text:
    A99A1305.
    GAGNON v. THE STATE.
    (525 SE2d 127)
   Phipps, Judge.

On the morning of August 7, 1997, Phillip Gagnon entered For Your Eyes Only, a Columbus lingerie modeling establishment. Only one female employee was working at the time, although a male security guard was on the premises. She gave Gagnon the “lingerie shop pitch”: the models dance close to the customer, the models work solely for tips, and the erotic level of the session depends on the amount of the tips. Gagnon asked whether sex was involved, and she indicated, as instructed, so not to lose the customer, only that the better the tips, the more erotic the session. Gagnon left the shop to get cash from an automatic teller machine. He returned and paid the initial fee of $31.

After Gagnon had tipped the model $45, and she was dancing nude for him in a session room, he produced a loaded gun. He occasionally motioned toward the lower part of her body with it and at least once pointed the gun at her stomach. The model was frightened to the point of shaking but decided to continue dancing to avoid a confrontation. Gagnon motioned to his crotch with his head, still holding the gun. She understood that to mean he wanted oral sex, and she obliged. She asked him why he had a gun and told him that it was making her nervous. Gagnon said that he needed the gun for protection. Then he had vaginal sex with her while holding the gun. She testified that Gagnon had indicated what he wanted with motions and gestures and that he was very calm, but that she had been terrified and only wanted to escape without being shot.

Gagnon eventually put the gun down while engaged in intercourse, and the model immediately grabbed it, but Gagnon grabbed for the gun as well, and the two struggled to claim it. During the struggle the gun was sometimes pointed at her head. She shouted for the security guard. He entered the room and became involved in the struggle for the gun. The gun discharged but did not injure anyone. The model left the room when the security guard had control of the situation.

Gagnon was charged with rape, aggravated sodomy and aggravated assault. He was tried before a jury and convicted of aggravated assault and the lesser included crime of sodomy. He was sentenced to concurrent twenty-year sentences, with the last five years to be served on probation. He appeals from these convictions. We find no merit in Gagnon’s enumerations of error and affirm.

1. Gagnon enumerates as error the trial court’s jury charge on the lesser included crime of sodomy.

The State did not submit a request for a jury charge on sodomy before trial but requested one after the close of the evidence. Uniform Superior Court Rule 10.3 provides that “All requests to charge shall be . . . submitted to the court ... at the commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.”

The State was aware that sodomy would be an issue raised by the evidence but chose to request at the commencement of trial only a charge on aggravated sodomy and not on the lesser included crime of sodomy. The State argues that it did not violate Rule 10.3 because it did not anticipate that Gagnon would testify consistent with his written confession, in which he admitted to consensual sodomy. We find this argument unpersuasive. However, we do not find that Gagnon was prejudiced when the trial court charged the jury on the lesser included crime of sodomy.

Violation of Rule 10.3 carries no express penalties, although failure to adhere to the rule has been cited as justification for a trial court’s refusal to give a later requested charge. Gagnon argues that, if the State had requested a charge on sodomy in conformity with Rule 10.3, he could have made a tactical decision not to testify on his own behalf. Gagnon’s defense to rape and aggravated sodomy was based on consent. He testified to conduct amounting to consensual sodomy. Perhaps he would not have testified if he had known that his own testimony would expose him to conviction of sodomy. But Gagnon was not harmed unless he reasonably could have expected that because the State failed to request a charge on sodomy before trial, the trial court would not charge the jury on the lesser included crime of sodomy.

A trial court, sua sponte, may charge a jury on a lesser included offense if the evidence justifies it. The trial court need not inform counsel in advance if it decides to make an unrequested jury charge. Because the trial court has the inherent power to charge the jury on a lesser included crime, so long as the charge is supported by the evidence, it is neither error nor reasonably unexpected for the trial court to charge the jury on a lesser included crime solely because the charge was not requested at the commencement of trial. Furthermore, this court has held that it is not error for the trial court to give a charge authorized by the evidence, even though the charge was not requested in writing by the State at the commencement of trial as required by Rule 10.3. Thus Gagnon was always subject to a charge on the lesser included offense of sodomy even though the State did not include it in its pre-trial request for charges. Gagnon’s right to defend himself by choosing whether to testify, therefore, was not unduly prejudiced by the State’s failure to adhere to Rule 10.3.

2. Gagnon also claims his conviction for sodomy violates the Georgia Constitution, based upon the Supreme Court of Georgia’s decision in Powell v. State. Powell’s holding, however, is very specific:

We conclude that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy.

The evidence shows that Gagnon was not convicted for a “private, unforced, non-commercial” act of sexual intimacy. First, the lingerie shop was a public place. The session room was subject to observation through a viewing hole in the door intended to be used by employees. So it is likely that the “conduct involved may be reasonably expected to be viewed by people other than members of the actor’s family or household.” Second, although Gagnon maintains that the sexual acts were consensual, if the victim consented she did so only in exchange for money. The conviction of Gagnon of sodomy for a sex act in a public, commercial place is not prohibited by Powell.

