author: Andrews, Presiding Judge.

text:
    A01A0167.
    RICARTE v. THE STATE.
    (547 SE2d 703)
   Andrews, Presiding Judge.

A jury convicted Louis Ramirez Ricarte of three counts of armed robbery, two counts of kidnapping, five counts of aggravated assault, kidnapping with bodily injury, and theft by receiving stolen property. Ricarte was acquitted of aggravated battery. After being sentenced as a recidivist under OCGA § 17-10-7 (b) to life imprisonment without parole, Ricarte filed a motion for new trial. In denying that motion, the trial court found that Ricarte failed to show that his trial counsel was ineffective and further found that the evidence was sufficient to sustain the verdict.

On appeal, the evidence must be considered in a light most favorable to the verdict. Ward v. State, 242 Ga. App. 246 (529 SE2d 378) (2000). When viewed in that manner, the evidence establishes that Ricarte and his co-defendant, Frederick Williams, sledgehammered their way into a SouthTrust bank branch before opening time, took hostages, fractured a bank employee’s skull, stole money, and shot at police. More specifically, after breaking the glass on a rear door, Ricarte, wearing a stocking mask and gloves, and Williams, also disguised, entered the bank. Ricarte brandished a sawed-off shotgun and a Glock 9-millimeter handgun, and Williams used a .357 Magnum pistol. Armed with the shotgun, Ricarte ordered three bank employees, Karen Kaplan, Kenneth Horne, and James Tyson, to open the vault. Kaplan entered the first part of a code, then Horne attempted to enter the second portion. After Home experienced difficulty with the combination, Williams suggested blowing off his leg. When Horne still had trouble opening the vault, Williams smashed his handgun against Horne’s head, fracturing his skull. After Kaplan managed to open the vault at gunpoint, the men were ordered facedown onto the floor.

Responding to a report of an armed robbery in progress, three police officers arrived and noticed the shattered glass door and a car behind the bank with its doors open and engine running. The vehicle had been stolen six days earlier. Through the front glass doors, Detective T. C. Medlin saw a masked gunman holding a sawed-off shotgun.

Despite the police presence, Williams exited a rear door with the duffel bag containing stolen cash. When Sergeant Kenneth Larson shouted, ££[p]olice, freeze,” Williams spun around and started shooting. Williams also fired at Officer S. J. Rainey, who returned fire. While running around a corner of the bank, Williams fired at Detective Medlin, who, after returning fire, pursued Williams on foot. A motorist who saw the shootout and saw Williams run toward an alley behind a nearby strip mall helped direct Medlin. Detective Medlin apprehended Williams emerging from the alley, clutching his side where he had been wounded during the gun battle. The .357 pistol was tucked inside Williams’ pants. The green duffel bag belonging to Ricarte and recovered at the scene of Williams’ arrest contained two wigs, a bandanna, shotgun shells, Glock magazine clips, ammunition for the .357, and more than $32,000 in bundled cash stolen from the bank.

Meanwhile Ricarte remained inside the bank. After firing several shots at police, Ricarte placed his shotgun at the back of Kaplan’s head and pushed her toward a door. Threatening repeatedly to kill her, Ricarte forced Kaplan to move around the bank ahead of him. Police established communication with Ricarte to try to persuade him to surrender peacefully. When Ricarte finally exited the bank with Kaplan in front of him, he immediately was arrested.

Ricarte took the stand on his own behalf. Ricarte admitted masterminding the details of the armed robbery, including the use of the sledgehammer to gain entry and the use of the shotgun and two handguns during the holdup. Ricarte admitted taking Kaplan hostage and using her as a human shield. The gist of Ricarte’s defense was that he was a federal parolee beset with medical problems and unable to find employment or to obtain disability benefits. He explained that he had selected a federally insured bank to rob, so that if caught he would be incarcerated in a federal facility where he could receive medical treatment. In rationalizing his actions, Ricarte explained, “I was looking for . . . retirement money and [to] take care of my medical problems.” The jury convicted both perpetrators.

1. Ricarte contends that the trial court erred by denying his right to put the jury charge conference on the record.

At the close of evidence, the trial court excused the jury and the court reporter until 2:00 p.m. but directed the return of the defendants and counsel at 1:15 p.m., when the charge conference would begin. Only after the conference was already underway did Ricarte’s counsel belatedly request its recordation, and the trial court refused the request.

In a criminal case, all testimony and proceedings except the argument of counsel must be recorded by a court reporter. OCGA § 17-8-5 (a). The term “proceedings” includes objections, rulings, and other matters which occur during the course of evidence as well as any post-trial procedures. State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980). However, a charge conference is not a matter which occurs during the presentation of evidence and is not considered part of the “proceedings.” McBride v. State, 213 Ga. App. 857, 861 (11) (446 SE2d 193) (1994). No error occurred here.

2. Ricarte contends that the trial court erred by denying his motion to strike two jurors for cause and by denying his motion for mistrial after a member of the jury disclosed that she recognized a State witness.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Kirkland v. State, 271 Ga. 217, 219 (518 SE2d 687) (1999). “In order to disqualify a prospective juror for cause on the basis that she could not fairly and impartially judge the case, the opinion must be so fixed and definite that it would not be changed by the evidence or the charge of the court during the trial of the case.” (Citations omitted.) Menefee v. State, 270 Ga. 540, 542 (2) (512 SE2d 275) (1999).

(a) During voir dire, juror no. 14 expressed her personal abhorrence of guns and disclosed her support for the enactment of the Brady bill and the prevention of handgun violence. But when asked if she could decide the case on the evidence and law, she responded, “I can do that, I think.” When asked, “[i]s it your belief that your life experiences would prevent you from being fair and impartial,” she answered in the negative. Compare Menefee. Also during voir dire, juror no. 20 stated that his wife knew one of the prosecutors and may have provided day care services to his child. But juror no. 20 indicated he personally did not know the prosecutor and testified that he could be fair and impartial. The trial court did not manifestly abuse its discretion in refusing to disqualify this juror. Diaz v. State, 262 Ga. 750, 752 (2) (425 SE2d 869) (1993).

(b) During the trial, one of the jurors notified the trial court that she recognized one of the State’s witnesses after he took the stand. She knew him as a police officer assigned to work at her child’s school. When questioned outside the presence of other jurors, she agreed that she could decide the case on the evidence and law. Defense counsel did not elect to ask her any questions. The trial court did not abuse its discretion in determining a mistrial was not needed. Parker v. State, 220 Ga. App. 303, 310 (8) (469 SE2d 410) (1996).

3. Ricarte asserts that the trial court abused its discretion by denying his motion to sever the trial from his co-defendant. Unless the death penalty is sought, the severance of defendants’ trials lies within the sound discretion of the trial court. OCGA § 17-8-4. Absent an abuse of that discretion, the court’s decision will not be disturbed. Slaughter v. State, 240 Ga. App. 758, 759 (1) (525 SE2d 130) (1999). The defendant seeking severance must establish a clear showing of prejudice in a joint trial. Dixon v. State, 268 Ga. 81, 83 (2) (485 SE2d 480) (1997).

In ruling on a motion to sever, a trial court should consider whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other’s rights.

Butler v. State, 270 Ga. 441, 446 (4) (511 SE2d 180) (1999).

Here, Ricarte contends that he was denied due process and prejudiced by confusion in the testimony and by his co-defendant’s mere presence in the case. He also argues that he was prejudiced by his co-defendant’s decision to represent himself. Despite Ricarte’s claims to the contrary, the divergent activities of each armed robber were presented clearly to the jury. In fact, Ricarte was acquitted of the aggravated battery count involving maliciously causing harm to Horne by fracturing his skull. Nor were their defenses antagonistic. Ricarte’s defense hinged on a claim that he desperately needed medical care and was financially unable to afford it; while Williams’ defense pivoted on a claim of insanity. Ricarte failed to show how any defense used by Williams was so antagonistic to his own defense so as to constitute the denial of due process. See Pryer v. State, 245 Ga. App. 279, 282 (2) (537 SE2d 717) (2000).

Ricarte blames juror confusion for his conviction on Count 12, an aggravated assault charge, firing a deadly weapon at Detective Medlin, since he was shooting his weapon out the rear of the bank, not the front where Medlin was positioned. This argument completely ignores well-established law that as a party to that crime, Ricarte was equally culpable. OCGA § 16-2-20 (b) (3); Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986).

Finally, Ricarte asserts that because his case was not severed from his co-defendant’s, the rules governing reciprocal discovery under OCGA § 17-16-3 were violated by Williams’ failure to provide him with a list of witnesses prior to trial. But Ricarte has not suggested, let alone demonstrated, how he was harmed. See Dixon, 268 Ga. at 83 (2). Under these circumstances, we find no showing of actual prejudice, no denial of due process, and no abuse of discretion by the trial court in denying the motion to sever. See Slaughter, 240 Ga. App. at 759 (1).

