text:
    A97A1059.
    TAYLOR TIMBER COMPANY v. BAKER.
    (485 SE2d 819)
   Eldridge, Judge.

The case sub judice involves the assessment of attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (b) against appellant for a frivolous appeal in a workers’ compensation case.

Appellee, the claimant, was employed by appellant as a truck driver. On October 19, 1994, appellee was involved in a motor vehicle accident in Yulee, Florida, when his log truck was struck by a dump truck. The appellant paid temporary total disability benefits to appellee until, by way of a WC-2 dated May 17, 1995, and filed with the State Board of Workers’ Compensation (“the Board”) on May 22, 1995, such benefits were suspended, effective May 27,1995, based on a full-duty release to work from the authorized treating physician.

On hearing before the Board, the administrative law judge (“ALJ”) found in favor of the appellee and also found that the appellant had violated OCGA § 34-9-221 (i), in that it had failed to provide the required ten days notice of suspension of temporary total disability benefits. The ALJ further found that the adjuster offered no evidence explaining why the WC-2 was filed with less than ten days notice and, based on these findings, assessed attorney fees against appellant. The ALJ further found grounds for assessing attorney fees based on the appellant’s failure to timely controvert the medical expenses of Dr. Jones, as required by OCGA § 34-9-203 (c). Attorney fees were assessed against appellant in the total amount of 25 percent of the weekly benefits owed to the appellee.

On June 6,1996, the appellate division of the Board affirmed the award of the ALJ. The appellant appealed this award to the Superior Court of Ware County on June 26, 1996. On July 30, 1996, appellee served appellant with his motion for attorney fees for frivolous appeal pursuant to OCGA § 9-15-14 (b). The hearing was held in superior court on August 7, 1996. On August 23, 1996, an order was executed affirming the award of the appellate division of the Board; however, such order was not filed with the clerk until August 30, 1996. Appellant filed an application for a discretionary appeal from this order, which was denied by this Court on October 8, 1996. By separate order dated September 7, 1996, but not filed until October 10, 1996, appellee’s motion for attorney fees was granted, which provided for attorney fees of an additional 25 percent of any amount paid to claimant. It is from this order granting OCGA § 9-15-14 (b) attorney fees and expenses of litigation that appellant appeals.

1. In its first enumeration of error, appellant alleges that the trial court erred in assessing attorney fees pursuant to OCGA § 9-15-14, since the court no longer had jurisdiction to enter a binding award after failing to act within the time prescribed by OCGA § 34-9-105 (b). We agree.

The Workers’ Compensation Act, OCGA § 34-9-1 et seq., is a legislative act and is in complete derogation of common law. Therefore, the provisions of such act must be strictly construed. The Workers’ Compensation Act created an executive branch exercise of police powers for the health, safety, and welfare of the citizens of this state which did not exist at common law and which gives no independent rights of action outside the statutory provisions. Such executive branch function is outside the subject matter jurisdiction of the superior court to review absent statutory authority, because as an executive branch function the superior court lacks subject matter jurisdiction as a matter of separation of powers. OCGA § 34-9-105 (b) confers appellate subject matter jurisdiction in workers’ compensation cases to the superior courts of this state to review decisions of the appellate division of the Board. In conferring appellate jurisdiction, such Code section limits the time in which any superior court of this state may retain subject matter jurisdiction by providing that “if the [superior] court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date the notice of appeal is filed with the board because same has been continued to a date certain by order of the court, the decision of the board shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date the notice of appeal is filed, the decision of the board shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 20 days of the date of the hearing.” OCGA § 34-9-105 (b).

When the superior court does not enter a judgment within the time limits set forth in OCGA § 34-9-105 (b), the decision of the Board is affirmed by operation of law, the superior court loses subject matter jurisdiction, and any orders entered thereafter by the superior court are a nullity. Buschel v. Kysor/Warren, 213 Ga. App. 91 (444 SE2d 105) (1994). The purpose of the time limitations of OCGA § 34-9-105 (b) is “to expedite the disposition of workers’ compensation claims that have been appealed to the courts of this state.” Felton Pearson Co. v. Nelson, 260 Ga. 513, 514-515 (397 SE2d 431) (1990).

A judge of the superior court is authorized to assess attorney fees and/or expenses under OCGA § 9-15-14 against a party for bringing a frivolous appeal in a workers’ compensation case. Contract Harvesters v. Clark, 211 Ga. App. 297 (439 SE2d 30) (1993). Under the provisions of OCGA § 9-15-14, a party may bring a motion for attorney fees and expenses “at any time during the course of the action but not later than 45 days after the final disposition of the action.” OCGA § 9-15-14 (e). Such section cannot confer subject matter jurisdiction beyond the legislative grant of the power of appeal to the superior court set forth by OCGA § 34-9-105 (b). OCGA §§ 9-15-14 and 34-9-105 (b) must be construed in pari materia, so that any award of attorney fees and expenses under OCGA § 9-15-14 must be completed within the time limitations of OCGA § 34-9-105 (b). Once the time limitations of OCGA § 34-9-105 (b) have run, the superior court is without subject matter jurisdiction, and any actions on the part of the superior court are a nullity. Therefore, any matter pertaining to the adjudication of a workers’ compensation appeal before the superior court, including a motion for award of attorney fees and expenses of litigation pursuant to OCGA § 9-15-14, must be disposed of within 20 days of a hearing that was timely set pursuant to OCGA § 34-9-105 (b).

In the case sub judice, the appellant filed its notice of appeal on June 26,1996. A hearing was set for and was held on August 7, 1996, but the superior court judge’s order, although signed on August 23, 1996, was not filed until August 30, 1996, which was 23 days after the hearing. See OCGA § 9-11-58. Since no order disposing of the issues on appeal was entered within 20 days of the hearing, the decision of the Board was affirmed by operation of law, and the superior court lost subject matter jurisdiction at such time. As such, just like its judgment entered on August 30, 1996, the superior court’s award assessing attorney fees against appellant, which was entered on October 10, 1996, is a nullity and of no effect.

Decided April 18, 1997.

Before Judge Holton.

Tillman, McTier, Coleman, Talley & Newbern, George T. Talley, Gregory T. Talley, for appellant.

Phillip M. Eddings, for appellee.

2. Due to this Court’s holding in Division 1, we will not reach the remainder of appellant’s enumerations of error.

Judgment reversed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.

       Both parties to this appeal believe the trial judge actually signed this order October 7, 1996, rather than September 7, 1996, for the reason that such order was not forwarded to the trial court until September 15, 1996.

       See Bright v. Nimmo, 253 Ga. 378 (320 SE2d 365) (1984); Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (320 SE2d 368) (1984); see also Turner v. U. S. Fidelity &c. Co., 125 Ga. App. 371 (187 SE2d 905) (1972).

       “The Georgia Constitution provides that the legislative, judicial, and executive powers shall forever remain separate and distinct[.] Ga. Const. [1983, Art. I, Sec. II, Par. III].... An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.” (Citation, punctuation and emphasis omitted.) Bentley v. Chastain, 242 Ga. 348, 349-350 (249 SE2d 38) (1978). See Continental Ins. Co. v. McDaniel, 118 Ga. App. 344 (163 SE2d 923) (1968).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0188.
    RADFORD v. REEVES CONSTRUCTION COMPANY.
    (486 SE2d 81)
   Beasley, Judge.

Radford sued Reeves Construction Company to recover for injuries sustained in an automobile accident. She appeals the trial court’s grant of Reeves’ motion for summary judgment.

The accident occurred on Pate Road, which runs generally north and south through Monroe County at or near the city of Bolingbroke. Reeves maintains an office at a quarry north of Bolingbroke and regularly hauls gravel from the quarry. Radford’s northbound vehicle overturned after being forced off Pate Road by a southbound tractor-trailer rig. At the time of the accident, Radford could not identify the rig but later described the tractor as big, white, clean as though new, with a Mack grill and pulling a light gray or silver trailer of the type used to haul gravel.

Radford presented the testimony of three motorists who saw a southbound rig driving away from the scene. They all testified that it was an open-top trailer, and one observer described the tractor as ■ white colored and the trailer as silver or light gray. Although no one was able to identify any logo or markings on the rig, one witness testified that he had since that time and on many occasions seen such rigs on the same roadway bearing the Reeves Construction Company name. Two witnesses testified that the rig they saw was of the type they had seen used for carrying gravel from the quarry in Bolingbroke. Two of the witnesses testified that photographs of a vehicle having the appearance of a Reeves Construction Company rig portrayed a rig of the type they saw on the day in question. This constitutes circumstantial evidence from which a jury might infer that the culprit vehicle was owned and operated by Reeves.

In opposition, Reeves presented evidence that white Mack trucks owned by several different persons and entities use Pate Road; that Reeves’ trucks have a logo on each side, which none of the motorists testified they saw; and that, because of weight restrictions, its trucks are not legally permitted to use Pate Road unless they are unloaded. The manager of Reeves’ Macon division testified that, at the time and place in question, Reeves was operating three loaded vehicles, which were driven by Westaway, Wood, and Reynolds. Westaway and Reynolds testified that they never drove a loaded vehicle on Pate Road. Reynolds testified that he had never seen Wood doing that, but Wood did not testify; he had left Reeves’ employ and moved to Florida. Westaway acknowledged that Pate Road would have been the quickest route to the drivers’ destination.

