text:
    A01A1556.
    HOLMES v. THE STATE.
    (556 SE2d 189)
   Blackburn, Chief Judge.

Following a bench trial, Michael Holmes appeals his conviction for possession of cocaine and possession of drug paraphernalia, contending that the trial court erred by denying his motion to suppress. For the reasons set forth below, we reverse.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

The facts of this case are undisputed. The record shows that, on the evening of September 10, 1999, Detectives Cook and Caswell were patrolling certain shopping center parking lots in order to deter robberies. Although the detectives were in an unmarked car, they were wearing vests which identified them as police officers. On the way to one shopping center, the detectives decided to drive through an area known to them for drug activity. As the detectives drove into this area, they observed Holmes walking from a parked black car over to another red car. The detectives drove to the end of the street, turned around, and noticed the red car drive away.

As the detectives drove down the street, Holmes circled around their car and approached the passenger’s side. Holmes walked up to the car window, and Detective Cook asked, “What’s up?” Holmes replied, “Not much,” and he started walking away from the detectives. Detective Cook asked Holmes if everything was all right, and Holmes answered affirmatively as he continued to walk away. Holmes started to walk to a nearby apartment complex, changed his mind, and walked back toward the black car that was parked on the street. The detectives did not witness any criminal activity by Holmes during this time span.

At that point, the detectives left the area for a couple of minutes, checked a nearby shopping center, and decided to turn around'and go back to where they had observed Holmes. When the detectives returned, Holmes was sitting in the parked black car which was covered in mud and did not look like it had been driven in some time. The detectives pulled up to the parked car and immediately activated their blue lights. The detectives exited their vehicle and asked Holmes to step outside of the parked car. Detective Caswell then performed a pat-down search of Holmes which revealed that Holmes had a glass pipe in his pocket which contained cocaine residue. Detective Cook testified that the detectives did not witness Holmes engage in any criminal activity prior to the pat-down.

On appeal, Holmes asserts that the stop and subsequent pat-down search were constitutionally improper. We agree.

[United States] Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Punctuation omitted.) McAdoo v. State

In the first [tier], police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

(Punctuation omitted.) McClain v. State.

When the detectives in this case first interacted with Holmes, talking to him from their car, the encounter was of the first-tier variety. There was no detention or coercion, and, as such, the protections of the Fourth Amendment were not implicated. When the detectives returned, initiated their flashing blue lights, and required Holmes to step out of the car in which he was sitting, however, the interaction between the detectives and Holmes rose to the level of a second-tier encounter. As such, reasonable, articulable suspicion of criminal activity was required for the efficacy of this stop. Such suspicion, however, was lacking in this case.

When asked to articulate the reasons why Holmes was ultimately stopped, Detective Cook replied: “Well, the mannerism in which he had approached this vehicle to the passenger’s side, and then as that — we went down in and that vehicle drove down and we circled back up — he had made a circle around and then approached on the passenger’s side of my vehicle.” Cook explained that this behavior raised his suspicion because crack runners or dealers often approach cars on the passenger’s side in order to be less conspicuous than they would be if they stood in the road and approached the driver’s side of the car.

When questioned why Holmes was not stopped until the second encounter, Detective Cook further testified:

Well, he had been suspicious at that point in time [during the initial contact], but he even made us more suspicious when, you know, he had veered off as he was going to an apartment. And then as we drove off, he did not go to the apartment. He made an immediate beeline back to the car, and that — you know, that showed me that he had no intention — or appeared not to have any intention of going to an apartment in the first place. He was coming to make contact with us.

Detective Cook admitted, however, that Holmes merely walked away after talking to him. Holmes did not run, flee, or try to evade the officers in any way. Moreover, the detectives in this case never witnessed Holmes engaged in any criminal activity.

Based on these facts, there was no objective manifestation that Holmes was, or was about to be, engaged in criminal activity merely

Decided November 2, 2001.

John B. Sumner, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

because he approached the passenger’s side of a car in a “high-crime area,” walked toward an apartment complex, changed his mind, and walked back toward a car parked on the side of the road. “While such behavior might justify an officer in closely observing [Holmes], it is not alone sufficient to indicate that [Holmes was] or might [have been] engaged in illegal activity so as to provide a reasonable, articulable suspicion to stop [him].” Hughes v. State.

Unlike the defendant in Illinois v. Wardlow, Holmes did not flee from officers in a suspicious manner. And, although he may have seemed nervous to the detectives, such behavior in the presence of police officers, standing alone, does not provide a basis for the reasonable articulable suspicion required by Terry. See Holt v. State.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

        McAdoo v. State, 164 Ga. App. 23, 26 (1) (295 SE2d 114) (1982).

         McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

        Hughes v. State, 269 Ga. 258, 261 (1) (497 SE2d 790) (1998).

        Illinois v. Wardlow, 528 U. S. 119, 122 (120 SC 673, 145 LE2d 570) (2000).

        Holt v. State, 227 Ga. App. 46, 50 (487 SE2d 629) (1997).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1966.
    RUFFIN v. THE STATE.
    (556 SE2d 191)
   Mikell, Judge.

Lavar Ruffin was convicted of two counts of entering an automobile with intent to commit theft, two counts of theft by receiving stolen property, and three traffic offenses. He was sentenced to 17 years. After the trial court denied his motion for new trial, Ruffin filed the present appeal. For reasons explained below, we affirm in part and reverse in part.

1. Ruffin first argues that there was insufficient evidence to support his conviction for entering an automobile owned by William Koehler with intent to commit theft, as charged in Count 1 of the indictment. We agree.

Police technician Richard Campbell recovered two fingerprints belonging to Ruffin on the exterior of the vehicle near the driver’s side window. This is the only evidence against Ruffin with respect to Koehler’s automobile. Campbell testified that he recovered the fingerprints of two other individuals from the same area of the vehicle. Further, there was no evidence demonstrating that Ruffin had been inside the vehicle or had stolen anything from Koehler’s car.

OCGA § 16-8-18 prohibits entering an automobile with intent to commit theft. There is simply no evidence in the record showing that Ruffin entered Koehler’s car. Therefore, we cannot conclude that the evidence was sufficient for a rational trier of fact to find Ruffin guilty of this particular offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998). Accordingly, we reverse Ruffin’s conviction as to Count 1.

2. Ruffin argues that Counts 2 and 4 of the indictment merged, and that the trial court erred in sentencing him separately for each offense. Ruffin has failed to cite any authority to support his merger argument in violation of Court of Appeals Rule 27 (c) (2), which provides that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” However, we will consider the merits of Ruffin’s argument. We also note that Ruffin’s failure to object to the sentence at the time it was imposed does not preclude our review.

[A] trial court is without subject matter jurisdiction to sentence on an offense that has merged into another offense as a matter of law and/or fact. Such a sentence would be a mere nullity because the conviction on a merged offense is against the law. An appeal may be taken from such a void sentence, even if no objection was made in the court below.

Kinney v. State, 234 Ga. App. 5, 7 (2) (505 SE2d 553) (1998).

Count 2 of the indictment charged Ruffin with the offense of entering an automobile with intent to commit theft and alleged that Ruffin entered a truck owned by Martin Torres. OCGA § 16-8-18. Count 4 charged Ruffin with theft by receiving stolen property, for being in possession of the property stolen from Torres’ truck. OCGA § 16-8-7 (a).

OCGA § 16-1-7 (a) prohibits multiple convictions for the same conduct; however, in the case sub judice the two offenses at issue involve different proscribed conduct, and each crime has distinctive elements which distinguish it from the other. See Bogan v. State, 177 Ga. App. 614, 617 (2) (340 SE2d 256) (1986). OCGA § 16-8-18 prohibits entering an automobile with intent to commit theft; whereas OCGA § 16-8-7 (a) provides that a person commits the offense of theft by receiving “when he receives, disposes of, or retains stolen property which he knows or should [have known] was stolen.” Thus, the offenses as charged were separate and distinct.

However, we must also consider whether the offenses merged as a matter of fact based on the evidence presented.

As with any factual merger question, the dispositive issue is whether the State “used up” its evidence in proving the crime: “The actual evidence test, in effect, means that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6 (1) ”

Brown v. State, 246 Ga. App. 60, 64 (1) (539 SE2d 545) (2000), citing Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). We conclude that the state “used up” the evidence that would establish Ruffin’s guilt for Count 4 in proving Count 2.

The evidence adduced at trial shows that Torres left his truck at a mechanic’s garage for repairs. While there, stereo equipment and other property were stolen from inside the truck. Approximately two weeks later, Torres was in a barbershop when Ruffin’s co-defendant, Herman Bennett, announced that he and Ruffin had some equipment to sell. Torres followed Bennett to a parking lot, where the equipment was in a car driven by Ruffin. Torres recognized a screwdriver that belonged to him. He also saw a stereo amp that he recognized as his own, because he remembered “bending up” one comer of the amp during installation, and an equalizer that he had marked with black electrical tape. He offered to pay the men $275 for the equipment, and Ruffin accepted the offer. Torres told Ruffin and Bennett that he would call his wife to bring the money. He then returned to the barbershop and called the police. When Officer Rudy Chavez arrived on the scene, both defendants ran, and Ruffin was apprehended.