3. Gagnon claims that the trial court erred by not charging the jury on the lesser included offense of reckless conduct.

After brief deliberations, the jury returned to the court with several questions, including whether the charge of aggravated assault could be reduced to assault. Gagnon argues that the trial court should have instructed the jury on reckless conduct at that time. But Gagnon admits he never requested the court to give that charge. It is not error for a court to fail to instruct a jury on a lesser included offense without a written request, and here there was no written or oral request.

4. Gagnon claims that the trial court erred when it did not grant his motion for a directed verdict at the close of evidence. We find that the evidence was sufficient to authorize the jury to convict on the charge of aggravated assault under the standard set forth in Jackson v. Virginia. The victim testified that she feared for her life. Given that Gagnon was motioning and pointing the gun at her while she was dancing, that it was pointed at her head while they struggled for the weapon, and that the gun discharged, a reasonable jury could find that the victim was in reasonable apprehension of receiving a violent injury from a deadly weapon.

5. The jury asked the judge, “What is Aggravated Assault?” The judge then charged the jury on assault, aggravated assault, and the elements of assault and commented “That’s aggravated assault.” There is no merit in Gagnon’s contention that the statement by the trial court either could be interpreted as a mandate to convict or confused the jury as to what constituted aggravated assault. We find that the charges on assault and aggravated assault were correct, and, in the context in which it was made, the comment by the court was neither a mandate to convict nor confusing.

6. In his final enumeration of error, Gagnon challenges the introduction into evidence of a knife and a pair of handcuffs, claiming that they were irrelevant and unduly prejudicial. Gagnon also claims that there was no evidence that these items were actually found on his person.

The police recovered the handcuffs, a knife engraved with Gagnon’s initials, a “Members Only” card for the lingerie shop, and a bank withdrawal slip in the front doorway of the business. The location of the items, including the knife and the handcuffs, and that the items were found together indicate they belonged to Gagnon. Although Gagnon is correct that there was no testimony that he used or displayed the knife or the handcuffs, this court has upheld the admission of the accused’s possessions as part of the circumstances surrounding the arrest.

Decided November 10, 1999

Michael D. Reynolds, for appellant.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

        Ranson v. State, 198 Ga. App. 659, 662 (8) (402 SE2d 740) (1991).

       See, e.g., Temple v. State, 238 Ga. App. 146 (3) (517 SE2d 850) (1999) (it was not error for the trial court to refuse to give charges on lesser included crimes where the requests for charges were not timely submitted under Rule 10.3); Smith v. State, 222 Ga. App. 366, 370 (5) (474 SE2d 272) (1996) (failure to give charge not error because request to charge not timely made under Rule 10.3).

        Powell v. State, 270 Ga. 327, 328 (2) (510 SE2d 18) (1998).

        Henson v. State, 258 Ga. 600, 602 (5) (258 SE2d 806) (1988).

        Ranson, 198 Ga. App. at 662 (8), supra. See also Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988) (where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue).

       270 Ga. 327, supra.

       (Citation and punctuation omitted.) Id. at 336.

       See, e.g., Rushing v. State, 133 Ga. App. 434, 435 (1) (211 SE2d 389) (1974) (massage parlor a public place).

       OCGA § 16-1-3 (15).

        Hawkins v. State, 267 Ga. 124, 125 (3) (475 SE2d 625) (1996).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Wilson v. State, 222 Ga. App. 818, 819 (476 SE2d 97) (1996); Evans v. State, 209 Ga. App. 340, 342 (4) (433 SE2d 426) (1993).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A1373.
    SLAUGHTER v. THE STATE.
    (525 SE2d 130)
   Andrews, Presiding Judge.

Fredrick Bernard Slaughter appeals from the judgment of conviction entered on jury verdicts finding him guilty of armed robbery (four counts), criminal attempt to commit murder, aggravated assault on a police officer, kidnapping with bodily injury, kidnapping, possession of a firearm during the commission of a crime, theft by receiving stolen property, giving a false name to a police officer, and possession of a firearm by a convicted felon. Slaughter was sentenced as a recidivist to five consecutive life sentences plus seventy-one years without parole.

All the charges arose from evidence showing that Slaughter and two other men, Terry Lewis Thomas and Lorenzo Perry, robbed the Commercial Bank in Douglas County. All three men were jointly tried and convicted. The convictions of Slaughter’s co-defendants were affirmed on appeal in Thomas v. State, 226 Ga. App. 441 (487 SE2d 75) (1997) and Perry v. State, 232 Ga. App. 484 (500 SE2d 923) (1998).

The evidence showed that Slaughter, Thomas, and Perry entered the bank each carrying a firearm and forced four different bank employees to give them money at gunpoint. During the robbery, two bank employees, one of whom was injured in the process, were held against their will and moved from one part of the bank to another. After the robbery, the three men fled from the bank in a stolen truck. A police officer who responded to a silent alarm set off during the robbery saw the truck leave the bank with red smoke from a dye bomb billowing from the back of the truck. The officer called for assistance and pursued the truck as the occupants fired shots at him. After a chase, the truck stopped, and all three men ran into a wooded area, again firing shots at the police officer. Police officers responding to the call for assistance surrounded the area and within minutes captured all three men. Slaughter was arrested after he was found hiding on the ground behind a residence holding a bag containing approximately $40,000 stolen from the bank in the robbery. He told an officer at the scene of the arrest and another officer during later questioning at the police station that his name was Larry Word. In bifurcated proceedings, the State presented additional evidence in support of the charge of possession of a firearm by a convicted felon showing that Slaughter had multiple prior felony convictions.