“ ‘On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. (Cits.)’ [Cit.]” Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (458 SE2d 138) (1995). “In granting such motions, we must remain mindful of the jury’s role in the process to resolve any and all conflicts in the evidence. Tt is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . .’ [Cit.]” Service Merchandise v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996).

Reeves argues that it was entitled to summary judgment under the rule that “ ‘ “[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Cits.). . . “When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” (Cits.)’ [Cits.]” Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244, 245 (1) (361 SE2d 236) (1987).

We cannot agree that Reeves presented positive and uncontradicted evidence that it did not operate the vehicle which forced Rad-ford off Pate Road. Reeves presented only circumstantial evidence that the vehicle operated by Wood was not on Pate Road; it did not exclude the possibility that Wood, in Reeves’ rig, was there. The record is devoid of any evidence that he was elsewhere. Nor did Reeves show the vehicles driven by the three identified drivers were the only rigs being operated by Reeves in the area at the time in question. Although Reeves’ witnesses testified that white Mack trucks owned by others use Pate Road, Reeves did not show that other rigs fitting the description of those operated by it use Pate Road. The subject vehicle has not been positively identified as belonging to someone other than Reeves. The fact that Radford’s witnesses did not see the Reeves’ logo on the rig they observed only briefly does not exclude the possibility that it was a Reeves’ vehicle. A jury could find that Radford’s witnesses were not in a position to see the logo.

Decided April 21, 1997.

Before Judge McGarity.

Simpson, Gray & Cross, Ralph F. Simpson, for appellant.

Sims, Fleming & Spurlin, John C. Spurlin, for appellee.

The following rule applies: “ ‘A fact can be proved by circumstantial evidence as well as by direct proof, and physical facts and circumstances may be sufficient to authorize the jury to disbelieve the witnesses of a party and to thereby impeach them. [Cits.] . . . [Cit.]’ [Cit.]” Hubbard v. Cofer, 98 Ga. App. 565, 566 (1) (106 SE2d 358) (1958). Even assuming all of Reeves’ evidence is true, it does not eliminate its rigs and drivers from involvement.

Judgment reversed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A97A0377.
    GENTRY v. THE STATE.
    (485 SE2d 824)
   Judge Harold R. Banke.

After a jury convicted Kim Gentry of rape and kidnapping, the trial court imposed a life sentence plus 20 years. Following the denial of his amended motion for new trial, Gentry raises three errors.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Gentry no longer enjoys the presumption of innocence. Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996). Viewed in that light, the State’s evidence showed the following. As the victim waited alone on a rainy night for a MARTA bus to take her to work at Krystal’s, Gentry drove up and ordered her into his vehicle at gunpoint. Fearing for her safety, the victim complied with his command. After parking in a secluded area, Gentry forced her to have sexual intercourse, continuing to hold the gun during the entire time. At some point during the ordeal, the victim asked Gentry whether he had any sexually transmitted disease. Although Gentry responded in the negative, he is admittedly HIV positive and failed to use a condom.

After threatening to harm her father and her family if she revealed what he had done, Gentry dropped her off at the Krystal’s where she worked. When she exited the car, she immediately wrote down Gentry’s license tag number. The victim testified that she was too ashamed to report to work so she telephoned her boyfriend from a nearby service station, and eventually took a taxicab to his home. After arriving at her boyfriend’s residence, and on the advice of her family, she contacted police and proceeded to the hospital for a physical examination. Dr. Howard D. Sterne, an emergency room physician, prepared a rape kit. Sterne testified that the victim appeared very upset, tearful and frightened for her personal safety. The victim’s contemporaneous statements to an assisting nurse, Kathy Lloyd, corroborated the victim’s trial testimony.

Detective H. P. Brown, using the tag number written on the back of a MARTA schedule found on the floor of the taxicab, traced the tag to a vehicle belonging to Gentry’s mother. After interviewing Gentry’s mother, Brown went to Gentry’s residence and observed that Gentry appeared to match the victim’s description. At Brown’s request, Gentry voluntarily accompanied him to the police station to be photographed. Subsequently, from a photo array, the victim identified Gentry. Brown then arrested Gentry for rape, aggravated sodomy, and kidnapping. The victim identified several items found during a search of Gentry’s vehicle and residence including clothing worn by Gentry during the crimes, the BB gun Gentry used, and navy nylon material Gentry forced the victim to briefly place over her eyes.

A serologist with the State Crime Laboratory testified that the DNA obtained from the rape kit and the sperm found in the victim’s panties statistically matched Gentry’s blood. Evidence that Gentry pleaded guilty to attempted rape and possession of a knife during the commission of a crime was admitted as similar transaction evidence. Held:

1. Gentry contends that the trial court erred in allowing the State to introduce evidence of his bad character. During direct examination, Gentry asserted that the sexual activity at issue was consensual and that they had been dating for about two and one-half weeks. According to his version of events, “his date” had no problem with the sexual activity until a condom inadvertently broke. According to Gentry, when she expressed concern about becoming pregnant, he disclosed that he is HIV positive, whereupon she reacted hysterically. While still on direct, Gentry testified that her reaction scared him because he had just been released from prison and according to his parole stipulations, although he was not required to inform people he is HIV positive, he was required to practice safe sex.

Gentry further claimed that while on a prior dinner date with the victim, he had discussed various aspects of prison life with her. When asked by his counsel whether he informed her he had been imprisoned for attempted rape, Gentry stated, “I don’t never tell people I went to prison for attempted rape. I tell people I went to prison for arson.”

The State was entitled to cross-examine Gentry about his incarceration for arson because Gentry introduced that topic. Williams v. State, 263 Ga. 135,137 (5) (429 SE2d 512) (1993); Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). See Weston v. State, 216 Ga. App. 806 (456 SE2d 214) (1995). The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness. OCGA § 24-9-64; Sawyers v. State, 211 Ga. App. 668, 669-670 (4) (440 SE2d 256) (1994).

Gentry’s parole from the arson conviction was subject to five conditions. When Gentry falsely stated one parole condition by testifying that he was not required to notify partners that he is HIV positive, the State was entitled to rebut his testimony with State’s Exhibit 51, a one-page document entitled “Special Conditions of Parole for H.I.V.Infected Parolees,” showing that Gentry was obligated to disclose to all sex partners that he is HIV positive. Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988).

Gentry’s contention that the State’s inquiry into whether he engaged in unprotected sex with his wife was not preserved for appellate review because he failed to object to that questioning. Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991).

2. The trial court was not required to give a curative instruction regarding Gentry’s attempted assault on the prosecutor. During cross-examination, Gentry became upset with a question and retorted, “Now you better leave — you done made me mad. I done told you.” After the trial court advised him to calm down and recommended that he step down, Gentry continued, “I told you, man. You better leave me the f- - - alone, partner.” Gentry then came down from the witness stand and went after the prosecutor, saying, “I’m going to get you. I’m going to get you.” After deputies successfully interceded without resorting to any violence, the trial court cleared the courtroom. In denying Gentry’s motion for a mistrial, the court noted that the deputies handled the situation very professionally and that Gentry calmed down without any show of force.

Notwithstanding Gentry’s contention to the contrary, the nature of Gentry’s outburst did not warrant the grant of a new trial or prevent him from receiving a fair and impartial trial. See White v. State, 255 Ga. 210, 214 (9) (336 SE2d 777) (1985); Byrd v. State, 262 Ga. 426 (1) (420 SE2d 748) (1992). To hold otherwise would encourage defendants to engage in tactical courtroom outbursts. Under these circumstances, we find no abuse of the trial court’s discretion in denying the motion. Bell v. State, 203 Ga. App. 109, 110 (2) (416 SE2d 344) (1992). After denial of the mistrial motion, Gentry failed to request any curative instructions and thereby waived that issue. Hicks v. State, 232 Ga. 393, 402 (207 SE2d 30) (1974).

3. Gentry contends that he was deprived of effective assistance of counsel because his attorney failed to have the court produce two material witnesses and failed to object to questioning about his past sexual conduct. At the motion for new trial hearing, Gentry’s trial counsel attested that he subpoenaed those two defense witnesses but that they both were uncooperative and refused to answer his questions. When they failed to show up for trial, he decided not to have them arrested. One potential witness, in particular, was both hostile and not credible. Counsel explained that he elected not to object to the State’s inquiry into whether Gentry engaged in unprotected sex with his wife because Gentry had admitted to having unprotected sex with the victim.

In order to establish ineffectiveness of trial counsel, Gentry must show not only that his counsel’s performance was deficient, but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Moreover, counsel’s trial strategy and tactics do not equate with ineffective assistance of counsel. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992).

In light of the overwhelming evidence of guilt, Gentry failed to make the requisite showing of prejudice, even assuming arguendo that his counsel’s performance was somehow deficient. Trammel, 265 Ga. at 156 (1). The trial court’s finding that Gentry was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided April 22, 1997.

Before Judge Hunter.

Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.

