text:
    A95A1879.
    KEEF v. THE STATE.
    (469 SE2d 318)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of “SERIOUS INJURY BY VEHICLE,” one count of “DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRUGS (O.C.G.A. 40-6-391),” namely amphetamine and methamphetamine, to the extent he was less safe to drive, and one count of “DRIVING ON THE WRONG SIDE OF THE ROAD (O.C.G.A. 40-6-40).” The evidence adduced at his jury trial showed that on the evening of November 11, 1993, defendant was traveling south on Highway 27 in Floyd County, Georgia. Defendant’s “truck [was] going very fast and all of a sudden he just crossed the [center] line,” into opposing traffic. He struck the car operated by Christa Hutchins, inflating her airbag and tearing “all of the [driver’s side] doors off of the car.” Christa Hutchins’ car “spun around several times.” “The airbag went off in [her] face and [she] had a lot of cuts and a black eye; bruises where the steering wheel was and bruises on [her] knee and hip.” She suffered “a lot of soreness; back soreness, hip soreness.” Janice Crawford also saw defendant’s “vehicle crossing the center line coming toward [her].” Defendant “struck the car in front of [Janice Crawford]. At that time, [she] knew it was going to hit [her] so [she] had applied [her] brakes.” “There was no place to go. . . . Traffic was on both sides.” Janice Crawford “was knocked unconscious.” “They had to use the jaws of life stretching and cutting the car to free [Janice Crawford’s] legs. [She] couldn’t get [her] legs out.” Janice Crawford’s forehead was cut “under the hair [line]. They had to shave [her] hair to stitch it up.” This injury left a scar “[a] couple inches [long].” Janice Crawford’s right foot was broken, and her left leg required surgery. She now has “a rod the length of [her] femur and ... a plate on the bottom part of [her] foot.” She also sustained “a broken pelvis bone, [and] a broken collar bone.” Laura Carpenter, a passenger in Janice Crawford’s vehicle, sustained a dislocated right hip in the collision. She screamed when the emergency room physician “popped [her] hip back in place.” Laura Carpenter’s leg was put in traction and she stayed in the hospital for about a week. “[She] had to stay out of school for about three to four weeks after that.” Her “right hip was chipped where they popped it back in place.”

Defendant, who was in the driver’s seat of his vehicle and “was in pretty bad shape,” exuded “a pretty strong smell . . .” of alcohol. Bobby Pearson, then a Captain with the Rome City Police Department assigned to the traffic division and DUI Task Force, found defendant “could talk but he wasn’t really coherent.” Captain Pearson also detected a strong odor of alcohol on defendant’s breath, “strong enough for [him] to notice immediately that it was alcohol or something associated with alcoholic beverages.” Officer Jim Ferguson “went to Floyd Medical Center to take blood and urine samples from all of the drivers for a drug and alcohol test.” Defendant’s urine sample, taken at 6:10 p.m., tested positive for methamphetamine. Defendant’s blood was drawn twice. From a sample “COLLECTED 11/ 11/93 [at] 18:00,” the presence of alcohol was measured at “104.” According to Dr. Paul Brock, this number “represents the concentration of alcohol that’s found in his blood at a certain percentage. At Floyd Medical Center that would be equivalent to a 10.” A second sample, drawn at 6:40 p.m., was tested by Robert Brown of the Georgia Bureau of Investigation, Division of Forensic Sciences. This second blood sample “was positive for ethyl alcohol 0.06 grams percent.” The difference was explained by Dr. Robert Holcolm as a result of the passage of time and the intravenous infusion into defendant of four liters of fluids between 6:00 and 6:40.

Defendant gave a non-custodial statement to Officer Janet Moon of the Rome City Police Department. Defendant explained to Officer Moon that, in order to overcome congestion from a bad cough, he “had half a bottle of cough syrup left and he filled the other half up with Canadian Club and that’s what he drank.” “He felt the cause of the accident was because he went to sleep [at the wheel].” Robert Brown calculated that, if a 195-pound male consumed four ounces of 90 proof whiskey at 3:00 p.m., then at 6:00 p.m. his blood alcohol level would be approximately 0.01 grams percent, because the average person metabolizes alcohol at approximately “0.015 grams percent per hour.” Donald Dicks, a forensic toxicologist with the Georgia Bureau of Investigation, Division of Forensic Sciences, tested defendant’s urine sample. “The urine test for the amphetamine type' drugs indicated a positive.” Donald Dicks then extracted the drugs from the urine sample for testing under the “gas chromatography mass spectrometry.” Along with ephedrine and pseudoephedrine, he “also found amphetamine and methamphetamine.” Methamphetamine is “primarily illegal. There is a prescription used for attention deficit disorder.” In the opinion of Donald Dicks, the stimulative effect of methamphetamine would not counteract the depressive effect of alcohol; rather “[o]ne drug would enhance the other.” The person “would still be affected by the alcohol but the . . . methamphetamine would make him hyper [active].”

The jury found him guilty on each count. Defendant’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia. Held:

1. Defendant first contends the trial court erred in denying his motion for directed verdict as to the two counts of causing serious injury by vehicle. He argues first that the State failed to make out the statutory element of serious disfigurement. Secondly, defendant contends the State failed to prove the injuries to Janice Crawford and Laura Carpenter resulted from his driving under the influence of alcohol or drugs, arguing the State failed to prove a violation of OCGA § 40-6-391.

(a) “Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle.” OCGA § 40-6-394. “ ‘Black’s Law Dictionary defines “disfigurement” as “that which impairs or injures . . . the appearance of a person . . . ,” and defines “serious” as “grave, (or) great.” ’ Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980).” In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323). In the case sub judice, the issue whether Janice Crawford’s two-inch “scar constituted serious disfigurement was a jury question. Barfield v. State, 170 Ga. App. 796 (318 SE2d 219) (1984); Thompson v. State, 156 Ga. App. 1 (273 SE2d 894) (1980), cert. denied.” Grace v. State, 210 Ga. App. 718, 719 (2) (437 SE2d 485), interpreting identical language under the aggravated battery statute, OCGA § 16-5-24 (a). As to Laura Carpenter, she was deprived of her ability to walk for the several weeks during which period her dislocated hip was rendered useless. “To constitute the crime of [serious injury by vehicle], there is no requirement that, in addition to being ‘serious,’ the [member of the victim be permanently rendered useless]. The evidence in this case demonstrates, at the very least, ‘serious temporary [uselessness of Laura Carpenter’s hip and consequently, her legs].’ (Emphasis [in original.]) Baker v. State, 245 Ga. 657, 667 (6) (266 SE2d 477) (1980).” In the Interest of H. S., 199 Ga. App. 481, supra.

(b) “OCGA § 40-6-391 (a) (3) provides, ‘A person shall not drive or be in actual physical control of any moving vehicle while: . . . Under the combined influence of alcohol and any drug to the extent that it is less safe for the person to drive.’ Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1986). . . . The statute does not require a certain amount [of controlled substance] to be shown.” Kerr v. State, 205 Ga. App. 624, 627 (3) (423 SE2d 276). In the case sub judice, the physical evidence is undisputed that defendant crossed the double yellow line and crashed into two cars coming from the opposite direction. The testimony of Robert Brown of the Georgia Bureau of Investigation as to the possible effects of the combination of methamphetamine and alcohol, coupled with defendant’s own surmise that he fell asleep at the wheel, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s conclusion that defendant is guilty, beyond a reasonable doubt, of causing serious injury by vehicle due to his violation of OCGA § 40-6-391 (a) (3), as alleged. Consequently, the trial court correctly denied defendant’s motion for directed verdict on each of the enumerated grounds.

2. The transfer of this appeal from the Supreme Court of Georgia to the Court of Appeals of Georgia constitutes a final determination that no constitutional challenge was in fact properly raised or else, if so raised, that it was not meritorious. Ryals v. State, 215 Ga. App. 51, 52 (1) (449 SE2d 865).

3. In his third enumeration, defendant contends the trial court erred “in permitting the State to inquire into and cross-examine [defendant] concerning a charge of driving under the influence in Alabama.” He argues that he never opened the door to such cross-examination; that the State failed to lay a proper foundation; and that the State should have been required to produce a certified copy of the Alabama conviction. We agree.

A lengthy recitation from the record is necessary for consideration of this enumeration. Defendant testified on his own behalf. On cross-examination, the State queried whether defendant agreed that it was not a good idea to drink and drive. Defendant started to answer, “As sick as I was — oh, yeah, consume alcohol and drive that I — you’ll find in my past I don’t —.” The State’s Attorney interrupted defendant to repeat her question but then asked for a bench conference. Over defendant’s “best evidence” objection, the State’s Attorney was permitted to cross-examine defendant using his sworn deposition testimony that he had been arrested in Alabama for driving under the influence at a time when his blood alcohol level was supposedly .24 grams percent and that this charge had been disposed of through his guilty plea to reckless driving. Defendant attempted to explain to the jury that he had not understood the significance of the numeric description of his blood alcohol level at his deposition, and reasoned that it must have been only .02 because the Alabama charge for driving under the influence was thrown out and the charge reduced to reckless driving. He also testified without contradiction: “I’ve never been convicted of a DUI.”