1. Slaughter claims the trial court should have granted his motion to sever his trial from that of co-defendant Thomas because evidence was admitted showing that, while Thomas was being held in jail pending trial, he threatened the life of one of the arresting officers.

When the death penalty is not sought, the severance of defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice. Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975).

Dixon v. State, 268 Ga. 81, 83 (485 SE2d 480) (1997).

Slaughter contends that the refusal to sever prejudiced him because it caused the jury to associate him with a co-defendant who threatened the life of a witness. This contention asserts no more than the possibility of prejudice. Moreover, the trial court instructed the jury to consider the evidence and the law independently as to each defendant. Under the circumstances, we find no showing of actual prejudice, no denial of due process, and no abuse of discretion by the trial judge in denying the motion to sever.

2. Slaughter asserts that the trial court erroneously allowed a firearms expert called by the State to give expert testimony, over objection, on a topic outside the witness’ expertise.

The prosecutor asked the expert if gunpowder residue that gets on a person’s hand after firing a gun could remain there for years. Slaughter objected that the question was beyond the witness’ area of expertise, but the objection was overruled. The expert did not thereafter answer the question, and the prosecutor did not re-ask it. The expert later gave testimony without objection as to his knowledge that gunpowder residue can be washed off a person’s hand. There was no error.

3. There is no merit to Slaughter’s contention that he was file-gaily subjected to interrogation while he was in police custody and that evidence of this interrogation was erroneously admitted.

Slaughter complains that evidence was admitted showing that, in response to police questioning after he had asserted his right to remain silent, he stated his name (a false name), age, address, and Social Security number. These questions sought only biographical information of the type attendant to routine booking procedures and were not designed to elicit incriminating responses. Franks v. State, 268 Ga. 238-240 (486 SE2d 594) (1997). Moreover, since the questions asked were not interrogation under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), there is no merit to Slaughter’s claim that the questions violated his Miranda rights because he had previously invoked his right to remain silent. The trial court did not err in admitting evidence of his answers to the questions, including his giving of a false name. Franks, 268 Ga. at 238-240.

4. Slaughter contends the trial court erred by failing to rule at a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) that the answers he gave to the biographical questions asked by the police were given voluntarily.

The trial court held two Jackson-Denno-type hearings outside the presence of the jury and determined that these answers, which gave only biographical-type information, were not subject to the requirements of Miranda v. Arizona, supra. Slaughter did not contend at trial nor was there any evidence that these answers were involuntary. This enumeration is meritless.

5. There was no error in the admission of a videotape showing that Slaughter gave a false name to a police officer in response to a question eliciting biographical information. There is no basis for Slaughter’s contention that the videotape constituted an impermissible comment on his constitutional right to remain silent because it may have suggested to the jury that he had invoked this right.

6. Contrary to Slaughter’s contention, the evidence was sufficient to sustain his conviction on the charge of theft by receiving stolen property. There was evidence sufficient to prove that he unlawfully retained the stolen truck used in the robbery which he knew or should have known was stolen.

Although possession of recently stolen property is not alone sufficient to sustain a conviction for receiving stolen property, guilt may be inferred from possession along with other evidence — including circumstantial evidence — of guilty knowledge which would excite suspicion in the mind of an ordinarily prudent person. Hurston v. State, 202 Ga. App. 311, 312 (414 SE2d 303) (1991).

[W]here the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.

Decided November 10, 1999

(Citations and punctuation omitted.) Id. at 313 (1).

The owner of the truck testified that it was stolen about three days before the robbery and that, when the truck was recovered after the robbery, about $1,000 worth of tools had been stolen from the truck, and “my jack and everything else was gone inside.” The State presented evidence that Slaughter and his co-defendants used the truck in the armed robbery, fled from police in the truck, then abandoned it and fled on foot. Slaughter also gave a false name to police when he was caught. This evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that Slaughter was guilty of theft by receiving the stolen truck. Johnson v. State, 236 Ga. App. 356, 357 (511 SE2d 921) (1999); Hurston, 202 Ga. App. at 312-313; Perry v. State, 180 Ga. App. 273-274 (349 SE2d 25) (1986).

7. We agree, however, with Slaughter’s contention that the State failed to introduce evidence sufficient to sustain his conviction for the offense of giving a false name to a police officer — as that charge was alleged in the indictment.

The State alleged in Count 11 of the Douglas County indictment that Slaughter gave a false name to Officer Cosper in Douglas County. The State concedes that this actually occurred at the scene of the arrest in adjoining Cobb County and that there is no evidence of venue in Douglas County sufficient to sustain a conviction on this charge as alleged. See Graves v. State, 269 Ga. 772, 773 (504 SE2d 679) (1998).

Nevertheless, the State contends that the conviction on this count of the indictment is supported by evidence that Slaughter also gave a false name to Officer Zachary at a later time in Douglas County. The State cannot rely on this evidence, however, because proof that the false name was given at a different time and place to a different officer from the one alleged in the indictment is a fatal variance between the allegations and the proof. Harrison v. State, 192 Ga. App. 690 (385 SE2d 774) (1989).