We have recognized that “[u]nexplained recent possession of stolen goods supports an inference that the accused committed the theft.” (Punctuation omitted.) Brown v. State, 236 Ga. App. 478, 480 (1) (512 SE2d 369) (1999). See also Sinclair v. State, 248 Ga. App. 132, 133 (1) (546 SE2d 7) (2001). Thus, in the present case, the evidence summarized above was adequate for the jury to convict Ruffin of entering Torres’ tmck with intent to commit theft. See Sinclair, supra. In fact, Ruffin concedes in his appellate brief that “the evidence was sufficient to support one or the other charge.”

However, we agree that the evidence demonstrating that Ruffin was in possession of Torres’ recently stolen goods was “used up” and could not also be used to convict him of theft by receiving stolen property. While a defendant may be tried for both offenses under such circumstances, he may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199, 202 (3) (511 SE2d 286) (1999). It follows that the theft by receiving charge merged with the charge of entering an automobile with intent to commit theft, and the court erred in sentencing Ruffin for both offenses. The sentence imposed for the theft by receiving conviction (Count 4) is hereby vacated. See Kinney, supra at 8 (2).

Decided November 2, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

3. Finally, Ruffin challenges the sufficiency of the evidence with respect to his conviction of theft by receiving stolen property as charged in Count 3. That count alleged that Ruffin received a stolen 1988 Honda Accord, which was the property of Patricia Hemphill. We reject Ruffin’s argument and affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the vehicle Ruffin was driving when he was arrested while attempting to sell Torres’ stereo equipment was in fact stolen, and that it displayed a fictitious tag. Detective Randy Watson of the Columbus Police Department testified that the 1988 Honda Accord in Ruffin’s possession had been stolen from Jackson, Mississippi, approximately two months earlier. Bennett testified that Ruffin told him the car had been a gift from his family, but Ruffin testified that he purchased the car from “a dude named Hamilton [;] his name was either Jeff or John Hamilton.” He further testified that he was unable to locate Hamilton. Ruffin claimed to have received a bill of sale in connection with his purchase of the car; however, he did not produce it at trial. We conclude that the evidence provided ample support for the jury’s verdict that Ruffin was guilty of theft by receiving stolen property. OCGA § 16-8-7 (a).

In summary, we reverse Ruffin’s conviction of entering an automobile with intent to commit theft as charged in Count 1; we affirm his conviction of theft by receiving stolen property as charged in Count 3; and we vacate his sentence for theft by receiving stolen property as charged in Count 4. Ruffin’s conviction and sentence on Count 2 are affirmed, as he did not challenge the sufficiency of the evidence as to that charge.

Judgment affirmed in part and reversed in part. Sentence vacated as to Count 4.

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


author: Blackburn, Chief Judge.

text:
    A01A1024.
    BRADLEY v. THE STATE.
    (556 SE2d 201)
   Blackburn, Chief Judge.

Following a jury trial, Alfred Bradley appeals his conviction for aggravated stalking, contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Bradley] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State.

Viewed in this light, the record shows that, on March 22, 1998, Gwynette Holmes contacted the police and complained that she had received threatening phone calls from Bradley. While the responding officer was at Holmes’ residence, Bradley telephoned and told Holmes that he was coming over and that Holmes had better call the police. Approximately ten minutes later, Bradley arrived at the residence and was arrested.

Subsequently, a restraining order was issued which forbade Bradley from contacting Holmes. However, both Holmes and Bradley ignored the restraining order and contacted one another on several occasions. One month after the restraining order was issued, Holmes called 911 to report that she had “a restraining order on Alfred Bradley and [that] he’s out here at the apartment walking around; he is on foot. . . and he said he was going to kill me.” Holmes also told the dispatcher that Bradley knocked on her window and entered the apartment, holding a screwdriver.

The evidence was sufficient to support Bradley’s conviction for aggravated stalking. A defendant commits the misdemeanor offense of stalking when he: “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a) (1). The offense is aggravated, and becomes a felony, where a defendant takes such actions in violation of a restraining order. OCGA § 16-5-91 (a). Here, the evidence shows that, following the issuance of a valid restraining order, Bradley wilfully violated that order by contacting Holmes. As such, the felony conviction in this case was both authorized and proper.

Bradley nonetheless argues that the facts of this case support, at best, only a conviction for misdemeanor stalking because Holmes had previously consented to his contact, thereby vitiating the restraining order. Bradley contends that, since both parties previously ignored the restraining order, the order could not “reasonably be considered to exist in the instant case, and without it, the evidence was insufficient as a matter of law.” He further claims that the State’s reliance on the restraining order to aggravate the stalking offense constituted inappropriate selective enforcement of that order. Bradley’s arguments have no merit.

The restraining order was both valid and enforceable at the time of Bradley’s arrest, notwithstanding the parties’ alleged violations of such order. Parties cannot, on their own, extinguish a court order — an order may be modified or vacated only by the court or by operation of law. If Bradley believed the order should not apply to him by virtue of his ongoing relationship with Holmes, he should have sought for modification of the order. See Gen. Teamsters Local Union &c. v. Allied Foods (“ [i] f the defendant is in doubt as to what acts he may or may not do under the [restraining] order, he should request a modification or construction of its terms. If he proceeds under his own construction, he does so at his own peril”). See also Smith v. Gwinnett County . At the time of the incident, the restraining order was valid and prohibited Bradley from contacting Holmes.

Furthermore, there was no improper “selective enforcement” of the restraining order in this case. Pretermitting the issue of whether the State may selectively enforce a restraining order, we find that no such selective enforcement occurred in this case. The State cannot enforce restraining orders until it knows that such orders have been violated. Here, there is no evidence that the State was informed of any violation prior to Holmes’ call to 911 when Bradley entered her residence with a screwdriver and threatened to kill her. We have previously affirmed aggravated stalking convictions where the applicable restraining order had previously been ignored by both parties. See, e.g., Littleton v. State (“[a]lthough the victim and the children allowed Littleton to enter the victim’s home prior to the night of April 3, the evidence showed that Littleton on that date did not have permission to come inside the victim’s home”). Thus, the restraining order was valid, enforceable, and properly relied upon by the jury to aggravate Bradley’s offense of stalking.

Decided November 5, 2001.

Harold B. Baker, for appellant.

J. David Miller, District Attorney, Laura E. Anderson, Assistant District Attorney, for appellee.

Finally, we note that Holmes’ desire for a reversal is immaterial. “Because a crime is by definition a public wrong against the State, it is not usually an acceptable defense that the person wronged by a criminal has condoned the offense.” (Punctuation omitted.) Simpson v. State.

The evidence supported a jury finding that Bradley committed the offense of aggravated stalking.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

        Gen. Teamsters Local Union &c. v. Allied Foods, 228 Ga. 479, 481 (2) (186 SE2d 527) (1971).

        Smith v. Gwinnett County, 268 Ga. 179, 181 (1) (486 SE2d 151) (1997).

       Bradley cites no authority for this argument.

        Littleton v. State, 225 Ga. App. 900, 903 (4) (485 SE2d 230) (1997).

         Simpson v. State, 214 Ga. App. 587, 588 (2) (448 SE2d 370) (1994).


author: Smith, Presiding Judge.

text:
    A01A1265.
    HENDERSON v. THE STATE.
    (556 SE2d 204)
   Smith, Presiding Judge.

Daphne Lynne Henderson was convicted by a jury of one count of obstruction of an officer and one count of aggravated battery on a peace officer. Her motion for new trial as amended was denied, and she appeals. Although we agree with Henderson that the trial court should have merged the two convictions for sentencing purposes, we find no basis for a new trial. We therefore affirm the trial court’s denial of Henderson’s motion for new trial but vacate and remand for resentencing.

The facts are essentially undisputed. Officer Marty Perkins and three other officers responded to a call at an apartment complex. They arrived at the scene to find Henderson rolling and writhing on the front porch of her apartment, covering her face, and screaming, “Get it off of me,” although nothing appeared to be on Henderson. Two of the officers moved Henderson from the porch to the ground to protect her from injury. After a short time, Henderson began to calm down and talk with one of the other officers. Perkins testified that Henderson “seemed to really calm down and respond to” the officer. She was “chatting directly with him.” Among other things, the officer asked Henderson if she had smoked anything. She responded that she had smoked crack. But following this brief conversation, Henderson’s daughter came outside the apartment, and she was “crying and yelling” and asking her mother to get up. Perkins told the daughter that Henderson needed to lie down so she would not hurt herself, but “[a]t that point, Miss Henderson fired right back up again and began being hysterical again herself with the screaming and the yelling and the rolling around.”

Henderson stood up and was stumbling around, and as Perkins and another officer attempted to restrain her and lay her on the ground, Henderson pulled Perkins’s arm toward her and bit it, latching on so hard that another officer was required to pry Henderson away from Perkins. Perkins testified she had permanent nerve and muscle damage to her arm. She showed the jury her scar and pointed out a “divot” in her arm. She stated that she had a four-inch-square area on her arm where the nerves were completely severed and where she had no feeling or sensation.