“Character is not put in issue within the meaning of OCGA § 24-9-20 (b) by inadvertent statements regarding defendant’s good conduct. Jones[ v. State, 257 Ga. 753 (1), 758 (363 SE2d 529)]. Character should be placed in evidence as an affirmative defense.” Johnson v. State, 261 Ga. 419, 420 (4) (405 SE2d 686). See, e.g., State v. Braddy, 254 Ga. 366 (330 SE2d 338). In the case sub judice, defendant’s unfinished reply, “[Y]ou’ll find in my past I don’t —,” is an inadvertent reference to past conduct and did not open the door to proof of defendant’s bad character by proof of prior convictions. The trial court erred in reasoning otherwise. It is true that, “ ‘[w]here the defendant testifies and admits prior criminal conduct, he has not placed his character “in issue” within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. (Cit.)’ Jones v. State, [257 Ga. 753], supra at 759 (b).” Williams v. State, 201 Ga. App. 866 (412 SE2d 586). In the case sub judice, however, defendant neither admitted nor denied having a criminal record. Accordingly, proof of any such a record remained legally irrelevant unless offered for some proper purpose. See generally Ledford v. State, 202 Ga. App. 694 (1) (415 SE2d 693). Finally, it is further true that, “for purposes of impeachment, the prior conviction of an adverse witness cannot be shown by cross examination of the witness; the question itself can be prejudicial even though a negative answer be truthful; hence the best evidence rule is invoked so that to impeach a witness by a prior conviction the conviction must be proved by the record of conviction itself, not by cross examination. See Howard v. State, 144 Ga. 169 (2) (86 SE 540) (1915); Fincher v. Frost, 225 Ga. 408 (2) (169 SE2d 309) (1969).” Timberlake v. State, 246 Ga. 488, 499 (6) (271 SE2d 792). Accord Ledesma v. State, 251 Ga. 885, 888 (4) (311 SE2d 427). In the case sub judice, the trial court erred in allowing defendant to be cross-examined as to the circumstances surrounding the Alabama arrest and conviction for reckless driving over defendant’s “best evidence” objection. In Fincher v. Frost, 225 Ga. 408, 410 (3), supra, “the erroneous admission of the [oral] evidence [of previous convictions] . . . require [d] a reversal of the judgment. . . .’’In the case sub judice, however, we are of the opinion that the forensic evidence renders the erroneous admission of this improper impeachment and character evidence harmless beyond all reasonable doubt, in that it is highly probable that this evidence (as explained by defendant) did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). “ ‘To reverse a jury finding of guilty in the face of such overwhelming [scientific] evidence would be a perversion of justice.’ Hamilton[ v. State, 239 Ga. 72, 76 (235 SE2d 515) (1977)].” Richards v. State, 157 Ga. App. 601, 602 (2), 603 (278 SE2d 63).

Decided February 9, 1996

McClellan & Pangborn, John F. McClellan, Jr., for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       In the midst of his cross-examination by the State’s Attorney, the following transpired: “[STATE’S ATTORNEY]: Now,. . . , would you agree that it’s not a good idea to consume alcohol and drive? [DEFENDANT]: As sick as I was — oh, yeah, consume alcohol and drive that I — you’ll find in my past I don’t —. [STATE’S ATTORNEY]: (Interposing) Do you agree that it is a good idea not to consume alcohol and drive? [DEFENDANT]: I didn’t feel like I was consuming no more than — what I had, I didn’t feel like it would effect [sic] me. I was trying to get well. I was just trying to get better.”
      Whereupon, the State’s Attorney asked for permission to approach the bench. At a colloquy before the bench between the Court and counsel, the following transpired:
      “THE COURT: Has he opened the door? [STATE’S ATTORNEY]: I think he has. THE COURT: I don’t know if there’s anything to open the door to but if there is, he has. [STATE’S ATTORNEY]: Yes, there is. [DEFENSE COUNSEL]: Such as? [STATE’S ATTORNEY]: Such as the DUI that was reduced to reckless driving when he went .24. . . . [DEFENSE COUNSEL]: I have not seen the test results. [STATE’S ATTORNEY]: He testified to them in his deposition [of January 31, 1994, at the Citizens First Building], This statement was —. [DEFENSE COUNSEL]: What he told me was he was .02 and the reason it was dropped was because — by the prosecutor over there was because they told him he couldn’t get a DUI conviction. That’s what he has told me consistently. When he said .21 — Ms. Colston if you’ve got some kind of results from Alabama that you’re looking at. [STATE’S ATTORNEY]: I have his statement is [sic] his deposition where he went .24. [DEFENSE COUNSEL]: But I don’t think that’s what he meant. I don’t think that’s what he meant. Because he has insistently told me from the —. THE COURT: Well, prior inconsistent statements are relevant. I’ll let you go into it.”
      Whereupon, the following transpired before the jury:
      “[STATE’S ATTORNEY]: You just stated a moment ago, .. . that if you’ll look into my past, you’ll see. Is that not what you said? [DEFENDANT]: Yes, ma’am. I’ve not got a past history of — I’ve never been convicted of a DUI. [STATE’S ATTORNEY]: Have you — you have been charged with DUI where you went a .24, didn’t you? [DEFENDANT]: Ma’am, they charged me because — and they had to throw it out because there was not enough alcohol in there to make it stick. The judge threw it out. [STATE’S ATTORNEY]: Do you recall giving that testimony in your deposition that you had a DUI that was reduced to a —. [DEFENDANT]: That was reduced to a reckless driving. I had had one and one half cans of beer it seems like that day. I had Michigan plates. It was after I moved back here and started in business a year or so ago; two years ago maybe. Yes, that — but I don’t — I’m just not — . . . [DEFENSE COUNSEL]: Your Honor, for the record I would object to this line of questioning. I don’t believe there has been a sufficient foundation laid to bring up whatever else. THE COURT: All right, sir. Number one, your client opened the door. Number two, counsel for the state represents to the court that she is reading from a prior sworn statement of this witness. Based upon those two things I will overrule the objection. [DEFENSE COUNSEL]: Yes, sir. Just for the record let me renew that I object to it on the grounds [sic] that the highest and best evidence would be the court record from Alabama. THE COURT: Your objection is noted.”
      The State’s Attorney thereafter was permitted to read before the jury from defendant’s deposition, where he had been asked whether he had ever been charged with driving under the influence and his answer: “[0]ne time I was charged with DUI which was reduced to reckless driving. ... I registered very low, I had one and a half beers at that time. . . . With that beer and a half I registered .24 or something like that. . . .” When asked by the State’s Attorney at trial whether he recalled that testimony, defendant replied: “That was a — it was so low that they couldn’t charge me. I don’t remember what the — I didn’t know what the registered point was at all but it was so low that they couldn’t make it stick. [STATE’S ATTORNEY]: You believe that a .24 is low? [DEFENDANT]: Twenty-four is way over the limits. Now I’ve learned what a .10 and a .06 means, it must have been a .02 because they automatically threw it out. It was so low I know I didn’t have no problem. I know I didn’t have to — you know —. [STATE’S ATTORNEY]: (Interposing) You pled to reckless driving in that case, didn’t you? [DEFENDANT]: Yes, ma’am, I sure did. If I remember correctly it was reckless driving or something.”


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1935.
    WEEKS v. THE STATE.
    (469 SE2d 316)
   McMurray, Presiding Judge.

By way of a special presentment, defendant was charged with cruelty to children in that he did “unlawfully, and maliciously cause [‘J. P.’], a child under the age of 18, excessive physical pain by burning said child repeatedly with a cigarette.” The evidence at his jury trial showed the following: Kim Wilson, an investigator with the Polk County Department of Family & Children Services interviewed the six-year-old victim, J. P., at Westside School in late August 1994. She noticed several sores on J. P.’s face. When she asked J. P. about these sores, he said “ ‘They’re probably cigarette burns.’ . . . [Kim Wilson asked,] ‘Well, whose cigarettes would they be?’ And he said, ‘Probably my mama’s or my daddy’s.’ ” The man J. P. “called daddy he said was [defendant].” The several sores were “circular and kind of scabbing over.” J. P. declined to explain how he came to be burned by cigarettes. “All he said was they were probably cigarette burns.” During a second interview with J. P., attended by one of J. P.’s teachers, J. P. “did tell [Kim Wilson] that [the sores] were cigarette burns. And [Kim Wilson] asked him how they were burned, and he said that daddy. And [Kim Wilson] asked who he was referring to and he said, [defendant] had burned him with a cigarette.” Special Agent Russell E. Andrews of the Georgia Bureau of Investigation and then Chief Investigator Ron Thomas of the Polk County Police Department joined in this second interview. They saw that J. P. “had sores on his face, as well as sores on his back. [J. P.] indicated [to the officers] that the sores on his back were cigarette burns. And when [Special Agent Andrews] asked [J. P.] what he meant by ‘my daddy,’ [J. P.] identified his daddy as being [defendant]. . . . [J. P.] went on to tell [Special Agent Andrews] that the cigarette burns on his back had occurred on a different day than the cigarette burns on his face, and that when his daddy burned him, he [defendant] was saying cuss words. . . .” J. P. also informed Special Agent Andrews that “his daddy told him that if [J. P.] ever told anyone what [defendant] had done, that [defendant] would have [J. P.] taken to YDC and locked up.” That evening Special Agent Andrews and Kim Wilson went to the residence of J. P.’s grandmother “not so much to interview [J. P.], but for [Special Agent Andrews] to take photographs of the cigarette burns [he] had observed on [J. P.’s] face and back.”