4. Ricarte contends that his trial counsel was ineffective and that he was prejudiced by that deficient defense. Ricarte claims his counsel failed to request the court to strike three jurors; failed to properly cross-examine certain witnesses; announced he was unprepared to proceed during the co-defendant’s case; continued to argue the defense of justification after the trial court refused to charge that defense; failed to object to improper prosecutorial comments during closing argument; failed to offer adequate mitigating evidence during sentencing; and failed to poll the jury.

To establish ineffectiveness, an appellant must show not only that his trial counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Harper v. State, 232 Ga. App. 224, 226 (2) (501 SE2d 591) (1998). Moreover, an appellant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. Ross v. State, 231 Ga. App. 793, 795 (1) (499 SE2d 642) (1998).

In arguing the ineffectiveness claim, Ricarte asserts seven purported failures of his trial counsel. Three issues we decline to reach because the grounds differ from the ineffectiveness allegations raised and argued below and are deemed waived. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993). As to the remaining issues:

(a) Ricarte claims that his counsel conducted unreasonable cross-examinations of various witnesses and failed to cross-examine the majority of witnesses. Although the State called about 17 witnesses, only a handful testified about substantive matters involving Ricarte. Some witnesses provided testimony only implicating or pertaining to Williams. Counsel’s decision not to highlight or reemphasize certain details of the State’s case was a matter of trial tactics and not due to ineptitude. Such a tactical decision does not equate with ineffectiveness. Harper, 232 Ga. App. at 227 (2) (d).

(b) Ricarte complains that his counsel announced he was unprepared to proceed during his co-defendant’s case. This claim is misleading. At the start of trial, Williams fired his public defender and, ignoring repeated admonitions from his ex-counsel and the court, opted to act as his own lawyer. On his own behalf, Williams called three witnesses, two doctors and a former employer. Dr. John Stuart Currie offered his professional opinion that Williams was insane at the time of the acts. Dr. Currie diagnosed Williams as paranoid schizophrenic, seriously mentally ill, psychotic, and having organic brain problems. Dr. Currie also testified that despite the diagnosis of paranoid schizophrenic, Williams could have been legally sane. The next witness, Dr. Anita Pruitt, M.D., testified that while receiving treatment in the intensive care unit after the shootout, Williams appeared agitated, confused, and disoriented. Dr. Pruitt explained that “it’s very common,” for people in intensive care to act disoriented or confused. Williams’ final witness, Joyce Gray, had hired Williams as a handyman for six or seven months before the bank robbery. According to Gray, she trusted Williams and allowed him free access to her home. Gray described Williams’ behavior as “not normal” on some occasions when he had spent the night in a guest room.

Counsel for Ricarte elected not to cross-examine Dr. Currie, Dr. Pruitt, or Gray, ostensibly to preserve Ricarte’s rights on the issue of notice under the reciprocal discovery statute and rights as to the denial of the motion to sever. For the record, the trial court noted that defense counsel had been afforded a chance to interview Dr. Currie and Dr. Pruitt. Ricarte has not shown how he was harmed by his counsel’s decision not to question these witnesses. See Ross, 231 Ga. App. at 795 (1).

(c) Ricarte contends that his counsel continued to argue the defense of justification even after the trial court refused to charge the jury on that defense. The record belies this claim. As trial counsel explained, Ricarte’s defense was a hybrid of necessity and justification. The trial court instructed the jury using the pattern charge but refused to charge the language excusable under the circumstances based on “reason and justice.” See OCGA § 16-3-20 (6). As counsel correctly pointed out that while the pattern charge does not recognize the common law origins of justification or necessity, he could and did argue these concepts to the jury.

Decided April 9, 2001.

Jennifer Snyder-Surges, for appellant.

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

(d) Ricarte complains that his counsel failed to offer adequate mitigating evidence during sentencing. Ricarte however had a lengthy criminal history including prior convictions for armed robbery, kidnapping, and theft. He was under federal parole supervision at the time of these offenses. On Ricarte’s behalf, counsel directed the court’s attention to Ricarte’s age, 65 at the time of trial, and his alleged health issues. In arguing for the statutory minimum, counsel pointed out that Ricarte had assumed full responsibility for these crimes.

In any event, the overwhelming evidence of Ricarte’s guilt forecloses the requisite showing of prejudice, even assuming arguendo that trial counsel’s performance was somehow deficient. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). The trial court’s finding that Ricarte was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       James F. Brooks, M.D., a forensic psychiatrist who testified as a rebuttal witness, diagnosed Williams as being a polysubstance abuser and having an antisocial personality disorder. Dr. Brooks did not believe that Williams suffered from schizophrenia or had organic brain damage. In his judgment, Williams was legally responsible for his actions.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2169, A00A2170.
    DRISKELL et al. v. EMPIRE FIRE & MARINE INSURANCE COMPANY; and vice versa.
    (547 SE2d 360)
   Phipps, Judge.

This lawsuit arises from a collision involving a vehicle owned by Metro Courier, Inc., a motor carrier. For injuries sustained in the collision, Edmund and Christine Harris obtained a $3,150,000 judgment against Metro. In their individual capacities and as assignees of Metro, the Harrises brought this suit to collect part or all of the judgment from Empire Fire & Marine Insurance Company, Metro’s liability insurer. Edmund Harris died during the pendency of this litigation, and Toni Driskell, the administratrix of his estate, was substituted as a party plaintiff.

Is Empire chargeable with breach of duty by reason of its refusal to defend Metro in the underlying action or with bad faith in failing to settle the action? If so, what are the damages? Is Empire’s liability in this action limited to the $1,000,000 in coverage provided by Metro’s insurance policy or to the $200,000 in coverage required by Georgia law, or may Empire be held liable for the entire $3,150,000 judgment? Did the enactment of federal legislation preempt the state law mandating minimum insurance coverage? These are the primary issues raised.

Metro is engaged exclusively in the intrastate transportation of property for hire. To obtain a certificate of convenience and public necessity from the Georgia Public Service Commission (PSC), Metro secured automobile liability insurance from Empire in December 1994.

In October 1995, a vehicle operated by Christine Harris and occupied by Edmund Harris was involved in a collision with a vehicle owned by Metro and operated by its employee, Marcus Saucer. To recover for injuries sustained, the Harrises sued Metro and Saucer. In their complaint, the Harrises alleged that at the time of the collision, Saucer was an employee of Metro operating the vehicle within the course of his employment.

After suit was brought, Metro asked Empire to provide a defense. Empire refused. Empire acknowledged to the Harrises and to Metro that the policy it had issued to Metro provided a maximum of $1,000,000 in liability coverage for vehicles listed in the policy declarations, but asserted that the policy provided no coverage for the vehicle being operated by Saucer at the time of the collision because it was not a listed vehicle. Upon investigation, Empire also determined that Mrs. Harris’s negligence caused the collision. For these reasons, Empire rejected an offer by the Harrises to settle the suit for $1,000,000.

Although Empire brought a declaratory judgment action to determine whether its policy covered the collision, it did not obtain a stay of the Harrises’ damage suit. Consequently, the suit proceeded to arbitration. Prior to entry of the arbitration award, the Harrises and Metro entered into an agreement under which Metro consented to entry of judgment on the arbitrator’s award and assigned its rights against Empire to the Harrises in exchange for the Harrises’ agreement not to enforce the judgment against Metro. The agreement stated that Metro was consenting to the judgment because of Empire’s refusal to provide a defense to the suit and because of the financial risks and difficulties Metro faced as a result of the litigation. The arbitrator later returned an award in favor of Edmund Harris in the amount of $2,800,000 and in favor of Christine Harris in the amount of $350,000. A $3,150,000 final judgment was entered in the Harrises’ favor, and Empire’s declaratory judgment action was dismissed without prejudice.

Although Empire correctly represented that its policy does not provide $1,000,000 in coverage for the Metro vehicle driven by Saucer, Empire inaccurately asserted that its policy provided no coverage. Coverage existed under a policy endorsement issued by Empire to Metro shortly after the original policy was issued. The endorsement (known under PSC regulation as a “Form F” endorsement) had the effect of providing liability insurance for vehicles not described in the policy to the extent of the minimum amount mandated by Georgia law, i.e., $100,000 per person and $300,000 per incident. As a result, the combined insurance coverage available to Mr. and Mrs. Harris would be $200,000.

The Harrises seek to compel Empire to pay the entire $3,150,000 judgment, as well as attorney fees, based on (1) Empire’s failure to provide a defense in the suit against Metro, and (2) Empire’s bad faith refusal to settle the case within the policy limits. In their complaint, the Harrises also asserted a claim for punitive damages based on- false representations made by Empire concerning Metro’s insurance policy. The Harrises also maintain that Empire is liable for the $1,000,000 policy limit because it either waived the $100,000/ $300,000 limitation of liability or is estopped to deny that its policy provides liability coverage in an amount less than $1,000,000.