Henderson acknowledged that before the incident, she smoked a piece of crack cocaine provided by an acquaintance. A short time later, “[e]verything went dark.” She could not see or catch her breath, and she asked someone to open the door so that she could go outside and get some air, because she thought she was going to die. She testified that before everything became dark, she felt as if something like an animal was causing her pain, “trying to tear my face off.” Henderson stated that she could feel someone moving her off the porch and onto the grass, but she did not “know what it was that was doing this to me.” She remembered nothing else that happened from that time until she woke up in the emergency room.

1. Henderson makes several related arguments concerning two aspects of the trial court’s charge. First, she contends that the court’s instructions erroneously allowed the jury to convict her in a manner not set forth in the indictment. Second, she argues that although the indictment charged her with maliciously causing bodily harm to Officer Perkins, the court did not define the term “malicious.”

We first note that Henderson failed to object to the charge on these grounds and failed to reserve exceptions to the entirety of the charge, even when asked by the trial court if she had any exceptions to the charge. Henderson’s complaints concerning the charge therefore have not been preserved for appellate review. Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192) (1988). Henderson argues, however, that these contentions are reviewable under a “plain error” analysis, a doctrine that permits appellate review of unexcepted-to errors “if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). Alternatively, she argues that trial counsel’s failure to preserve the issues for appellate review constituted ineffective assistance of counsel. For the reasons that follow, we find no reversible error with respect to the court’s charge to the jury under either theory.

(a) We first address Henderson’s argument that the trial court’s instructions impermissibly allowed the jury to convict her of aggravated battery in a manner not set forth in the indictment. We do not agree with Henderson that obvious error occurred warranting reversal under the “plain error rule.” A jury instruction defining a crime as an act that can be committed in a manner other than the manner alleged in the indictment violates a defendant’s due process when “there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (Citation omitted.) Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). The indictment here charged Henderson with committing aggravated battery by one method: maliciously causing bodily harm to Perkins, knowing that Perkins was a peace officer engaged in the performance of her official duties, by rendering a member of her body useless, her arm.

Henderson also correctly argues that the trial court generally defined the crime of aggravated battery as occurring when one maliciously caused bodily harm by three methods: by depriving a person of a member of his or her body; by rendering a member of the person’s body useless; or by seriously disfiguring the person’s body or a member of his or her body. A similar instruction was repeated when the trial court recharged the jury on all instructions, at the jury’s request, the next day. Some evidence was presented of disfigurement; Perkins showed the jury her scar; and the prosecutor argued that Perkins was disfigured.

But despite this evidence and argument, we cannot agree with Henderson that reversal is required. With respect to the entire charge, Henderson takes this portion of the instruction out of context. Although the trial court initially defined aggravated battery as a crime capable of being committed in three ways, the court then read the portion of the indictment charging Henderson with aggravated battery, which specifically charged her with committing the crime by rendering a member of Perkins’s body useless, and the court stated that if the jury found Henderson caused bodily harm to a peace officer by maliciously rendering a part of her body useless, it would be authorized to find Henderson guilty. The trial court then instructed the jury concerning preparation of the verdict, stating that the jury would indicate that it found Henderson “guilty of aggravated battery in causing bodily harm as alleged in the indictment.” (Emphasis supplied.)

During its recharge the next day, the trial court similarly instructed the jury on how to prepare its verdict forms. These instructions clearly informed the jury that only a finding of aggravated battery by rendering a part of another’s body useless was available for its consideration. See Riley v. State, 242 Ga. App. 720, 722 (1) (531 SE2d 138) (2000). In addition, after reading the indictment verbatim, the trial court instructed the jury on the burden of proof, particularly reciting that the State had the burden to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. These instructions adequately informed the jury that the State was required to prove that Henderson committed the crime as alleged in the indictment. See Booker v. State, 242 Ga. App. 80, 85 (4) (d) (528 SE2d 849) (2000); Salahuddin v. State, 241 Ga. App. 168, 170 (1) (525 SE2d 422) (1999). We consequently cannot conclude that the jury convicted Henderson of commission of a crime in a manner other than that alleged in the indictment. It follows that the charge as given did not constitute plain error.

(b) We next address Henderson’s arguments that trial counsel’s failure to object to the charge as given, to object to the State’s arguments concerning Perkins’s disfigurement, and to reserve exceptions for appeal constituted ineffective assistance of counsel. To prevail on an ineffectiveness claim, an appellant must show both that trial counsel’s performance was deficient and that, but for this deficiency, a substantial likelihood exists that the outcome of the trial would have been different. Head v. Carr, 273 Ga. 613, 616 (4) (544 SE2d 409) (2001). Despite the prosecutor’s arguments concerning Perkins’s disfigurement, the trial court’s charge, when read as a whole, informed the jury that it must consider only whether Henderson committed aggravated battery as alleged in the indictment. Under these circumstances, we cannot conclude that reversal is required on ineffectiveness grounds.

2. Henderson argues that the trial court improperly instructed the jury concerning her intent to commit the crime of aggravated battery.

(a) The court’s instruction on aggravated battery stated in relevant part that a person commits this crime when he or she “maliciously causes bodily harm.” Chiefly relying on Wade v. State, 258 Ga. 324 (368 SE2d 482) (1988), Henderson argues that the trial court erred in failing to define the term “maliciously.” In Wade, the trial court instructed the jury that aggravated battery is committed when the defendant commits the injuries “ ‘maliciously, that is to say, with intent.’ ” Id. at 330 (11) (d). The Supreme Court held this instruction to be erroneous, stating that “[a] person acts ‘maliciously’ when he acts. intentionally and without justification or serious provocation. [Cits.]” (Emphasis in original.) Id. The court’s charge, “by its incompleteness, removed from the prosecution the burden of proving every element of the crime of aggravated battery beyond a reasonable doubt.” (Citation and punctuation omitted.) Id. at 331 (11) (d).

But the trial court here did not incorrectly define the term. Rather, the court charged almost verbatim the language of OCGA § 16-5-24 (c), stating in part that “[A] person commits the offense of aggravated battery of a law enforcement officer when he or she maliciously causes bodily harm to a peace officer engaged in his or her official duties.” And we have held that the term “maliciously,” as applied to aggravated battery, “has such common understanding that there is no need to define it in the jury charge.” (Citations and footnotes omitted.) Ellis v. State, 245 Ga. App. 807, 808 (2) (539 SE2d 184) (2000). In addition, the trial court charged the jury that the State must prove each element of the crimes charged beyond a reasonable doubt. Consequently, we cannot agree with Henderson that the charge constituted plain error. See Blackwood v. State, 224 Ga. App. 486, 489 (2) (b) (480 SE2d 914) (1997).

(b) Henderson also argues that her trial counsel’s failure to request a charge defining the term “maliciously” and to object properly to the charge as given constituted ineffective assistance of counsel. But decisions concerning which charges to request involve trial tactics, to which we must afford “substantial latitude” in our review. Love v. State, 268 Ga. 484, 486 (4) (490 SE2d 88) (1997). “Decisions as to which charges will be requested . . . fall within the realm of trial tactics and strategy. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them. [Cit.]” Champion v. State, 238 Ga. App. 48, 49 (1) (b) (517 SE2d 595) (1999). So viewing trial counsel’s failure to object, we cannot agree that her failure to object constituted deficient performance, especially given our holding in Ellis, supra, that it is not error to fail to define the term “maliciously” as it applies to the offense of aggravated battery. Id.

Furthermore, Henderson’s acts were neither provoked nor justified. On the contrary, Perkins and the other officers present at the scene were attempting to assist Henderson and to keep her from harming herself. Their decision to arrest Henderson arose only after she bit Perkins. While she might argue that she thought she was justified in biting Perkins, her misguided thoughts arose only out of her own voluntary intoxication, which is not an excuse for any criminal act. OCGA § 16-3-4 (c); Bailey v. State, 198 Ga. App. 632, 633 (2) (402 SE2d 363) (1991). Under the circumstances of this case, she has not shown a reasonable probability that an instruction on the definition of “maliciously” as applied to the charge of aggravated battery would have resulted in an acquittal.

Henderson also argues that she was denied effective assistance of counsel, because her trial counsel made an erroneous statement of the law concerning intent, as it relates to aggravated battery, during closing argument. Indeed, trial counsel argued that with respect to both the charges of obstruction and aggravated battery, the jury had “to find that [Henderson] knew what she was doing and she intended to do it.” This definition was rejected in Wade, supra, as correctly pointed out by Henderson. In addition, we note that, although the legal definition is clearly set forth in Wade, trial counsel stated during closing argument that she was unable to find the legal definition of malice and went on to define it herself to the jury as “evil, intentional, purposefully wrong.” But despite trial counsel’s erroneous statement concerning intent, as discussed above, even if the jury had been instructed and had heard proper argument concerning the definition of “maliciously,” we cannot say that a reasonable probability exists that the outcome of the trial would have changed; the record does not show either that Henderson acted with justification or that she was provoked by Perkins.

