other than to show that the defendant likely committed the crime because he is a person of bad character. [Cit.]” Id.

The reasoning of Sloan v. State, 214 Ga. App. 784 (449 SE2d 328) (1994) , applies here: “Our courts have long held that evidence of prior difficulties between an accused and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim. . . . [Defendant’s previous difficulties with the victim and his family were admitted properly to show defendant’s bent of mind toward them. These difficulties were connected logically to the crime on trial.” (Citations and punctuation omitted.) Id. at 785 (1); see Simmons v. State, 266 Ga. 223, 225 (2) (b) (466 SE2d 205) (1996) (trial for murder of ex-wife; “testimony admitted concerning instances of prior difficulties throughout [defendant’s] marriage was relevant to the issues of intent, motive, scheme, and bent of mind”).

The court found the prior troubles between Morrow and his ex-wife tended to show the state of feeling between them and to show motive for the attempted arson. This finding of nexus was not clearly erroneous, as Morrow’s prior behavior in their disintegrated relationship tended to prove a prompt for the criminal acts and explain why Morrow would commit such acts. See Henderson v. State, 204 Ga. App. 884, 887 (2) (420 SE2d 813) (1992) (trial court’s findings on prior transactions subject to clearly erroneous standard).

(b) Because the prior troubles were logically connected to the attempted arson and relevant to an issue, “[w]e agree . . . with the implicit finding of the trial court that the probative value of the contested evidence outweighed its prejudicial impact.” Sheppard v. State, 267 Ga. 276, 280 (4) (476 SE2d 760) (1996). “Although evidence of prior difficulties should be received with care and should not be admitted at all if there is no probative connection with the present case, where the evidence sheds light on the defendant’s conduct toward the victim, its relevance outweighs its prejudicial effect.” (Citations and punctuation omitted.) Goss v. State, 188 Ga. App. 20, 21 (372 SE2d 5) (1988).

3. As to Fire Chief Hodges’ testimony about how the construction of the apparatus rendered it an explosive device and about the damage the device would have inflicted, Morrow contends (a) Hodges was not tendered and approved as an expert witness, and (b) he was not qualified to be an expert witness on explosive devices.

(a) Although much preferred for the sake of clarity and certainty and to preclude question, it is not required that an expert be formally tendered. Lindley v. State, 225 Ga. App. 338, 340-341 (1) (484 SE2d 33) (1997); Bacon v. State, 225 Ga. App. 326, 328-329 (483 SE2d 894) (1997); see Henry v. State, 265 Ga. 732, 736 (5) (462 SE2d 737) (1995); Maddox v. State, 227 Ga. App. 602, 603 (1) (490 SE2d 174) (1997). Like the defendants in Henry v. State, 265 Ga. at 736, and Bacon v. State, 225 Ga. App. at 328, Morrow was afforded an opportunity to challenge Hodges’ credentials and to cross-examine him about his testimony. The lack of a tender was not fatal, for his qualifications to testify as an expert in explosive devices was set out in the record. Id. at 330-331 (Beasley, J., concurring specially).

Contrary to Morrow’s contention, the court did approve Hodges as an expert witness. When the State asked Hodges whether the apparatus could potentially explode, Morrow objected on the grounds Hodges was not qualified as an expert and challenged his experience as inadequate. The court overruled the objection. Similarly, when the State asked him to opine on what role the chlorine would serve in the apparatus, Morrow objected on the same ground, which was again overruled. Such rulings of the court “implicitly constituted its acceptance of [Hodges’] expert qualifications.” Lindley, supra, 225 Ga. App. at 341; see Stewart v. State, 246 Ga. 70, 75 (4) (a) (268 SE2d 906) (1980) (by overruling such objections the court “in effect accepted [the witness] as an expert”).

(b) Hodges was competent to testify as an expert witness in explosive devices. “To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession: his special knowledge may be derived from experience as well as study. It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular area to be deemed an expert.” (Citations and punctuation omitted.) Bacon, supra, 225 Ga. App. at 329; see Jones v. State, 198 Ga. App. 303, 306 (3) (401 SE2d 322) (1991).

Decided January 9, 1998.

Neel & Smith, Barry S. Haney, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

Hodges had attended arson schools and had also received specific training on explosive devices. Having fought fires for over twenty years in various capacities, from firefighter to fire chief, he had experiences with gasoline fires and explosives, including four bombs. Even though Hodges did not consider his experience extensive and in fact did not consider himself an explosives expert, similar expressions of doubt in Askew v. State, 185 Ga. App. 282 (363 SE2d 844) (1987), did not render the witness unqualified. “ ‘The question of whether or not a witness is entitled to be designated as an expert addresses itself to the sound discretion of the trial court. The doubt as expressed by the witness did not denigrate [his] credentials.’” (Citations omitted.) Id. at 282 (1).

Even if the court had erred in accepting Hodges as an expert witness in explosive devices, the error was harmless. Hodges’ testimony as to the explosive nature of the gasoline, the ignition of the substances in the bomb, the role of the chlorine, and the potential damage was all confirmed by other explosives experts whose qualifications Morrow did not and does not question.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A2509.
    THE STATE v. BARFIELD.
    (495 SE2d 622)
   Ruffin, Judge.