Empire denies any liability. Among other things, it argues that Congressional enactment of the Federal Aviation Administration Authorization Act (“FAAAA”) invalidated Georgia’s statutory and regulatory motor carrier insurance scheme, thereby extinguishing coverage under Metro’s Form F endorsement.

The trial court determined that, although as a matter of law Empire is liable to the Harrises for the amount of coverage provided by the Form F endorsement, neither the doctrine of waiver nor estoppel can be used to expand Empire’s liability beyond the legally mandated limits. However, the court ruled that the Harrises, as assignees of Metro, may pursue a claim against Empire for damages based on Empire’s bad faith refusal to exercise its duty to settle their claims within the minimum $100,000/$300,000 limit. Nonetheless, the court ruled that Empire did not have a contractual duty to defend Metro. The court rejected Empire’s arguments as to the preemptive effect of the FAAAA.

The court thus granted summary judgment to Empire with respect to the issues of waiver, estoppel, and its duty to defend Metro in the underlying suit. In Case No. A00A2169, the Harrises appeal. The court ruled that Empire was not entitled to summary judgment on grounds that the FAAAA nullified the Form F coverage, nor on the plaintiffs’ claim against it for failure to settle the underlying suit. The court also entered orders adverse to Empire on various discovery matters. In Case No. A00A2170, Empire appeals.

1. The Harrises first argue that jury questions exist on the waiver and estoppel issues. We disagree.

In analyzing this argument, we must first review the state statutory and regulatory structure which Empire claims the FAAAA preempted. OCGA § 46-7-3 generally prohibits any motor common carrier from operating without first obtaining a certificate of public convenience and necessity from the PSC. To obtain a certificate, OCGA § 46-7-12 requires the holder to secure a bond or policy of indemnity insurance to protect the public against injuries caused by the negligence of a motor carrier, its agents, and employees.

Because of the strong public policy reflected in OCGA § 46-7-12, the PSC promulgated Rule 1-8-1-.01. This rule requires the motor carrier’s insurance policy to provide minimum liability coverage in the amounts of $100,000 per person and $300,000 per incident regardless of whether motor vehicles involved in an incident “are specifically described in the policy or not.” PSC Rule 1-8-1-.07 (d) requires an insurer to issue a Form F endorsement to a motor carrier policy providing the mandated coverage and to file a “Form E” certificate of insurance with the PSC verifying that such coverage has been provided.

In Ross v. Stephens, the Supreme Court of Georgia held that an insurer’s liability under a Form F endorsement is limited to that which is required by statute rather than to the policy limits which apply to vehicles described in the policy.

The Harrises’ position is that Empire waived or is estopped to invoke the limitation of liability under the Form F endorsement because it has represented and admitted that the policy it issued to Metro provided $1,000,000 in coverage.

But Empire has consistently and correctly asserted, both before this suit was instituted and in its pleadings and discovery responses, that the policy’s $1,000,000 coverage does not apply to the unlisted vehicle operated by Saucer. Therefore, even assuming that the doctrine of waiver or estoppel could be used to expand the dollar amount of coverage provided by a liability insurance policy, there is no basis for enlarging coverage here.

Moreover, the doctrine of estoppel is predicated upon “a detrimental change in position in reliance upon the conduct of the party to be estopped,” and the Harrises have not shown how they or Metro placed “detrimental” reliance on Empire’s representations. As to the question of waiver, the policy Empire issued to Metro provides that its terms can be waived “only by endorsement issued by us and made a part of this policy.” Provisions such as this have been held enforceable.

2. Empire argues that the FAAAA terminated Metro’s coverage under the Form F endorsement by invalidating insurance requirements imposed by OCGA § 46-7-12 and PSC Rule 1-8-1-.01. This argument is without merit.

The FAAAA, which became effective January 1, 1995, does prohibit a state from enacting or enforcing a law or regulation related to “a price, route, or service” of any motor carrier. But it does not restrict a state’s authority to regulate motor carriers with regard to “minimum amounts of financial responsibility relating to insurance requirements.”

On the date of the collision in this case, emergency interim rules enacted by the PSC as a result of the FAAAA required intrastate motor carriers of property, such as Metro, to secure a “motor carrier of property permit” in lieu of a certificate of public convenience and necessity. To obtain the permit, Metro had to demonstrate compliance with state insurance laws and regulations. One such regulation, Rule 1-8-1-.01, states that no “certificate or permit” shall be issued or remain in effect absent the compulsory minimum liability insurance. Consequently, the coverage provided by Metro’s Form F endorsement was in effect and applied to this collision.

There is no merit in Empire’s argument that the Form F endorsement does not provide coverage in this case because Saucer was not transporting property for hire at the time of the collision. Rule 1-8-1-.01 requires the carrier’s insurance policy to indemnify members of the public for loss “resulting from the negligent operation, maintenance, or use” of the carrier’s motor vehicles. Although Empire claims that Saucer did not have permission to drive Metro’s vehicle when the collision in this case occurred (on a weekend), it is undisputed that his purpose in operating the vehicle at the time in question was to perform authorized maintenance.

3. The Harrises contend that the court erred in granting summary judgment to Empire on the question of whether it had a duty to defend their personal injury action against Metro and Saucer. We agree.

The court ruled that Empire had no duty to defend Metro because the complaint sought only to impose vicarious liability on Metro under the doctrine of respondeat superior and did not allege that Metro owned the subject vehicle.

The true rule is that the duty to defend is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint (against the insured) are looked to to determine whether a liability covered by the policy is asserted. Thus, it is only where the complaint sets forth true factual allegations showing no coverage that the suit is one for which liability insurance coverage is not afforded and for which the insurer need not provide a defense. ... To excuse the duty to defend the petition must unambiguously exclude coverage under the policy . . . , and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and insurer’s duty to defend should be resolved in favor of the insured.

The allegation in the Harrises’ complaint, that Saucer was an employee of the motor carrier operating the vehicle in the course of his employment, was sufficient to bring the case within the potential coverage of the insurance policy. The absence of an allegation that Metro owned the vehicle would not exclude the possibility of coverage even under the policy declarations, as the policy in fact provides coverage for nonowned vehicles.

Empire, however, argues that the policy by its terms imposed no obligation on it to defend the Harrises’ suit. One provision of the policy gives Empire the right, and imposes upon it the duty, to defend an insured against a suit asking for bodily injury or property damages caused by an incident and resulting from ownership, maintenance, or use of a “covered auto.” Empire claims that it had no defense obligation here, because the policy defines “covered autos” as those listed hi the declarations.

Nonetheless, there is another clause in the policy which can be interpreted as imposing a duty on Empire to defend an insured against any suit seeking damages to which the insurance applies. The Harrises’ suit sought damages to which the Form F insurance coverage applied. “[W]here language of an insurance policy is ambiguous, it must be construed most strongly against the insurer and in favor of the insured. [Cit.]” Applying this rule of construction, we hold that under the terms of the policy Empire had a duty to defend the underlying suit.

It is true that the insurance coverage mandated by Form F is not for the benefit of the motor carrier, which has not paid for the coverage, but rather is for the sole benefit of members of the public who have been injured by the carrier. As shown by Empire, under a Form F endorsement, the insured agrees to reimburse the insurer for any payment which the insurer would not have been obligated to make under the terms of the policy except by reason of the obligation assumed under the endorsement. This provision does not, however, exclude an obligation by the insurer to provide a defense in a suit seeking damages to which the Form F coverage applies.

Nor, as a matter of law, would it preclude the recovery of damages for failure to defend. The insurer may have been able to defend the case at a lower cost than did the insured. Moreover, the Harrises are suing as assignees of the insured, and

[w]hen the plaintiff is the insured seeking to recover for the insurer’s breach of its contractual duty to defend, there is a factual question whether the breach may have caused the plaintiff to be exposed to greatly increased liability to the injured party. [Cit.]

4. Empire contends that the court erred in denying its motion for summary judgment on the Harrises’ claim against it for failure to settle the case. We hold that although complete summary judgment was properly denied on this claim, Empire was entitled to partial summary judgment on the issue of recoverable damages.

An automobile liability insurance company may be liable for damages to its insured for failing to adjust or compromise the claim of a person injured by the insured and covered by its liability policy, where the insurer is guilty of negligence or of fraud or bad faith in failing to adjust or compromise the claim to the injury of the insured. [Cit.] Hence, where a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limit of liability. The reason for this rule is that the insurer “may not gamble” with the funds of its insured by refusing to settle within the policy limits. [Cits.]