       Although the victim believed the weapon was a nine millimeter pistol, it appears likely that the weapon was a BB gun.

       “No more than one in 10 billion persons in either the African-American or Caucasian population that would have the same banding pattern.. ..”


author: Blackburn, Judge. Johnson, Judge,

text:
    A97A0455.
    STOUT v. CINCINNATI INSURANCE COMPANY.
    (486 SE2d 195)
   Blackburn, Judge.

Elva Carolyn Stout appeals from the trial court’s dismissal of her uninsured motorist carrier, Cincinnati Insurance Company (Cincinnati), from her personal injury renewal action. For the reasons set forth below, we affirm the trial court’s decision.

On August 10,1992, Stout was injured in an automobile collision with a truck. On August 9, 1994, she filed suit against Albert Wolfe, the driver of the truck; Darica Trucking Company (Darica), Wolfe’s employer; and Heart of America Fire & Casualty Insurance Company (Heart), Darica’s insurer. Cincinnati, Stout’s uninsured motorist carrier, was not served with a copy of the summons and complaint in this action. See OCGA § 33-7-11 (d).

In January 1994, Heart’s risks and obligations under its policy with Darica were transferred to Commonwealth General Insurance Company (Commonwealth). However, Commonwealth subsequently became insolvent in September 1995. Stout then voluntarily dismissed her suit seven months later, without ever having attempted to serve Cincinnati with a copy of the summons and complaint. Three days later she filed a renewal action pursuant to OCGA § 9-2-61, and had Cincinnati served with a copy of this summons and complaint. Cincinnati answered the complaint, asserted the affirmative defense of the statute of limitation, and successfully moved for dismissal.

In order for a party to recover from her uninsured motorist carrier, OCGA § 33-7-11 (d) provides that the carrier must be served with “a copy of the action and all pleadings thereto ... as prescribed by law,” as if it were named a defendant in the action. Service must be accomplished “within the time allowed for valid service on the defendant in the tort action.” Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989). In this case, the statute of limitation for the only claim Stout asserted — personal injury — was two years, and Stout neither served nor attempted to serve Cincinnati within that two-year period as required by Bohannon, which we are constrained to follow. Her action against Cincinnati therefore cannot be maintained.

OCGA § 33-7-11 (d), as interpreted by our Supreme Court in Bohannon, makes available to the uninsured motorist carrier the statute of limitation defense available to the defendant. Bohannon recognized the fact that OCGA § 33-7-11 (d) fails to deal with the circumstance of an uninsured motorist carrier becoming insolvent subsequent to the date of the tort, but elected not to address same. It is possible for the statute of limitation to run before the date that the tortfeasor becomes an uninsured motorist.

The injustice of the effect of the Bohannon rule was recognized by Judge Johnson in Reid v. U S. Fidelity &c. Co., 223 Ga. App. 204, 207 (1) (477 SE2d 369) (1996) when in a similar case, he stated that “[fjact situations such as this cry out for legislative action, and, should such pleas produce no result, rethinking by the Supreme Court of the policy reflected in the cases regarding the applicability of the two-year statute of limitation.” The effect of Bohannon is to require every plaintiff, including those who never make an uninsured motorist claim, to serve their uninsured motorist carrier for their protection, even when the plaintiff cannot show that defendant meets the statutory definition of an uninsured motorist under OCGA § 33-7-11. If the plaintiff served the uninsured motorist carrier where the tortfeasor is not an uninsured motorist, the carrier would be entitled to summary judgment. OCGA § 9-11-56; Rabun v. Williams, 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983). The additional service cost to all of the plaintiffs who never seek uninsured motorist coverage and the expense to the uninsured motorist carriers who have to respond to all such cases is totally wasted and must of necessity result in higher insurance premiums for all Georgia drivers.

Where the carrier does not become insolvent or the defendant does not otherwise become uninsured until after the statute of limitation has run, the plaintiff is then barred from claiming benefits under plaintiff’s uninsured motorist policy because the statute of limitation had run prior to plaintiff being entitled to make a claim. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). Uninsured motorist coverage is designed to provide payment for all sums which the insured is legally entitled to recover as damages from the uninsured motorist. OCGA § 33-7-11; see State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 713 (177 SE2d 257) (1970). The holdings in Vaughn and Bohannon are inconsistent with the very purpose of uninsured motorist coverage, for which the plaintiff has paid a premium. Plaintiffs are therefore deprived of the benefit of their insurance contract without fault on their part.

The Supreme Court stated in Bohannon that “[i]t would be possible to formulate an exception for cases where . . . it is later determined that [liability] coverage does not apply. Such a rule might allow a plaintiff to serve process within a reasonable time after it is legally determined that the negligent motorist is uninsured. But, fashioning such a rule is a task that is better left to the legislature.” (Emphasis supplied.) Id. at 163. To date, the legislature has not acted, and certain plaintiffs and all who pay auto insurance premiums continue to suffer. For the benefit of all, I renew Judge Johnson’s call in Reid for the legislature or the Supreme Court to act to address the problems resulting from the existing uninsured motorist law and the cases interpreting same.

Stout contends that her service of Cincinnati in the renewal action brings Cincinnati into the case. This argument is without merit for two reasons. OCGA § 33-7-11 and the holding in Bohannon require that the uninsured motorist carrier be served within two years under the facts of this case. Inasmuch as Cincinnati was not served in the original action and has never been served within the statute of limitation, the renewal statute may not be used to add Cincinnati to the case, approximately one and one-half years after the statute of limitation has expired. OCGA § 9-2-61; see Acree v. Knab, 180 Ga. App. 174, 175 (348 SE2d 716) (1986); see also Ludi v. Van Metre, 221 Ga. App. 479, 481 (3) (471 SE2d 913) (1996) (valid first action with proper service on defendant a prerequisite to a renewal action).

The cases Stout cites in support of her position do not demand a different result. Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836 (462 SE2d 713) (1995), does not deal with the renewal statute which is at issue in this case. She also relies upon Reid, supra, but Reid is distinguishable. In that case, the plaintiff actually served her uninsured motorist carrier in her first action prior to dismissing it and refiling it as a renewal action. Unlike the present case, the original action in Reid was therefore merely voidable at the time of its dismissal. Reid therefore does not control the outcome of this case, and the trial court properly granted Cincinnati’s motion to dismiss. I also fully concur with the special concurrence.

Judgment affirmed.

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

Johnson, Judge,

concurring specially.

Because of the decisions of the Supreme Court in Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976) and Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989), cited by the majority, I agree that we are constrained to affirm the trial court’s dismissal of Cincinnati in this case. I fully agree with Judge Blackburn’s lament regarding the unfairness of this situation, and ' have expressed almost identical sentiments in Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204 (477 SE2d 369) (1996), also cited but distinguished by the majority. I fully concur in the majority opinion, which calls for a re-examination of the Bohannon rule. I write separately to repeat my plea in Reid. I implore the Supreme Court and/or the legislature to re-examine the Bohannon rule.

The statutory scheme for uninsured motorist coverage reflects a public policy designed to assure that the uninsured motorist carrier enjoys the same rights and defenses, as to the tort claims, as the uninsured motorist. One cannot seriously quarrel with the wisdom of such a public policy. In my view, however, the Bohannon decision actually places the uninsured motorist carrier in a superior position to the uninsured motorists/defendants in situations such as presented by the facts of this case, where a defendant was insured at the time the action was commenced but became uninsured during the pendency of the action but after the two-year statute of limitation had expired. The uninsured motorist/defendant is still in the case and exposed, while the carrier has been released from the very exposure it contracted to assume. In effect, therefore Bohannon has deprived the insured of the benefits of the contract of insurance and given the carrier a windfall.

As Justice Weltner stated in his dissent in Bohannon, “[t]he rule should be that a policyholder must perfect service upon the uninsured motorist carrier as soon as reasonably possible after becoming aware, by whatever means, that there is a substantive doubt as to the existence of adequate insurance coverage of an event that might become the subject of an uninsured motorist claim.” Id. at 163 (3). His explanation in subsequent paragraphs of the dissent eloquently demonstrates that such a rule is both workable and would satisfy the public policy concerns addressed by the statute and decisions seeking to assure that the carrier has the same standing in the action as the uninsured motorist.

The decision in Bohannon recognizes the problem, but states that “fashioning such a rule” allowing service upon the insurer within a reasonable time after it is determined that the defendant is uninsured is “a task that is better left to the legislature.” I must agree with Justice Weltner’s dissent, which disagrees with the proposition that the General Assembly is the only source of relief for a policyholder who learns only after the expiration of the appropriate period of limitation that a tortfeasor is, or may be, an uninsured motorist. After all, it was the courts, not the legislature, who created the problem we now confront by their interpretation of OCGA § 33-7-11 (d) (formerly Code Ann. § 56-407.1 (d)). Furthermore, a great period of time has elapsed since Bohannon suggested a legislative solution, and the General Assembly has not seen fit to address the issue. I believe it to be within the proper scope of judicial authority to correct this situation and place the risk of injury by an uninsured motorist exactly where the policyholder, by the payment of a premium, and the carrier, by the issuance of a policy of insurance, have contracted it to be — that is, on the carrier, as Justice Weltner long ago suggested.