On February 2, 1997, Cody Duane Barfield, a minor, was arrested for driving under the influence of alcohol and charged with violating OCGA § 40-6-391 (a) (1) and (5). Barfield moved to suppress the results of his breath test, arguing that he was not properly read his implied consent rights. The trial court granted the motion, finding that the warning given Barfield deviated from the mandated language of OCGA.§ 40-5-67.1 (b). The State appealed, and for the following reasons, we affirm.

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. [Cits.]” Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997).

Decided January 9, 1998.

Richard W. Shelton, Solicitor, for appellant.

Samuel F. Greneker, William C. Head, for appellee.

The record shows that a city of Valdosta police officer stopped Barfield for speeding during the early morning hours of February 2, 1997. According to the officer, Barfield at first attempted to give him a credit card instead of his license. The officer noticed that Barfield smelled strongly of alcohol and had bloodshot eyes. Upon failing field sobriety tests, Barfield was arrested. The officer read Barfield an implied consent warning, and Barfield agreed to submit to the testing.

In reading the warning, the police officer omitted the word “chemical” from the first sentence, which reads “Georgia law requires you to submit to state administered chemical tests of your blood. . . .” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1). The officer also omitted the word “state” from the fifth sentence of the warning that provides “[a]fter first submitting to the required state tests. . . .” (Emphasis supplied.) Id. The officer additionally advised Barfield that he was entitled to “an additional chemical test” instead of “additional chemical tests” as set forth in the warning. Id. Finally, the officer inserted the word “this” before the word “testing” and omitted the word “the” in one sentence of the warning that states “[i]f you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more. . . .” (Emphasis supplied.) Id.

In suppressing the test results, the trial court concluded that the officer was required to read the exact language of OCGA § 40-5-67.1 (b) and noted that the additions and omissions from the warning changed the meaning of the implied consent notice.

It is clear that the implied consent warning read by the officer did not match exactly the words of OCGA § 40-5-67.1 (b), which applies to all cases involving offenses committed on or after April 21, 1995. See OCGA § 40-5-67.1 (b.l). Barfield’s “offense occurred at a time when the arresting officer was required to read the exact language mandated by OCGA § 40-5-67.1 (b). [Cit.]” (Punctuation omitted.) State v. Fielding, 229 Ga. App. 675, 678 (494 SE2d 561) (1997), citing Richards v. State, 225 Ga. App. 777, 779 (2) (484 SE2d 683) (1997). Accordingly, the trial court’s suppression of the breath test results due to the officer’s failure to comply with OCGA § 40-5-67.1 (b) was not clearly erroneous. Fielding, supra; Richards, supra.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A98A0162.
    HUTCHISON v. THE STATE.
    (495 SE2d 618)
   Johnson, Judge.

Neil Hutchison was sentenced to serve 15 years in confinement after entering a negotiated guilty plea to rape. In this appeal he contends the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of counsel.

“ 'In Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985), the Supreme Court held that the test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), applies when guilty pleas are challenged based on ineffectiveness of counsel. Under these circumstances, to satisfy the second prong of the Strickland test a defendant must show there is a reasonable probability that but for counsel’s deficiency he would not have pled guilty, but would have insisted upon going to trial. Hill, supra, 466 U. S. at 59.’ [Cit.]” Murray v. State, 216 Ga. App. 593, 595 (1) (455 SE2d 79) (1995). See Brantley v. State, 268 Ga. 151 (1) (486 SE2d 169) (1997); Cummings v. State, 225 Ga. App. 239 (483 SE2d 605) (1997); Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634) (1993).

Hutchison argues that trial counsel never told him that rape is designated a “serious violent felony” which, under OCGA § 17-10-6.1 (c) (3), a relatively new statute, would require him to serve his sentence in prison in its entirety. Rather, at the hearing on the motion to withdraw the guilty plea, Hutchison’s counsel outlined how he and the prosecutor agreed to put evidence of mitigating factors on the record specifically for the purpose of future consideration by the sentence review panel. At the hearing, counsel as much as admitted that he was unaware that Hutchison would not be eligible for parole because the offense had been designated by the legislature as a “serious violent felony.”

In Whitehead v. State, 211 Ga. App. 121 (438 SE2d 128) (1993), we concluded that trial counsel’s advice to Whitehead that a statutorily mandated life sentence was a possibility but not a certainty in the event of a second conviction for sale of cocaine did not constitute ineffective assistance of counsel. In Whitehead, trial counsel was aware of the mandatory life sentence statute for subsequent offenders and informed Whitehead that imposition of the mandatory life sentence was a possibility. Counsel believed, however, that because Whitehead’s first conviction was committed before the mandatory life sentencing provisions were effected by the legislature, its imposition would constitute an ex post facto application of the enhanced sentencing provisions violating Whitehead’s constitutional rights. Although a life sentence was imposed, Whitehead had been informed of that possibility during plea negotiations.