Under Southern Gen. Ins. Co. v. Ross, the plaintiffs, as assignees of Metro, may assert Metro’s claim against Empire for compensatory damages for loss of property resulting from the insurer’s bad faith failure to settle the underlying tort suit. We agree with the trial court that “it is a jury question as to whether Empire, in the face of the clear language of PSC Rule 1-8-1-.01, should have paid or settled at least a portion of the underlying judgment in accordance with the liability coverage limits set by the PSC.”

We, however, agree with Empire that under the facts of this case there is no basis for the Harrises to recover the entire amount of the judgment from Empire as damages for this breach of duty. The Harrises never offered to settle the case within the applicable $200,000 limits of the policy’s Form F endorsement. Although the Harrises’ complaint contained allegations that Empire concealed the Form F endorsement, they do not now dispute that Empire informed them of the existence of this policy provision while their settlement demand was pending. It appears that none of the parties realized the import of the Form F endorsement until the Supreme Court decided Ross v. Stephens.

5. Empire complains of the trial court’s refusal to allow it to depose the arbitrator in the underlying suit to show that Metro wilfully failed to present liability defenses in the arbitration proceeding and that the arbitration award was thus obtained by collusion of the parties. We agree that Empire should have been allowed to engage in discovery on these matters, which are relevant to issues of damages and proximate cause.

The Harrises argue that Empire is barred from vacating the arbitration award because it did not file an application to vacate within the time required by law after a copy of the award was delivered to it. While that may be true, Empire may still defend this suit by showing that damages sustained by Metro were not proximately caused by its breach of duty.

Decided March 26, 2001

Reconsideration denied April 10,2001

Middleton, Mathis, Adams & Tate, Charles A. Mathis, Jr., Cobb & Gardner, William J. Cobb, Herald J. A. Alexander, for appellants.

Gray, Hedrick & Edenfield, William E. Gray II, L. Bruce Hedrick, Linda M. Fitzgerald, for appellee.

6. Contrary to arguments advanced by Empire, the trial court ordered Metro to produce any settlement agreement entered into between it and the Harrises.

Judgments affirmed in part and reversed in part.

Johnson, P. J., and Smith, P. J., concur.

        Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670 (507 SE2d 525) (1998).

        Ross v. Stephens, 269 Ga. 266 (496 SE2d 705) (1998).

       Id.

       Compare Andrews v. Ga. Farm &c. Ins. Co., 226 Ga. App. 316 (487 SE2d 3) (1997), with Sargent v. Allstate Ins. Co., 165 Ga. App. 863, 865 (1) (303 SE2d 43) (1983).

        Ga. Farm &c. Ins. Co. v. Vanhuss, 243 Ga. App. 26, 27 (532 SE2d 135) (2000).

       See Parris & Son, Inc. v. Campbell, 128 Ga. App. 165, 171 (9) (196 SE2d 334) (1973).

       49 USC § 14501 (c) (1).

       49 USC § 14501 (c) (2) (A).

       PSC Rule 1-16-1.02 (a).

       See PSC Rule 1-16-1.02 (b).

       (Citations, punctuation and emphasis omitted.) Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565-566 (490 SE2d 374) (1997).

        Clark v. United Ins. Co. &c., 199 Ga. App. 1, 5 (4) (404 SE2d 149) (1991).

        Raintree Trucking Co. v. First American Ins. Co., 245 Ga. App. 305, 306 (2) (534 SE2d 459) (2000).

        Ga. Farm &c. Ins. Co. v. Martin, 264 Ga. 347, 350-351 (3) (444 SE2d 739) (1994).

        McCall v. Allstate Ins. Co., 251 Ga. 869, 870-871 (1) (310 SE2d 513) (1984).

       227 Ga. App. 191, 195-196 (7) (489 SE2d 53) (1997); compare Owens v. Allstate Ins. Co., 216 Ga. App. 650, 651 (1) (455 SE2d 368) (1995).

       OCGA § 9-9-13 (a), (c).


author: Eldridge, Judge.

text:
    A99A0847.
    ALDRICH v. CITY OF LUMBER CITY et al.
    Decided April 10, 2001.

      Larry N. Hollington, for appellant.

      Drew, Eckl & Farnham, Daniel C. Kniffen, Terrence T. Rock, for appellees.
    (547 SE2d 725)
   Eldridge, Judge.

In Aldrich v. City of Lumber City, 273 Ga. 461 (542 SE2d 102) (2001), the Supreme Court reversed the judgment of this Court’s opinion in Aldrich v. City of Lumber City, 241 Ga. App. 724 (530 SE2d 195) (1999). Therefore, we vacate our earlier opinion, and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Blackburn, C. J., Pope, P. J., Johnson, P. J., Smith, P. J., Barnes and Ellington, JJ, concur.


author: Smith, Presiding Judge.

text:
    A00A2448.
    JONES v. STATE OF GEORGIA.
    (547 SE2d 725)
   Smith, Presiding Judge.

This case arises out of the trial court’s entry of judgment against Bruce Jones in a civil forfeiture proceeding. Jones appeals from the denial of his motion for new trial. We find no merit in any of Jones’s contentions, and we affirm the judgment of the trial court.

The State introduced evidence that a confidential informant purchased suspected crack cocaine from Jones on three occasions between August 16 and August 23, 1999. Detective J. L. Maxwell, who had been employed with the Fulton County Police Department for 28 years and who had served in the Special Operations Section for 12 years, testified that on August 16, he met with the informant and searched him. The informant was then observed by detectives as he traveled to a designated meeting point. Maxwell stated that he observed an exchange occur between the informant and Jones, who was driving a black 1994 Chevrolet Impala, in the parking lot of an Amoco Station at 5000 Roosevelt Highway. The substance obtained by the informant was taken to the police department.

The second incident occurred in much the same manner, on August 20, with Maxwell searching the informant and providing him with money to make a purchase. He stated that the informant was observed going to a designated meeting place, the parking lot of a grocery store and gas station located at 4410 Roosevelt Highway, and making an exchange with Jones, who had not been fully identified after the first transaction. On that occasion, Jones was driving a blue 1971 Chevrolet Impala. According to Maxwell, the informant returned with the cocaine, which was taken to the police department.

Maxwell testified that on August 23, Jones was observed leaving his residence and was followed to the same parking lot where the second transaction had occurred. He stated that Jones, driving a red “antique” Chevrolet Impala, made no stops after leaving his home before reaching the delivery point and meeting with the informant. Maxwell testified that “[a] transaction took place; and the same procedure as before, the drugs were transported back to the south precinct.” Before this final exchange, Jones was stopped for driving with a defective taillight, and Maxwell verified Jones’s identity by obtaining a copy of the citation issued to Jones.

Following the third transaction, Maxwell sought and obtained a search warrant for Jones’s residence. On September 8, Maxwell and other officers placed the residence under surveillance and observed Jones and another individual, Eldred Owens, arrive in a car. Approximately five minutes later, the officers executed the search warrant. Inside the residence they found a quantity of cocaine, several bags of suspected crack cocaine, six loaded firearms, and cash in the amount of $5,598. On Owens’s person the officers discovered four bags containing a white powdery substance.

The State filed a complaint naming Owens and Jones as claimants and seeking forfeiture of four automobiles, several firearms, a camcorder, and a camera. Following the presentation of evidence and argument, the trial court found in favor of Owens. But with respect to Jones, the court stated that it was “going to find on behalf of the [S]tate.” The trial court then entered a judgment ordering forfeiture of all of the items listed in the complaint, with the exception of one vehicle. Following the denial of Jones’s motion for new trial, this appeal ensued.

1. We first address Jones’s contention that the search warrant was not supported by probable cause and therefore that the trial court should have granted his motion to suppress the evidence found inside his residence. The affidavit in support of the warrant recited in part:

Within the past fourteen days a confidential and reliable informant, here after [sic] referred to as the C.I., told the affiant that a subject known as “Little Bru” was selling cocaine from his residence as well as from his vehicles. The C.I. said that “Little Bru” would deliver cocaine in one of his vehicles to certain people that contacted him by telephone. Within the past ten days the affiant observed a black male identified as “Little Bru” meet subjects at different locations and make an exchange. On more than one occasion the exchange was made with a C.I. using funds provided by the affiant. “Little Bru” was observed by members of the Fulton County Police Department’s Special Operations Section leaving his residence located at 325 Wolf Downs Way, College Park, Ga. 30349. He was followed to the location of the C.I. without making any other stop or having contact with anyone else. “Little Bru” then delivered a quantity of cocaine to the C.I. This incident occurred within the past seven days.

The affidavit further recited that the informant had “proven to be reliable in the past by providing information which resulted in the seizure of illegal drugs, weapons, and the arrest of more than four people for violating the Georgia Controlled Substances Act.” Based on these circumstances, Maxwell stated in the affidavit that he believed cocaine was being stored at and sold from the residence identified in the affidavit.