J. P. testified that defendant burned him “on [his] nose and [his] face and [his] back.” “It felt weird,” and it hurt. J. P. cried and “felt angry . . .’’at defendant. J. P. agreed that, at first, he told his mother that the sores were from “poison ivy,” but denied that anyone had told him, or told him to say, that defendant burned him.

Special Agent Thomas James Davis, Sr., a polygraph examiner with the Georgia Bureau of Investigation, identified State’s Exhibit 9 as the “CONSENT TO POLYGRAPH EXAMINATION” form that defendant signed before Special Agent Davis administered a polygraph examination, as well as defendant’s waiver of rights form. Defendant also stipulated the admissibility of the polygraph results. Special Agent Davis asked defendant the following questions: “ ‘Did you deliberately cause any of those sores on [J. P.]?’ . . . ‘Have you ever burned [J. P.] with a cigarette[;] Do you know for sure what caused those sores on [J. P.’s] face and back, and are you lying in any way concerning [J. P.’s] sores?” Defendant’s response to each question was “No.” Based on his interpretation of defendant’s galvanic skin responses, Special Agent Davis made the determination that defendant “was not being truthful when he answered those questions. ...” Defendant then told Special Agent Davis “that he might have accidently burned [J. P.].”

Robert Joseph Pezzin, M.D., examined J. P. and noticed “some sores on his face and his chest and his arms.” J. P. would not answer when Dr. Pezzin asked him how the rash or lesions got started. Dr. Pezzin diagnosed impetigo, which could have been “caused by poison ivy[, or] could . . . also be caused by a burn[.]” In Dr. Pezzin’s opinion, poison ivy was not the likely source of the lesions he saw on [J. P.] because “usually with poison ivy, you tend to get some streaking and have some eczema type lesions,” which Dr. Pezzin did not detect in the photographs taken of J. P.

The jury found defendant guilty of cruelty to children, as charged. His motion for new trial was denied and this appeal followed. Held:

1. In his second enumeration of error, defendant contends the trial court erred in admitting into evidence the photographs of J. P.’s face, neck, and back, showing marks or sores on his body. He argues that because J. P. himself never “identified] each sore on each photograph as a cigarette burn,” it was impossible for the jury to determine whether any of the marks shown were actually cigarette burns or merely the natural spread of impetigo. From this, he concludes that neither the necessity nor the relevance of the photographs outweighed their prejudicial effect.

We agree with defendant that “relevant evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ However, such considerations are appropriately committed to the trial court’s sound exercise of discretion[.]” Hicks v. State, 256 Ga. 715, 720 (13) (352 SE2d 762). “A photograph which depicts the victim after autopsy incisions are made or after the state of the body [has been] changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy. A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.” (Emphasis supplied.) Brown v. State, 250 Ga. 862, 866 (5), 867 (302 SE2d 347). In the case sub judice, Special Agent Andrews took photographs of the sores on J. P.’s body that the child indicated to Special Agent Andrews were cigarette burns caused by defendant. “The gruesome nature of the photographs . . . complained of results entirely from the acts of [defendant], not from any alteration or autopsy by the [S]tate.” Bullard v. State, 263 Ga. 682, 686 (5) (436 SE2d 647). These photographs were relevant to show the accurate nature and location of the burn marks at the time they were discovered by the authorities. See Scott v. State, 250 Ga. 195, 198 (2), 199 (297 SE2d 18). The trial court did not abuse its discretion in admitting these photographs over defendant’s objection that this material evidence was more prejudicial than probative.

2. Defendant’s first enumeration challenges the sufficiency of the evidence to convict. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130).

“ ‘The testimony of a single witness is generally sufficient to establish a fact.’ OCGA § 24-4-8.” Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453). In the case sub judice, J. P. testified that defendant burned him with cigarettes. Photographs of the small circular sores corroborated this assertion. Even though a physician tentatively diagnosed the lesions as impetigo, that physician discredited the innocent explanation of poison ivy as the cause. This evidence, construed to uphold the verdict, was sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of violating OCGA § 16-5-70 (b) for maliciously causing J. P., a child under the age of 18, excessive physical pain by burning that child repeatedly with a cigarette, as alleged in the special presentment. Grier v. State, 257 Ga. 539, 540 (2) (361 SE2d 379).

Decided February 9, 1996.

Kenneth J. Jones, for appellant.

James R. Osborne, District Attorney, E. Chandler Barrett, Assistant District Attorney, George C. Turner, Jr., for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2023.
    In the Interest of B. J. et al., children.
    (469 SE2d 313)
   McMurray, Presiding Judge.

In this appeal from an order of the juvenile court terminating the parental rights to three minor children, the appellant mother enumerates two errors. Only the mother pursued this appeal; the father voluntarily relinquished his parental rights.

The evidence presented at the parental rights termination hearing revealed the following: From 1986 until 1992, the Department of Family & Children Services (“DFCS”) maintained ongoing supervision of the family. During this time, the youngest child, M. J., was twice removed because he was not receiving proper care and feeding. Caseworkers reported that the children were dirty and had head lice, M. J. drank from soured bottles and often did not receive his first feeding until mid-afternoon when his mother awoke, and the house was roach infested and filthy. With at least weekly supervision, conditions improved to the point that M. J. was returned to the family in early 1989.

In May 1992, however, the oldest child, 11-year-old B. J., reported to DFCS that he had been sexually abused by his adult male neighbor, who had purportedly exposed himself and shown the child pornographic movies. DFCS and the parents developed a written protection plan which explicitly provided that the parents would not permit any contact between the children and the neighbor or an uncle who allegedly had exposed the children to sexually explicit videos. However, in October 1992, the Gwinnett County Police Department informed DFCS that B. J. had been sexually abused by the neighbor.

DFCS then sought an emergency hearing seeking temporary custody of the children. At the hearing, DFCS presented evidence that the neighbor had orally and anally sodomized B. J. and had shown him pornographic movies, B. J. had been drawing sexually explicit pictures at school, the parents allowed him to spend the night on more than one occasion with the abuser, and the youngest child had been in the same neighbor’s home and may have been molested. In addition, there were allegations that an uncle had had sexual contact with the female child, K. J., and the parents had been present when the children had watched pornographic movies with the uncle. The children were adjudicated as deprived and the parents as unfit. DFCS was awarded temporary custody and the parents received no visitation rights. Although the parents were notified of this hearing, they did not attend.

The parents then moved to Tennessee. In November 1992, the father withdrew the children from school and took them to Tennessee. He returned them to his attorney days later and was arrested for interference with custody.

A subsequent consent order on the matter indicated that B. J. had witnessed his parents having sex with their knowledge. In the order, the parents agreed to complete psychological evaluations, participate in parenting skills classes, and pay child support of $10 per week. The order also permitted parental visitation arranged though DFCS.

Although DFCS designed reunification case plans and notified the parents every six months when their case was reviewed, the parents did not attend the reviews. In addition, the parents failed to comply with the case plan, pay child support, participate in parenting skills classes, or to be psychologically evaluated even after they were held in contempt of court for failure to submit to psychological evaluations. Neither parent has contacted the children since October 1992, although they made two unsuccessful efforts to arrange a visit in the summer of 1993. The first time, they appeared at the DFCS office in late afternoon and requested a visit the same day. The second time a visit was arranged and the children were transported to the DFCS office, but the parents never arrived due to car trouble.

After considering this evidence, the trial court found clear and convincing evidence that the children were deprived and that parental misconduct or inability caused the deprivation. Held:

1. The mother challenges the sufficiency of the evidence that any deprivation suffered by her children would likely continue or would not likely be remedied.

In considering the termination of parental rights, a juvenile court must ascertain whether there is clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). A finding of parental misconduct or inability hinges on evidence that, inter alia, (1) the children are deprived within the meaning of OCGA § 15-11-2; (2) the parent caused the deprivation through lack of proper care or control; (3) the cause is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). The court may consider a parent’s past conduct in determining whether the deprivation is likely to continue or will not likely be remedied. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992).

Decided February 9, 1996.

Rich & Smith, Randolph G. Rich, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Teresa E. Lazzaroni, Assistant Attorneys General, Kathryn C. Reeder, for appellees.