Slaughter’s conviction for giving a false name to a police officer must be reversed; the remaining convictions are affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Ruffin, J., concur.

Scott K. Camp, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A99A1845.
    RENDER v. THE STATE.
    (525 SE2d 134)
   Eldridge, Judge.

A Meriwether County jury found Willie Davis Render guilty of possession of cocaine and driving without a driver’s license. On appeal, he contends that he received ineffective assistance of counsel at trial because his trial attorney (a) failed to object to the introduction of hearsay testimony, and (b) failed to submit a jury charge on “equal access.” Upon review of these contentions, we affirm Render’s convictions.

[T]he proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)]. First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance.

White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995).

(a) Render’s motion for new trial does not contain a contention regarding trial counsel’s alleged failure to object to the introduction of hearsay testimony. Further, trial counsel was not questioned about hearsay during the hearing on the motion, and no such issue was otherwise raised at the hearing. All allegations of ineffective assistance of counsel should be raised at the earliest practicable moment, and “ ‘any allegation not raised is deemed waived.’ ” Seese v. State, 235 Ga. App. 181, 183 (3) (509 SE2d 94) (1998). This allegation is waived.

(b) There was a passenger in the car Render was driving and in which the drugs were found. Thus, Render claims that his trial counsel was ineffective for failing to request an “equal access” jury charge. However:

In the absence of a charge to the jury as to the presumption of possession or its equivalent, it is not error to fail to charge on equal access where the charge as a whole substantially and adequately covers the principles contained in an equal access instruction.

Decided November 10, 1999.

John D. Rasnick, for appellant.

Peter J. Skandalakis, District Attorney, Julianne IK Holliday, Assistant District Attorney, for appellee.

(Citations omitted.) Mitchell v. State, 222 Ga. App. 453, 454 (1) (b) (474 SE2d 306) (1996). See also Jackson v. State, 216 Ga. App. 842, 845 (456 SE2d 229) (1995) (the equal access rule is simply a defense to the accused to whom a presumption of possession flows).

Here, the trial court did not charge the jury on any presumption of possession arising because Render was the driver of the car in which the drugs were found. In addition, the trial court charged the jury that Render was presumed innocent until proven guilty; that the State had the burden of proof; that there was no burden of proof whatsoever on Render; that the burden of proof never shifted to Render to prove his innocence; and that it was the duty of the jury to acquit, if the State failed to prove Render’s guilt beyond a reasonable doubt. See Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823) (1991). Under these circumstances, the charge as a whole adequately covered the principles contained in an “equal access” charge. Id. Accordingly, Render was not prejudiced by trial counsel’s failure to request such charge. White v. State, supra at 583.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       There is no procedural issue involving the timeliness of Render’s ineffective assistance of counsel claim.


text:
    A99A2154.
    WRIGHT v. THE STATE.
    (525 SE2d 143)
   Eldridge, Judge.

Jacqueline “Jackie” Wright appeals from the denial of her motion for new trial following her February 1997 conviction for aggravated assault. We affirm.

1. In her first enumeration, Wright challenges the sufficiency of the evidence.

On appeal!,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys.a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

The evidence presented at trial included the testimony of investigating police officers, the victim, and Wright. The evidence showed that, on January 12, 1996, Wright and the victim were drinking beer in the victim’s truck when Wright asked the victim for money so she could get another “hit,” i.e., drugs. The victim told Wright that he did not have any more money. Wright then shot the victim several times in the neck, face, arm, and chest. After the victim fell from the truck, Wright pointed the gun at the victim’s head and took his wallet. Wright left the scene, threw away the gun, and went to a friend’s house down the street.

When police officers arrived at the scene, the victim was bleeding severely from his neck. An officer put pressure on the victim’s neck to reduce the bleeding, taking care not to choke the victim, and contacted Emergency Medical Services. Upon questioning from the officer, the victim identified “Jackie” as the shooter.

Approximately thirty to forty-five minutes later, police officers arrested Wright two blocks from the crime scene. Wright gave a post-arrest statement to the police, wherein she admitted that she shot the victim and threw away the handgun on Chandler Avenue. See Division 2, infra. The handgun was found on Chandler Avenue, approximately 75 yards from the crime scene.

This evidence is sufficient for a rational juror to find Wright guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, supra.

2. In her second enumeration, Wright claims that the State did not disprove her justification defense beyond a reasonable doubt. We disagree.

Wright’s post-arrest statement to police was read into evidence. In the statement and during her testimony, Wright admitted shooting the victim but claimed that the shooting was justified, because the victim had “tried to jump” her and had pointed a gun at her moments earlier. She admitted that she shot the victim while in the truck and then “went to the driver’s side of the pickup and fired until he stopped tussling with me.” The victim, however, denied threatening Wright or pointing a gun at her; he testified that he was looking out the window when Wright suddenly shot him.

Accordingly, the State presented sufficient evidence to demonstrate that Wright’s behavior was not justified. The fact that Wright presented an affirmative defense does not negate the State’s evidence but simply presents two scenarios from which the jury could choose. The jury obviously did not believe Wright and chose instead to believe the victim’s testimony. As the jury is the sole judge of witness credibility, such choice is theirs to make, and it will not be disturbed on appeal. OCGA § 24-9-80; Cook v. State, 235 Ga. App. 104, 105 (1) (508 SE2d 473) (1998); Oakes v. State, 233 Ga. App. 684, 685-686 (1) (505 SE2d 33) (1998).