In determining whether an affidavit provides sufficient probable cause for issuance of a search warrant, a magistrate must simply

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) Atkins v. State, 211 Ga. App. 712, 714 (440 SE2d 476) (1994). On appeal, we give “substantial deference” to the magistrate’s decision to issue the warrant, and we construe the evidence in favor of the court’s decision that probable cause existed. Roberson v. State, 246 Ga. App. 534, 535 (1) (540 SE2d 688) (2000).

So construing the evidence here, we find no error in the trial court’s denial of Jones’s motion to suppress. It is true that Maxwell admitted at trial that the informant had not told him that he had been inside the residence whose address was listed on the affidavit. But we cannot conclude that this one fact requires a finding that probable cause to issue a warrant was lacking. Maxwell was an experienced law enforcement officer who testified in his affidavit that the confidential informant had been reliable in the past and had provided information leading to the arrests of at least four people. Furthermore, the affidavit indicated that the information given by the informant had been corroborated to some extent. Maxwell stated in the affidavit that he had observed “Little Bru” making several exchanges, some of which involved funds provided by Maxwell, with individuals at different locations. Also according to the affidavit, “Little Bru” was observed by law enforcement officers leaving his residence and traveling directly to a location where he madé an exchange involving suspected cocaine with the informant.

Under these circumstances, in which some evidence of the veracity and reliability of the informant was presented and in which information supplied by the informant was corroborated by Maxwell, we conclude that the affidavit constituted “more than a casual rumor and provided the issuing magistrate with a substantial basis for concluding that probable cause existed to believe contraband would be found at [Jones’s] home.” (Citation and punctuation omitted.) Atkins, supra, 211 Ga. App. at 714. The trial court did not err in denying Jones’s motion to suppress.

2. Jones contends the trial court failed to make certain findings concerning the excessiveness of the forfeiture under the Eighth Amendment, as required by Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994). But Jones did not raise any issue concerning excessiveness in the trial court and therefore has waived appellate review. We will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court. See, e.g., Senase v. State, 258 Ga. 592 (372 SE2d 813) (1988); Duitsman v. State, 212 Ga. App. 348, 349 (2) (441 SE2d 888) (1994).

3. Jones also argues that his vehicles should not have been seized because the State failed to prove that the alleged contraband sold from the vehicles to the confidential informant was a controlled substance. The State sought forfeiture of the vehicles under OCGA § 16-13-49 (d) (2) on the ground that the vehicles were “used to deliver contraband for sale.” Jones correctly argues that the State did not introduce evidence positively identifying as cocaine the alleged contraband sold from the vehicles. Indeed, as argued by Jones, “[t]he alleged contraband obtained during the transactions was not tested, identified, or introduced during the trial below.”

But this fact is not controlling on the issue here. “A forfeiture action is a civil proceeding. The State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases.” (Citations and punctuation omitted; emphasis in original.) Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). The trial court in this case sat as the factfinder, and we will not disturb its findings unless they were clearly erroneous. Id. And a trial court’s findings of fact “are not clearly erroneous if there is any evidence to support them.” (Citation and punctuation omitted.) Id. This is true where, as here, “such findings are based upon circumstantial evidence and the reasonable inferences which flow therefrom.” (Citations and punctuation omitted.) Id.

The State did introduce evidence that over an approximate one-week period of time, Jones was involved in three controlled buys of suspected cocaine from three vehicles — two older model Chevrolets and one 1994 Chevrolet. With respect to one of the buys, Jones was observed leaving his home, driving to the site of the transaction, and completing the transaction with the informant. And during the search of his residence, a hidden quantity of cocaine was discovered, along with several guns and $5,598 cash. A reasonable inference exists that the vehicles were used to transport cocaine from Jones’s home — where cocaine was discovered — to the sites of the transactions involving the controlled buys. Jones submitted no evidence refuting that introduced by the State. We have stated that the forfeiture statute “must be liberally construed to effectuate its remedial purposes, i.e., balancing the prompt disposition of property subject to forfeiture with the protection of the property interests of innocent owners. [Cits.]” (Punctuation omitted.) Bettis, supra, 228 Ga. App. at 121-122 (1). But even construing the forfeiture statute strictly, as argued by Jones, see State of Ga. v. Foote, 225 Ga. App. 222 (1) (483 SE2d 628) (1997), we cannot conclude that the State failed to show by a preponderance of the evidence that Jones used the vehicles to facilitate the three drug transactions. The trial court did not err in ordering forfeiture of the vehicles.

We note that White v. State of Ga., 264 Ga. 547 (448 SE2d 354) (1994), cited by Jones, does not require a different result. In that case, the Supreme Court concluded that forfeiture was inappropriate because it was undisputed that the substance purchased by the defendant and transported in his truck was counterfeit cocaine. Here, undisputed evidence was presented supporting the inference that Jones used his vehicles to transport and sell cocaine to the confidential informant.

Decided April 10, 2001.

Lawson & Thornton, Charles S. Thornton, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Phipps, J., concur.


text:
    A01A0357.
    THE STATE v. SAIA.
    (547 SE2d 407)
   Eldridge, Judge.

The Superior Court of Sumter County granted James L. Saia’s motion to suppress evidence based on the following set of facts:

At approximately 10:00 p.m., police officers Monts and Green observed a green pickup truck fail to stop at a stop sign located at the corner of Parker and Reese Streets in Americus, Sumter County. They pulled the vehicle over. Gaultney was driving, and appellant Saia was in the passenger seat. Officer Monts asked Gaultney to step to the rear of the truck, where he obtained Gaultney’s license and insurance. After reviewing the license, Monts recognized Gaultney’s name because the Americus Police Department had received information that a “Charles Gaultney” would be coming from Plains to Americus to sell drugs. He wrote Gaultney a warning and returned his license and insurance card. Monts then asked Gaultney for permission to search the pickup truck, and Gaultney replied, “[t]his is my Mom’s truck. You all have to get her permission to search the truck.”

At the time Monts and Gaultney were conversing, Officer Green approached the passenger window of the truck to speak with Saia. During the conversation, Green smelled “a loud odor of marijuana coming from either there on his [Saia’s] person or there in that immediate area as I was speaking with him.” Green informed Monts that he smelled marijuana. Officer Monts then asked Gaultney whether he had been smoking marijuana. Gaultney replied in the negative. Monts again asked for permission to search the truck, and this time Gaultney replied, “[w]ell, yeah.” The officers began to search the vehicle. Green opened the glove compartment and found two plastic bags of marijuana. Saia and Gaultney were arrested.

Decided April 10, 2001.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellant.

William J. Murray, for appellee.

Both Saia and Gaultney filed motions to suppress, which were heard and argued at the same time. Following the State’s evidence, Gaultney took the stand. He testified that he did not give the officers permission to search the pickup truck. Saia did not testify at the hearing. Further, at no time — either at the hearing or in the filed motion to suppress — did Saia ever assert an interest in either the vehicle or the marijuana discovered therein. In fact, Officer Green testified that Saia “denied having any knowledge of the marijuana even being in the vehicle.”

Without findings of fact or conclusions of law, the Superior Court of Sumter County granted appellant Saia’s motion to suppress. The court denied Gaultney’s motion. The State appeals from that portion of the court’s order granting Saia’s motion. Held:

At the outset of the motion hearing, the State maintained that Saia did not have standing to object to the search of Gaultney’s pickup truck. The trial court did not rule on this issue. However, “[Saia], as a mere passenger who did not assert an interest in either [Gaultney’s] car or the property found in it, lacks standing to object to the search of the car.” As Saia lacked standing to object to the search of Gaultney’s truck, it follows that the trial court erred in granting Saia’s motion to suppress based on such objection.

Judgment reversed.

Andrews, P. J, and Miller, J., concur.

        Bedingfield v. State, 219 Ga. App. 248, 249 (2) (464 SE2d 653) (1995); Ballard v. State, 216 Ga. App. 315, 316 (454 SE2d 200) (1995); Keishian v. State, 202 Ga. App. 718, 719-720 (415 SE2d 324) (1992). See also Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978); accord McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836) (1984).

        State v. Jackson, 201 Ga. App. 810, 813 (1) (412 SE2d 593) (1991); State v. Harris, 236 Ga. App. 525, 529 (3) (513 SE2d 1) (1999).


text:
    A01A0713.
    McLESTER v. THE STATE.
    (547 SE2d 709)
   Eldridge, Judge.