The trial court properly found that the past conduct of the mother was likely to continue and would not be remedied. The record is replete with uncontroverted evidence of past conduct demonstrating the parents’ unfitness, as noted above. Although the mother denied knowing that her neighbor had sexually abused B. J. until May 1992, she admitted that she had suspicions about his interest in the children as early as 1990 or 1991. Nevertheless, she accepted the loan of a television from him, and permitted the children to go to dinner with him. After signing the written agreement to protect the children from unsupervised visits with the neighbor, she permitted B. J. to spend the night with him on several occasions. In the case sub judice, the evidence of the mother’s past failures to protect and support her children justifies the trial court’s finding.

2. The mother argues that the trial court should have granted an order of temporary custody rather than taking the extreme measure of terminating her parental rights.

The evidence was clearly sufficient to authorize termination of the mother’s parental rights. No other factors warrant reconsideration of the trial court’s disposition. In Jones v. Dept. of Human Resources, 168 Ga. App. 915 (310 SE2d 753) (1983) we questioned whether permanent severance of parental rights was appropriate due to evidence that the severely mentally dysfunctional parents loved their child and sincerely wished to provide him with adequate care. The record in the case sub judice does not support a finding that the mother shares such aspirations.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       M. J. was approximately three months old when he was first removed from the family home.

       The neighbor was subsequently convicted of six counts of child molestation.


text:
    A95A2049.
    DENT v. THE STATE.
    (469 SE2d 311)
   McMurray, Presiding Judge.

Defendant Willie Emerson Dent, also known as Jim Brown Boohice, was charged in an indictment with two counts of aggravated child molestation and one count of child molestation for acts committed against the same victim, the six-year-old daughter of defendant’s common law wife. The victim testified that defendant twice made her commit acts of oral sodomy on him and that he also penetrated her vulva with his lubricated finger. During the second incident of aggravated child molestation, “C. B.,” the victim’s 12-year-old aunt “saw [defendant] and [the victim] in the bathroom.” The jury found him guilty on all three counts. Defendant’s amended motion for new trial was denied and this appeal followed. Held:

1. Defendant’s first three enumerations raise the general grounds.

There is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated. Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531); Saunders v. State, 195 Ga. App. 810 (1) (395 SE2d 53); Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914). Nevertheless, the testimony of the victim in the case sub judice was corroborated by evidence of her outcry to her mother and to her aunt, “C. B.” Stander v. State, 193 Ga. App. 212 (1) (387 SE2d 422). Although there was evidence that the victim subsequently told her mother the allegations against defendant were not true, this was contrary to the victim’s direct evidence from the stand and a question of credibility was presented for the jury to resolve. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of child molestation and aggravated child molestation as alleged in the indictment. Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414).

2. Defendant further enumerates the denial of his motion for new trial on the ground that the jury was “contaminated” because one juror read a “false and highly prejudicial newspaper article . . . the morning before they were to begin deliberations.”

The transcript shows that, after deliberations had begun but before the jury returned its verdict, defense counsel brought to the court’s attention a newspaper article from the “Metro” section, page 13A, of the Augusta Chronicle for January 14, 1993, captioned “Day before trial, man pleads guilty to child molesting.” This article referenced a completely different defendant in an entirely separate case. However, the article continued to another page under the caption “Evans man in court on child molestation charge,” and closed with the following reference to defendant’s trial: “The girl’s mother told deputies that [defendant], who was an acquaintance of hers, had oral sex with her daughter on at least one occasion and possibly ‘several times before,’ Captain Wilhelm [of the Richmond County Sheriff’s Department] said.” After deliberations were concluded but before the verdict was published, the trial court inquired of the jury “if any of you had anything to do with reading the newspaper this morning, and if you did, did it affect ... in any way the decision you might have made in this case?” Only one juror responded: “I read it,” but he denied it affected his decision, and denied communicating to other jurors about the article. The jury collectively disavowed “any discussion ...” about the article during deliberations. Defendant’s renewed motion for mistrial was denied.

“Newspaper accounts of the trial should not be read by the jury during the progress of the trial. Likewise, radio and television news accounts of the trial should be avoided.” Maltbie v. State, 139 Ga. App. 342 (1), 344 (228 SE2d 368). “When a juror enters upon the trial of a criminal case, the law contemplates his withdrawal from the public and makes no provision for addresses to him from outside sources, for his entertainment or otherwise, which are calculated, directly or indirectly, to excite any passions or emotions with respect to the matter upon which he is to sit in judgment. Perfect impartiality in the juror is the object of the law. Anything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced. . . . Verdicts should be the result of calm deliberation, founded upon the law and evidence.” Styles v. State, 129 Ga. 425, 429 (59 SE 249). In the case sub judice, the record affirmatively reflects that this verdict was the result of the jury’s calm deliberation based upon the law and the evidence, and was not the impermissible result of any unauthorized exposure to news media accounts. “We find that the measures taken by the trial court to determine no prejudice inured to [defendant] as a result of exposure to media accounts by any members of the jury were adequate in this case. There is no basis for setting aside the verdict and granting a new trial. Watson v. State, 162 Ga. App. 170 (290 SE2d 500) (1982).” Langston v. State, 162 Ga. App. 795, 796 (2), 797 (293 SE2d 54).

3. In his fifth enumeration, defendant contends the trial court erroneously prohibited him from questioning the victim’s mother, Teresa Brown, regarding purported admissions made to her by the victim’s grandmother, Ruby Brown, “concerning Ruby Brown’s previous false accusations of child molestation and coercion of her son . . .” to testify falsely. This contention is not supported by the record.

Defendant called the victim’s mother for direct examination. With respect to what Ruby Brown might have told Teresa Brown, the transcript shows the following transpired:

Decided February 9, 1996.

Jeffrey S. Bowman, for appellant.

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

“[DEFENSE COUNSEL]: Are you [Teresa Brown] aware that your mother, she also told the police that her own son, Phillip, had been sexually abused by her [then-husband,] James Lattimore? [TERESA BROWN]: Yes. [DEFENSE COUNSEL]: Do you know anything about that incident? [TERESA BROWN]: She came and told me about it. [DEFENSE COUNSEL]: What did she tell you about it? [TERESA BROWN]: She told me that . . . [STATE’S ATTORNEY]: (Interposing) Your Honor, I would object to anything that another witness told her. That’s hearsay. . . . THE COURT: Let’s direct her attention away from hearsay testimony, [Defense Counsel]. [DEFENSE COUNSEL]: Our position would be that it would be an admission of a party. THE COURT: Well, hearsay testimony doesn’t have any probative value ... in this instance.” Whereupon defense counsel moved on to other matters, eliciting the confirmation of the mother that the victim “told you that none of these charges are true[.]”

It is clear from this recitation from the transcript that defendant made no proffer of the substance of any “admission” purportedly admissible against this non-party witness. “ ‘Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. (Cit.) The record in the instant case does not show that[, after the trial court sustained the State’s hearsay objection,] such [witness was] proffered, [but that] when proffered the court refused to permit the [witness] to testify, or if proffered what questions were asked or what answers were expected from the [witness]. In the absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.’ Byrd v. State, 78 Ga. App. 824, 831-832 (3) (52 SE2d 330) (1949). See also Robinson v. State, 86 Ga. App. 375, 379 (3) (71 SE2d 677) (1952).” Thompson v. State, 187 Ga. App. 152, 153 (369 SE2d 523).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A95A2104.
    MOSS v. THE STATE.
    (469 SE2d 325)
    Decided February 9, 1996.

      Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Edwin J. Wilson, for appellant.

      Thomas J. Charron, District Attorney, Debra H. Bernes, Frank

      R. Cox, Nancy I. Jordan, Assistant District Attorneys, for appellee.
   Blackburn, Judge.

Charles Moss, Jr. appeals his conviction of violations of the Georgia Securities Act. OCGA § 10-5-12. Moss contends the trial court erred in denying his motion for a directed verdict of acquittal. He asserts that the State failed to initiate the prosecution against him within the applicable four-year statute of limitation period and that the State failed to allege any exception to the statute of limitation in the indictment.

Generally, prosecutions for violations of the Georgia Security Act — a felony — must be commenced within four years after the commission of the crime. OCGA § 17-3-1 (c). While it is uncontested that the prosecution of Moss did not commence within the four-year period, the State contends the case falls within a known statutory exception. However, the State did not allege any statute of limitation exception in the indictment.

It has long been the law in Georgia “ ‘[i]n a criminal case, where an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged and proved. Such proof is inadmissible unless the exception sought to be proved is alleged.’ Hollingsworth v. State, 7 Ga. App. 16 (1) (65 SE 1077). Accord, McLane v. State, 4 Ga. 335, 339 (2); Bazemore v. State, 34 Ga. App. 773 (131 SE 177); Taylor v. State, 44 Ga. App. 64, 67 (2) (160 SE 667); State v. Tuzman, 145 Ga. App. 481, 483 (3) (243 SE2d 675).” State v. Stowe, 167 Ga. App. 65, 68 (306 SE2d 663) (1983). Furthermore, the exception must be alleged in the indictment. See id. As no exception was alleged in the indictment, the State was incapable of proving an exception to toll the applicable four-year statute of limitation, as such proof was inadmissible. The evidence shows that Moss was not indicted within the statutory period, and Moss properly raised the statute of limitation as an affirmative defense during the trial of the case; therefore, the trial court erred in denying Moss’s motion for directed verdict of acquittal. See Hollingsworth, supra at 18-19.