3. In her third enumeration, Wright claims that the trial court erred by failing to read the indictment or give a limiting instruction on aggravated assault during its instructions to the jury. Wright asserts that the jury may have convicted her based upon the fact that she shot the victim in the chest instead of, or in addition to, the neck. This argument is completely without merit.

The indictment charged that Wright committed aggravated assault when she shot the victim in the neck with a handgun. An investigating police officer testified that, when he arrived at the scene, the victim was bleeding profusely from the neck and chest. Since there was a “substantial” amount of blood coming from the victim’s neck, the officer attempted to reduce the bleeding by using a rag to put pressure on the neck wound, using care not to choke the victim.

The indictment was read to the jury following jury selection and during the State’s opening argument. The defense stressed during closing arguments that “[i]f you [the jury] don’t think that they proved that he [the victim] was shot in the neck, find Jackie Wright not guilty.” During the jury charge, the trial court specifically noted that the indictment would be sent out with the jury and, if they had questions about it, “then it would be your privilege as well as your duty to read the indictment for yourselves.”

The trial court gave the jury a comprehensive charge, including a charge on the State’s burden to prove “every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt.” The trial court charged the jury with the exact language of the specific aggravated assault statutory subsection at issue, OCGA § 16-5-21 (a) (2). Contrary to Wright’s claim on appeal, it did not charge on the “entire” aggravated assault Code section. See OCGA § 16-5-21 (a) (1) (aggravated assault with intent to murder, rape or rob) and (a) (3) (aggravated assault by drive-by shooting). Therefore, her reliance on Perguson v. State, 221 Ga. App. 212 (470 SE2d 909) (1996), is misplaced. In Perguson, the trial court erroneously charged the jury on the entire Code section of aggravated child molestation, when only one subsection was alleged in the indictment. Id. at 213-214 (1).

Decided November 10, 1999.

Hal T. Peel, for appellant.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.

In this case, the question presented to the jury was clear — did Wright commit aggravated assault by shooting the victim in the neck with a deadly weapon, i.e., a handgun? The jury found that she did, and the overwhelming, uncontradicted evidence supported their verdict. There is no “reasonable possibility” that the jury was confused or misled by the fact that the victim also was shot in other parts of his body or that this fact affected the verdict in any way. See Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987); Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992); Searcy v. State, 168 Ga. App. 233-234 (1) (308 SE2d 621) (1983); Slack v. State, 159 Ga. App. 185, 188 (2) (283 SE2d 64) (1981). There was no error.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The charge read as follows:
      A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon or with any object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.


author: McMurray, Presiding Judge.

text:
    A99A2380. A99A2381.
    ROWE et al. v. AKIN & FLANDERS, INC. et al. AKIN & FLANDERS, INC. v. ROWE DEVELOPMENT CORPORATION et al.
    (525 SE2d 123)
   McMurray, Presiding Judge.

Plaintiffs Rowe Development Corporation (RDC) and its sole shareholder, David C. Rowe, Jr., brought this action for damages against the corporate defendants Akin & Flanders, Inc. (A&F) and Flanders Construction, Inc. (FCI), alleging first that plaintiffs’ predecessor in interest, the partnership Akin, Flanders & Rowe (the partnership), entered into a contract with defendant A&F and, through A&F, with defendant FCI, to prepare and pave the parking area at Butler Creek Shopping Center in Kennesaw (the Butler Creek property), but that defendants failed to perform to the contract’s specifications in a workmanlike manner such that a portion of the parking area has deteriorated and collapsed. For this breach of contract, plaintiffs sought the costs to cure. Count 2 alleged that defendants negligently performed paving and associated work on real property owned by plaintiff Rowe and managed by plaintiff RDC. Plaintiffs also unsuccessfully sought permission to amend the complaint to add a third count, alleging fraud. Defendant FCI denied all material allegations. Defendant A&F admitted only that it entered into a contract to prepare and pave the parking lot at the Butler Creek property but contended that plaintiffs had no standing to pursue this action because they are not the real parties in interest. After discovery, defendants filed separate motions for summary judgment. Viewed in the light most favorable to plaintiffs as nonmovants, the largely undisputed evidence authorizes the following facts:

In 1979, plaintiff Rowe, along with L. Judson Akin and Frank B. Flanders, Jr., formed the partnership primarily to develop supermarket-anchored neighborhood shopping centers. Rowe would work full-time to find locations and negotiate land deals, and Akin and Flanders were the developing contractors. Each partner had a “one-third interest in each shopping center.” In June 1988, the partners agreed that Rowe could represent himself but that each partner retained the option to develop as Akin, Flanders & Rowe, in which event A&F would receive a construction fee and Rowe would receive a development fee. In April 1990, the partnership as owner contracted with A&F as general contractor to develop the Butler Creek property. FCI subcontracted to do the grading and paving. In May 1990, the partnership formally became the record owner of the Butler Creek property. In January 1991, Rowe, Akin, and Flanders formally agreed between themselves upon a distribution of partnership assets upon Rowe’s withdrawal from the partnership, whereby Rowe would be granted the Butler Creek property, plus some other assets. But throughout the entire development, from bids on the subcontract to change orders, it was clearly understood that “we [A&F and FCI] were the contractors, he [Rowe] was the developer, he was taking all of the chances on this deal, renting and all, and once it was completed it would be given totally to him.”