Jabari McLester was found guilty by a jury of one count of aggravated assault and one count of armed robbery against Dung Nguyen. The jury also found McLester guilty of one count of aggravated assault and one count of armed robbery against Hector Torres. McLester appeals from the conviction and sentence entered thereon. We affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). So viewed, the evidence shows that on October 21,1999, at approximately 10:30 p.m., Nguyen pulled into the parking lot of the Forest Club Estates apartment complex in Clayton County in order to turn around. Nguyen pulled into a parking place. As he attempted to back out, McLester and another man approached his vehicle, preventing him from exiting the parking place. Nguyen was ordered to exit his car and hand over his wallet. The two men attempted to pull Nguyen’s wallet out of his pocket. However, the wallet was wedged tightly inside the pocket and would not come out. The man with McLester grabbed Nguyen by the shoulder, pushed him against the car, and hit him on the head. McLester pulled out a gun and placed it against Nguyen’s back. After the second attempt by the two assailants to remove Nguyen’s wallet from bis pocket failed, Nguyen was ordered to remove his wallet and give it to the two men, which he did. As the two men walked away with Nguyen’s wallet, Nguyen asked them to take the money and throw him his wallet. McLester turned around and pointed the gun at Nguyen and told him to “shut up.” Nguyen went to a nearby gas station and called the police. Both at trial and at a pre-trial photographic lineup, Nguyen identified McLester as one of the two men who robbed him.

Nine days later, on October 30,1999, at approximately 8:00 p.m., Torres was walking through the Forest Club Estates apartment complex when he was approached by McLester and two other men. The two men grabbed Torres while McLester took money out of his pockets. Torres testified that one of the other two men told him he had a gun in his pocket, “if I didn’t give him the money.” Torres reported the incident to Officer Myra Zenon of the Clayton County Police Department the following day. Both at trial and at a pre-trial photographic lineup, Torres identified McLester as the person who took money out of his pockets.

1. McLester alleges that the trial court erred in denying his motion to sever the counts involving Nguyen and Torres for separate trial.

Upon defense request, severance is mandatory only “if offenses are joined improperly, i.e., solely because they are of the same or similar character.” (Punctuation omitted; emphasis in original.) Byrd v. State, 236 Ga. App. 485, 487 (4) (512 SE2d 372) (1999). However, severance is discretionary if the offenses are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. Camphor v. State, 272 Ga. 408, 411 (529 SE2d 121) (2000); Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975). In this case, the State met its burden of showing that the offenses were not joined solely on the basis they were of the same or similar character. Both incidents were closely related in time, occurring October 21 and October 30, 1999, respectively, and happened in the same apartment complex after dark, but at a time when people would still be walking about the complex. Further, in both robberies McLester worked with an accomplice and a firearm was involved. Accordingly, there was no abuse of discretion in the trial court’s denial of McLester’s motion to sever.

McLester also argues that even if severance was not mandatory, severance was still required because by joining the two cases the trier of fact would be more apt to overlook the weakness of each individual case. We disagree. Here,

the facts in the two cases, as discussed above, are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. Accordingly, where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.

(Citations and punctuation omitted.) Rocha v. State, 234 Ga. App. 48, 53 (5) (506 SE2d 192) (1998).

2. McLester next asserts that the State committed racial discrimination during jury selection by exercising four of its six peremptory strikes against African-Americans. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). We find no error in the denial of McLester’s Batson motion.

The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

(Footnote omitted.) Morris v. State, 246 Ga. App. 260, 261 (540 SE2d 244) (2000); Purkett v. Elem, 514 U. S. 765, 767 (115 SC 1769, 131 LE2d 834) (1995).

The preliminary issue of whether [McLester] established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled in favor of the prosecution on the ultimate question of intentional discrimination. We therefore need only address the sufficiency of the prosecutor’s explanations.

(Citations and punctuation omitted.) Williams v. State, 236 Ga. App. 190 (1) (511 SE2d 561) (1999).

The prosecutor explained that he struck juror no. 38 because such juror stated that two of his sons and a sister had been prosecuted in the same trial court, that he was not happy with the district attorney’s office or the court, and that he did not feel his relatives had been treated fairly by the court. The prosecutor stated that he struck juror no. 64 because such juror had been stopped on two different occasions by police for allegedly no reason and had a previous bad experience with law enforcement. The prosecutor further stated that while juror no. 64 was describing his previous unpleasant encounters with police, he “acted like something was wrong with him like he was wound up too tight and he kept his arms crossed.” The prosecutor stated that juror no. 69 had revealed that his daughter was a defendant in the same county the previous year on an assault charge and was not treated fairly. The prosecutor stated that he did not realize that juror no. 80 was an African-American, but that he struck her from the jury panel because she did not appear to understand the questions that were asked and that she kept repeating that her nephew was a bank robber.

The trial court correctly resolved the step 2 question when it ruled that the prosecutor gave race-neutral explanations for striking the jurors. “A neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason . . . will be deemed race neutral.” (Punctuation and footnote omitted.) Morris v. State, supra at 262.

In step 3, “the court must evaluate the persuasiveness of the justification for exercising the strike and determine whether the opponent of the strike carried his burden of proving purposeful discrimination.” (Citation, punctuation and footnote omitted.) Morris v. State, supra at 262. “The trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citation and footnote omitted.) Id.

McLester offered no argument as to why he believed that purposeful discrimination had occurred as to juror nos. 38 and 69. As to juror no. 64, McLester argued that juror nos. 65 and 35, who were not African-American, were not struck even though they reported bad experiences with police. However, the prosecutor stated that he did not strike juror no. 65 because he appeared nonchalant about a speeding ticket that he had received nine years ago, which he did not feel was warranted. However, juror no. 64, whom he did strike, indicated he had several bad experiences with police, the last as recently as one year ago and was very defensive in his body language while describing his alleged bad encounters with police. The prosecutor further stated that he did not recall juror no. 35 reporting that he had any negative encounters with police. As to juror no. 80, the only argument offered by McLester was that he felt such juror understood the questions asked, but was unable to hear sufficiently. Under the facts as set forth here, the trial court’s finding that McLester did not carry his burden of proving purposeful discrimination is not clearly erroneous.

3. McLester next challenges the sufficiency of the evidence as to the counts of armed robbery and aggravated assault against Nguyen and the count of armed robbery against Torres. He contends that the trial court erred in denying his motion for directed verdict.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter ... for the jury to resolve.

(Punctuation and footnote omitted.) Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

(a) As to the offenses against Nguyen, McLester asserts the State failed to prove identity beyond a reasonable doubt. We disagree. Both at the pre-trial photographic lineup and at trial, Nguyen unequivocally identified McLester as one of his assailants. We are mindful that Nguyen initially described McLester, who is over six feet tall, as being approximately five feet six inches tall and weighing 170 pounds, and at the pre-trial photographic lineup, stated that McLester appeared “heavier” in the photograph than he did the night of the incident. However, at trial, Nguyen testified the reason that he misjudged McLester’s height was, as a native of Vietnam, he still had trouble converting measurements from the metric measurements to feet and inches. It was for the jury to determine the weight and credibility of Nguyen’s testimony. Sanders v. State, 242 Ga. App. 487, 491 (530 SE2d 203) (2000). The evidence of McLester’s identity is sufficient to support the jury’s verdict that McLester was guilty beyond a reasonable doubt.

(b) McLester argues that there was no evidence presented that the crime of armed robbery had ended before McLester last pointed the weapon at Nguyen. Thus, there was insufficient evidence to support McLester’s separate conviction for aggravated assault. We disagree.

The evidence supporting McLester’s conviction for aggravated assault was Nguyen’s testimony that, once the armed robbery was completed, his assailants walked several steps away from him. At this point, Nguyen asked them to keep the money and throw his wallet to him. McLester, then, turned around and pointed his gun at Nguyen and told him to “shut up.” See McCulley v. State, 273 Ga. 40, 43 (537 SE2d 340) (2000) (the felony of aggravated assault has occurred when a firearm is pointed at the victim placing him in reasonable apprehension of immediate violent injury). A rational trier of fact could reasonably have concluded that the crime of armed robbery was completed before McLester committed the aggravated assault upon Nguyen by pointing a gun at him.

(c) Lastly, McLester argues that there was insufficient evidence to support his conviction for armed robbery as to Torres because Torres testified on direct examination that, “[i]n that moment everything was [moving] very quickly, but I think I did see a gun.” However, on cross-examination, Torres testified that one of McLester’s co-assailants stated, “he had a gun in [his] pocket if [Torres] did not give him the money.” “Circumstantial evidence may establish the presence of a weapon during a robbery even though the weapon is unseen. [Cit.]” Maddox v. State, 238 Ga. App. 598 (1) (521 SE2d 581) (1999).

Decided April 10, 2001.

Stanley W. Schoolcraft III, for appellant.

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

       For the purpose of sentencing, the counts of aggravated assault and armed robbery against Torres were merged.


text:
    A01A0822.
    VANEGAS v. THE STATE.
    (547 SE2d 718)
   Eldridge, Judge.