Contrary to the state’s assertion, this case is also distinguishable from Smith v. State, 174 Ga. App. 238 (329 SE2d 507) (1985) (physical precedent only). In Smith, there was no allegation that trial counsel rendered ineffective assistance with respect to the guilty plea. The focus in Smith was whether the trial court complied with the requirements of Boykin v. Alabama, 395 U. S. 238. (89 SC 1709, 23 LE2d 274) (1969) in accepting a guilty plea. In her special concurrence in that case, Judge Beasley made that point clear: “Counsel did not know when defendant would be eligible [for parole], if at all, and told defendant so before the plea was entered. . . . [A]ppellant states in his brief‘that (he) is not arguing that his attorney misled him with reference to the amount of time that he might serve if he had a good prison record.’ ” Id. at 242. See also Brown v. State, 216 Ga. App. 312, 313-314 (1) (454 SE2d 596) (1995).

Decided January 9, 1998.

Neil Hutchison, pro se.

Here, it is clear from a review of the transcript in this case that trial counsel was unaware of the existence of OCGA § 17-10-6.1 and therefore was unable to correctly advise Hutchison of the consequences of the choices confronting him. See Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988). Indeed, under OCGA § 17-10-6.1 (c) (1), had Hutchison been convicted of rape at trial and sentenced to life imprisonment, he would have been eligible for some form of sentence reduction after 14 years, rather than serving the entire 15 years he received pursuant to his plea. And, of course, had he gone to trial, he might have been acquitted or found guilty of a lesser included offense carrying a reduced sentence.

In light of the circumstances of this case, there is a reasonable probability that but for counsel’s deficiency, Hutchison would not have pled guilty, but would have insisted upon going to trial. Accordingly, the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of trial counsel.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

       We note that Hutchison’s belief that he would not have to serve the entire sentence was bolstered by a provision in the trial court’s waiver of rights form which Hutchison signed: “If my punishment includes a sentence of twelve (12) years or more in jail or on probation I understand that I have the right to have my sentence reviewed by a Sentence Review Panel if I consider the sentence too long or too harsh.” Hutchison explained that when he applied for a review of his sentence, he received a response informing him that they had no jurisdiction to review the sentence.


text:
    A98A0199.
    RAY v. RESTAURANT MANAGEMENT SERVICES, INC.
    (495 SE2d 613)
   Johnson, Judge.

Liquantor Ray appeals the grant of summary judgment to Restaurant Management Services, Inc. d/B/a Shoney’s in her slip and fall case.

Construing the evidence most favorably to Ray as the party opposing summary judgment, the evidence is as follows. Ray, her husband, and two friends went to a Shoney’s restaurant for supper. The group was initially seated at a table toward the rear of the restaurant. They decided the table was too small and asked if they could move to a booth located three to five feet away. The booth had just been vacated, and a Shoney’s employee cleared off the table in the booth as another employee swept the tile floor between the table at which Ray was seated and the booth. A third employee, a waitress, came over to the table and told Ray and her party that the booth was ready. Ray testified in her deposition that as she walked to the booth, she was reminded that her coat was at the table. She could not recall if she had taken one step back toward the table or was pivoting around when she slipped and fell on what she believed was hard-boiled egg. Her friends and her husband testified that she fell as she walked toward the booth.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In this case, two Shoney’s employees had just been working in the area in which Ray fell and a third Shoney’s employee escorted Ray from the table to the booth. Therefore, even if Shoney’s did not have actual knowledge of food on the floor, the presence of employees in the immediate area is enough to impute constructive knowledge of the condition of the floor. “Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.” (Citations and punctuation omitted.) Winn-Dixie &c. v. Ramey, 186 Ga. App. 257, 259 (2) (366 SE2d 785) (1988).

Shoney’s apparently concedes that the first prong of the Alterman Foods test, that the defendant had actual or constructive notice of the foreign substance, is satisfied in this case. In its motion for summary judgment, Shoney’s introduced no evidence, and did not argue, that it did not have actual or constructive knowledge of the substance. Rather, Shoney’s focused on the second prong of the Alterman Foods test, contending that Ray knew or should have known the foreign substance was on the floor because she had just walked across the aisle. See Arwood v. Tzen, 224 Ga. App. 722, 723 (2) (481 SE2d 874) (1997). See also Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 404) (1997).

Shoney’s correctly states the general rule that a person is presumed to have knowledge of an allegedly dangerous condition once he has successfully negotiated the condition on a previous occasion. See Dickman v. South City Mgmt., 229 Ga. App. 289 (494 SE2d 64) (1997); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). However, on summary judgment Ray is entitled to the benefit of all favorable inferences that may be drawn from the evidence. Ray testified that she could not remember whether she had taken a step back toward the table, and her friends and her husband all believed that she was still moving toward the booth. Therefore, construing the evidence in her favor, we cannot conclude, as a matter of law, that she had successfully negotiated the allegedly hazardous condition before her fall. See Arwood, supra.

In Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806 (487 SE2d 408) (1997), we reiterated the principle that “[w]hether an invitee maintained a reasonable lookout for her own safety depends on the facts and circumstances at the time and place of the fall. [Cit.]” In this case, Ray has not stated that she could have seen the hazard had she looked. “While we have held that a plaintiff fails to exercise ordinary care when she admits she could have seen the foreign substance on the floor had she been looking [cits.], no such admission is present in this case.” Chaves v. Kroger, Inc., 213 Ga. App. 348, 351 (444 SE2d 606) (1994). Therefore, whether Ray maintained a reasonable lookout for her own safety, had equal or greater knowledge of the presence of food on the floor which constituted the alleged hazard in this case, and exercised ordinary care for her own safety under the circumstances here are questions of fact which require resolution at trial. See Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465, 466 (471 SE2d 547) (1996). Accordingly, the entry of summary judgment in this case was not proper. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided January 9, 1998.

Dozier, Lee, Graham & Sikes, Stephen M. Welsh, for appellant.

Martin, Snow, Grant & Napier, Jay C. Traynham, Lisa Edwards, for appellee.


text:
    A98A0314.
    EZZARD v. THE STATE.
    (495 SE2d 620)
   Johnson, Judge.

An inmate at the DeKalb County Jail told detectives he had information regarding Vernon Ezzard’s connection to three stolen police ballistic vests and an engine block which had been removed from a U-Haul truck and installed in a 1972 Chevrolet. After verifying a number of details related by the inmate, police obtained a search warrant for the address which had been identified as the house where Ezzard lived. The house is owned by Ezzard’s parents. Ezzard, his girl friend, their three children and Ezzard’s parents were present when the police arrived to execute the search warrant. Responding to a question by police, Ezzard’s father pointed out Ezzard’s room. Police found crack cocaine on a chest of drawers and on the television set, as well as five scales, ziplock bags, razor blades, three safes, a police scanner, six pagers, and two guns. Under the bed they found a briefcase containing four pagers, $9,050 in cash, a digital scale, plastic bags and three letters addressed to Ezzard at that location. A search of the Chevrolet, conducted after the keys were found on Ezzard, revealed three types of bullets, razor blades and glass beakers.

Ezzard was indicted on charges of theft by receiving motor vehicle components, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon. Prior to trial, the theft charges were dropped. The trial judge directed a verdict of acquittal on the firearm charge, and the jury returned a verdict of guilty on the offense of possession of cocaine with intent to distribute, from which Ezzard now appeals.

1. Contrary to Ezzard’s assertion, the trial court did not commit harmful error in denying his motion to reveal the informant. “Public policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity. The identity of a mere tipster is privileged, but where the informer is a witness or participant, or has entrapped a defendant into committing a crime, disclosure- could be material to the defense. This court has held numerous times that disclosure of an informant’s identity was required where the informant was a witness or participant whose testimony would be the only testimony available to amplify or contradict that of the police officer or the defendant.” (Citations and punctuation omitted.) Simmons v. State, 208 Ga. App. 721, 723 (1) (431 SE2d 721) (1993).

As in Simmons, it is uncontroverted in this case that the inmate who provided the information to the police was not a witness to, or participant in, the criminal activity for which Ezzard was being tried. Compare Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957), in which the informant had taken a material part in the commission of the crime. In fact, the theft charges which had been precipitated by the information from the inmate had been dropped prior to trial. See Hamilton v. State, 210 Ga. App. 496, 498 (2) (436 SE2d 500) (1993).

Contrary to Ezzard’s assertion in his brief, the trial court is not necessarily required to conduct an in-camera hearing on this issue. The trial court concluded after hearing argument prior to trial that the inmate was a mere tipster and not a material or necessary witness. After such a determination has been made, no further inquiry by the trial court is required. Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977); Skipworth v. State, 185 Ga. App. 636, 638 (3) (365 SE2d 284) (1988). The trial court did not abuse its discretion in denying Ezzard’s motion to reveal the identity of a confidential informant. See Brinson v. State, 188 Ga. App. 214, 215 (1) (372 SE2d 487) (1988); Gilmore v. State, 168 Ga. App. 76, 77 (308 SE2d 232) (1983).

2. Ezzard also contends the evidence was insufficient to-support his conviction. Specifically, Ezzard argues that the state failed to prove that he lived in the room in which the drugs and drug paraphernalia were found. Ezzard presented evidence at trial that he no longer lived with his girl friend and three children in his parents’ home. The state, however, introduced evidence to the contrary. “[0]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Conflicts in the testimony of the witnesses is a matter of credibility for the jury to resolve.” (Citations and punctuation omitted.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). Because there was evidence presented from which a jury could have determined that Ezzard did stay in the room in which the drugs and other drug paraphernalia were found, we conclude on appeal that the evidence was sufficient as to that issue.