FCI moved for summary judgment on the ground that the “economic loss rule” foreclosed a separate tort action and there was no privity of contract between FCI as subcontractor and plaintiffs to support the claimed breach. In a one-sentence order, this motion was granted. The trial court subsequently granted A&F’s motion for summary judgment as to plaintiffs’ negligence claim and the contractual claim that plaintiffs were third-party beneficiaries but denied summary judgment for plaintiffs’ breach of contract claim against A&F. Plaintiffs’ request to amend the complaint (after entry of the pre-trial order) to allege fraud against A&F based on supplemental events was also denied. In Case No. A99A2380, plaintiffs contend they are third-party beneficiaries to the paving contract; the economic loss rule does not apply to a negligent construction claim; and the trial court abused its discretion in refusing permission to amend the complaint. In Case No. A99A2381, defendant A&F cross-appeals, enumerating the denial of its motion for summary judgment as to plaintiffs’ breach of contract claim. Held:

Case No. A99A2380

1. Privity of Contract with FCI. We agree with the trial court that neither Rowe nor RDC had privity of contract with defendant FCI. Yet Rowe, as the intended (and ultimate) owner of the real property at issue, clearly is a real party in interest under the theory that he was a third-party beneficiary of the paving subcontract.

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b).

In order for a third party to have standing to enforce a contract under [OCGA § 9-2-20 (b),] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit [incidentally] from performance of the agreement is not alone sufficient. [Cits.]

Backus v. Chilivis, 236 Ga. 500, 502 (II) (224 SE2d 370). “There must be a promise by the promisor to the promisee to render some performance to a third person [,] and it must appear that both the promisor and the promisee intended that the third person should be the beneficiary. [Cits.]” Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776). Without doubt, the promisor subcontractor in this case promised to perform a valuable service to the owner of the Butler Creek property. Although the general development contract indicated the partnership was then the owner, the uncontradicted deposition testimony of Frank B. Flanders, Jr. is that the contracting parties, A&F and FCI, treated plaintiff Rowe as the owner, because the individual partners had already agreed Rowe would take the Butler Creek property to dissolve the partnership and would incur all the risks of development. This intention was ratified when plaintiff Rowe took the property and all its appurtenances, as grantee under a limited warranty deed executed under seal from the partnership of Akin, Flanders & Rowe, of which Rowe was then an equal partner. Thus, summary judgment in favor of FCI cannot be sustained on the ground that no plaintiff has standing to enforce the paving subcontract.

2. Negligent Construction. The trial court erred in granting summary judgment to either defendant as to plaintiffs’ negligent construction claim on the basis of the so-called “economic loss” rule.

[A] negligent construction claim arises not from a breach of contract claim but from breach of a duty implied by law to perform the work in accordance with industry standards. [Cits.] This cause of action arises in tort and exists independently of any claim for breach of contract. [Cit.] Thus, [plaintiffs are] entitled to pursue these . . . remedies [arising out of] the same transaction until [they obtain complete] satisfaction. See OCGA § 9-2-4 [.] [Cit.]

Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522 (1) (a) (428 SE2d 426).

The “economic loss” versus “physical damage” dichotomy that is used in products liability cases can find no application in this [negligent construction] case. . . . “(independently of any duty under the [paving] contract, the law imposed upon [both the general contractor, defendant A&F, and its subcontractor, defendant FCI,] the duty not to negligently and wrongfully injure and damage the property of [the owner, Rowe].” [Cits.]

Unger v. Bryant Equip. Sales &c., 255 Ga. 53, 54 (1) (335 SE2d 109).

3. Almost four years after commencement of this action, present counsel for plaintiffs was substituted for original counsel. Unbeknownst to new counsel, a consolidated pre-trial order had been entered by the trial court some six weeks before. The third enumeration contends the trial court abused its discretion in refusing plaintiffs permission to amend the complaint to add a count alleging fraud, after the entry of the pre-trial order, based upon facts uncovered during plaintiffs’ efforts to cure the damages to the parking lot. Defendants do not address this enumeration in their responsive brief.

“Amendment is a resource against waste.” Ellison v. Ga. R. Co., 87 Ga. 691, 697 (2) (13 SE 809). After the entry of the pre-trial order, a party may amend his pleading “only by leave of court or by written consent of the adverse party. Leave [to amend] shall be freely given when justice so requires.” OCGA § 9-11-15 (a). Thus, “[u]nder the Civil Practice Act, amendments [even] after the pre-trial order are to be liberally granted by the court as justice requires.” Midtown Properties v. George F. Richardson, Inc., 139 Ga. App. 182, 187 (6) (228 SE2d 303). In exercising its discretion, the trial court must balance possible unfair prejudice to the nonmoving party with the movant’s reasons for delay. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 674 (1) (234 SE2d 104). But mere delay in seeking leave to amend is not a sufficient reason for its denial. MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 43 (2) (230 SE2d 26). Accord Patterson v. Duron Paints of Ga.,144 Ga. App. 123, 125 (1) (a) (240 SE2d 603).