Because our conclusion with respect to the first enumeration of error is dispositive of the case, we need not address the remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A2414.
    MORRISON v. THE STATE.
    (469 SE2d 686)
   Birdsong, Presiding Judge.

Milford D. Morrison appeals his convictions for possession of cocaine with intent to sell and possession of cocaine. The charges arose from the execution of a search warrant at the home of Ms. Williams, Morrison’s co-defendant and girl friend.

Williams and four other adults and two children were in the kitchen, and Morrison was standing between the living room and the kitchen when the officers entered the house. With the people found gathered in the kitchen, the police searched the house and found a Crown Royal bag containing less than one gram of powder cocaine, marijuana, and a $20 bill in a dresser in an upstairs bedroom, two plastic bags containing marijuana in the kitchen near the stove and the wall, a plastic bag containing 20 rocks of crack cocaine in the kitchen behind the refrigerator, and a cup containing what appeared to be cocaine residue on the sink in the kitchen.

After the drugs were found by the officers, all the people in the house denied that the drugs belonged to them. None of the people in the house was searched, and after the people in the house identified themselves, everyone except Morrison and Williams was released. Morrison and Williams were taken to the police station where, an officer testified, Morrison admitted the drugs found upstairs belonged to him for his personal use, but denied that he owned the other drugs.

Morrison and Williams were later indicted for possession of cocaine with intent to sell, possession of cocaine, and possession of marijuana. At the trial the officers who found the drugs testified about finding the drugs and an expert identified the substances, except for the suspected cocaine found in the cup, as either marijuana or cocaine. The suspected cocaine in the cup was never tested; witnesses testified, however, that the substance appeared to be cocaine. Officers also testified that they found a razor blade near the cup in the kitchen and they also found a glass pipe of the kind used to smoke crack cocaine on the kitchen floor near where one of the men who was released without charges was sitting.

The exhibits containing the drugs were not tested for fingerprints. An officer testified that it is more trouble than it is worth to do such testing.

After the prosecution rested and the trial court denied the defendants’ motions for directed verdicts of acquittal, both defendants testified. Williams testified that she did not see the drugs in her home until they were seized by the police, that she did not allow drugs in her home, that Morrison did not do drugs around her, that while Morrison baby-sat for her that day, he did not live there and did not have a key to her house, and could not enter the house without her. Williams further testified that Morrison and the others arrived at her home at the same time. When he testified, Morrison denied any knowledge of the drugs and denied that he told the police officer that the drugs found upstairs belonged to him.

Ultimately, Williams was found guilty of possession of cocaine and Morrison was found guilty of possession of cocaine with intent to sell and possession of cocaine. Both defendants were found not guilty of possession of marijuana. Williams was sentenced to five years in prison to be served on probation. After the trial court merged the possession of cocaine count with the possession of cocaine with intent to sell count, Morrison was sentenced to 20 years in prison, with ten to serve and ten years on probation.

On appeal, Morrison contends the trial court erred by denying his motion for a directed verdict and by denying his motion for a new trial, by denying his motion to suppress and his motion in limine, and by denying his requests to charge. Williams is not a party to this appeal. Held:

1. (a) Morrison first contends the trial court erred by denying his motion for a directed verdict. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict using the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). Further, we do not weigh the evidence and judge the credibility of the witnesses (Grant v. State, 195 Ga. App. 463 (393 SE2d 737)); nor do we speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Review of all the evidence in this manner reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Morrison was guilty of possession of the cocaine found in the bedroom. Jackson v. Virginia, supra. Although Morrison disputed that he admitted ownership of those drugs, the police officers’ testimony was sufficient evidence to sustain the conviction. Accordingly, the trial court did not err by denying Morrison’s motion as to that count.

On the count alleging possession of cocaine with intent to sell, however, we must reach a different result. As no direct evidence connects Morrison to the 20 rocks of crack cocaine found in the kitchen behind the refrigerator, if his conviction for possession of cocaine with intent to sell is to be sustained it must be based upon circumstantial evidence. When a conviction depends entirely on circumstantial evidence, however, the circumstantial evidence must be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. OCGA § 24-4-6; Ennis v. State, 130 Ga. App. 716, 717 (204 SE2d 519).

Under the evidence presented by the prosecution, five adults were in the kitchen when police entered the house, and Morrison was standing between the kitchen and the living room. No officer testified that he saw anything connecting Morrison to the crack cocaine, and none of the real evidence showed any connection to Morrison. Further, the only evidence in the record was that while Morrison visited frequently, he did not occupy or control the house, did not have a key, and could not enter the house without Williams. Williams also testified she did not see any cocaine in the house.

Additionally, although a witness testified that the amount of crack cocaine was more than the quantity a mere user of the drug would possess, there was no evidence that the powder cocaine found in the upstairs bedroom was of such quantity. Further, there was no other evidence, e.g., drug scales, the manner of wrapping, etc., tending to show that this cocaine was possessed for anything but personal use. Further, although Morrison had $441 in his possession when he was apprehended, there was no evidence showing that this was money in any way connected to selling drugs. Morrison testified that he worked two jobs and there was no evidence contradicting this testimony.

This evidence is not sufficient to sustain Morrison’s conviction of possession of cocaine with intent to sell. “ ‘When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt. While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must view the evidence in the light most fávorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.’ (Citations and punctuation omitted.) Brooks v. State, 206 Ga. App. 485, 486-487 (1) (425 SE2d 911) (1992).” Paden v. State, 216 Ga. App. 188, 189-190 (453 SE2d 788).

Consequently, as the evidence presented to the jury did not exclude the reasonable hypothesis that the crack cocaine belonged to any of the other adults in the kitchen, the circumstantial evidence did not exclude every other reasonable hypothesis save that of Morrison’s guilt of possessing those drugs with the intent to sell. Therefore, this conviction is unsupportable as a matter of law and the trial court erred by denying Morrison’s motion for a directed verdict of acquittal. See Pattillo v. State, 250 Ga. 510, 512 (299 SE2d 710); Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576).

Therefore, Morrison’s conviction must be reversed and the case remanded to the trial court with direction to sentence Morrison on his conviction for possession of cocaine.

(b) Moreover, Morrison further contends the trial court erred by denying his motion for a new trial because the verdict is contrary to the evidence, contrary to principles of justice and equity, and because the verdict is decidedly and strongly against the weight of the evidence. These contentions, however, are addressed to the wrong court. Our law gives the trial judge alone the authority to grant a new trial for such reasons, and this court has no such power. Dixon v. State, 192 Ga. App. 845, 846 (386 SE2d 719). Accordingly, this enumeration of error is without merit.

2. Morrison next asserts that the trial court erred by denying his motion to suppress the results of the State’s supplemental crime lab report, evidence of the substances testimony, and testimony regarding these substances because the crime lab report was not disclosed to his defense counsel within the time prescribed by then effective OCGA § 17-7-211. The record shows the report in question was not available in writing until six days before trial, that a copy was provided to Morrison as soon as the prosecutor obtained one, and that Morrison rejected the opportunity for a continuance. Under the circumstances there was no error. Wade v. State, 258 Ga. 324, 327-328 (368 SE2d 482); Shannon v. State, 205 Ga. App. 831, 832 (424 SE2d 51).

3. Morrison contends the trial court erred by refusing to give three charges he requested on “two theories,” bare suspicion, and guilt by association.

(a) The trial court did not err by refusing to give Morrison’s requested charge on “two theories.” The “two theories” charge, if authorized at all, would have been appropriate only when the State has relied exclusively on circumstantial evidence. Hamilton v. State, 260 Ga. 3, 4-5 (389 SE2d 225). More significantly, however the “two theories” charge has been disapproved by this Court because it is a statement of law that does not accurately state the principle addressed. Shutt v. State, 215 Ga. App. 617 (451 SE2d 530). Accordingly, it should never be given. Cantrell v. State, 212 Ga. App. 288, 290 (441 SE2d 879); Johnson v. State, 210 Ga. App. 99, 102 (435 SE2d 458).

(b) Regarding Morrison’s requested charges on bare suspicion and guilt by association, the transcript shows the trial court gave a full and complete charge on reasonable doubt, the presumption of innocence, and presence at the scene of a crime. As these charges cover the principles of law in the requested charges, there was no error. A trial court is not required to instruct the jury in the exact language of a requested charge, and when the principle of law is covered in another charge that is sufficient. Kennedy v. State, 205 Ga. App. 152, 156 (421 SE2d 560); Montgomery v. State, 204 Ga. App. 534, 537-538 (420 SE2d 67).

Decided February 9, 1996.

Magruder & Sumner, Clay M. White, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Fred R. Simpson, Assistant District Attorneys, for appellee.