(c) Henderson argues that charges on accident and knowledge requested by trial counsel “reduced the mens rea requirement from the high threshold of malice to either one of knowledge or criminal negligence.” The trial court did charge the jury, as requested by Henderson, that if the incident “occurred as a result of misfortune or accident and not as the result of criminal undertaking or a criminal negligence, then it would be your duty to acquit.” But this charge did not diminish the State’s burden of proving all elements of the crimes charged beyond a reasonable doubt, and as discussed above, the decision concerning which charges to request constituted trial strategy. We cannot conclude that these decisions were “so patently unreasonable that no competent attorney would have chosen them. [Cit.]” Champion, supra at 49. Henderson has shown no basis for reversal on ineffectiveness grounds.

Decided November 5, 2001

Ruth P. Marks, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Dana J. Norman, Assistant District Attorneys, for appellee.

James C. Bonner, Jr., amicus curiae.

3. Henderson correctly argues that her convictions on the obstruction charge and the aggravated battery charge should have merged for sentencing purposes. The same evidence was used to support both the obstruction and the aggravated battery charges, as they were set forth in the indictment: the single act of biting Perkins. One crime was therefore included in the other, and Henderson cannot be sentenced for both. OCGA § 16-1-7 (a). See Riden v. State, 226 Ga. App. 245, 246 (2) (486 SE2d 198) (1997).

Although the State conceded below that the two convictions should merge for sentencing, the trial court did not merge the convictions. The State now argues that the merger was not required under reasoning in cases such as Evans v. State, 271 Ga. 614 (523 SE2d 850) (1999), and Wright v. State, 243 Ga. App. 167 (532 SE2d 724) (2000). Those cases are distinguished on their facts. In Evans, the Supreme Court concluded that the appellant’s convictions for armed robbery and malice murder did not merge, because the jury could have believed that one crime was completed before the other. Id. at 616. And in Wright, the charged crimes, aggravated assault and aggravated battery, did not merge because 24 out of 26 stab wounds established a separate aggravated assault charge. Id. at 169. But here, one single act and one single injury formed the basis for both charges against Henderson. Merger was required. We therefore affirm the trial court’s denial of Henderson’s motion for new trial but remand this case to the trial court for sentencing in accordance with this opinion.

Judgment affirmed in part, vacated and remanded with direction.

Barnes and Phipps, JJ, concur.

       Henderson objected to the charge with respect to two minor, unrelated slips of the tongue made by the trial court, one of which the court corrected by recharging the jury.

       Although the Supreme Court of Georgia has adopted a rule limiting the application of this doctrine to capital cases and cases in which the trial court violates OCGA § 17-8-57 by expressing an opinion concerning the guilt of the accused, it does not appear that this court has so limited the rule. See Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000).

       Although the jury requested that the trial court repeat its instructions, this was not necessarily an indication that the jury was confused concerning the language of the indictment. The jury requested that all of the instructions be repeated. We cannot deduce from this that the jury was confused about one particular portion of the charge.


author: Phipps, Judge.

text:
    A01A2159.
    GRAY v. THE STATE.
    (556 SE2d 194)
   Phipps, Judge.

Clarence Gray was convicted of trafficking in cocaine and possession of marijuana after the police found contraband in his car. Gray claims the trial court should have granted his motion to suppress because the police officers exceeded the scope of a reasonable investigative stop. We disagree and affirm.

The record shows that a confidential informant told Investigator Fred Wood of the Albany Police Department that Gray would be driving a blue Chevrolet station wagon containing two kilograms of cocaine along the Moultrie Highway on his way to Albany between 6:00 and 8:00 the next morning. The informant had never given Wood information before.

The following morning, Wood and three other police officers stationed themselves along the Moultrie Highway. When Wood saw a blue station wagon pass by around 7:00 a.m., he radioed Investigator Reggie French, who was waiting up the road in a marked police car. As the station wagon passed French, it was speeding, weaving, and making an improper lane change. French activated his blue lights and stopped the car.

French examined the driver’s license and confirmed that the driver was Gray. French issued Gray a warning citation for the traffic violations and returned his driver’s license. French then asked Gray if there were any drugs, weapons, or illegal currency in the car, and Gray said no. French sought consent to search the car, but Gray refused.

A few minutes later, Investigator Kelvin Casey arrived at the scene with a drug dog. Casey led the dog around Gray’s car, and the dog alerted positively. French searched the car and found a shoebox full of cocaine behind the driver’s seat.

Gray does not challenge the legality of the initial stop to investigate the traffic violations that French observed. He argues, rather, that the purpose of the stop concluded after French issued the warning citations and returned his driver’s license and that his continued detention was illegal. Thus, the question is whether French was justified in momentarily detaining Gray pending the arrival of the drug dog.

The police may briefly detain a person if they have specific, articulable facts that give rise to a reasonable suspicion of criminal conduct. Although a tip provided by an informant of unknown reliability generally does not create a reasonable suspicion of criminal activity, reliability can be established if the tip contains sufficient details to provide a basis for predicting the suspect’s future behavior and the police are able to corroborate those details through observation.

In this case, the confidential informant told Wood that a specific person would be driving a specific vehicle at a specific time on a specific road with a specific amount and kind of contraband. The police were able to verify that a car meeting the informant’s description was traveling along the specified route at the specified time. After French stopped the car for the traffic infractions he observed, he confirmed that the name of the driver was the one given by the informant. Thus, before further detaining Gray, French corroborated every detail of the informant’s tip except the presence of cocaine in the car.

Gray cites State v. Cunningham, in which the police had received information from an unknown source that a particular car would be driving north from Atlanta on Highway 441, would be occupied by a white female and possibly a white male, and might contain methamphetamine. The police spotted the car, saw that the driver failed to maintain the proper lane and that the passenger was not wearing a seat belt, and stopped the car. After issuing courtesy warnings for the traffic violations, the police led a drug dog around the car and later discovered methamphetamine inside. We ruled that the traffic stop had concluded after issuance of the courtesy warnings and that the continued detention of the motorists could be justified only by reasonable suspicion of other criminal activity. The information received by the police in Cunningham did not give rise to a reasonable suspicion because it contained no specific, articulable facts suggesting criminal activity on the part of the car’s occupants.

In this case, however, the confidential informant’s tip contained not only a description of the car and a prediction of its route and time of travel, but also the driver’s name and the amount and type of contraband that would be in the car. These details show that the confidential informant had the kind of “inside information” about Gray’s activities necessary to overcome the presumption that his or her tip was not reliable. Thus, this case is distinguishable from Cunningham and the other cases cited by Gray. The trial court did not err in denying the motion to suppress.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided November 5, 2001.

Brimberry, Kaplan & Brimberry, Mark D. Brimberry, for appellant.

Kenneth B. Hodges III, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.

       Although Gray also was charged with marijuana possession, marijuana was not mentioned at the motion to suppress hearing. The record does not contain a transcript of the trial.

        See Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997) (when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop).

        Tran v. State, 246 Ga. App. 153, 155 (1) (539 SE2d 862) (2000).

        Gordon v. State, 242 Ga. App. 50, 52 (1) (528 SE2d 838) (2000).

       246 Ga. App. 663 (541 SE2d 453) (2000).

       See, e.g., McSwain v. State, 240 Ga. App. 60, 64 (522 SE2d 553) (1999) (broadcast over police radio to be on the lookout for a certain car with a certain number of occupants traveling north on 1-95 toward one of the Carolina states that might contain unspecified contraband in the trank did not provide reasonable suspicion for stop of vehicle).

       See, e.g., Tran, supra; Edgerton v. State, 237 Ga. App. 786, 789 (516 SE2d 830) (1999).


author: Ruffin, Judge.

text:
    A01A1023.
    JACKSON v. FORD et al.
    (555 SE2d 143)
   Ruffin, Judge.

Alleging breach of contract, fraud, quantum meruit, unjust enrichment, breach of fiduciary duty, and promissory estoppel, Terry Jackson sued his former employers, James Lee Ford, Sr., the Ford Law Firm, and James Lee Ford, PC. (collectively “Ford”), for damages arising from Ford’s failure to pay him bonus compensation. Ford counterclaimed for legal fees allegedly owed by Jackson, breach of professional trust, and conversion. Ford subsequently moved for summary judgment on Jackson’s claims, and Jackson filed a cross-motion for summary judgment on Ford’s counterclaims. The trial court granted Ford’s motion, while denying Jackson’s request. Jackson appeals these rulings, and we affirm.

1. In his first enumeration of error, Jackson challenges the trial court’s grant of summary judgment to Ford. Summary judgment is appropriate “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” We apply a de novo standard of appellate review and “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Viewed in this manner, the evidence shows that in October 1994, Jackson received an offer to work as an associate attorney in Ford’s law office. According to Jackson, Ford orally offered him an annual salary of $30,000, plus a bonus or “incentive compensation” of ten to fifteen percent of contingency fees received in cases on which Jackson did “substantive” or “substantial” work. Within the ten to fifteen percent range, Ford had discretion to set the amount of “incentive compensation.” Jackson accepted Ford’s oral offer and began work the following month.