Decided April 22, 1997

Before Judge Mulherin.

Jolles & Slaby, Isaac S. Jolles, Richard A. Slaby, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, Scott W. Kelly, for appellee.

I am authorized to state that Presiding Judge Pope and Judge Blackburn join in this special concurrence.


author: Johnson, Judge.

text:
    A96A2413.
    O’NEAL v. THE STATE.
    (482 SE2d 478)
   Johnson, Judge.

Buster O’Neal appeals his conviction for possession of cocaine with intent to distribute. Among his enumerations, he claims the trial court erred in granting the state’s challenge to his use of peremptory strikes against white jurors. See Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992); Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Recent decisions of the United States Supreme Court and the Supreme Court of Georgia interpreting Batson require us to reverse the conviction.

1. O’Neal asserts the court erred in upholding the state’s objection to peremptory strikes he used against two white prospective jurors. O’Neal, who is African-American, used ten of twelve peremptory strikes against white panelists. The trial court analyzed the state’s challenge to these strikes by requiring O’Neal to explain his strikes. Then, in one step, the trial court determined both the neutrality and credibility of O’Neal’s proffered reasons for his peremptory strikes.

In earlier cases, the approach used by the trial court was tacitly approved by the appellate courts of this state. See McKibbons v. State, 216 Ga. App. 389, 390 (1) (455 SE2d 293) (1995). In Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995), however, the Supreme Court of Georgia specifically disapproved of the method this and many other trial courts had used for analyzing a Batson or McCollum challenge. The Court held that Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995) requires the trial court to establish, on the record, that it has applied a three-part test to a party’s claim of discrimination in the use of peremptory strikes. First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and non-discriminatory on its face, but “is not required to enunciate ‘an explanation that is persuasive, or even plausible.’” Jackson, supra at 898 (2), quoting Purkett. The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party. Jackson, supra at 899. See also Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

In this case, after the state challenged O’Neal’s strikes, the trial court properly required O’Neal to give race-neutral explanations for those strikes. Therefore, whether the state made out a prima facie case of discrimination is a moot issue. See Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).

The court accepted as race-neutral all but two of O’Neal’s explanations. Regarding those two panelists, O’Neal explained he struck one white male venireman because he was retired from Southern Bell, his eyes were wandering around the courtroom, he appeared to have a “lackadaisical” attitude, and his wife worked at a church daycare center. A second white panel member was excused because she was retired from an Air Force base, was divorced, and knew another prospective juror. O’Neal added that he felt both these panelists displayed “an attitude” toward him. The court reseated these panelists on the jury.

The trial transcript and the trial court’s order on O’Neal’s motion for new trial show the court did not accept as race-neutral O’Neal’s proffered reasons for striking these jurors. As we are bound by Purkett and Jackson, we must find the court erred in refusing to do so. A strike based on a party’s employment status or marital status is not, on its face, racially discriminatory. Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995) (employment status); Smith v. State, 264 Ga. 449, 452 (3) (448 SE2d 179) (1994) (marital status). Neither is a strike based on a party’s belief that a venire member displays a hostile attitude. Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996). Under Purkett, supra, 131 LE2d at 839, to reject as not race-neutral even a fanciful or implausible reason, when it is indeed race-neutral on its face, improperly shifts the burden of proof to the proponent of the strike. See Jackson, supra; Chandler, supra at 510 (2).

As established by Jackson, the proper procedure for a trial court to follow in analyzing a party’s reason for its peremptory strike is to accept the strike if it is facially neutral, then require the opponent of the strike to prove that the proffered reason is merely a pretext for discrimination. In this case, the trial court simply ruled that O’Neal’s proffered reasons were not race-neutral. Its ruling indicates the trial court likely combined steps two and three of the test and found the reasons given were pretextual. However, Jackson dictates that the trial court must engage in the three-part analysis and abide by the shifting burdens of proof set forth in Purkett. To combine the steps, the Court has held, improperly shifts the ultimate burden of proof to the striking party. Jackson, supra at 898-899. The record in this case does not clearly establish that the trial court applied each prong of the three-part test. Under these circumstances, the Supreme Court of Georgia has concluded that the jury including the two reseated jurors was illegal, and O’Neal’s conviction must be reversed and this matter remanded for a new trial. See Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997); Cooper v. State, 220 Ga. App. 531, 533 (469 SE2d 790) (1996).

Decided February 25, 1997

Reconsideration dismissed April 23, 1997.

Before Judge Wilcox.

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

Buster O’Neal, Jr., pro se.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Laura D. Hogue, Assistant District Attorneys, for appellee.

2. Because the issue may arise on retrial, we consider O’Neal’s claim that the court erroneously admitted “similar transactions” evidence of a 1992 incident for which O’Neal was convicted of possession of cocaine with intent to distribute.

The state produced evidence showing that in August 1992, O’Neal was confronted by police outside the same apartment complex involved in this case. He fled. Police chased him into an apartment, where he unsuccessfully attempted to flush 42 small plastic bags of crack cocaine down the toilet. In this case, O’Neal allegedly fled from police and threw a bag containing 81 rocks of crack cocaine into the air. An officer involved in the 1992 arrest testified the cocaine seized in the two incidents was similarly packaged. These two incidents are sufficiently similar to authorize the trial court to admit evidence of the earlier incident to show O’Neal’s motive and intent. See Okongwu v. State, 220 Ga. App. 59, 63-64 (4) (467 SE2d 368) (1996); Wells v. State, 212 Ga. App. 60, 65 (4) (441 SE2d 460) (1994).

3. In light of our holding in Division 1, we need not address O’Neal’s remaining enumerations of error.

Judgment reversed and remanded for new trial.

Ruffin, J., concurs. McMurray, P. J., concurs in judgment only.


author: Blackburn, Judge.

text:
    A97A0098.
    LEEKS v. THE STATE.
    (483 SE2d 691)
   Blackburn, Judge.

David Leeks appeals his convictions for armed robbery and aggravated assault, crimes he committed at the age of 16. His challenges to the sufficiency of the evidence and to the superior court’s jurisdiction over his aggravated assault charge are without merit. However, because the trial court failed to analyze his peremptory strike of a white juror under the standard set forth in Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995), we reverse his conviction for a new trial.

1. Leeks contends the evidence was not sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences drawn, and all issues of weight and credibility resolved, in favor of the verdict. Id. at 319; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). We do not address his allegations concerning the weight of the evidence, as those are properly directed to the trial court alone. Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988). The appellate court does not have the same discretion as does the trial court in approving a verdict. Only in the absence of evidence to support the verdict may the appellate court set aside a verdict approved by the trial court. OCGA § 5-5-21; Gledhill v. Brown, 44 Ga. App. 670 (162 SE 824) (1932).

The evidence allowed the jury to determine that on December 12, 1994, Leeks and another individual entered without permission an apartment occupied by the victim. Leeks’ companion demanded money from the victim, and Leeks pulled a gun and threatened to shoot the victim. The victim and Leeks’ accomplice began fighting, after which Leeks shot the victim in the wrist. The victim testified that personal property including his wallet containing $40, as well as his car keys, were taken from him by Leeks’ associate. This evidence, construed in a light most favorable to the verdict, more than sufficiently supports the conclusion that Leeks either directly committed or was a party to the crimes of aggravated assault and armed robbery. Jackson v. Virginia, supra; see OCGA § 16-2-20 (parties to a crime).

2. In his second enumeration, Leeks contends that because he was a juvenile at the time of these offenses, the superior court lacked jurisdiction to convict him of aggravated assault. Although Leeks acknowledges the superior court’s jurisdiction over a juvenile charged with armed robbery pursuant to OCGA § 15-11-5 (b) (2) (A), he claims the superior court’s jurisdiction does not extend to the aggravated assault charge because this offense is not one of the felorúes designated in that statute. The Supreme Court rejected this same argument in Reynolds v. State, 266 Ga. 235, 236 (2) (466 SE2d 218) (1996), in which it held the superior court’s jurisdiction over felonies designated in OCGA § 15-11-5 (b) (2) (A) extends to offenses committed as “part of the same criminal transaction as the two greater offenses.” As the aggravated assault in this case was committed as part of the same criminal transaction as the greater offense of armed robbery, this enumeration of error is without merit.

3. The trial court erred, however, in upholding the State’s challenge to Leeks’ peremptory strike of juror no. 4, a white male. Leeks is black. “To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory [or gender-biased] manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of. . . discrimination; the burden of production shifts to the proponent of the strike to give a race- [and gender-]neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

The State challenged Leeks’ use of peremptory strikes against ten whites, and the trial court accepted as race- and gender-neutral each explanation Leeks’ attorney gave for nine of those strikes. Therefore, we need not determine whether the State made a prima facie case of discrimination, as that issue is moot. See Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993) (once trial court requires proponent of strike to give neutral explanations, preliminary issue of prima facie case becomes moot).

With regard to juror no. 4, Leeks’ attorney explained that his co-counsel had seen juror no. 1, a white female real estate agent, give a business card to juror no. 4 and stated he believed “they were possibly having a business-type connection there, and I didn’t want them on the jury together. We accepted [juror no. 1] and didn’t care for the other.” The trial court ruled, “The court does not accept the explanation for juror number 4” and placed this juror back on the panel.