Decided November 10, 1999.

Richelo, Morrissey & Toler, Brian J. Morrissey, for appellants.

Misner, Scott & Grate, Neal C. Scott, Allison B. Lawler, for appellees.

In this case, the trial court considered plaintiffs’ delay but erroneously put the onus on movants to show an amendment was necessary to prevent a manifest injustice. This is an incomplete exercise of judicial discretion, based on an erroneous theory of law. Accordingly, the “right for any reason” rule cannot ratify the result. Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360); Lowance v. Dempsey, 99 Ga. App. 592, 595 (2) (109 SE2d 318), cited with approval in Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (1) (189 SE2d 66). Therefore, we vacate the denial of plaintiffs’ motion to amend the complaint and remand to the trial court with direction to reconsider that motion, under the proper balancing test noted above.

Case No. A99A2381

4. For the reasons discussed in Division 1, the trial court correctly denied cross-appellant A&F’s motion for summary judgment as to plaintiffs’ contract claim against it. Rowe is a third-party beneficiary under the general development contract because the parties intended for- him to be the owner, and so the ultimate beneficiary of the improvements to the realty. Therefore, Rowe has standing to enforce the development contract against A&F, the promisor general contractor.

Judgment affirmed in Case No. A99A2381. Judgment reversed in part and vacated in part in Case No. A99A2380.

Johnson, C. J., and Phipps, J., concur.

       The parties recognized that, at the time the construction contract was executed by the partnership and A&F, the record owner of the Butler Creek property was Ronald S. Leventhal, who authorized and consented to the work.


author: Pope, Presiding Judge.

text:
    A98A0156.
    GEORGIA POWER COMPANY v. FRANCO REMODELING COMPANY.
    (525 SE2d 152)
   Pope, Presiding Judge.

In July 1993, plaintiffs Salomen Santana, Juan Santillan, and Hector Berrios were painting an apartment building and were injured when a metal ladder they were using touched an overhead electric line that was owned and operated by Georgia Power Company. At the time of the accident, plaintiffs were working for Franco Remodeling, a subcontractor on the renovation project. Plaintiffs sued Georgia Power and other defendants. Georgia Power answered the complaint, claiming that suit was barred by the High-voltage Safety Act, OCGA § 46-3-30 et seq., because the work was being done within ten feet of a high-voltage line and no notice of the work had been given to it or to the Utilities Protection Center. Franco, which through its insurer had paid workers’ compensation benefits to the plaintiffs, intervened in the action. Georgia Power cross-claimed against Franco, claiming that under the High-voltage Safety Act, Franco was liable for plaintiffs’ damages and for Georgia Power’s defense costs.

Franco filed a motion for summary judgment, arguing that because the plaintiffs’ injuries indisputably arose from their employment, Georgia Power’s claims were barred by the exclusivity provisions of the Workers’ Compensation Act. Georgia Power filed a cross-motion for partial summary judgment, arguing that there was no dispute that Franco had failed to comply with the provisions of the High-voltage Safety Act and was, therefore, liable to Georgia Power.

1. In Ga. Power Co. v. Franco Remodeling Co., 233 Ga. App. 640 (505 SE2d 488) (1998), we affirmed the superior court’s grant of summary judgment to Franco. Our decision was based on this court’s decision in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996), which concluded that the High-voltage Safety Act did not create an exception to the exclusive remedy provisions of the Workers’ Compensation Act.

In Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 466 (511 SE2d 160) (1999), our Supreme Court reversed this court’s decision in Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997), and determined that the indemnity provision of the High-voltage Safety Act could be enforced without offending the exclusive remedy provision of the Workers’ Compensation Act. In so doing, the Supreme Court also overruled City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819, and our earlier decision in Ga. Power Co. v. Franco Remodeling Co., 233 Ga. App. 640. The Supreme Court then remanded this case in light of its holding.

Accordingly, our prior judgment is vacated, and, based on the Supreme Court’s decision in Flint Elec. Membership Corp., we conclude that the superior court erred in granting summary judgment to Franco.

2. Next we address Georgia Power’s argument that the superior court erred in denying its motion for partial summary judgment because there was no dispute that Franco failed to comply with the provisions of the High-voltage Safety Act.

We first note that in a related case Santana v. Ga. Power Co., 269 Ga. 127 (1) (498 SE2d 521) (1998), our Supreme Court affirmed the trial court’s grant of summary judgment to Georgia Power on the issue of its liability to the plaintiffs. Santana concluded that the trial court’s grant of summary judgment to Georgia Power was proper because of plaintiffs’ and Franco’s failure to notify Georgia Power or a Utilities Protection Center of the work they were doing near a high-voltage line, as required by the act. Thus, the court concluded that Georgia Power could not be held liable for damages incurred as a result of the plaintiffs’ contact with the line. Id. at 128. '

Accordingly, to the extent that Georgia Power’s cross-claim against Franco for indemnification was based on plaintiffs’ claims, those claims are moot. Nevertheless, Georgia Power also asserted a claim against Franco under OCGA § 46-3-40 (b) for defense costs and that claim is still viable.