On September 2, 2000, William Vanegas was cited for speeding in violation of OCGA § 40-6-181. Defendant appeared in the City Court of Atlanta on September 29, 2000, and, through counsel, tendered a petition to enter a plea of nolo contendere to which the court replied only, “This Court does not accept that plea, ma’am.” On this and without objection, counsel announced, “Then my client is pleading not guilty, Your Honor.” After the presentation of the evidence, the court found the defendant guilty and pronounced sentence, imposing a $330 fine. Thereafter, the court granted defendant’s motion for a supersedeas bond in the amount of $800. The defendant appeals contending that the city court abused its discretion: (1) in refusing to consider the petition, and (2) by fixing his supersedeas bond in an excessive amount. Finding that the city court’s refusal to consider defendant’s tender of petition to enter a plea of nolo contendere was waived and the amount of the supersedeas bond set to be moot, we affirm. Held:

1. The plea of nolo contendere was authorized by the legislature to provide a means by which the side effects attendant to & plea of guilty might be avoided where deemed excessive in addition to the penalty provided by law upon entry of the plea. Fortson v. Hopper, 242 Ga. 81, 83 (247 SE2d 875) (1978). The defendant’s statutory privilege to enter a plea of nolo contendere lies within the sound discretion of the trial court, OCGA § 17-7-95 (a); Bennett v. State, 153 Ga. App. 21, 28 (5) (264 SE2d 516) (1980); Smith v. State, 76 Ga. App. 847 (2) (47 SE2d 518) (1948), requiring that the parties’ views and the public’s interest in the effective administration of justice be considered in the exercise thereof. Dixon v. State, 240 Ga. App. 644, 645 (1) (a) (524 SE2d 734) (1999). While there is no right to enter a plea of nolo contendere, a right to tender a petition to enter such a plea necessarily arises out of the privilege to do so given by statute. “The provisions of [Uniform Superior Court Rule] 33 are mandatory in this State.” Roper v. State, 246 Ga. App. 553, 554 (1) (541 SE2d 130) (2000). Trial judges are required to give due consideration to plea agreements upon the tender of a guilty plea or plea of nolo contendere. USCR 33.5 (C). Further, USCR 33.7 requires that pleas of guilty and nolo contendere not be accepted except upon a determination of record that the plea is voluntary. Roper v. State, supra.

The plain language of the city court concerning defendant’s petition here evidences a blanket policy foreclosing any consideration of the propriety of the plea of nolo contendere in all cases. By its refusal to consider the propriety of such a plea in all cases, the city court abdicated its judicial responsibility. See Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993), citing Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992) (mechanical sentencing an abdication of judicial responsibility for refusal to exercise discretionary sentencing authority).

Neither may the defendant’s conviction upon plea of not guilty be deemed a waiver of his right to tender his petition to plead nolo contendere. The record shows that rather than giving this right up, the defendant asserted the same in lieu of entering a plea of not guilty or guilty upon being arraigned, a plea of nolo contendere, if entered, avoiding civil disqualifications attendant to conviction, whether upon a plea of guilty, Fortson v. Hopper, supra, or not guilty. See Don aldson v. State, 244 Ga. App. 89, 92 (534 SE2d 839) (2000), citing Boykin v. Alabama, 395 U. S. 238, 243 (89 SC 1709, 23 LE2d 274) (1969) (entry of plea of guilty in state criminal trial waives the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers).

However, if the right to tender a petition to enter a plea of nolo contendere is to be preserved on appeal, the record must reflect an objection and ruling thereon to avoid waiver. Here, there is neither the required objection nor ruling, and defendant’s claim on appeal is waived. “A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” (Citations and punctuation omitted.) West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997).

2. In light of our disposition of Division 1, the question of defendant’s supersedeas bond as excessive is rendered moot. Even were this not the case,

the amount of bond to be assessed rests within the discretion of the trial court and will not be disturbed absent an abuse of such discretion. [Jones v. Grimes, 219 Ga. 585, 587 (134 SE2d 790) (1964)]; see also OCGA § 5-6-45 (a); Goodine v. Griffin, 309 FSupp. 590, 591 (S.D. Ga. 1970); Clarke v. State, 228 Ga. App. 219 (491 SE2d 450) (1997).

Dudley v. State, 230 Ga. App. 339, 340 (496 SE2d 341) (1998). Moreover, we note that the amount of a bond as reasonable or excessive is not susceptible to objective measurement under bright line rules. Jones v. Grimes, supra. Rather, it results upon a consideration of a range of factors. The principal focus of these is the “probability of the appearance of the accused, or of his flight to avoid punishment.” (Punctuation omitted.) Id. at 587 (2).

While defendant argues his indigence on appeal and the fact that the city court refused to hear argument as to why a bond reduction was necessary, these claims are unsupported in the record. To the contrary, it appears that the defendant is represented by retained counsel on appeal as he was below and that, rather than being refused a hearing on the bond as excessive, defendant did not seek such a hearing, stating through counsel only that he felt the appeal bond was excessive. “Factual assertions in appellate briefs which are not supported by evidence in the record cannot be consid-

Decided April 10, 2001.

Jamie L. Smith, for appellant.

Joseph J. Drolet, Solicitor-General, Erik B. Fortner, Craig E. Miller, Assistant Solicitors-General, for appellee.

ered in the appellate process.” (Citations and punctuation omitted.) Robinson v. Stokes, 229 Ga. App. 25, 27, n. 1 (493 SE2d 5) (1997). Under these circumstances and apart from the issue as moot, we find no abuse of discretion in the amount of the supersedeas bond as set.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The traffic citation issued the defendant alleged he was traveling 56 mph in a 35-mph zone.

       USCR 33.1 provides:
      (A) A defendant may plead guilty, not guilty, or in the discretion of the judge, nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered by counsel or a corporate officer. (B) A defendant may plead nolo contendere only with the consent of the judge. Such a plea should be accepted by the judge only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Procedurally, a plea of nolo contendere should be handled under these rules in a manner similar to a plea of guilty.

       Among other things, a conviction arising from a plea of nolo contendere cannot be used to impose any disability inclusive of disqualification from voting, holding public office, and jury service, OCGA § 17-7-95 (c); Op. Atty. Gen. 83-33; a nolo contendere plea is inadmissible as evidence of a prior similar crime, Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989); a nolo contendere plea “ ‘cannot be used as an admission of guilt in any other proceeding,’ ” Fortson v. Hopper, supra; and for a first offense of exceeding the speed limit 19 mph or more but less than 24 mph, as here, traffic points may not be assessed thereon for purposes of suspending or revoking a driver’s license. OCGA § 40-5-57 (c) (1) (A), (B).

       Other factors to be considered in setting the amount of bond are the “ability of the defendant to pay, the seriousness of the offense, the length of the sentence imposed, the character and reputation of the accused, and whether there has been a forfeiture of other bonds. [Cit.]” Dudley v. State, supra.


text:
    A01A0963.
    COLBERT v. THE STATE.
    (547 SE2d 714)
   Eldridge, Judge.

A Spalding County jury found Wilbert Colbert guilty of possession of cocaine. The charge arose when Colbert dropped to the ground a small red baggie of crack cocaine during his lawful arrest on a warrant for probation violation. Colbert appeals his conviction and, in his sole enumeration of error, claims that he was “denied his right of confrontation and due process under the United States Constitution when the State failed to produce physical evidence [the cocaine] at trial or explain its unavailability.” Upon review, we affirm Colbert’s conviction.

(a) At trial, Colbert moved for a directed verdict, claiming
[t]he State has not proved each and every essential element beyond a reasonable doubt. First of all we didn’t have any evidence that — there are no drugs in this case. There’s — you know, there’s no evidence that’s been presented to the jury that — of actually what the substance — any tangible evidence or what the substance was or what it looked like or anything to that degree. We would move for a directed verdict at this time.

Colbert’s claim went solely to the sufficiency of the evidence to prove his guilt. He did not claim a due process/confrontation clause violation based on the State’s failure to produce the cocaine at trial, and the trial court did not rule on such issue. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.”

Decided April 10, 2001.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

(b) Colbert did not object to the testimony of the Georgia Bureau of Investigation Crime Lab technician that the substance in the red baggie tested positive for cocaine. Nor did Colbert make a motion to suppress or otherwise object to testimony regarding the cocaine based on any taint in the chain of custody. Thus, there was no error because “[t]he state is not required to introduce contraband into evidence to establish its case.”

(c) Colbert did not seek an order for independent testing of the cocaine. Nor is there any evidence that an independent test would prove to be exculpatory. Accordingly, this Court’s decision in State v.

Blackwell, 245 Ga. App. 135 (537 SE2d 457) (2000), is not implicated herein.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       (Citations and punctuation omitted.) Kight v. State, 242 Ga. App. 13, 18 (3) (528 SE2d 542) (2000).

       (Citations omitted.) Williamson v. State, 142 Ga. App. 177, 179 (6) (235 SE2d 643) (1977).


author: POPE, Presiding Judge.

text:
    A00A1806.
    RICKS v. THE STATE.
    (546 SE2d 919)
   POPE, Presiding Judge.