The explanation Leeks’ attorney gave for striking juror no. 4 was, on its face, neutral as to both race and gender. The explanation expressed concern that a potential business relationship between two jurors might influence the jurors’ ability to deliberate impartially. After Leeks’ attorney offered this race- and gender-neutral explanation, the trial court was bound to accept the explanation. See Chandler, supra, and Purkett, supra. “[T]he proponent of the strike is not required to enunciate an explanation that is persuasive, or even plausible,” and the trial court therefore erred in rejecting Leeks’ attorney’s explanation. (Punctuation omitted.) Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995), citing Purkett, supra.

Decided March 6, 1997.

Before Judge Tusan.

J. Robert Joiner, for appellant.

The trial court may have determined, prematurely, that the attorney’s explanation was pretextual. In fact, it appears the trial court may have questioned the credibility of the explanation Leeks gave for striking juror no. 4. But as the Supreme Court stated in Jackson, “[assuming the trial court recognized [Leeks’] explanation as being facially race [and gender] neutral, but refused to accept it as race [and gender] neutral because it concluded that the explanation was pretextual, the court misapplied Batson jurisprudence. Only after the opponent of a strike establishes a prima facie case of racial [or gender] discrimination (step one), and the proponent thereof tenders a race [or gender] neutral explanation (step two), should the trial court evaluate the persuasiveness of the justification for exercising the strike and determine ‘whether the opponent of the strike has carried his burden of proving purposeful discrimination’ (step three). [Cit.]” Id. at 899.

As the Jackson court held, the Purkett analysis requires the trial court to accept the given explanation so long as it is not itself discriminatory. Id. at 899. A trial court may not simply reject the explanation on grounds that it is not credible or that it is whimsical. Rather, it must accept the explanation if it is facially neutral, then determine whether the challenger can carry his burden of showing the given explanation is merely pretext for discrimination. Id. “Essentially, the trial court prematurely evaluated the persuasiveness of [Leeks’] explanation, thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike.” Id.; see also Cooper v. State, 220 Ga. App. 531, 533 (469 SE2d 790) (1996). As in Jackson, we must therefore find the trial court’s ruling clearly erroneous. In this regard, see also Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997); O’Neal v. State, 226 Ga. App. 224 (482 SE2d 478) (1997). Because the court’s ruling “forced [Leeks] to trial with an illegally constituted jury,” this case is reversed for a new trial. Jackson, supra at 900; Cooper, supra at 533.

Judgment reversed.

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

Lewis R. Slaton, District Attorney, Jamie L. Mack, John C. Culp, Assistant District Attorneys, for appellee.

       As Presiding Judge Pope noted in his special concurrence to Parker v. State, 219 Ga. App. 361, 364 (464 SE2d 910) (1995), it appears Purkett partially overruled Batson v. Kentucky, 476 U. S. 79, 98, n. 20 (106 SC 1712, 90 LE2d 69) (1986), which required explanations for peremptory challenges to be clear, reasonably specific, and related to the case at hand.


text:
    A97A0615.
    GILBERT v. THE STATE.
    (486 SE2d 48)
   Blackburn, Judge.

Sammy Lee Gilbert, Jr., appeals his conviction for possession of cocaine with intent to distribute. During jury selection, Gilbert, a member of race group “B,” utilized the majority of his peremptory strikes to remove individuals of another race from the jury. Gilbert contends the trial court erred when it ruled that two of Gilbert’s strikes were not supported by race-neutral reasons and when it placed the burden upon him to prove that his reasons for striking the jurors were not racially discriminatory. We agree and reverse.

“[T]he equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges.” Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996), citing Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). In order to evaluate whether or not a defendant exercised his peremptory challenges in a racially discriminatory fashion, “the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Punctuation and footnotes omitted.) Chandler, supra at 510.

Following jury selection, the State informed the court that Gilbert had used the majority of his strikes “to strike panel members of [another] race.” The State asked the court to find that a prima facie case of racially discriminatory use of peremptory strikes had been made and to “explore the reasons for the [d]efense strikes.” The court found that a prima facie case had been made and noted that of a jury panel containing twenty-three members of race “A” and seventeen members of race “B,” eight members of race “B” and four members of race “A” had been selected to sit on the jury. Of Gilbert’s nine peremptory strikes, eight were exercised against race “A” members.

Gilbert explained his reasons for exercising his peremptory strikes, and the court accepted his explanations for seven of the strikes as race-neutral. The court rejected, however, Gilbert’s explanations for striking two male members of race “A,” juror nos. 21 and 22. Gilbert asserted that he struck juror no. 21 because the juror worked for a particular business. Defense counsel had experienced “several run-ins” with this business and feared that because of those run-ins, juror no. 21 “may have heard of my name.” Gilbert explained that he struck juror no. 22 because he worked at the post office, and his wife worked for a bank. Between either the post office or the bank, defense counsel felt like he had seen the juror before, although the juror denied knowing defense counsel. After rejecting Gilbert’s explanations, the court reseated both jurors. Gilbert excepted on the record and stated that he had exercised these two strikes because defense counsel may or may not have had personal conflicts with juror nos. 21 and 22.

“[Although the proponent of the strike must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges, what is meant by a legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.” (Citations and punctuation omitted.) Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995), citing Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 1771, 131 LE2d 834) (1995), and Batson v. Kentucky, 476 U. S. 79, 98 (106 SC 1712, 90 LE2d 69) (1986). “[A race-]neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.” (Punctuation omitted.) Jackson, supra at 898, citing Hernandez v. New York, 500 U. S. 352, 360 (111 SC 1859, 114 LE2d 395) (1991) (majority opinion).

To the extent that Gilbert suggested that he struck the jurors because of their employment, “[a] strike based on a party’s employment status ... is not, on its face, racially discriminatory.” O’Neal v. State, 226 Ga. App. 224, 225 (482 SE2d 478) (1997), citing Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995). Gilbert’s other reason for striking the jurors, that defense counsel felt that he knew the jurors and may have had personal conflicts with them, is not inherently discriminatory or based upon the race of either juror. Cf. White v. State, 154 Ga. App. 527, 528 (268 SE2d 790) (1980) (exercise of a peremptory strike by State allowed after juror acknowledged knowing defense counsel). “We must keep in mind that the reasonable suspicion of a juror’s impartiality that prompts the exercise of a peremptory challenge need not rise to the level of justifying the removal of a venireman for cause.” Turner v. State, 267 Ga. 149, 152 (476 SE2d 252) (1996). Therefore, contrary to the court’s finding, Gilbert did offer race neutral reasons for striking juror nos. 21 and 22.

Decided March 25, 1997.

Before Judge Wilcox.

Lester M. Miller, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

It is not entirely clear from the record whether the trial court combined steps two and three of the procedure set forth in Chandler v. State, supra, or merely terminated the procedure at step two after finding that Gilbert had not offered race-neutral reasons for his strikes. It is clear from the facts of this case that the court should have found Gilbert’s reasons race-neutral, and then shifted the burden at that point to the State to prove that the two strikes were racially motivated. As stated in Chandler, the burden of proving that a peremptory strike was exercised for racial reasons rests with the opponent of the strike, not its proponent, and at step three, the burden goes back to the opponent to prove that the strike was racially discriminatory. Chandler, supra at 510. If in fact the court did combine steps two and three of the process, in so doing, it improperly placed this burden upon Gilbert.

“In these matters, the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous. However, here the trial court’s finding was clearly erroneous, and forced [Gilbert] to trial with an illegally constituted jury.” (Citation omitted.) Jackson, supra at 900. Gilbert is therefore entitled to a new trial.

Judgment reversed.

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

       Several recent decisions of this Court address race-neutrality and strikes. See Malone

        v. State, 225 Ga. App. 315 (484 SE2d 6) (1997) (reversing a conviction where reasons given for strikes were race-neutral); O’Neal v. State, supra (jurors’ employment status, marital status, and hostile attitudes are race-neutral reasons for strikes); Leeks v. State, 226 Ga. App. 227 (483 SE2d 691) (1997) (potential business relationship between prospective jurors a race-neutral reason to strike).

       In O’Neal v. State, supra, we noted that the trial court had likely combined steps two and three of the Chandler analysis and disapproved such combination.


text:
    A97A0765.
    CREWS v. THE STATE.
    (486 SE2d 61)
   Blackburn, Judge.

Russell Eugene Crews appeals his conviction of possession of cocaine. He alleges that he received ineffective assistance of counsel, that the State failed to provide him with notice of his custodial statement, and that the State impermissibly placed his character in evidence. He also contends that the trial court erred in failing to charge the jury on his sole defense, in improperly commenting on the evidence, and in expanding the scope of the indictment in the charge to the jury. Crews further claims the prosecutor made two improper comments during closing argument and asserts he was not represented by counsel at all critical stages of his trial. For the reasons set forth below, we affirm.

1. Crews alleges he received ineffective assistance of arraignment counsel, because his attorney failed to file a motion to suppress a crack pipe found in a search of Crews’ truck.