Relying on Burge v. State, 103 Ga. App. 682 (120 SE2d 200) (1961), Ezzard argues that in this case, based on circumstantial evidence, the evidence equally supported his theory that the drugs belonged to his girl friend. “In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. Whether this burden has been met is a question for the jury.” (Citations and punctuation omitted; emphasis in original.) Aleman v. State, 227 Ga. App. 607, 609 (1) (489 SE2d 867) (1997). The jury, having been charged on actual and constructive possession and informed that constructive possession may be sole or joint, rejected Ezzard’s hypothesis that the drugs belonged solely to his girl friend. This Court will not disturb the jury’s determination unless the verdict is insupportable as a matter of law. See Noble v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997). Compare Grant v. State, 227 Ga. App. 243, 245 (488 SE2d 763) (1997). Because the verdict in this case meets the criteria of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), it will not be disturbed.

Decided January 9, 1998.

Bruce S. Harvey, David S. West, for appellant.

J. Tom Morgan, District Attorney, Benjamin M. First, Maria Murder, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A97A1831.
    MITCHELL v. THE STATE.
    (495 SE2d 626)
   Johnson, Judge.

A jury found Arthur Mitchell guilty of theft by receiving stolen property and obstruction of a law enforcement officer. In his sole enumeration of error, Mitchell contends the trial court erred when it failed to follow the three-step analysis to evaluate a Batson challenge to his exercise of his peremptory jury strikes. We agree.

In Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 1770-1771, 131 LE2d 834) (1995), the United States Supreme Court established a three-step test for evaluating challenges to peremptory strikes. “The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. [Cit.]” Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

The record shows that the state challenged Mitchell’s use of all eight peremptory strikes to strike white members from the jury. Mitchell is African-American. The trial court found the state had made a prima facie showing of racial discrimination since all eight strikes were utilized against white members of the venire. The court requested Mitchell to provide race-neutral explanations for each strike. Following extensive discussion, the trial court accepted as race-neutral the reasons Mitchell offered for striking four jurors, but found that Mitchell failed to provide race-neutral reasons for the remaining four strikes. We need only address Mitchell’s challenge to one particular juror to dispose of this case.

Regarding his challenge to juror number 10, Mitchell argued the juror was condescending, disengaging and authoritative. Mitchell further stated he was concerned about the juror because he was an insurance agent and a teacher. According to Mitchell, he believed the juror “would attempt to take over the entire discussion ... of the facts of this case” because the juror seemed so “self-assured about himself and about what this case or the facts would probably show.” Mitchell also stated that the juror studied and may have taught business law, “which would indicate to me, Judge, that he would probably[,] without the proper legal training and practice[,] assume a role beyond his competence. He would probably receive some artificial badges of courage in leading others on to believe that since he has taught business law that he would know more about the law than he really does.” A second defense attorney supported the defense’s opinion of the juror’s attitude by pointing out that when questions were posed to the juror, he not only expanded on the question, but “started going off into other subjects.”

In response, the state merely contested Mitchell’s assessment of the juror’s attitude and argued that the juror’s employment as an insurance agent was not sufficient reason for exclusion. The trial judge demanded that Mitchell “show me something in your notes from your questioning that reflects [the juror’s self-important personality] as it impacts on this trial other than your impressions from the questions that you asked him and those questions, general in nature, not actually touching upon the trial of this case.” The trial judge stated that Mitchell could have asked the juror specifically about the case during voir dire, but that general questions and observations concerning the juror were not sufficient to strike him. In addition, the trial judge noted that he disagreed with Mitchell’s assessment of the juror, did not make the same subjective observations about him, and did not ascertain anything in the juror’s responses or demeanor that would suggest the juror’s opinions would be unfavorable to Mitchell. The trial judge, therefore, disallowed the strike. The juror was reinstated.

The explanation Mitchell provided for striking the juror was, on its face, race-neutral. In his explanation, Mitchell expressed concern that the juror would control the jury deliberations and that his opinions would be given greater weight by other jurors because of his background in business law. A background in business law and an authoritarian personality are not factors based on race. See Chandler, supra at 510; The trial court was bound to accept Mitchell’s explanation as race-neutral. “A trial court may not simply reject the explanation on grounds that it is not credible or that it is whimsical. Rather, it must accept the explanation if it is facially neutral, then determine whether the challenger can carry his burden of showing the given explanation is merely pretext for discrimination. [Cit.]” (Emphasis in original.) Leeks v. State, 226 Ga. App. 227, 229 (3) (483 SE2d 691) (1997). “The ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ [Cit.]” Chandler, supra at 510. There must be some evidence to support the opponent’s position that a race-neutral explanation is merely a pretext for discrimination.

Decided January 12, 1998.

Theodore Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O. W. Scales, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

We cannot determine from the record whether the trial court combined steps two and three of the Purkett analysis or merely terminated the analysis at step two after finding that Mitchell had not offered race-neutral reasons for his strike. In either case, it is clear from the record that the trial court should have accepted as race-neutral Mitchell’s explanation for striking juror number 10, then shifted the burden to the state to show that the strike was racially motivated. See generally Pickett v. State, 226 Ga. App. 743, 745 (1) (487 SE2d 653) (1997); Gilbert v. State, 226 Ga. App. 230, 232 (486 SE2d 48) (1997); Leeks, supra. Since the trial court improperly placed the burden upon Mitchell, the reinstatement of juror number 10 resulted in an illegally constituted jury and entitles Mitchell to a new trial.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A97A2538.
    SMITH v. THE STATE.
    (495 SE2d 624)
   Blackburn, Judge.