4. Morrison contends the trial court erred by allowing testimony to the effect that State Exhibit 2, which was not tested at the crime lab, appeared to have the same physical appearance and characteristics as other items that were tested and found to be cocaine. Review of the transcript shows that although Morrison made a motion in limine to exclude testimony concerning this untested exhibit, the trial court declined to rule on the motion at that time. The transcript further shows, however, that Morrison did not object when the testimony of which he now complains was given. “ ‘All evidence is admitted as a matter of course unless a valid ground of objection is . . . interposed.’ ” Scott v. State, 206 Ga. App. 23, 26 (424 SE2d 328). As Morrison did not object to this testimony in the trial court, we cannot consider the issue because it is raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

Judgment affirmed in part, reversed in part, and remanded with direction.

Johnson and Smith, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A2548.
    NOBLE v. THE STATE.
    (469 SE2d 307)
   Beasley, Chief Judge.

Noble appeals from his convictions and sentences on charges of armed robbery, OCGA § 16-8-41 (a), kidnapping, OCGA § 16-5-40 (a), and possession of a firearm during the commission of a crime involving the person of another, OCGA § 16-11-106 (b) (1).

The victim was accosted at a pay telephone by three men who told him to give them his car keys. One of the men forced the victim into his own car at gunpoint, and he was driven away and robbed. He identified a man named Thurmond as the one who held the gun on him. Noble accompanied Thurmond and twice told him to shoot the victim. The third man was not identified. The robbers eventually stopped the car and told the victim to get into the trunk, but he was able to escape.

The stolen car was recovered in North Carolina after it had run off the road. Investigation of the accident led to Noble’s arrest. Thurmond was also arrested in North Carolina but Noble was tried in Georgia alone.

1. Noble enumerates as error the denial of his motion for new trial on the ground of ineffective assistance of counsel in that trial counsel did not subpoena Thurmond, who Noble claims was a material witness because he allegedly would have confessed to the crimes and absolved Noble of involvement.

To prevail on a claim of ineffectiveness of counsel, a defendant must first show “that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. [Cit.] ‘There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.’ [Cit.]” White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995). On appeal, “ ‘[a] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.’ [Cit.]” Id. at 583-584 (1).

At the hearing on the motion, Noble testified that he had overheard Thurmond confess to the police in North Carolina that he had acted alone in the armed robbery and kidnapping for which Noble was convicted. Noble also testified that Thurmond would have testified that Noble was in Thurmond’s house at the time the crime was committed. He made no other proffer of Thurmond’s proposed testimony. Noble also testified that his attorney told him he had filed a motion to have Thurmond brought to Georgia to testify but that it had been denied.

Noble’s trial counsel testified that he did not believe Thurmond should be called because he was in custody in North Carolina after pleading guilty to a crime very similar to the one for which Noble was tried. That crime occurred at a motel in North Carolina where Noble and Thurmond, among others, were staying together under fictitious names, and it apparently was committed close in time to Noble’s arrest. Counsel believed this information, which in his opinion was prejudicial, would necessarily be revealed if Thurmond testified. He also testified he did not know exactly what Thurmond would testify but assumed his North Carolina confession was not exculpatory of Noble because the State had not provided it in response to Noble’s Brady motion. He discussed the situation with Noble, who agreed with the decision not to pursue Thurmond’s testimony.

The court specifically found counsel’s version more credible than Noble’s. This finding on conflicting evidence was not clearly erroneous. See Smith v. State, 207 Ga. App. 290, 291-292 (2) (428 SE2d 95) (1993). A decision not to call a certain witness because his testimony may harm more than help the defendant is one of trial strategy, Williams v. State, 217 Ga. App. 636, 639-640 (6) (458 SE2d 671) (1995), not requiring a new trial.

2. Noble alleges error because one judge presided throughout the trial and pronounced guilt, but a different judge pronounced sentence. Noble has not shown how this enumeration was preserved for appellate consideration as required by Rule 27 (a) (1), and he did not present this issue in the trial court. A separate sentencing hearing was held and he noted the appearance of the second judge but did not object. The general rule is that “the sentencing trial judge in reaching his sentence should have heard the entire case as well as additional evidence in extenuation, mitigation, and aggravation of punishment.” Strickland v. State, 156 Ga. App. 475, 476 (1) (274 SE2d 823) (1980). The first question is whether a departure can be waived, and whether Noble’s failure to object constituted a waiver.

In Strickland, the original judge left the trial after the first of two days because of illness. The parties agreed to have a second judge complete the trial, and the defendant’s agreement to the procedure was placed on the record. After the defendant was pronounced guilty he consented to have sentence imposed without a presentence investigation, but the judge stated he would wait until the next time he held court in that county. When that day arrived, however, the first judge conducted the sentencing. Although the defendant noted the appearance of the original judge, he made no objection. Strickland enumerated as error both allowing the substitution in the first instance and allowing the original judge to return for sentencing. The court held it was error to allow the first judge to return for sentencing because the parties had stipulated that the second judge would “conclude the trial,” which included sentencing. Id. at 476 (1). By giving effect to the earlier stipulation, the court recognized that a defendant may agree to a substitution of judges.

In Griner v. State, 162 Ga. App. 207 (291 SE2d 76) (1982), a different judge than the one presiding at trial gave an “Allen” charge. Appellate review of the substitution was deemed waived for a failure to object. The parties had agreed to the substitution. In response to the judge’s question whether defendant objected to the timing of the charge or the judge who was giving it, the defendant specifically stated it was the timing of the charge to which he objected. Id. at 211 (3). The court did state that a defendant can waive “any objection to [a second judge] handling the case at that point in the trial.” Id.

Each of these cases recognized that a defendant may agree to a substitution of judges, although in each there was an affirmative agreement. However, an express agreement to substitution is not necessary to show waiver. If a defendant does not object to sentencing by the substitute judge, he waives the right to the imposition of sentence by the trial judge.

Finding waiver by silence is consistent with the general rule in other jurisdictions that review is waived by a failure to object. See Commonwealth v. Clay, 307 A2d 341, 343 (Pa. Super. Ct. 1973); Benjamin v. State, 874 SW2d 132, 134 (Tex. App. 1994); State v. Colby, 443 A2d 456, 458 (Vt. 1982); 83 ALR2d 1033-1034 § 2 (a). It is also consistent with the frequently stated rule of appellate practice in Georgia that “[a] party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (2) (67 SE2d 221) (1951); accord Johnson v. State, 226 Ga. 511, 514 (5) (175 SE2d 840) (1970); Gude v. State, 213 Ga. App. 573, 575 (2) (445 SE2d 355) (1994); Ingram v. State, 211 Ga. App. 252, 254-255 (438 SE2d 708) (1993); Pullen v. State, 208 Ga. App. 581, 583 (2b) (431 SE2d 696) (1993). A defendant will not be permitted to hear the sentence pronounced by the substitute judge and then, dissatisfied with the sentence, seek reversal and resentencing by the original judge. This result does not conflict with the result in Strickland, supra at 476-477 (2). That case was decided on its specific facts and circumstances and was controlled by the stipulation that the substitute judge complete the trial.

If the enumeration is seen as an attack on the sentence itself rather than on the substitution of the judge, it was still waived. While appeal may be taken from a void sentence even if no objection was made in the court below, State v. Baldwin, 167 Ga. App. 737, 738 (2) (307 SE2d 679) (1983), a void sentence is one which imposes punishment the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991); Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995). There is no suggestion that the punishment imposed here was beyond that which the law allowed. Nor does it appear that a sentence pronounced by a judge other than the trial judge would constitute an unlawful punishment. The statute specifying the court’s duty in regard to fixing the terms of punishment imposes the duty upon “the sentencing judge”; there is no reference to the trial judge nor any suggestion a judge may not be substituted. OCGA § 17-10-1 (a). Neither is there a requirement under the federal constitution that one be sentenced by the judge who presided at trial. See United States v. McCallie, 554 F2d 770, 773-774 (6th Cir. 1977); United States ex rel. Fields v. Fitzpatrick, 548 F2d 105, 107-109 (3rd Cir. 1977).

Nor is there a rule of Georgia appellate practice that any sen-fencing issue is nonwaivable. Appellants have waived a variety of enumerations concerned with sentencing by their failure to object in the trial court: imposition of consecutive sentences for two crimes when one was allegedly a lesser included offense of the other, Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989); allowing the State to suggest that sentences be served consecutively, Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992); improper consideration of prior convictions, Copeland v. State, 160 Ga. App. 786, 789 (12) (287 SE2d 120) (1982), Pugh v. State, 214 Ga. App. 470, 471 (3) (448 SE2d 16) (1994); using information in a presentence report as evidence in aggravation, Howard v. State, 172 Ga. App. 83, 84 (2) (321 SE2d 815) (1984); asserting that mandatory imposition of a life sentence for a second conviction under OCGA § 16-13-30 (d) was cruel and unusual punishment, Nuckles v. State, 207 Ga. App. 63, 64 (3) (427 SE2d 54) (1993); and allowing jury sentencing after judge sentencing had been statutorily mandated, McNeese v. State, 236 Ga. 26, 29-30 (3) (222 SE2d 318) (1976). We see no reason for holding that failure to object to a sentencing judge other than the one who presided at trial should be deemed nonwaivable, especially as a defendant might choose to allow substitution as a strategic decision. See Strickland, supra at 476 (2). Viewed either as an issue of substitution or an issue of sentencing, Noble waived any review of the substitute judge’s pronouncing sentence.