The facts show that Crews and another individual, Billy Stoe, had a fight at the home of Crews’ girl friend after Crews discovered Stoe in bed with the girl friend. The police were called, and upon investigation, Crews was arrested and charged in connection with the fight. Cocaine was discovered during the pat-down search incident to his arrest. The police had also been advised by radio dispatch that a weapon was involved in the fight. When no weapon was discovered on Crews’ person, police asked for and received Crews’ consent to search his truck, which was parked on the premises. The crack pipe Crews contends should have been suppressed was discovered during this search.

“To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” (Citation and punctuation omitted.) Stanley v. State, 222 Ga. App. 750 (476 SE2d 58) (1996).

The record shows that Crews’ counsel did not render ineffective assistance. At trial, the court acknowledged that the testimony supported a consent search, and the uncontradicted evidence shows that Crews consented to the search. He therefore could not have prevailed on a motion to suppress. See State v. Gilman, 218 Ga. App. 895, 898 (463 SE2d 720) (1995) (error to grant motion to suppress where, inter alia, it is uncontradicted that defendant consented to search). In light of this evidence, a motion to suppress would have been meritless, and Crews’ arraignment counsel was therefore not ineffective for failing to file such motion.

2. Crews contends his conviction must be reversed due to the State’s failure to provide him with notice of his custodial statement. The statement consists of his admission to police, given in conjunction with his consent to search, that he owned the truck. Crews claims he was harmed by the State’s failure to provide him with this statement of ownership because his defense at trial was that the cocaine belonged to someone else, and evidence of his possession of the truck linked him with the crack pipe discovered in the truck.

The transcript shows that the custodial statement was admitted into evidence when one of the arresting officers testified, “[We] confirmed with Mr. Crews that that was his truck. ... I said, do you mind if I search the truck. He said, no, sir, I do not.” The State claimed it was unaware that Crews had told the officers he owned the truck, and Crews moved for a mistrial. Expressing doubt that the statement was incriminating or inculpatory, the trial court overruled the motion.

“[R]eversal is not required when the State fails to disclose a defendant’s statement which on its face is not directly incriminating or inculpatory but becomes so only as a result of a defense theory developed at trial. In other words, if the statement is not per se inculpatory or incriminating, the failure of the State to divulge the statement to defendant prior to trial does not constitute reversible error.” Dawson v. State, 203 Ga. App. 146, 147 (1) (416 SE2d 125) (1992) (officer’s testimony that defendant stated he did not know rape victim, where defense at trial was consent, was not inculpatory on its face, making State’s failure to disclose statement to defendant not reversible error).

Crews’ statement that he owned the truck was not per se inculpatory or incriminating and was relevant to his consent to search. Under Dawson, the fact that Crews owned the truck, while perhaps inconsistent with his defense theory that the cocaine belonged to someone else, does not require reversal. Moreover, both Crews and his counsel knew he owned the truck, that he had consented to its search, and that this evidence would be presented at trial. He therefore suffered no surprise. Accordingly, under Dawson, supra, there was no reversible error in the State’s failure to disclose Crews’ statement, and this enumeration is without merit.

3. Claiming that the State improperly placed his character in evidence, Crews contends his conviction must be reversed. Crews argues that evidence adduced during the State’s cross-examination of the victim of the fight, Billy Stoe, was harmful. The State impeached Stoe’s trial testimony with a statement he had given to police, in which he claimed that Crews had a gun and threatened to shoot him. He also testified that Crews threatened to kill him and came after him with a knife. According to Stoe, “all hell broke loose” during the fight, and Crews bit Stoe’s ear so severely an ambulance was called. Crews contends that because all of these events took place prior to the arrival of the police and the discovery of the cocaine, details of the fight impermissibly placed his character in evidence.

We cannot agree. During the State’s case, Crews had admitted into evidence a tape recording of his preliminary hearing. The tape was played in its entirety without objection. On the tape, one of the arresting officers gave a fully detailed description of the fight, including most, if not all, of the evidence Crews now contests. “At most, the testimony objected to would be only cumulative of the other testimony. . . . Evidence is harmless where admissible evidence of the same fact is before the jury.” (Citation and punctuation omitted.) Maher v. State, 216 Ga. App. 666, 667 (1) (455 SE2d 377) (1995).

Additionally, “[slurrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense. The fact that such part of the res gestae incidentally placed [Crews’] character in issue does not render it inadmissible. A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Roberts v. State, 221 Ga. App. 196, 197-198 (2) (471 SE2d 27) (1996).

The fight at issue gave rise to Crews’ arrest, and the arrest revealed the cocaine. The trial court’s finding that Stoe’s statements to police regarding the fight were admissible as res gestae testimony was not clearly erroneous.

4. Crews’ sole defense at trial was that the cocaine belonged to another individual, Tommy Sheppard. He enumerates as error the trial court’s failure to charge his timely written request regarding this sole defense.

The following is the charge which the trial court rejected: “Evidence was presented at trial that Mr. Tommy Sheppard, and not Mr. Russell Crews, was the person who threw to the ground the drugs in question. As such, the drugs in question were shown to be in the possession of Mr. Tommy Sheppard and not Mr. Russell Crews at the time of the incident. If you the jury believe that the drugs belonged to Mr. Tommy Sheppard, then you must in the interest of justice and humanity, find Mr. Russell Crews not guilty.”

The trial court did not err in failing to give this charge. “[A] trial court’s charge should contain no such summary of the evidence as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon. Accordingly, a trial court is not required, even after request, to specifically point out particular evidence in behalf of the defendants which the jury should specially consider.” (Citations and punctuation omitted.) Chester v. State, 267 Ga. 9, 12 (2) (471 SE2d 836) (1996). Because the court charged the jury on the definition of possession, Crews’ sole defense did not go uncharged, and this enumeration is without merit.

5. Crews claims the district attorney made improper comments during his closing argument and improperly bolstered the credibility of his witnesses.

(a) During closing argument, the district attorney commented on Crews’ failure to call Tommy Sheppard as a witness, the individual who Crews claimed had exclusive possession of the cocaine. Crews claims this comment was reversible error because the district attorney knew Sheppard was an unavailable witness. According to Crews, the district attorney had searched for Sheppard in an attempt to call him as a witness, but was unable to locate him.

Crews’ assertions regarding the district attorney’s knowledge of Sheppard’s whereabouts misstate the record. The district attorney stated that he did not know who Sheppard was, and he had never tried to locate Sheppard. Additionally, Crews’ argument that the district attorney’s comment was improper is erroneous. “[T]he prosecution in its closing argument [is permitted] to urge the jury to draw reasonable deductions from a defendant’s failure to produce purportedly favorable witnesses.” (Footnote omitted.) Sinkfield, v. State, 266 Ga. 726, 728 (5) (470 SE2d 649) (1996). This is so even where, as here, the defendant is unable to locate corroborating witnesses. Id.

(b) During closing argument, the district attorney stated, “What reason does Sergeant Frederick have for coming up here and lying to you? What reason would he have for making this up? . . . Twenty or 25 years of experience these two officers have, and they are going to risk their whole entire careers to come out here and to lie against Mr. Crews?” Crews’ objection to this statement was overruled, and he now argues the district attorney’s argument improperly bolstered the officers’ credibility.

“A prosecutor is permitted to argue inferences from the evidence, even if such inferences are remote, illogical or unreasonable. . . . The probability or improbability of the police officer’s testimony, as well as his interest or want of interest and personal credibility, could also properly be considered by the jury. OCGA § 24-4-4.” (Citations and punctuation omitted.) Abernathy v. State, 192 Ga. App. 355, 356 (385 SE2d 25) (1989) (prosecutor’s comment that officer would not testify and risk perjury prosecution unless he were telling the truth not “so improper as to require a mistrial”). The district attorney’s argument was therefore not improper.

Furthermore, Crews did not move for a mistrial and did not request any curative instruction from the court. Nonetheless, in its charge to the jury, the court instructed the jury that the attorneys’ closing arguments were not evidence. We find no reversible error.

6. Crews claims the trial court improperly commented on the evidence during the State’s closing argument. The record indicates that although Tommy Sheppard was not called as a witness at trial, Sheppard’s statements that the cocaine belonged to him were admitted through the testimony of Billy Stoe. In closing argument, the district attorney stated that Sheppard’s comments to Stoe were complete hearsay. Crews objected and argued that Sheppard’s statements were admissible and were not hearsay. The court responded, “I’m going to overrule the objection. I admitted that under an exception to the hearsay rule, but it’s still hearsay.” Crews argues this statement was an improper comment on the evidence, as it reflected unfavorably upon Stoe’s testimony.

It is well settled that “[r]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence” as contemplated by OCGA § 17-8-57. (Citation and punctuation omitted.) Stubbs v. State, 220 Ga. App. 106, 109 (4) (469 SE2d 229) (1996). Here, the trial court was clearly assigning a reason for its ruling. Additionally, in its charge to the jury, the court instructed that by none of its rulings or comments had it intended to express any opinion as to the facts, the credibility of the witnesses, the evidence, or the defendant’s guilt. Crews’ contention is accordingly without merit.

7. The trial court charged the jury on possession, including actual, constructive, sole, and joint possession. Crews argues that by charging sole and joint possession, the court impermissibly expanded the indictment.