On March 1, 1995, Ford sent Jackson a memorandum reaffirming the incentive compensation scheme. The memorandum stated that, based upon his performance, Jackson would receive incentive compensation on contingency fee cases in the range of ten to fifteen percent of the fee. The memo further provided:

the amount of any incentive compensation that you receive is totally a matter of my discretion. For example, if you only do a nominal amount of work on a case which generates a substantial fee, you may not receive 10% of that fee. Either I or [my partner] have the discretion to evaluate the quality of work which you provided, its contribution to the overall result, and to set a fee, based purely on our discretion, which appropriately reflects your input.

Jackson testified that the compensation scheme described in the memorandum comported with the terms of his oral employment contract.

Although Jackson received the $30,000 annual salary, he became dissatisfied with his level of incentive compensation, which, in his view, fell short of the promised ten to fifteen percent range. Eventually, Jackson decided to leave Ford’s firm. On November 4, 1996, he wrote Ford, tendering his resignation and outlining his work on pending cases, as well as the incentive compensation he expected to receive for those cases.

Ford responded to Jackson’s letter on November 19, 1996, stating that “[a]ny additional compensation you may stand to receive on any case ... is totally a matter of my discretion” and that “any expectation you have to receive a fixed percentage on any case is totally misplaced.” Ford further indicated, “[t]he only agreement you even had with me was that I would consider additional compensation, within certain parameters, as a matter of my absolute discretion.” Ford requested that Jackson acknowledge his understanding of the compensation plan by signing the memorandum, and Jackson did so. According to Jackson, however, he signed the memorandum only because Ford screamed obscenities at him and told him to sign it or immediately “get out of [the] office.”

After Jackson left Ford’s employment, disputes continued over incentive compensation for work Jackson performed before he resigned. Jackson eventually filed suit, and the trial court granted Ford summary judgment on each of Jackson’s claims. Jackson now argues that the trial court erred in granting summary judgment on his breach of contract, fraud, quantum meruit, unjust enrichment, and promissory estoppel claims. We disagree.

(a) Breach of Contract. Jackson argues that Ford reneged on his promise to pay him incentive compensation in the range of ten to fifteen percent of attorney fees received from cases on which Jackson worked. This alleged promise forms the basis of his breach of contract claim.

To be. enforceable, a promise of future compensation must “be for an exact amount or based upon a ‘formula or method for determining the exact amount of the bonus.’ ” The sum must be “definitely and objectively ascertainable from [the] contract.” Jackson asserts that his incentive compensation arose from a formula that set ten percent of fees as the minimum bonus. The record shows, however, that his incentive compensation scheme was only partially based on a formula.

As an initial matter, Ford clearly had discretion to set the bonus compensation within the ten to fifteen percent range. Moreover, that range applied only to cases in which Jackson performed “substantial work.” Jackson noted at his deposition that “substantial is . . . subject to some disagreement, but not much.” He has pointed to no evidence, however, that the parties ever reached an agreement as to what a “substantial” amount of work might be.

During his deposition, Jackson discussed the type of work that he considered substantial or nonsubstantial. He testified, for example, that working “20 to 30 hours in a 600-hour case” or simply researching one issue would not qualify as a substantial contribution to a case. But he offered no objective or formulaic method under the compensation plan for determining when his work rose to the level of “substantial.” Furthermore, he has not cited any evidence that Ford agreed with his assessment of when his work became “substantial.”

We find that the amount of incentive compensation promised Jackson was not definite or objectively ascertainable from the promise made. Although a partial formula established a range of compensation, payments within that range were discretionary, and the point at which that range became applicable — “substantial work” — was hardly definite. As our Supreme Court has held, “[permitting a bonus to be only partially tied to a formula is not consistent with the rationale for requiring a formula.” Thus, Ford’s oral promise to pay Jackson incentive compensation was too indefinite to be a legally enforceable obligation.

Our decision in McLean v. Continental Wingate Co. does not require a different result. The employment agreement in McLean entitled the claimant to a specific percentage of corporate net profits, which were to be determined by the company “ ‘in its sole discretion.’ ” For several years, the company used a particular method for calculating net profits. The company then changed its calculation method, significantly reducing the claimant’s compensation. The trial court determined that the agreement was too vague to be enforced. We reversed, finding that although the contract lacked a formula for calculating net profits, “the parties, based on their past dealings, understood the meaning of the term ‘net proceeds,’ and the method of establishing the percentage of profits due for [the employee’s] services.”

Jackson has pointed to no similar “past dealings” or understandings that provide certainty to the incentive compensation plan at issue here. Accordingly, the trial court properly granted Ford summary judgment on Jackson’s breach of contract claim.

(b) Fraud. Jackson argues that Ford defrauded him by promising to pay incentive compensation with the present intention not to perform. “Although fraud can be predicated on a misrepresentation as to a future event where the promisor knows that the future event will not take place, fraud cannot be predicated on a promise which is unenforceable at the time it is made.” As discussed above, Ford’s promise of incentive compensation was, at all times, too indefinite to be enforced. It follows that the trial court properly granted Ford summary judgment on the fraud claim.

(c) Promissory Estoppel. We similarly find no error in the trial court’s decision to grant Ford summary judgment on Jackson’s promissory estoppel claim. Promissory estoppel “does not apply . . .. to vague, indefinite promises.” Under Arhy’s, the promise of incentive compensation in this case must be described as vague and indefinite. The parties’ agreement provided insufficient guidance as to the amount of incentive compensation or when the bonus applied. Just as that promise cannot support Jackson’s breach of contract allegations, it is too vague and indefinite to sustain his promissory estoppel claim.

(d) Quantum Meruit and Unjust Enrichment. The equitable doctrine of quantum meruit prevents a person who benefits from another’s services to be unjustly enriched by those services. The provider of the services may recover their reasonable value, “but value is defined in terms of value to the recipient.” The unjust enrichment theory is similarly “ ‘premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received.’ ”

During the summary judgment proceedings, Jackson informed the trial court that his quantum meruit and unjust enrichment claims were directed toward work he performed for Ford after he left Ford’s employment. The record shows that following his resignation, Jackson agreed to continue working with Ford on three cases: Miller, Strickland, and Ackerman.

With respect to Miller and Strickland, the parties initially agreed that, as payment for his continued work, Jackson would receive a specific percentage of any earned contingency fee. Jackson subsequently withdrew from the cases, and Ford sought to reduce the agreed-upon percentage. Ultimately, however, both cases were resolved adversely to Ford’s clients on summary judgment. As contingency fee cases, therefore, Miller and Strickland resulted in no attorney fees for Ford.

Jackson’s services in Miller and Strickland had no value to Ford. Ford recovered no fees, received no benefit, and was not unjustly enriched. Jackson recognized as much in his summary judgment papers, noting that he would drop all claims relating to cases in which Ford recovered no fee. Accordingly, Jackson’s quantum meruit and unjust enrichment theories involving the Miller and Strickland cases have no merit.

Jackson’s activities on the Ackerman case similarly do not support recovery. After leaving Ford’s employment, Jackson agreed to work on the Ackerman case for 15 percent of the contingency fee. Yet, the record shows that Jackson actually received $84,000, one-third of the entire fee. In contrast, Ford, who withdrew from the case before its resolution, received only $3,000 for his participation. Jackson has made no effort to show how Ford was unjustly enriched by Jackson’s services in the Ackerman case. Accordingly, the trial court properly granted Ford summary judgment on Jackson’s quantum meruit and unjust enrichment claims relating to Ackerman.

2. Jackson also argues that the trial court erred in not granting him summary judgment on Ford’s counterclaims. Again, we disagree.

In response to Jackson’s suit, Ford alleged three counterclaims. First, he asserted that Jackson owed him a portion of the fee generated in the Ackerman case. Second, he claimed that Jackson breached a duty of loyalty owed him by failing to protect his interest in that fee. Finally, Ford alleged that Jackson converted property belonging to Ford when he left Ford’s employment.

(a) Jackson argues that he owes Ford no legal fees because Ford did not work significantly on the Ackerman case and was paid $3,000 for the work he did perform. According to Jackson, therefore, he was entitled to summary judgment on Ford’s claims for nonpayment of these fees and breach of duty.

Viewed favorably to Ford, the record shows that attorney Charles Davis associated Ford’s law firm in the Ackerman case while Jackson was still an employee. Ford was to be lead trial counsel, and Jackson was responsible for the day-to-day trial preparation work. After Jackson resigned, he agreed to continue working as “the associate” on the case for 15 percent of the fees earned by Ford and Davis. Disputes between Ford and Jackson arose, however, and Jackson informed the client that he intended to withdraw from the case because he could no longer work with Ford. Choosing to keep Jackson as counsel, the client instead asked Ford to withdraw. Ford complied, and the case was later settled, producing a $245,000 fee that Jackson, Davis, and another attorney shared. The record shows that Davis subsequently paid Ford $3,000 for work performed on the case.