Thomas E. Smith, Jr., appeals his conviction after a bench trial of violating OCGA § 40-6-251, laying drags. Smith asserts 12 enumerations of error.

1. In several enumerations of error, Smith contends the trial court erred in its rulings regarding the allowance of certain evidence, in its determination of the sufficiency of the evidence produced, and in other procedural and evidentiary matters. However, Smith has. failed to provide a transcript of the trial, contending that he is without sufficient financial resources to purchase it.

“It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review. . . . Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994).” (Punctuation omitted; emphasis supplied.) Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 142) (1997).

2. Smith contends that trial court employees withheld assistance. However, in his brief, Smith has failed to elaborate on his enumeration of error with argument or citation of authority. Nor does Smith explain what assistance he sought and was denied. Therefore, we have nothing to review. See Court of Appeals Rule 27 (c) (2).

3. Smith contends that the trial court failed to inform him regarding his right to counsel and right to a jury trial. “When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972). As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. . . . [Additionally,] [w]hen the record is silent, waiver is never presumed and the burden is on the state to present evidence of a valid waiver. Blaylock v. Hopper, 233 Ga. 504 (212 SE2d 339) (1975).” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984).

“[0]ur Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment.” (Punctuation omitted.) Moore v. State, 225 Ga. App. 860, 862 (3) (485 SE2d 552) (1997). See Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). Because Smith’s sentence did not impose imprisonment, but merely a fine, “his conviction is not constitutionally invalid because of [his alleged] denial of assistance of counsel. Dotson v. State, 179 Ga. App. 233, 234 (3) (345 SE2d 871) (1986).” Moore, supra at 862 (3).

“When an appellant questions the purported waiver of his right [to a jury trial], it is up to the State to show that the waiver was intelligently made with thé accused’s consent. The Supreme Court enundated two post-trial methods by which the State could successfully carry its burden of proof: (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filing a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. (Citations and punctuation omitted.) Cooper v. State, 189 Ga. App. 286, 287 (2) (375 SE2d 505) (1988).” (Punctuation omitted.) Keith v. State, 218 Ga. App. 729, 730-731 (463 SE2d 51) (1995).

Decided January 12, 1998.

Thomas E. Smith, Jr., pro se.

Ben F. Smith, Jr., Solicitor, Barry E. Morgan, Terence P. Malloy, Assistant Solicitors, for appellee.

The record contains a document entitled “Waiver of Formal Arraignment and Notice of Return.” The document conveys that “[w]ith exception of traffic bureau violations, you have an absolute right to trial by jury; however, this right may be waived. IF YOU WANT A LAWYER TO Represent YOU, PLEASE STATE SO NOW. Defendant above named, having appeared here this 26 day of March , 19 97 , hereby waives formal arraignment; does not want to be interviewed for a court appointed attorney; and does waive right to a jury trial.”

The Uniform Traffic Citation itself also contains a section entitled “Appearance, Plea of Not Guilty and Waiver,” in which Smith admitted that he had been advised of his “rights to be represented by counsel and have counsel appointed to represent [him] if [he was] indigent; plead not guilty and be tried by a jury or a judge; confront the witnesses against [him]; and, not give incriminating evidence against [himself].” Smith signed the waiver indicating that he waived these rights and acknowledged that he had not been induced by any threat or promise to enter his plea of not guilty.

The record affirmatively shows that Smith was informed of his right to a jury trial and that he voluntarily waived it. Therefore, this enumeration is without merit.

Judgment affirmed.

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


text:
    A97A2593, A98A0012.
    In the Interest of L. G. et al., children (two cases).
    (495 SE2d 628)
   Ruffin, Judge.

Following a hearing, the juvenile court issued an order finding L. G. and C. N. deprived and awarding temporary custody to the Georgia Department of Human Resources. The mother of L. G. and C. N. filed these related appeals, pro se, from the juvenile court’s orders denying her request for appointed counsel on appeal and her motion for new trial.

The record shows that the deprivation hearing was held on April 2, 1996, and that the mother was represented by counsel at the hearing. Although the juvenile court subsequently issued a detailed, 32-page deprivation order on December 12, 1996, there was no transcript of the proceedings and the only tape recording was destroyed prior to issuance of the order. It is difficult to ascertain from the record what happened to counsel for the mother, but the mother contended that the juvenile court’s deprivation order misstated what occurred at the hearing, and pursuant to OCGA § 5-6-41 (f), moved the trial court, pro se, to remedy the alleged misstatements. The mother also moved the court to proceed in forma pauperis and for appointment of counsel in further proceedings. Although the court allowed the mother to proceed in forma pauperis, it found that she did not timely request appointed counsel and denied that part of her motion. The court also denied the mother’s motion to correct alleged misstatements in the record.