The indictment in this case charged Crews with possession of cocaine, without specifying in what manner Crews possessed the cocaine. At trial, evidence was introduced that Crews and Tommy Sheppard had purchased the cocaine sometime before the fight, that the cocaine had fallen from Crews’ shorts upon being searched at the time of arrest, and that the cocaine was dropped by Tommy Sheppard, who claimed to own it.

“If two or more persons shared actual or constructive possession of a thing, possession is joint. Possession can be proven by circumstantial as well as direct evidence. All of the competent evidence adduced at trial, which was admissible against appellant, may be considered to show his . . . joint possession.” (Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451, 453 (4) (a) (436 SE2d 562) (1993). The evidence that Crews and Sheppard purchased the cocaine together supports the charge on joint possession, and as the indictment did not specify what type of possession Crews had, the court’s charge on joint possession did not impermissibly expand the indictment.

Decided April 16, 1997

Reconsideration denied April 23, 1997.

Before Judge Simmons.

Wolfe & Steel, Brian Steel, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

8. Because the trial court refused to permit Crews’ trial counsel to add his name to the indictment before sending it out with the jury, Crews contends he was prevented from being represented by counsel at all critical stages of his trial. The indictment contained only the name of Crews’ arraignment counsel.

The indictment itself is neither evidence nor implication of guilt, regardless of the presence or absence of counsel’s signature. Furthermore, the jury was instructed that the indictment was not evidence. The record indicates that Crews was represented by counsel at all critical stages of his trial, including jury deliberation and the pronouncement of the verdict. This argument is therefore without merit.

Judgment affirmed.

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

       After arraignment, Crews employed new counsel to represent him at trial.

       Because Stoe testified the cocaine belonged to another individual, he was called as a witness for the defense.

       Crews failed to separately enumerate his contention that the court’s recharge on possession, given in response to the jury’s request, impermissibly expanded the indictment. We therefore need not consider this argument, see White v. State, 221 Ga. App. 860, 861 (473 SE2d 539) (1996), but for the reasons cited above, we find it to be without merit.


author: Eldridge, Judge.

text:
    A97A0867.
    BROWN v. THE STATE.
    (486 SE2d 385)
   Eldridge, Judge.

Appellant James Brown was indicted for the offenses of aggravated child molestation, statutory rape, and child molestation. A Fulton County jury found appellant guilty on both counts of molestation as charged; he was acquitted on the statutory rape count. Brown appeals, and we affirm.

1. Appellant first raises a claim of ineffective assistance of counsel. He argues that his trial attorney failed to introduce and properly utilize certain medical records wherein the victim made what appellant characterizes as prior inconsistent statements concerning the incident. Appellant asserts that the victim’s prior statements to medical personnel that appellant “did it rough,” that he “put his thing in my privacy,” and that he “put his ‘dingaling’ ... in her privates,” were contradicted both by the doctors’ examination of the victim showing no evidence of bruising or penetration, and by the victim’s own testimony at trial that appellant did not penetrate her vagina. Thus, appellant argues that his attorney’s failure to use the medical records to impeach the victim denied appellant his Sixth Amendment right to effective assistance of counsel.

We have examined the medical records to which appellant refers, as well as the trial testimony of the victim, and find no error in trial counsel’s failure to use the records.

As to the victim’s statement in the medical records that appellant “did it rough,” the appellant’s molestation of the victim occurred some five to six months prior to the ■ examination, thereby making negligible the lack of physical evidence supporting the victim’s statement regarding appellant’s “rough” treatment of her. Further, the victim’s statement in the medical records was consistent with her trial testimony that the appellant had “hurt [her] really bad.”

As to the victim’s statements regarding penetration, a review of the transcript makes it quite plain that the victim, six years old at the time of the incident and twelve years old at the time of trial, was unclear about what act constitutes an act of penetration. The victim testified at trial alternately that appellant “had inserted his privacy into [her] privacy”; that he “put his penis in [her]”; that he was “unable” to penetrate her; and that he was unable to do so “all the way.” These inconsistencies were put before the jury, and the victim’s statements in the medical records added nothing new to her already conflicting trial testimony. Further, appellant was acquitted of the rape charge to which the issue of penetration speaks. Thus, the medical records were, in fact, unnecessary in order to disprove that offense, and would have added nothing exculpatory concerning the additional charges against the appellant, which charges contained allegations of oral sodomy and of “placing [appellant’s] sex organ upon and against” that of the victim.

A defendant must meet two tests in order to prevail on his ineffective assistance of counsel claim: (1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; and (2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, i.e., “one whose results were reliable.” Owens v. State, 207 Ga. App. 153, 154 (427 SE2d 529) (1993); Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). As the medical records to which appellant refers had neither exculpatory value nor additional impeachment value, the failure to utilize these records does not demonstrate error or prejudice so as to serve as a basis for a successful claim of ineffective assistance of counsel. Accordingly, appellant’s allegations fail.

Decided April 10, 1997

Reconsideration denied April 23, 1997

Before Judge Russell.

Megan C. DeVorsey, Steven E. Phillips, for appellant.

Lewis R. Slaton, District Attorney, Clinton K. Rucker, Assistant District Attorney, for appellee.

2. Appellant contends that the trial court committed reversible error by failing to allow appellant to comment in closing argument on the state’s failure to call witnesses. However, that portion of the defense closing argument which has been cited to this Court as forming the basis for this alleged error is one in which defense counsel specifically denied an intent to comment on the non-production of witnesses; counsel, instead, stated that his intent was to comment “on the fact that the only three witnesses we have heard from were children at the time of this alleged incident.” Counsel was permitted to make this argument. There was no error.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Appellant also argues to this Court that three specifically identified portions of the prosecutor’s closing argument were improper and that trial counsel’s failure to object thereto made him ineffective. In addition, appellant argues that trial counsel was ineffective for failing to request a continuance in order to secure testimony from medical personnel. Neither of these contentions was raised with any specificity in appellant’s amended motion for new trial so as to permit the trial court to implicitly rule thereon, nor were they argued at all during the evidentiary hearing on the motion so as to allow the trial court to rule thereon explicitly. The appellate courts of this state serve as courts of review, and there is no ruling by the trial court on these matters. Thus, this Court will not decide these added claims of ineffective assistance of counsel. Buie v. State, 254 Ga. 167, 169 (5) (326 SE2d 458) (1985); Elliott v. State, 253 Ga. 417, 420 (320 SE2d 361) (1984); Webb v. State, 178 Ga. App. 725, 727 (344 SE2d 660) (1986) (Beasley, J., concurring specially).


text:
    A97A0884.
    KEY v. THE STATE.
    (485 SE2d 804)
   Blackburn, Judge.

William Terry Key appeals his conviction for the sale of cocaine. He claims that the court erred in charging the jury, that he received ineffective assistance of counsel, that the State improperly placed his character in evidence, and that he was erroneously sentenced to life in prison for a second violation of the Georgia Controlled Substances Act. We affirm the conviction and sentence.

1. Key contends his conviction must be reversed because the court erred by charging the jury in the middle of the trial.

Key was indicted with a co-defendant, Dennis Craig Martin, for selling a rock of crack cocaine to an undercover agent. At trial, the agent testified that Martin facilitated the transaction, and that Key provided the cocaine and accepted the money. The agent also testified that prior to Key’s trial, Martin pled guilty to this offense. Following the agent’s testimony, the State rested. At this point, Key’s attorney, who had reserved his opening statement, addressed the jury. He told the jury that Martin was the guilty party, not Key, and that Martin had already pled guilty to selling the cocaine. Immediately thereafter, on its own motion, the trial court charged the jury on parties to a crime. Although Key did not object to this charge, he contends the charge was harmful error.

The language of the charge was as follows: “Ladies and gentlemen, for some clarification to you at this point I’m going to give you a brief charge of the law so that you •'vill be understanding of some of the issues that have been raised in the case. Every person concerned in the commission of a crime is a party to it and may be charged with and convicted of the commission of the crime. A person is concerned in the commission of a crime only if he directly commits the crime or intentionally aides [sic] or abets in the commission of the crime. I wanted to give you that law for clarification so that you will understand who is capable of being charged with an offense. Now, you’re not to take that and reach any conclusions with what I’ve given to you. I just wanted to clarify at this point in time. You’ll consider that along with the total charge of the Court that will be given to you at. the conclusion of the case.”

Key claims the timing of this charge improperly stressed the issue of parties to a crime. Although this charge drew the jury’s attention to that issue, Key has failed to show that the timing of the charge was so improper as to warrant reversal. Cf. Walls v. State, 161 Ga. App. 235, 238 (3) (291 SE2d 15) (1982) (no error where court charged law during State’s opening statement prior to introduction of evidence). The charge was carefully qualified, and the jury was specifically instructed not to use it to reach any conclusions at that point in the trial. Additionally, just prior to the charge, Key’s attorney had told the jury that Key was merely present when the crime occurred. Inasmuch as the court then immediately instructed the jury that only direct and intentional acts would make one a party to a crime, the timing of the charge arguably reflected favorably on Key’s version of the facts.