Ford argues that a question of fact remains as to whether he was properly compensated for his participation in the case from the time his office became involved until he withdrew as counsel. We agree. Although Jackson claims that he conducted all of the case work, the evidence shows that he engaged in part of that work while employed by Ford. After resigning from Ford’s employment, Jackson also agreed to continue working as an “associate” on the case for a percentage of Ford’s fee. Furthermore, Ford testified that he worked on various aspects of the case. Given this evidence, a jury could conclude that Ford originally participated in the fee arrangement, served as lead trial counsel on the case for a period of time, and was entitled to recover from the contingency fee the reasonable value of his services.

Jackson also contends that, even if Ford had some claim for fees in Ackerman, he released those claims through accord and satisfaction when he accepted the $3,000 payment from Davis. Accord and satisfaction is an affirmative defense, requiring Jackson to establish a prima facie case on summary judgment. We have defined accord and satisfaction as “ ‘an agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which when performed is a bar to all actions on this account.’ ” Whether the parties intended a payment to constitute accord and satisfaction is ordinarily a jury question.

Jackson has not pointed to any credible evidence of an accord and satisfaction agreement. Although Jackson’s deposition contains some hearsay testimony about what Ford and Davis discussed when the money was exchanged, he presented no admissible evidence that all parties intended the $3,000 payment to be a final and full satisfaction of Ford’s claims. The evidence further shows that Jackson never obtained a release or other agreement from Ford that Ford would make no additional claim for fees. Finally, Ford testified that the payment did not constitute an accord and satisfaction.

Given the dearth of evidence regarding an agreement, we cannot find that Jackson produced sufficient evidence of accord and satisfaction to warrant summary judgment. Accordingly, the trial court properly denied his summary judgment motion as to this defense.

(b) We also find no error in the trial court’s refusal to grant Jackson summary judgment on Ford’s conversion claim. “Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another.” At deposition, Jackson admitted that when he left Ford’s employment, he took with him copies of several briefs that he authored, some of which he pulled from his trash can. In addition, he copied onto computer disks various memos and briefs that he had prepared. According to Jackson, he thought these materials might be useful when he opened his own law practice. Ford testified that Jackson had no right to remove any work product from the law firm.

On appeal, Jackson asserts that he took only his own work product, not work product or property belonging to Ford. Ford, on the other hand, contends that the work product belonged to him, even if authored by Jackson. Other than making conclusory statements, neither party has offered any legal argument on whether Ford owned the work product Jackson generated during his employment with Ford. We need not reach the issue of work product ownership, however, because the record contains sufficient evidence to create a question of fact as to whether Jackson converted other property belonging to Ford.

Jackson agreed that Ford paid for the paper on which the briefs he removed from Ford’s office were copied. Although Jackson asserted that certain of those papers were “trash,” Ford testified that Jackson was not entitled to remove the papers from the office. A triable issue remains, therefore, as to whether Jackson converted these pieces of paper. Furthermore, a Ford employee testified that Jackson “took some computer disks that had information ... on different ongoing cases.” Jackson asserted that he purchased the computer disks he used to download information from Ford’s computer. Nevertheless, the employee’s testimony raises a question of fact as to whether Jackson removed computer disks belonging to Ford from the office.

Decided October 9, 2001

Reconsideration denied November 6,2001

Taylor W. Jones & Associates, Taylor W. Jones, Richard E. Harris, for appellant.

Morris, Manning & Martin, Warren W. Wills, Jr., for appellees.

Jackson argues that attorneys should not be subject to this type of claim when they leave a law firm “under less than ideal circumstances.” We agree that the alleged conversion of paper and computer disks, if true, would result in only minimal damages. On appeal, however, Jackson has not shown that the trial court erred in denying his motion for summary judgment on Ford’s conversion claim.

(c) Finally, in a two-sentence argument, Jackson asserts that the trial court should have granted him summary judgment on Ford’s claims for punitive damages and attorney fees. He argues that because Ford’s substantive counterclaims lack merit, the attorney fees and punitive damages allegations must fail. As found above, however, the trial court properly denied Jackson’s motion for summary judgment on the substantive counterclaims.

In the last sentence of the argument section in his brief, Jackson further claims that his actions do not evidence the type of bad faith, wilfulness, or other conduct necessary for a punitive damages award. Jackson has provided no argument, citation of authority, or record reference to support this assertion. He rests on this single sentence, apparently assuming that it will carry his argument for him. It does not. Because Jackson has failed to support this claim for reversal, it is deemed abandoned.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

        Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001).

       Id.

       In his appellate briefs, Jackson does not mention his breach of fiduciary duty claim. Any argument that the trial court improperly granted summary judgment on that claim, therefore, has been abandoned. Court of Appeals Rule 27 (c) (2).

       (Citations omitted.) Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995). See also Moore v. BellSouth Mobility, 243 Ga. App. 674, 676 (1) (534 SE2d 133) (2000) (citing Arby’s).

         Arby’s, supra.

       Id.

       Id. at 242. See also Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291-292 (2) (375 SE2d 267) (1988) (physical precedent only) (oral promise to pay annual bonus between $7,000 and $8,000 was too indefinite to be legally enforceable); Mosteller v. Mashburn, 64 Ga. App. 92, 99 (12 SE2d 142) (1940) (promise to pay claimant $4,000 to $5,000 for unspecified services was unenforceable; “[t]he fact that [the promisor] never at any time promised to pay any definite sum for the performance of any services ... is itself sufficient to defeat any right in [the claimant] to recover on any promise”).

       212 Ga. App. 356 (442 SE2d 276) (1994).

       Id. at 357.

       Id. at 358.

       Id. at 359 (1).

       Citing the November 19,1996 memorandum, which Jackson signed, Ford argues that he had discretion to award no bonus compensation on a case, regardless of the amount of work Jackson performed. Although Jackson contends that he signed the November 19,1996 memorandum under duress, we need not address whether Ford had this greater discretion. As discussed above, even if Ford’s discretion applied only within the ten to fifteen percent range in cases on which Jackson did substantial work, the agreement was unenforceable.

       (Punctuation omitted.) Autrey v. UAP/GA AG CHEM, 230 Ga. App. 767, 769 (1) (a) (497 SE2d 402) (1998). See also Ikemiya v. Shibamoto America, 213 Ga. App. 271, 274 (2) (444 SE2d 351) (1994) (promises of employment were unenforceable “ ‘even absent any fraud at the time of their utterance,’ ” and thus could not support a claim of fraud).

       Id. See also Hodge Residential v. Bankers First Fed. Sav. &c. Assn., 199 Ga. App. 474, 476 (2) (a) (405 SE2d 302) (1991) (no genuine issue of material fact as to fraud claim because, inter alia, “there can be no justifiable reliance on a promise which is unenforceable at the time it is made”).

        Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000).

       Supra.

       See id.; Voyles v. Sasser, 221 Ga. App. 305-306 (2) (472 SE2d 80) (1996) (promise concerning vague future acts does not support promissory estoppel claim).

        Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 62 (1) (537 SE2d 670) (2000).

       Id. at 62-63 (1).

        Scott v. Mamari Corp., 242 Ga. App. 455, 458 (2) (530 SE2d 208) (2000).

       See Black’s Law Dictionary (7th ed. 1999), p. 315 (defining “contingent fee” as “[a] fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court”).

       See Haldi v. Watson, 240 Ga. App. 801, 802-803 (2) (522 SE2d 696) (1999) (services provided under contingency fee contract in case that produced no recovery have no value).

       Jackson did not argue before the trial court that he owed no duty of loyalty to Ford. To the extent Jackson asserts this argument for the first time on appeal, we cannot address it. See Clark v. Chick-Fil-A, 214 Ga. App. 758, 759 (1) (449 SE2d 313) (1994).

        Dover, supra.

       Jackson vaguely asserts that Ford should have sued the client for the value of his services in this case. As part of his counterclaim, however, Ford alleged that he had an implied contract right to a portion of the contingency fee. Jackson has cited no authority that would preclude such a claim. We also note that Jackson apparently believed Ford was entitled to some portion of the fee. As Jackson testified, he and Davis agreed that they “had to pay [Ford] for the time [Jackson] had worked [on the case] when [he] was at [Ford’s] firm.”

        Rabenstein v. Cannizzo, 244 Ga. App. 107, 109 (534 SE2d 847) (2000).

        Sawyer v. C & S Nat. Bank, 164 Ga. App. 177, 179 (1) (a) (296 SE2d 134) (1982).

        Feely v. First American Bank &c., 206 Ga. App. 53, 56-57 (2) (b) (424 SE2d 345) (1992).

       See Barich v. Cracker Barrel &c., 244 Ga. App. 550, 551 (1) (536 SE2d 221) (2000) (inadmissible hearsay cannot be considered on summary judgment).

       Cf. Rabenstein, supra (accord and satisfaction shown by evidence including delivery and acceptance of settlement check stating on its face that it constituted a final settlement of all claims).