In Case No. A98A0012, the mother asserts that the juvenile court erred in denying her motion for new trial because, inter alia, the destruction of the only tape recording of the deprivation hearing necessitates a new hearing. We agree.

OCGA § 15-11-28 (b) provides that “[u]nless waived by the juvenile and his parent, guardian, or attorney, the proceedings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.” The provision for recording such proceedings is mandatory and is intended to facilitate appellate review of asserted errors which occurred during the proceedings. See In re R. L. M., 171 Ga. App. 940 (1) (321 SE2d 435) (1984).

Although the juvenile court apparently attempted to remedy the destroyed recording by issuing a detailed order, we do not believe that this alleviated the harm. Over eight months lapsed between the time of the hearing and the date of the court’s deprivation order. Though the juvenile court may have been able to recall much of the evidence presented when it prepared the deprivation order, this passage of time surely precluded a thorough recitation of all the evidence and the procedural events of the hearing. Under these circumstances, the mother is entitled to a new hearing on the deprivation petition, to have the hearing recorded as mandated by OCGA § 15-11-28, and to have the recording preserved in the event that future appellate review is necessary. See id.; In the Interest of T. M. C., 206 Ga. App. 595 (426 SE2d 247) (1992). Furthermore, to the extent that the mother is indigent, she will, upon request, be entitled to appointed counsel as provided by OCGA § 15-11-30.

Decided January 13, 1998.

Debbie North, pro se.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie M. Baldauff, Shalen A. Sgrosso, Assistant Attorneys General, Simpson, Gray & Cross, Melanie Barbee-Cross, for appellee.

James C. Bonner, Jr., Jan A. Wheeler, amici curiae.

2. In light of our decision in Division 1, it is unnecessary to further address the mother’s remaining assertions in these appeals.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A97A1772.
    GREENE v. THE STATE.
    (495 SE2d 634)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine with intent to distribute and also possession of cocaine. The evidence adduced at a jury trial reveals the following: At about 9:30 p.m. on November 29, 1995, law enforcement officers with the Police Department of the City of Rome, Georgia, while conducting a covert surveillance operation, observed eight to ten men loitering at an intersection known for illegal drug transactions. Soon, an old Cadillac automobile cruised into the intersection and stopped. The officers remained undercover and watched as defendant leaned into the Cadillac’s driver’s window. About a minute later, the old Cadillac raced from the scene. The loitering men responded with vulgar jeers, violent gestures and rock throwing.

Although the officers did not observe defendant exchange cash or illegal drugs during his encounter with the Cadillac driver, the officers emerged from cover and approached the intersection because at least one officer believed that defendant had just attempted to sell illegal drugs to the Cadillac driver. (This officer connected defendant’s brief encounter with the Cadillac driver to activities he observed during prior illegal drug transactions at the same intersection.) Most of the suspects fled when the officers appeared, including defendant.

Officer Lee Carter apprehended defendant after a heated foot chase, but not before twice observing defendant discard objects during the chase. Officer Carter detained defendant while another officer searched the area where the last object defendant discarded fell. This officer found a bag containing 20 pieces of a substance which was later identified as “rock” cocaine.

The jury found defendant guilty of possession of cocaine with intent to distribute and also possession of cocaine. Because these crimes merged, the trial court sentenced defendant only for possessing cocaine with intent to distribute. This appeal followed the denial of defendant’s motion for new trial. Held:

1. The trial court did not err in denying defendant’s motion to suppress. Defendant’s activities at the intersection and defendant’s activities during his flight from Officer Carter authorized reasonable suspicion for a brief detention of defendant while another officer searched for the objects which defendant discarded during his flight from police. Brown v. State, 211 Ga. App. 658, 659 (440 SE2d 253).

2. Defendant contends the evidence is insufficient to support his conviction for possession of cocaine with intent to distribute. We are compelled to agree. “To support a conviction for possession of cocaine with intent to distribute, the State must prove more than mere possession. Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991). Where a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except guilt. OCGA § 24-4-6.” Anderson v. State, 225 Ga. App. 727, 728 (484 SE2d 783).

In Bethea v. State, 220 Ga. App. 800 (470 SE2d 328), the defendant challenged evidence underlying his conviction for possession of cocaine with intent to distribute. In Bethea, two law enforcement officers observed Bethea standing near a pickup truck engaged in what appeared to them to be an illegal drug transaction. Although the officers witnessed no money or drugs change hands, they approached the truck to investigate, and Bethea fled. One of the officers chased Bethea to a nearby boarding house and caught him inside the house attempting to throw cocaine under a bed. Because there was no evidence linking Bethea’s possession of cocaine for distribution purposes, this Court reversed. The circumstances in the case sub judice are indistinguishable.