Key also argues that the issue of parties to a crime was improperly emphasized because the court charged this point again in its regular charge at the end of the trial. However, “mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.” (Citation and punctuation omitted.) Hill v. State, 207 Ga. App. 65, 67 (4) (426 SE2d 915) (1993) (portion of charge repeated at jury’s request). Taking the charge as a whole, the charges on parties to a crime were not so unduly emphasized as to result in an unfair statement of the law tending to prejudice the minds of the jury. This argument is therefore without merit.

Even assuming arguendo that the trial court erred in giving the charge, reversal is still not warranted. “The standard for weighing nonconstitutional error in criminal cases is known as the ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.” (Citations and punctuation omitted.) Felder v. State, 266 Ga. 574, 576 (468 SE2d 769) (1996).

In this case, the evidence of Key’s guilt is overwhelming. The undercover GBI agent testified that Key walked up to the officer’s car, placed his arm inside the car, and opened his palm to reveal crack cocaine. Key handed the cocaine to the officer, and the officer handed Key $20. Upon Key’s arrest, the officer identified Key as the individual who had sold him cocaine. Key’s co-indictee, Martin, who had already pled guilty to this offense at the time of Key’s trial, testified that he saw Key standing at the officer’s car. Martin repeatedly conceded that Key could have sold the drugs, though Martin claimed that his back was turned when the transaction took place. This evidence was sufficient to allow the jury to find Key guilty of selling cocaine beyond a reasonable doubt, see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and was also overwhelming. We find it highly probable that any error the court may have committed in charging the jury mid-trial did not contribute to the judgment. Id.

2. In conjunction with his argument regarding the court’s charge in the middle of the trial, Key contends he received ineffective assistance of counsel because his attorney failed to object to this charge when it was given. Though our holdings in Division 1 establish both that the giving of the charge was not error, and that if it was error, it was not harmful error requiring reversal, we nonetheless address Key’s contention.

“To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Further, [the defendant] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Stanley v. State, 222 Ga. App. 750, 751 (476 SE2d 58) (1996).

At the motion for new trial, Key argued he received ineffective assistance of counsel. The trial court found that Key had failed to establish that his counsel’s performance was deficient. We cannot say that this finding was clearly erroneous. Key’s counsel failed to object to a charge we have determined was not erroneously given. See Division 1. Additionally, even assuming the charge was error, given the overwhelming evidence of Key’s guilt, it is highly probable that the charge did not contribute to the jury’s verdict. See Division 1. Therefore, Key’s counsel’s failure to object to this charge does not amount to ineffective assistance of counsel, and does not warrant a reversal.

3. Key contends that evidence of his bad character was improperly placed before the jury.

At trial, the State presented only one witness. This witness, the GBI agent, testified that he had made a hand-to-hand undercover buy of cocaine from Key. After the State rested, Key testified in his own behalf. Twice, in response to questions posed by his counsel, he stated, “I don’t sell any cocaine or anything. ... I don’t sell. I . . . never sold anyone anything.” The State argued at a bench conference that this testimony opened the door to evidence of Key’s character, because Key had a prior conviction for the sale of cocaine. Key argued that because in the prior conviction he gave cocaine to an undercover officer instead of selling it as in this case, his statement that he had never sold cocaine was accurate, and did not open the door to his character. The trial court rejected this argument, and the State introduced a certified copy of Key’s prior conviction for the sale of cocaine.

In support of his argument regarding the difference between selling cocaine and giving it away, Key called GBI special agent Fred Mays as a rebuttal witness. Mays testified that in the offense which forms the basis of Key’s prior conviction, Key gave Mays crack cocaine as a gift. Key now renews his argument made to the trial court, and claims that the difference between giving and selling did not entitle the State to present evidence of his bad character.

This argument is without merit, and presents a distinction without a difference as applied to the facts of this case. Selling cocaine and giving it away are both offenses under OCGA § 16-13-30 (b), which makes it unlawful for any person to “deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” More importantly, the record shows that Key’s prior conviction consists of a plea to the offense of distributing, selling, and dispensing cocaine. Key’s statement that he had never sold cocaine therefore not only opened the door to his character, it was inaccurate in light of his prior conviction for distributing, selling, and dispensing cocaine. Therefore, Key himself placed his character into evidence, and the trial court did not err in its ruling on this issue.

4. Key enumerates as error the trial court’s failure to charge his sole defense, mere presence, even absent his request. However, “[m]ere presence at the scene of the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.” Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979). “There was abundant direct evidence that appellant committed the crime; the necessity of proof of guilt beyond a reasonable doubt was fully charged to the jury and they could not have inferred they could convict appellant of the crime by his mere presence.” Jones v. State, 205 Ga. App. 711, 714 (4) (423 SE2d 393) (1992). This enumeration is therefore without merit.

5. Key contends his life sentence for a second conviction of OCGA § 16-13-30 (b) was error. Pursuant to the version of OCGA § 16-13-30 which was in effect when Key committed and was sentenced on his second drug offense, a life sentence was mandated. He argues that the purpose of the recidivist statute is not served in his case, because at the time he was arrested for the second offense, he had not yet been convicted of his first offense. He claims he therefore did not know that repeat offenders would receive mandatory life sentences.

Key’s argument is controlled adversely to him by Hailey v. State, 263 Ga. 210 (429 SE2d 917) (1993). In that case, the Supreme Court determined that a conviction for a first OCGA § 16-13-30 (b) offense need not precede the commission of the second offense in order for the mandatory life sentence to be imposed. Id. at 212. Therefore, it is no bar to his life sentence that Key had not been convicted of the first offense at the time he committed the second. This enumeration is accordingly without merit.

Decided March 27, 1997

Reconsideration dismissed April 23, 1997.

Before Judge Cummings.

Wolfe & Steel, Brian Steel, for appellant.

James R. Osborne, District Attorney, Fred A. Lane, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Key’s enumerations of error combine his arguments regarding the erroneous charge and ineffective assistance of counsel in one enumeration. We exercise our discretion under Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995), and address both arguments.


text:
    A97A0078.
    RIDEN v. THE STATE.
    (486 SE2d 198)
   Judge Harold R. Banke.

After a jury convicted Keith- Riden of aggravated assault and aggravated battery, the trial court sentenced Riden to 20 years’ imprisonment and a $10,000 fine on each count. This appeal follows the denial of Riden’s motion for new trial.

Viewed in a light most favorable to the verdict, the State’s evidence showed the following. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Shortly after the consummation of a drug transaction, Riden concluded that he had been “ripped off” by the victim, Orvie Crawford. Riden and his cousin, Shumar Atkinson, then obtained a ride with their friend, Keith Brooks. Riden instructed Brooks to follow Crawford’s pickup truck. When they caught up with Crawford’s truck, Riden, with a gun drawn, leaped out and raced toward the driver’s side. Atkinson shouted, “Keith, don’t shoot that man!” .Riden pointed the gun directly at Crawford, began shouting, then fired at Crawford at point blank range. The bullet entered Crawford’s neck and exited in a downward motion, resulting in Crawford’s paralysis from mid-chest and below. Crawford testified that after Riden pointed a pistol at him and began screaming, he attempted to accelerate his truck in reverse but was shot as he tried to escape. Although Crawford disclosed that prior to the shooting, he had been drinking heavily and also using crack cocaine, he was able to affirmatively identify Riden as the man who shot him.

After initially accusing his cousin of committing the shooting, Riden confessed to Officer Ronald Copeland that he pursued Crawford after discovering he had been shortchanged by receiving a 20 dollar bill for 50 dollars’ worth of cocaine. Investigators located the weapon at the site specified by Riden. Ballistics testing confirmed that the weapon matched the bullet retrieved from inside Crawford’s vehicle. Riden’s audiotaped confession was played for the jury. Held:

Decided April 23, 1997.

Before Judge Adamson.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

1. Riden’s contention that the evidence was insufficient to sustain the verdict is without merit. The State’s evidence adduced at trial included the victim’s testimony, Riden’s audiotaped confession, the testimony from eyewitness Brooks, and the ballistics testing. In light of this evidence, a rational trier of fact could have found Riden guilty of the offenses of aggravated assault and aggravated battery within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court erred in failing to merge Riden’s convictions for aggravated assault (OCGA § 16-5-21) and aggravated battery (OCGA § 16-5-24). OCGA § 16-1-7 (a). The facts used to support the aggravated assault charge, as set forth in the indictment, were the same facts used to support the aggravated battery charge, with the additional element of maliciously causing bodily harm “by rendering a member of his body useless . . . causing paralysis in his arms and legs.” Inasmuch as the same evidence was used to support the indictments for both offenses, the trial court erred in sentencing Riden on the aggravated assault count, the lesser included offense. Davis v. State, 209 Ga. App. 187, 188 (1) (433 SE2d 366) (1993); compare Knight v. State, 190 Ga. App. 87 (378 SE2d 373) (1989) (physical precedent only) (separate acts of stabbing do not constitute same conduct). Accordingly, we vacate only the sentence on the aggravated assault conviction. Mills v. State, 187 Ga. App. 79, 80-81 (4) (369 SE2d 283) (1988).

Judgment affirmed in part and vacated in part.

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