       Jackson also argues that Ford’s decision to accept the $3,000 payment from Davis released him as a matter of law under OCGA § 13-4-80, which provides that “[w]hen a creditor releases another who is bound jointly with or primarily to a debtor ... a release results by operation of law.” Even assuming Ford released Davis from further liability, Jackson’s failure to show that Ford accepted the payment as full satisfaction of the claimed debt precludes summary judgment on this basis. See Groover v. Commercial Bancorp &c., 220 Ga. App. 13, 14-15 (1) (a) (467 SE2d 355) (1996) (because release agreement showed payments to one debtor were not in full satisfaction of entire debt, agreement did not operate as a general release of all debtors under OCGA § 13-4-80).

        GLW Intl. Corp. v. Yao, 243 Ga. App. 38, 42 (3) (b) (532 SE2d 151) (2000).

       See Chouinard v. City of East Point, 248 Ga. App. 768, 772 (3) (546 SE2d 827) (2001); Brooks v. Meriwether Mem. Hosp. Auth., 246 Ga. App. 14, 16 (2) (539 SE2d 518) (2000).


text:
    A01A1368.
    CABEY v. DEKALB MEDICAL CENTER.
    (555 SE2d 742)
   Smith, Presiding Judge.

Annette Cabey appeals from an order dismissing her action against DeKalb Medical Center alleging medical malpractice and wrongful death. In her complaint, Cabey alleged that the hospital’s negligence caused the stillbirth of her child. In four enumerations of error, Cabey contends the trial court erred in denying her motion for an extension of time to file an expert affidavit, in failing to hold a hearing on her motion, and in granting the hospital’s motion to dismiss her complaint. Because we find that Cabey did not file an affidavit with her complaint as required by OCGA § 9-11-9.1 (a) and did not properly invoke the provisions of OCGA § 9-11-9.1 (b), either in the original complaint or in her amendment to that complaint, we find that it was unnecessary for the trial court to hold a hearing on Cabey’s motion and that the trial court properly denied Cabey’s motion for an extension of time and granted the hospital’s motion to dismiss.

1. The record shows that Cabey filed her original, pro se complaint on May 25, 2000. The alleged malpractice occurred on May 22, 1998. Cabey’s complaint was therefore filed within ten days of the expiration of the applicable statute of limitation. OCGA § 9-3-71 (a). She did not allege in that complaint that the statute of limitation would expire within ten days, nor did she allege that because of time constraints she was unable to provide an expert affidavit. She did not attach an expert affidavit or seek a 45-day extension, as provided for in OCGA § 9-11-9.1 (b). On June 2, 2000, Cabey sought to. amend her original complaint. Although she requested a 45-day extension to provide a “medical affidavit,” she again did not allege that the limitation period had expired within ten days of filing her original complaint or that because of time constraints she had been unable to obtain an expert affidavit. On July 6, 2000, Cabey filed a “Motion for Extension of Time to File Affidavit.” The motion alleged no cause for requesting the extension, did not demonstrate any attempts to obtain the affidavit, and again did not allege that the limitation period had expired within ten days of filing the original complaint. On July 11, 2000, the hospital filed its answer and a motion to dismiss the complaint. On September 1, 2000, counsel entered an appearance on behalf of Cabey, and on September 5, 2000, filed an amended motion for extension of time and a second amended complaint, which attached the affidavit of a registered nurse. On October 23, 2000, the trial court entered an order denying the motion for extension of time and granting the hospital’s motion to dismiss.

OCGA § 9-11-9.1 (a) provides that an expert’s affidavit must be filed with any complaint alleging professional malpractice. OCGA § 9-11-9.1 (b) provides an exception to this contemporaneous filing requirement. It gives a plaintiff an automatic right to file such a supporting affidavit within forty-five days of filing the complaint when two requirements are met: (1) when the limitation period will expire within ten days of the date of filing the complaint; and (2) when the plaintiff alleges that because of the time constraints an expert affidavit could not be prepared. The second requirement must be alleged in the complaint. “This is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicability of the grace period.” (Punctuation omitted.) Anderson v. Navarro, 227 Ga. App. 184, 185 (489 SE2d 40) (1997). A complaint may be amended to assert that because of time constraints engendered by the fact that the limitation period would have expired within ten days of filing the complaint, no expert affidavit could be provided. This may be done within the initial 45-day period, or, when good cause is shown, even after the expiration of that time period. Labovitz v. Hopkinson, 271 Ga. 330, 333 (2) (519 SE2d 672) (1999); Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 751-752 (1) (a) (533 SE2d 749) (2000).

At the time the trial court entered its order, Cabey still had not satisfied the requirements of OCGA § 9-11-9.1 (b). She had not alleged in her amended complaint that the limitation period would expire within ten days of filing the complaint or that because of the time constraints imposed by the expiration of the limitation period she had been unable to obtain an expert affidavit. The complaint was therefore subject to dismissal. Keefe v. Northside Hosp., 219 Ga. App. 875, 877 (467 SE2d 9) (1996). Compare Peterson, supra (notwithstanding that complaint was amended more than 45 days after filing, amended complaint could be considered because plaintiff had “triggered” provisions of OCGA § 9-11-9.1 (b)).

2. Cabey never requested a hearing on her motion for an extension of time. Uniform Superior Court Rule 6.3 provides that “[u]nless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” It was therefore not error for the trial court to decide Cabey’s motion for an extension of time without holding a hearing.

Moreover, since Cabey had not “triggered” the provisions of OCGA § 9-11-9.1 (b) providing an initial 45-day extension of time, no “additional” extension could be granted even had a hearing been held.

3. Even had Cabey triggered the provisions of OCGA § 9-11-9.1 (b), we would “not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion.” Peterson, supra at 752 (1) (b). We cannot say under the circumstances presented here that the trial court abused its discretion by denying Cabey’s motion for a good cause extension of time.

Decided October 17, 2001

Reconsideration denied November 6,2001.

Shivers & Associates, Joseph D. Perrotta, for appellant.

Hall, Booth, Smith & Slover, Timothy H. Bendin, Ashley D. Phillips, for appellee.

Cabey made no showing, by affidavit or otherwise, that she made any attempts to contact an expert or obtain an affidavit within the appropriate time limitation. Nothing in her motion made reference to anything that would constitute good cause. Cabey now asserts in her brief to this court that her pro se status at the time justifies her pleadings being judged by a lower standard. This court has held, however, that a plaintiff who proceeds pro se still must comply with the affidavit requirement. ABE Engineering v. Griffin, Cochran & Marshall, 212 Ga. App. 586 (443 SE2d 1) (1994); Peterson, supra at 753 (1) (b). The trial court did not err in denying Cabey’s motion for an extension and in granting the hospital’s motion to dismiss.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A1513.
    COBURN v. THE STATE.
    (555 SE2d 750)
   Smith, Presiding Judge.

Frank Coburn was indicted by a DeKalb County grand jury on one count of armed robbery. He was tried by a jury, which returned a verdict of guilty. He appeals from the conviction and sentence entered upon the jury’s verdict following the denial of his motion for new trial. Coburn raises six enumerations of error, but we find no error and affirm the judgment below.

1. The evidence presented at trial showed that the victim was waiting for a bus at about 6:45 p.m. when she observed a gray car pass the intersection and then drive back and blink its lights. She then saw a man wearing a black jacket and hood approaching from the side street. After inquiring how long she had been waiting for the bus, the man pulled a gun out of his pocket, came very close, pointed the gun at her, and said: “B — ch, you better not yell.” The man was close enough to touch her, and she got a good look at his face. When the man tried to hold her by the collar, the victim dropped the backpack she was carrying and fled. When she looked back, she saw the man pick up the bag and run.

The victim encountered a passing police officer, informed him she had been robbed, and showed the officer the direction in which the gunman fled. The officer then gave chase. The victim, meanwhile, went to the nearby apartment of an acquaintance and asked her to telephone 911, which was done. The officer pursued the robber, and the chase ended when the robber’s car went over an embankment and crashed. It was dark, and the officer could see nothing over the embankment and was forced to wait for backup. By the time officers were able get down the embankment to check out the car, the door was open and the driver was gone. After the car was lifted from the embankment, the officer did a “quick inventory” and discovered, among other items, some identification belonging to Coburn, a few bullets, and a purse containing the victim’s identification.

The car was registered to Coburn. Later that night, Coburn reported his car stolen, and he made a statement claiming he had been hijacked earlier, ran from the scene, and called his mother and his girlfriend, telling them to call the police. Coburn’s photograph was taken, and it was used in a photo lineup shown to the victim several days later. The victim positively identified Coburn as the man who robbed her.

Coburn argues that this evidence was insufficient to support his conviction for armed robbery, particularly because he never told the victim to hand over her property; he merely picked it up after she dropped it when she fled. But, contrary to Coburn’s argument, “[i]t has long been recognized that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed.” (Citations and punctuation omitted.) Heard v. State, 204 Ga. App. 757, 758 (1) (420 SE2d 639) (1992). The victim here was lucky enough to escape before the gun was actually used to force her to turn over her property, but that fact should not serve as a shield to prevent Coburn from being held responsible for what was clearly an armed robbery. Maddox v. State, 174 Ga. App. 728, 730 (1) (330 SE2d 911) (1985). The evidence was sufficient to authorize the jury to find Cobum guilty as charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Cobum maintains the trial court erred in conducting a hearing in his absence concerning alleged juror misconduct. This incident occurred after the close of evidence, while the jury was deliberating. Coburn’s mother reported to the defense attorney that, while sitting just outside the courtroom, she heard through the closed courtroom door the alternate juror speaking with a deputy inside the courtroom. The defense attorney reported the incident to the court. The court conferred with both counsel in chambers, then questioned various parties in the courtroom in the presence of both counsel, but in Coburn’s absence.