There is no proof that defendant, in the case sub judice, possessed drug paraphernalia when he was arrested, nor that defendant was in possession of large sums of money. Further, there was no evidence that the amount of cocaine defendant was carrying is consistent with amounts usually carried by drug dealers, and there is no proof that the cocaine defendant discarded was packaged in a manner suited for convenient distribution. The only evidence indicating that defendant may have been attempting to sell cocaine is proof of defendant’s brief encounter with the driver of the stopped Cadillac and an officer’s testimony that he has observed such conduct during prior illegal drug transactions at the same intersection. This evidence, however, does not exclude every other reasonable hypothesis concerning the reasons for defendant’s brief encounter with the Cadillac driver. See Anderson v. State, 225 Ga. App. 727, 728, supra. Consequently, there is insufficient evidence of defendant’s intent to distribute cocaine under the standard prescribed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We must therefore vacate defendant’s conviction for possession of cocaine with intent to distribute.

Decided January 14, 1998.

Anthony E. Cheatham, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Since there was sufficient evidence to support a verdict for possession of cocaine, the case sub judice is remanded with direction that the judgment of defendant’s conviction for possession with intent to distribute be vacated and a judgment and sentence for possession of cocaine be entered. McNair v. State, 226 Ga. App. 516, 517 (1), 518 (487 SE2d 100).

Judgment vacated and case remanded with direction.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1855.
    THE STATE v. WARMACK.
    (495 SE2d 632)
   Judge Harold R. Banke.

After Officer John Helton stopped Walter C. Warmack for making an illegal right turn, he suspected that Warmack had been driving under the influence. Helton obtained a positive reading on the alcosensor, and Warmack failed several field sobriety tests. Helton testified that Warmack was unahle to count to 30, could not stand on one leg and lost his balance when attempting the walk and turn test. Helton placed him under arrest for DUI and advised him of his implied consent rights. At the police station, Helton administered the Intoxilyzer 5000 test which resulted in readings of .064 and .058. Later, based on the apparent inconsistency between the field sobriety test results and the breath test results, and believing that Warmack might be under the influence of prescription medication or illegal drugs, Helton reread the implied consent warning and asked Warmack to consent to State-administered blood and urine tests. After initially agreeing, Warmack became angry, changed his mind, and refused further testing.

The trial court granted Warmack’s motion in limine to suppress any mention at his DUI trial of his refusal to submit to additional State testing. The trial court noted, “they requested a test; they got a test. I don’t think they can continue to request tests.” The State appeals. Held:

We reject the State’s contention that the trial court erred in precluding it from introducing evidence of Warmack’s in-custody refusal to submit to State-requested blood and urine tests after taking the requested breath test. OCGA § 40-5-67.1, when read in pari materia with §§ 40-5-55 and 40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered — breath, blood, urine, or other bodily substance — for the detection of the source of impairment as suspected by the officer. Jordan v. State, 223 Ga. App. 176, 182 (2) (477 SE2d 583) (1996). The legislature provided that “[s]ubject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test shall be administered, provided that the officer shall require a breath test or a blood test and may require a urine test.” OCGA § 40-5-67.1 (a). The plain statutory language authorizes the requesting official to select a breath test and a urine test or a blood test and a urine test.

In this case, the officer chose and designated only a breath test as the test to be administered. Nothing in the statutory scheme authorizes the State to require, as opposed to request, additional testing after the officer selects a breath test. See McKeown v. State, 187 Ga. App. 685, 686 (1) (371 SE2d 243) (1988) (physical precedent only) (after advising of implied consent rights, arresting officer may at that time request multiple tests); compare Turner v. State, 199 Ga. App. 466 (405 SE2d 296) (1991) (State cannot refuse defendant’s request for more than one test). Once the arresting officer designates the test, the statute provides no authority for making another selection when the officer becomes dissatisfied with the results of the State test. As noted in McKeown, however, a defendant has a right to refuse subsequent tests.

As a general rule, no Miranda warnings are required while the investigating officer conducts preliminary questioning or field sobriety tests or advises a defendant of his right to an independent test. See Keenan v. State, 263 Ga. 569, 572 (2) (436 SE2d 475) (1993); State v. Whitfield, 214 Ga. App. 574 (1) (448 SE2d 492) (1994) (OCGA § 40-6-392 (a) (4) requires that the officer inform a driver at the time of arrest of his right to an independent chemical analysis; see also Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983)). But because state law affords greater protection against self-incrimination than the federal constitution, after arrest, Miranda warnings must precede questioning during field sobriety tests. State v. O’Donnell, 225 Ga. App. 502, 503 (1) (484 SE2d 313) (1997); OCGA § 24-9-20. Similarly, where the driver is already in State custody, as here, the request to undergo further State testing must be preceded by Miranda warnings. See Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 SE2d 853) (1989). Since the Miranda warnings were necessary and had not been given, evidence of Warmack’s refusal to undergo the blood and urine testing would be inadmissible as violative of his constitutional right to remain silent. See Keenan, 263 Ga. at 572 (2); Whitfield, 214 Ga. App. at 575 (3). Compare Keith v. State, 173 Ga. App. 462 (1) (326 SE2d 826) (1985). Under these circumstances, the trial court did not err in granting Warmack’s motion in limine.

Decided January 14, 1998.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellant.

Mitchell & Mitchell, E. Neil Wester III, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.