Decided February 9, 1996.

Peter D. Johnson, for appellant.

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

Noble also contends the sentencing judge improperly used a presentencing report as evidence in aggravation to fix the length of the sentence, and without sufficient notice to the defense. See OCGA §§ 42-8-29; 42-8-34 (b). First, it is Noble’s responsibility to perfect the record on appeal. See Meier v. State, 190 Ga. App. 625, 626 (1) (379 SE2d 588) (1989). If he wished to show that a report was prepared and was before the court, he was bound to show it on the record. Second, if there was such a report and it was improperly used during the hearing, Noble was obliged to object, which he did not do. Howard, supra.

Judgment affirmed.

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


text:
    A95A2572.
    INTERNATIONAL MAGAZINE SERVICE OF ATLANTA, INC. v. ALLNET COMMUNICATIONS SERVICES, INC.
    (469 SE2d 305)
   McMurray, Presiding Judge.

Plaintiff Allnet Communications Services, Inc. filed this action to recover payment for long distance telephone services provided to defendant International Magazine Service of Atlanta, Inc. and billed more than two years prior to the filing of the lawsuit. This interlocutory appeal is taken from the denial of defendant’s motion for partial summary judgment predicated on the statute of limitation provided in the Federal Communications Act of 1934, 47 USC § 151 et seq., by 47 USC § 415 (a), which states that “All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun, within two years from the time the cause of action accrues, and not after.”

Plaintiff would avoid the federal statute of limitation through reliance on the savings clause in 47 USC § 414 and by maintaining that the action is a common law claim under state law for breach of contract rather than a federal claim. 47 USC § 414 provides that: “Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” It is uncontroverted that the complaint was filed within the time allowed under the Georgia statute of limitation. Held:

There appear to be some differences of opinion among the federal appellate courts concerning the proper construction of 47 USC §§ 414 and 415. The matter is further clouded by the fact that the useful case law is often directed to issues other than those in this case, such as questions of federal jurisdiction.

One line of cases holds that actions to collect long distance charges are in an area preempted by federal law so that they are more than simple contract actions. The user of interstate telephone service is obliged to pay for it at the rate fixed by tariffs filed pursuant to 47 USC § 203 so that a complaint seeking to enforce that obligation arises under the Federal Communications Act. Ivy Broadcasting Co. v. AT&T Co., 391 F2d 486 (2nd Cir.). Nonetheless, plaintiff relies upon MCI Telecommunications Corp. v. Credit Bldrs. of America, 980 F2d 1021, a Fifth Circuit case which partially rejects the holding in Ivy Broadcasting and states that an action for long distance charges is simply a breach of contract action which has its source in state law. Defendant argues that MCI should be distinguished, but more persuasive is the outright rejection of that case in Western Union Intl. v. Data Development, 41 F3d 1494, 1496, where the Eleventh Circuit notes that tariffs required to be filed are more than a contract, they are law. We adopt the view that a long distance carrier’s action for non-payment for services is the enforcement of rights arising under a federal statute. It follows that the federal statute of limitation is applicable.

Decided February 9, 1996.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellant.

Michael H. Saul, for appellee.

The remaining matter is the proper construction of .47 USC § 414. Defendant is correct, however, in maintaining that this statute has been construed more narrowly than might be suggested by the literal statutory language and should be viewed only as preserving causes of action for breaches of duties distinguishable from those created under the Federal Communications Act. See in this regard Cooperative Communications v. AT&T Corp., 867 FSupp. 1511 (D. Utah 1994) and Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428 (493 NE2d 1045), cited by plaintiff, but which are distinguishable since they involve claims which did not arise under the federal statutes.

Plaintiff’s entire claim against defendant is barred by the federal statute of limitation. The state court erred in denying defendant’s motion for partial summary judgment predicated on this theory. Defendant’s counterclaim is not affected by this decision and remains pending.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2669.
    JONES v. THE STATE.
    (469 SE2d 300)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty upon a two-count indictment charging him with the sale of cocaine in violation of Georgia’s Controlled Substances Act. This appeal followed the entry of the judgment of conviction and sentence. Held:

1. Defendant challenges the sufficiency of the evidence in two enumerations, arguing that the testimony of two of the State’s witnesses is, in some respects, conflicting. This argument is without merit.

“ ‘On appeal the evidence must be viewed in the light most favorable to the verdict, and [the defendant] no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652).’ Rigenstrup v. State, 197 Ga. App. 176, 180 (4), 181 (398 SE2d 25). See also Howard v. State, 261 Ga. 251, 252 (403 SE2d 204). ‘ “Conflicts in the testimony of the witnesses, including the state’s witnesses, is a matter of credibility for the jury to resolve. . . .” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).’ Fisher v. State, 151 Ga. App. 93 (258 SE2d 920).” King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).

In the case sub judice, two undercover law enforcement officers testified that, while working together on April 30, 1994, they purchased cocaine from defendant on two separate occasions. While there is some conflict between the officers’ testimony regarding the manner in which defendant signaled them to gain the officers’ attention, both officers identified defendant as the perpetrator of the crimes charged. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged in the two-count indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Grant v. State, 215 Ga. App. 10, 11 (449 SE2d 545).

2. Defendant also asserts that the State failed to establish venue, beyond a reasonable doubt. This argument is also without merit.

“Generally, criminal trials shall be tried in the county where the crime was committed (Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a)), and venue is a jurisdictional fact that must be proven as part of the general case. Dempsey v. State, 52 Ga. App. 35 (182 SE 56). Additionally, although venue must be proven beyond a reasonable doubt (Adsitt v. State, 248 Ga. 237, 239 (282 SE2d 305)), if venue is not contested at trial, slight proof of venue will suffice. Green v. State, 260 Ga. 625, 626 (398 SE2d 360). Further, venue is an issue to be decided by the jury, and, if any evidence supports the jury’s decision, it will not be set aside. Jones v. State, 245 Ga. 592, 596 (266 SE2d 201).” McGee v. State, 209 Ga. App. 261, 262 (2) (433 SE2d 374). Although it does not appear in the case sub judice that defendant contested venue at trial, both of the undercover officers who testified that they purchased cocaine from defendant also affirmed, in response to leading questions by the State’s attorney, that the crimes charged in the indictment occurred in the county where defendant’s trial was conducted. This proof is sufficient to authorize the jury’s finding, beyond a reasonable doubt, that the crimes charged occurred in the county where defendant’s trial was conducted. Jackson v. Virginia, 443 U. S. 307, supra; Sypho v. State, 175 Ga. App. 833 (1), 834 (334 SE2d 878).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided February 9, 1996.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, for appellee.


text:
    A95A2694.
    SHELTON v. THE STATE.
    (469 SE2d 298)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault and false imprisonment. The evidence reveals that defendant mercilessly beat, restrained and gagged the victim with a sock when she resisted defendant’s sexual advances. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant’s contention that the evidence is insufficient to support his conviction for false imprisonment is without merit. The false imprisonment charge is supported by the victim’s testimony that defendant held her captive over a period, between an episode of sodomy and an episode of attempted rape. Moua v. State, 200 Ga. App. 49 (1) (406 SE2d 557). Specifically, the victim testified that, as defendant forced her to perform oral sodomy and then attempted to rape her, she “tried to leave [, but defendant] kept on holding me down[, he] wouldn’t let me leave [and] he kept on beating, me with his fists in my face.” This evidence, evidence that a neighbor called the police in response to the victim’s pleas for defendant to “stop, no, no, stop,” and proof that the victim was partially clothed and badly beaten when law enforcement officers arrived, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of false imprisonment in violation of OCGA § 16-5-41 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Butler v. State, 194 Ga. App. 895, 898 (3) (392 SE2d 324).

While defendant does not challenge the sufficiency of the evidence with regard to his conviction. for aggravated assault, the evidence adduced at trial amply supports defendant’s conviction for this offense. The police officer who responded to the victim’s neighbor’s emergency call, testified that defendant appeared at the door of his apartment wearing only a summer shirt. The officer explained that defendant was not wearing trousers or underclothing. The officer also testified that she found the victim on a bed in defendant’s apartment, lying twisted, partially clothed and whimpering for help. A physician who examined the victim on the night of the assault testified that the victim’s “face was swollen, [her] left eye was swollen shut[; she] had abrasions on her left cheek and her right cheek and she had a sock tied around her neck.” This evidence overwhelmingly supports the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault. Jackson v. Virginia, 443 U. S. 307, supra; Creson v. State, 218 Ga. App. 184, 186 (3) (460 SE2d 83).