Robert Van Ricks was charged with one count of rape and two counts of child molestation. He was tried, convicted of two counts of child molestation and appeals. For the following reasons, we affirm.

Evidence at trial showed that the victim was molested by Ricks, her mother’s boyfriend, when she was 14. The victim testified that Ricks repeatedly molested her while he was living in the same residence with her. The victim’s outcry about the crimes occurred one year after the crimes occurred. Although the victim told the police that Ricks had raped her once, at trial she explained that she had been too embarrassed to tell the police that several acts of molestation had occurred.

Ricks testified at trial and denied the charges.

1. Ricks argues that the trial court impermissibly allowed a medical expert to testify regarding the physical examination of the victim and improperly limited his cross-examination of the expert. Ricks’ argument concerns evidence that approximately one year after the crime, at the time of her initial outcry, the victim tested positive for trichomonas, a type of venereal disease.

The record shows that Ricks filed his motion for discovery of exculpatory evidence and that in response the State produced various documents, including medical records. Ricks then filed a motion for pre-trial disclosure of expert witnesses in January 1999. In response, the State filed three certificates of service indicating that various additional medical records were delivered to Ricks on February 12, 1999.

Before the medical witnesses were called at trial, the State made an oral motion in limine, arguing that certain information within the testifying nurse’s knowledge was protected by the rape shield doctrine. Specifically, the State argued, there was evidence that one year after the last crime occurred, the victim tested positive for trichomonas. The State asserted that although the victim had tested positive for the disease, Ricks had never been tested for it. The court granted the motion in limine, and the nurse then testified that she had examined the victim in June 1997 and that the exam had been normal. Next, the State called Dr. Nancy Fajman, who testified that the fact that the victim’s exam was normal a year after the crimes allegedly occurred was not inconsistent with the victim’s claims of abuse.

The trial court properly granted the State’s motion in limine. The evidence which the trial court excluded showed that the victim had tested positive for the venereal disease one year after the crimes with which Ricks was charged occurred. Although there was evidence that the victim could have had the disease for an indeterminate period of time, there was no affirmative evidence that she had had the disease closer to the occurrence of the crimes. More importantly, there was no assertion or offer of proof to show that Ricks had been tested for the disease at any time. Thus, there was no indication that he did, or did not, have the disease. Thus, the evidence was irrelevant and was properly excluded.

Because there was no evidence that the victim had the disease at the time the crimes were committed nor was there any evidence or assertion that Ricks did not have the disease, this case differs from Chambers v. State, 205 Ga. App. 78, 79 (4) (421 SE2d 326) (1992), and Reece v. State, 192 Ga. App. 14, 16 (383 SE2d 572) (1989). In Chambers, the defendant appealed the trial court’s refusal to allow him to admit evidence of the venereal disease, arguing that the evidence excluded the possibility that he had had intercourse with the victim. In that case, Chambers tried to introduce evidence that the victim had a venereal disease within seven months of the crime and that neither Chambers nor his wife had the disease one year after the crimes occurred. Chambers claimed that this evidence excluded the possibility that he had had intercourse with the victim.

In concluding that the trial court erred in not allowing this evidence, this Court ruled that Chambers should have been allowed to present evidence that he did not have the disease. The Court explained that because it was conceivable that the doctor’s testimony had created the impression that Chambers had given the victim the disease, Chambers should have been allowed to present evidence that he did not have the disease. Accordingly, the Court concluded that the evidence was essential to Chambers’ defense, the evidence did not offend the rape shield law, OCGA § 24-2-3, and the trial court erred in excluding it.

Similarly, in Reece v. State, 192 Ga. App. at 16, this Court ruled that evidence of the victim’s infection was improperly excluded where the State elicited testimony that suggested that the defendant transmitted the disease to the victim. In Reece, the defendant sought to introduce evidence that the defendant’s wife did not have the disease during the relevant time. In Reece, this Court also held that introduction of this evidence was not offensive to the rape shield law.

Here, the trial court did not err in granting the State’s motion to suppress evidence that the victim had a venereal disease one year after the last act of molestation, where there was no evidence or offer of proof that Ricks did not have the disease. In contrast to the cases in which evidence regarding the victim’s sexually transmitted disease has been part of the defendant’s defense, in this case this evidence had no bearing on Ricks’ defense. See generally Green v. State, 242 Ga. App. 868, 870 (1) (532 SE2d 111) (2000) (this Court concluded that although “proof that either the victim or the aggressor in a sexual assault had (or did not have) a sexually transmitted disease certainly can be relevant,” the trial court did not err in denying defendant’s motion for new trial based on evidence that he tested positive for herpes simplex II and the victim did not); Rouse v. State, 204 Ga. App. 845 (1) (420 SE2d 779) (1992) (where defendant and victim had gonorrhea, there was no error in trial court’s exclusion of evidence that victim was also molested by a third party because there was no evidence that the third party was infected with the disease). Compare White v. State, 201 Ga. App. 53 (1) (410 SE2d 441) (1991) (trial court erroneously excluded medical evidence that victim exhibited infectious discharge within hours of the alleged rape); Ford v. State, 189 Ga. App. 395 (2) (376 SE2d 418) (1988) (trial court did not err in excluding evidence that the victim contracted gonorrhea three months before she was raped, because the evidence pertained to matters protected by OCGA § 24-2-3).

2. Ricks argues that the medical report revealing that the victim had the venereal disease should have been disclosed to the defense ten days before trial. He claims that this information was critical evidence and that the State failed to disclose it, violating the rules of discovery.

We disagree. The trial court concluded during the argument on the motion in limine that the State had produced the medical report which referenced the disease, and Ricks did not contest this conclusion or move for a continuance. Furthermore, the record contains the State’s certificate of service for this record, which is signed by the assistant district attorney and dated December 14, 1998, more than eight months before trial began. This certificate of service is prima facie proof of service. See Williams v. State, 201 Ga. App. 384, 386 (3) (411 SE2d 316) (1991); OCGA § 17-1-1 (e) (1), (2). Further, at trial Ricks did not pursue any argument that he did not receive the record, he did not move for a continuance, nor did he claim that he suffered prejudice. In fact, the transcript indicates that after his initial statement that he was “entitled to the information,” Ricks essentially acquiesced to the court’s finding that he had already received the report. The evidence was sufficient to warrant the court’s finding that the State complied with its obligation to provide the report to Ricks.

3. Finally, Ricks claims that the court erred in recharging the jury in writing outside of his presence. The situation of which Ricks now complains occurred after the jury had been deliberating and sent the court a question regarding the difference between Count 1 (rape) and Count 2 (child molestation). The transcript shows that there was an off-the-record discussion in chambers between the trial court, Ricks’ counsel, and the State about how to respond to the jury’s questions. The trial court placed on the record the results of the discussion. Ricks’ attorney then stated that he thought the court’s recharge would be “an impermissible comment by the court,” and he excepted to the recharge. The court then responded in writing to the jury’s question that: “to constitute rape there must be force, plus penetration and that Count 2 was child molestation and not rape.” The court did not bring the jurors back and recharge them orally.

We find no error in the court’s written recharge of the jury. It is true that “the defendant on trial must be present when the court takes any action materially affecting his case.” (Citations and punctuation omitted.) Collins v. State, 191 Ga. App. 289, 290 (2) (381 SE2d 430) (1989). And, in Locklin v. State, 228 Ga. App. 696 (2) (492 SE2d 712) (1997), this Court stated that “[t]his Court has held that recharges and colloquies between the court and the jury are such ‘critical’ portions of the trial.” (Citations omitted.) Id. at 697.

Decided March 20, 2001

Reconsideration denied April 11, 2001

Lawson & Thornton, Charles S. Thornton, J. M. Raffauf, Dwight L. Thomas, Caprice J. Small, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Assistant District Attorney, for appellee.

Despite these principles, there was no error here. Ricks argues that he “was not present when the response was delivered and read by the jury.” There was certainly no way in which Ricks could have been present in the jury room when the jurors read the written recharge for there was no court interaction with the jury beyond the writing of the note. But Ricks’ counsel was present for the in-chambers discussion, and Ricks is not arguing error based on the fact that he was not present for that discussion. Further, Ricks’ counsel placed his objection to the note on the record, and nothing in the record indicates that Ricks was not present at that time. See Hollis v. State, 201 Ga. App. 224 (1) (411 SE2d 48) (1991). Moreover, his attorney made no subsequent objection in this regard. See generally Brooks v. State, 271 Ga. 456 (2) (519 SE2d 907) (1999).

Judgment affirmed.

Miller and Mikell, JJ, concur.

       In this case, although Ricks was acquitted of the rape charge, one count of child molestation charged that he had placed his penis on the victim’s vagina. Accordingly, Ricks’ acquittal on the rape charge does not necessarily render his argument moot.