Mrs. Cobum stated that the alternate juror had told the deputy “that he didn’t tell the whole truth and nothing but the truth.” She indicated that she looked in through the glass to see who was present in addition to the alternate and the deputy, and she saw the court reporter and another juror. The deputy, on the other hand, stated that the alternate told him she was glad she was an alternate, because the room in which she was waiting while the jury deliberated was far more comfortable than the jury room, but nothing was said about the case. He informed the court that although a juror had been present right before the alternate juror made the statement in issue, that juror left. No one but another deputy was present in the courtroom when the alternate juror mentioned that her brother was a police officer and that he felt that if people were arrested they were probably guilty.

The court reporter denied having been in the courtroom when the conversation between the deputy and the alternate juror took place. The alternate was questioned, and she said she observed the last juror leaving the room and the door to the jury room closing. She then remarked to the two deputy sheriffs in the room jokingly that she wanted to make sure they knew she was there and did not forget about her. She said she joked about her brother’s comment that “if they arrested them, they’re guilty” and was “cutting up” about the alternate jury room being her “cell” but had not commented about anything concerning the case. The court then asked both counsel if they had any questions they would like to ask the alternate juror, and both counsel indicated they did not. The court obviously concluded that no juror had been present when the reported comment was made and no comment related to the case being tried. Both counsel agreed, and the court took no further action. The alternate juror was not needed and never participated in the deliberations.

Under the Georgia Constitution of 1983, Art. I, Sec. I, Par. XII, “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” This has been interpreted, in the context of a criminal case, as including a defendant’s “right to be present, and see and hear, all the proceedings which are had against him.” (Citations, punctuation and emphasis omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998). And the involuntary absence of a criminal defendant during any portion of his trial may never be considered harmless error. Goodroe v. State, 224 Ga. App. 378, 381 (1) (480 SE2d 378) (1997). But in this case, we need not reach the issue of whether any error was harmless, because we conclude that no error occurred. This case does not involve tainting the jury that rendered the verdict through communication with a bailiff about the case, as in the incident that occurred in Wanzer v. State, 232 Ga. 523 (207 SE2d 466) (1974). It does not involve an actual juror communicating with an outsider and expressing concerns that might affect his vote as to the verdict, as in Pennie v. State, 271 Ga. 419 (520 SE2d 448) (1999).

Here, the alternate juror did not discuss the case under deliberation, had no contact with any actual juror, and did not participate in the jury deliberations or the verdict. However misguided her conversation with the deputies, it had no effect whatsoever on the jury’s verdict. The trial court’s inquiry was merely a preliminary and informal one, to ascertain whether what transpired was, in fact, relevant to Coburn’s trial; the court simply ascertained the facts and decided they were not relevant to the trial. Had the court decided that the incident was relevant and moved on to an inquiry into whether the jury had been tainted, we would necessarily rule otherwise. But we must conclude that under these narrow and specific circumstances, there was simply no error in proceeding with the limited inquiry outside the presence of the defendant, and we need not inquire whether a harmless error inquiry is proper. Mindful as we are of the right of a defendant to be present during all that occurs at his trial, it would, in fact, be “trifling with justice” to reverse Cobum’s conviction here, when the incident had not the slightest impact on or connection to the trial or the jury’s verdict. Stewart v. State, 165 Ga. App. 428, 430 (2) (300 SE2d 331) (1983).

3. Because we have found no error in the trial court’s holding an informal inquiry into the alleged juror misconduct without ensuring that Coburn was present, we likewise find no merit in Cobum’s contention that his trial counsel was ineffective in failing to ensure his presence at that inquiry.

4. Coburn also asserts that his trial counsel was ineffective in two other ways:

(a) He alleges counsel was ineffective in conducting the cross-examination of a detective. He argues that the detective’s testimony was highly incriminating and included inadmissible hearsay. This enumeration refers to the fact that the detective testified and implied, although he was not present at the scene, that certain items found in the car were found in a briefcase in the car, along with bills belonging to Coburn. Cobum’s trial counsel did not object to this testimony. At the hearing on the motion for new trial, trial counsel testified that he permitted this testimony after weighing its costs and benefits, because he did not want the jury to have the impression he was trying to hide something. Trial counsel’s testimony clearly shows that the decision was a matter of trial strategy, and “[t]rial strategy and tactics do not equate with ineffective assistance of counsel. [Cit.]” Nelson v. State, 242 Ga. App. 63, 66 (7) (528 SE2d 844) (2000).

(b) Cobum argues that counsel provided ineffective assistance when he failed to challenge or present evidence regarding a tainted in-court identification. At the hearing on the motion for new trial, Cobum’s girlfriend testified that at the probable cause hearing, the victim unknowingly sat near her. They soon realized that they were acquainted, having worked together previously. After some conversation, Coburn’s girlfriend told the victim she was there because her “fiancé” was scheduled for court. She asked the victim why she was present. Although Coburn was not yet in court, four men in jail clothing were standing with their backs to the victim. Without directly answering the girlfriend’s question, the victim pointed to a man with braids and said she was not sure if that was the one who had robbed her. According to Coburn’s girlfriend, a detective then entered, escorting Coburn to the front bench. He then seated himself next to the victim and told her: “The person that I brought in is the person that robbed you.” Cobum’s girlfriend testified that she immediately told Cobum’s lawyer of the incident.

Cobum’s trial counsel filed a motion to suppress the identification prior to trial. He then withdrew the motion. He testified at the hearing on the motion for new trial that he withdrew the motion to suppress so that the State’s witnesses would not have an opportunity to “rehearse” being cross-examined on their testimony. “Whether to file pretrial motions and how to argue them are strategic decisions, and when reasonable in the context of the case, do not constitute error. [Cit.]” Stroud v. State, 272 Ga. 76, 78 (4) (526 SE2d 344) (2000). Although this decision may possibly have been unwise,

[t]he standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance. In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.

(Citations and punctuation omitted.) Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

It is unclear which identification Cobum seeks to suppress. The victim identified Coburn at a photographic lineup, at the preliminary hearing, and at trial. Coburn has shown no basis on which to have the photographic lineup identification suppressed. Although the victim took her 'time making her selection, no impropriety has been shown in that lineup, and nothing “impermissibly suggestive” took place under Neil v. Biggers, 409 U. S. 188, 196 (93 SC 375, 34 LE2d 401) (1972). See Williams v. State, 272 Ga. 828 (2) (537 SE2d 39) (2000). The trial court entered a thorough and detailed order denying Coburn’s motion for new trial. The trial court did not find Cobum’s girlfriend’s testimony persuasive, nor did it find the photographic lineup impermissibly suggestive. But even if it had, the victim could have been permitted to identify Cobum at trial, because the victim was quite definite at trial that Cobum was the man who robbed her. Her opportunity to view Cobum during the robbery was excellent, and this was an “independent origin” for her in-court identification, unrelated to the photo lineup or the preliminary hearing. See generally Spruell v. State, 237 Ga. App. 448, 450 (2) (514 SE2d 896) (1999).

(c) Coburn contends trial counsel was deficient in failing to request a jury charge on prior consistent statements. Cobum gave a statement to police officers several hours after the robbery. He told them he had been at a nearby convenience store when he was caijacked at gunpoint, fled on foot, and became lost in a residential neighborhood. He argues that this statement was consistent with his trial testimony, and a jury instruction to this effect was permissible and would have been helpful.

It is tme that prior consistent statements are admissible as substantive evidence. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). But that is true only when the witness’s veracity has been placed in issue at trial and the witness is present at trial and available for cross-examination. Woodard v. State, 269 Ga. 317, 319-320 (496 SE2d 896) (1998). That was not true here. Moreover, his statement was inconsistent with his trial testimony in several respects, such as changing the time and place he made the phone calls to his mother and girlfriend.

But to establish ineffective assistance of counsel, a defendant must satisfy both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). He must show that counsel’s performance was deficient and also that a reasonable probability exists that but for counsel’s errors, the outcome of the trial would have been different. In all these instances, even if counsel’s performance had been shown to be deficient, Cobum has not shown how any of these alleged deficiencies would have affected the outcome of the trial. The trial court correctly concluded that counsel did not provide ineffective representation.

Decided October 17, 2001

Reconsideration denied November 6,2001

Barry M. Hazen, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       The State’s claim that Cobum waived his right to assert error under the Georgia Constitution because he does not cite it as authority for his argument has been decided adversely to the State in Goodroe, supra at 379.

        Warner indicates, however, that it was not error to deny a motion for mistrial based upon the unauthorized communication, because it is apparent that the communication had no effect on the jury’s verdict. Id. at 525-527 (1).