2. Defendant contends he was deprived of effective assistance of counsel as guaranteed under the State and Federal Constitutions, pointing first to his trial attorney strategy of defending against the aggravated assault charge by claiming that defendant is only guilty of the lesser included offense of simple battery. Defendant asserts that this defense was ineffectively presented because his trial attorney did not request a charge on simple battery and did not object (or reserve objections to the charge) when the trial court failed to instruct the jury on the lesser included offense of simple battery. Next, defendant complains that his trial attorney did not consult with him before trial, failed to object when a law enforcement officer testified that she did not “recall [defendant] saying anything . . .” and failed to prepare or advise defendant of the hazards of testifying on his own behalf at trial. Defendant also complains that his attorney should have objected when the State’s attorney implored the jury during closing argument to punish defendant for his ruthless conduct against the victim. And last, defendant complains that his trial attorney ineffectively submitted a request to charge on aggravated assault which did not conform to the crime of aggravated assault as charged in the indictment.

“In order to show ineffective assistance of counsel, [defendant] must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990). ‘Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.’ Strickland, 466 U. S. at 698.

“Although the Supreme Court in Strickland discussed the performance component prior to the prejudice component, it acknowledged that a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. ‘In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.’ Strickland, 466 U. S. at 697.” (Footnote omitted.) Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600).

Decided February 9, 1996.

Shandor Badaruddin, for appellant.

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In the case sub judice, we direct our inquiry to the prejudice component of the test announced in Strickland v. Washington, 466 U. S. 668, supra, and adopted by the Supreme Court of Georgia in Smith v. Francis, 253 Ga. 782 (325 SE2d 362), and find that defendant failed to “ ‘show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s [alleged] unprofessional errors, the result of the proceeding would have been different. [Strickland v. Washington, 466 U. S. 668, supra.]’ Smith v. Francis, [supra at 783 (1)].” Jowers v. State, 260 Ga. 459, 461 (2), 462 (396 SE2d 891). The evidence of defendant’s guilt in the case sub judice is so overwhelming that it is highly unlikely that any defense counsel could have altered the jury’s finding that defendant is guilty, beyond a reasonable doubt, of false imprisonment and aggravated assault as charged in the indictment. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Indeed, there is not only undisputed evidence that defendant mercilessly beat the victim and restrained her (using a sock as a gag), defendant literally was caught with his pants off. Under these circumstances, we cannot say the trial court erred in denying defendant’s motion for new trial based on his claim of ineffective assistance of trial counsel. See Postell v. State, 212 Ga. App. 868 (443 SE2d 530).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2849.
    HIGHTOWER v. THE STATE.
    (469 SE2d 295)
   McMurray, Presiding Judge.

Defendant was tried before a jury upon an indictment charging him with selling cocaine in violation of Georgia’s Controlled Substances Act. Special Agents Vickey Horton and Larry Duren of the Georgia Bureau of Investigation testified that, while working undercover with a confidential informant, defendant sold Special Agent Horton two pieces of “crack” cocaine. The special agents testified that the drug transaction occurred after the confidential informant maneuvered a vehicle next to a vehicle defendant was operating on a street in Jackson, Georgia; that Special Agent Horton, while seated beside the confidential informant, asked defendant for a quantity of “crack” cocaine; that defendant instructed the undercover agents to drive around the block, and that defendant there completed the illegal drug transaction. Both Special Agent Horton and Special Agent Duren testified that they observed defendant when he walked over to the car in which they were passengers and that they closely examined defendant’s face as he leaned through the driver’s window and handed Special Agent Horton the “crack” cocaine.

The jury found defendant guilty of selling cocaine. This appeal followed the entry of judgment of defendant’s conviction and his sentence. Held:

1. Defendant first contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), arguing that the State did not give racially neutral reasons for using all six of its strikes to exclude black members of the panel.

“In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies ‘ “peculiarly within a trial judge’s province.” (Cits.)’ Smith v. State, 264 Ga. 449, 454 (448 SE2d 179) (1994). The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous. Lingo v. State, 263 Ga. 664, 666 (1) (b) (437 SE2d 463) (1993).” Sorrells v. State, 218 Ga. App. 413 (2), 414 (461 SE2d 904).

In the case sub judice, the State’s attorney explained that he struck all six prospective jurors because they either knew defendant or were familiar with a member of defendant’s family. The trial court then reflected upon voir dire and affirmed that each juror the State excluded responded that they either knew defendant or that they were acquainted with a member of defendant’s family. Contrary to defendant’s contention, this explanation constitutes a racially neutral basis for the exercise of the State’s challenges. See Byers v. State, 212 Ga. App. 110, 112 (2) (441 SE2d 290); Mathis v. State, 204 Ga. App. 244, 245 (3) (418 SE2d 800); Glanton v. State, 189 Ga. App. 505 (2) (376 SE2d 386). Accordingly, the trial court did not err in finding that the reasons offered by the State in the case sub judice for excluding six prospective black jurors were sufficiently race neutral to withstand defendant’s challenge under Batson v. Kentucky, 476 U. S. 79, supra.

2. Defendant next contends the trial court erred in denying his motion for a postponement for the selection of another jury, arguing that a juror was tainted when she inadvertently entered the courtroom during a proceeding in which defendant was sternly admonished for being uncooperative and not complying with courtroom decorum.

After a jury was empaneled and before the introduction of evidence, the trial court called defendant into the courtroom, outside the presence of the jury, and admonished defendant that reports of his belligerent and uncooperative attitude as well as indications of his noncompliance with courtroom decorum would not be tolerated. The trial court firmly cautioned defendant to either cooperate and act like a gentleman or appear at trial in chains and a gag. After the matter concluded, defense counsel pointed out that a juror had entered the courtroom during the proceedings. The trial court summoned the subject juror, outside the presence of other jurors, and asked whether she heard anything that “would affect [her] ability to be completely fair and impartial in this case?” The juror responded negatively and explained that “I was more embarrassed than anything else and then I realized that I should have come up the other way.” Defense counsel asked, “During the time that you passed through the courtroom a moment ago, did you hear distinctly anything that was said?” The juror responded, “No, sir, I did not even realize who was in here until I got through.” Before allowing the juror to return to the jury room, the trial court directed her not to “mention anything to any of the other Jurors or anyone else about the questions here.”

Defendant cites Lingerfelt v. State, 147 Ga. App. 371 (249 SE2d 100), in support of this enumeration. “In Lingerfelt several jurors were permitted to sit on the case although aware that one of the prospects on voir dire had branded the defendant as a peeping tom.” Ansley v. State, 162 Ga. App. 135 (1) (290 SE2d 215). In the case sub judice, none of the jurors, including the juror who inadvertently wandered into the courtroom, heard the stern warning for defendant to cooperate, comply with courtroom decorum and act like a gentleman. Under these circumstances, we cannot say the trial court erred in denying defendant’s motion for a continuance so that another jury could be empaneled. See Swint v. State, 199 Ga. App. 515 (1), 516 (405 SE2d 333).

3. Defendant contends the trial court erred in allowing Special Agents Horton and Duren to testify that they identified defendant from a photographic lineup immediately after the illegal drug transaction. This contention is without merit. The special agents both testified that it was not dark outside when they encountered defendant and that they closely examined defendant when he leaned through the driver’s window and handed Special Agent Horton the “crack” cocaine. These circumstances reveal that the undercover agents had ample opportunity to view defendant during commission of the crime charged so as to make misidentifieation highly unlikely. Cantrell v. State, 201 Ga. App. 93, 95 (2), 96 (410 SE2d 193).

Decided February 9, 1996.

Garland & Milam, Richard G. Milam, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

4. The trial court did not err in admitting into evidence the police photograph of defendant that Special Agents Horton and Duren selected from the photographic lineup. See Dowdy v. State, 169 Ga. App. 14, 16 (4) (311 SE2d 184).

5. In his final enumeration, defendant contends the trial court erred in allowing evidence of his prior conviction for selling cocaine to Special Agent Denise Norman of the Georgia Bureau of Investigation on April 25, 1988. Defendant argues that there is insufficient similarity or connection between the prior offense and the crime charged so that proof of the former tends to prove the latter. See Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649). Defendant also asserts that the State failed to prove that he was the perpetrator of the crime charged, arguing that Special Agent Norman could not positively identify him as the perpetrator of the prior similar act. These arguments are without merit.

Although Special Agent Norman could not positively identify defendant because six years had elapsed since commission of the prior criminal act, it is undisputed that an undercover drug transaction described by Special Agent Norman as occurring on April 25, 1988, is the incident which forms the basis of defendant’s prior conviction for selling cocaine. Further, both the crime charged and defendant’s prior criminal conduct involve street sales of “crack” cocaine and both incidents involve the same method of operation. That is, on both occasions defendant approached vehicles that were cruising the streets in Butts County, Georgia, initiated inquiry with occupants of the meandering vehicles, made inquiry as to the occupants’ needs, and then excused himself momentarily but soon returned with the amounts of “crack” cocaine that had been ordered. The prior offense and the crime charged both involve the sale of a type and amount of cocaine that is consistent with consumptive use of the illegal drug. Under these circumstances, we find the evidence of similarity sufficient. Accordingly, the trial court did not err in admitting evidence of defendant’s prior conviction for selling cocaine. See Cantrell v. State, 212 Ga. App. 288 (1), 289 (441 SE2d 879).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.