OCGA § 46-3-40 (b) provides:

Any person responsible for the work who violates the requirements of Code Section 46-3-33 and whose subsequent activities within the vicinity of high-voltage lines result in damage to utility facilities or result in injury or damage to person or property shall be strictly liable for said injury or damage. Any such person shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.

OCGA § 46-3-32 (3) provides that: “ ‘ [p] erson responsible for the work’ means the person actually doing the work as well as any person, firm, or corporation who employs and carries on his payroll any person actually doing the work or who employs a subcontractor who actually does the work.”

Decided November 12, 1999.

Troutman Sanders, Robert L. Pennington, Scott A. Farrow, for appellant.

Magill & Atkinson, David M. Atkinson, for appellee.

In its motion for summary judgment, Georgia Power established the following undisputed facts: (1) plaintiffs were injured when a ladder they were using to paint an apartment building contacted a Georgia Power Company overhead electric line; (2) at the time of their injuries plaintiffs were working for Franco Remodeling; (3) notice was not given to Georgia Power or a Utilities Protection Center; and (4) work was being performed within ten feet of the high-voltage line. Franco conceded that these facts were undisputed.

Georgia Power established that Franco was a “[pjerson responsible for the work” and that under the statute, Franco was liable to Georgia Power. See generally Preston v. Ga. Power Co., 227 Ga. App. 449, 454-455 (2) (489 SE2d 573) (1997). Accordingly, the court erred in denying Georgia Power’s motion for partial summary judgment.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       The Supreme Court’s opinion in Flint Elec. Membership Corp., 270 Ga. 464, comports with this author’s dissent in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. at 822 (Pope, P. J., dissenting).

       Although Georgia Power established here that Franco was “a person responsible for the work” under the statute, it is conceivable that other entities could also be parties responsible for the work. See Callaway v. Crown Crafts, 223 Ga. App. 297, 301 (3) (477 SE2d 435) (1996) (Beasley, C. J., concurring specially).


text:
    A98A0951.
    DAVIS v. KAISER FOUNDATION HEALTH PLAN OF GEORGIA, INC.
    (525 SE2d 161)
   Andrews, Presiding Judge.

The Supreme Court, in Davis v. Kaiser Foundation Health Plan &c., 271 Ga. 508 (521 SE2d 815) (1999), reversed our decision in Davis v. Kaiser Foundation Health Plan &c., 235 Ga. App. 13 (508 SE2d 431) (1998), in which we affirmed the judgment of the trial court. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Johnson, C. J., and Smith, J., concur.

Decided November 12, 1999.

Larry R. Wight, Patrick J. Gibbs, for appellant.

Dennis, Corry, Porter & Gray, Grant B. Smith, John D. Dixon, Thomas C. MacDiarmid, for appellee.

Reynolds & McArthur, Charles M. Cork III, amicus curiae.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A99A1145.
    GREEN v. THE STATE.
    (525 SE2d 154)
   Ruffin, Judge.

Addie L. Green was charged with family violence battery and obstruction of a police officer. Following a jury trial, she was convicted of obstruction but acquitted of battery. She appeals, contending that the trial court committed several errors, primarily with respect to jury charges. Because each of these contentions is without merit, we affirm.

On September 4, 1998, Officer Brian Palmer was sent to investigate a domestic disturbance at a residence in Clayton County where Green and her brother lived. As he approached the house, Palmer noticed Green lying in a nearby driveway. Palmer testified that she had no visible injuries but appeared “very agitated.” Palmer stayed with her until other officers arrived, at which time he went to Green’s house, where he spoke with her brother and their mother. At some point, Green was placed in Officer Vest’s patrol car and brought back to the house. She was told that she was not under arrest at this time.

While Green was seated in the back of Officer Vest’s vehicle, Officer Palmer interviewed Green’s brother and their mother. Both of these individuals told Palmer that Green had struck her brother with an iron pole during an argument. After interviewing these witnesses and while they were preparing their written statements, Officer Palmer went outside to place Green under arrest for battery. It was at this time that Green committed the acts forming the basis for the obstruction charge. According to Officer Palmer, when the officers attempted to put handcuffs on Green, she became combative and “tossed us around for a few minutes . . . [and] kicked me one time.” Palmer testified that it took three officers to bring Green to the ground and place handcuffs on her. Green admitted that she was aware Officer Palmer was a police officer; that it took three officers to take her into custody; that she physically resisted their efforts to take her into custody; and that she might have kicked Officer Palmer. However, she testified that the officers did not tell her she was under arrest until after the handcuffs had been placed on her.

1. Green contends the trial court erred in failing to charge that “ [e]very person has the right to resist an illegal arrest, and may use, in resisting that arrest, such force as is necessary for the purpose of resisting such an arrest.” She contends that such a charge was required because her “sole defense” was that she was justified in resisting an unlawful arrest. The State, on the other hand, argues that a challenge to the legality of the arrest “is not a ‘defense,’ but is a contention that the State failed to prove an essential element of the crime.” Because the trial court properly instructed the jury on the essential elements of the crime, the State contends that an additional charge on the right to resist an unlawful arrest was not required. For the reasons discussed below, we agree that the trial court did not err in refusing to give Green’s charge.

Under OCGA § 16-10-24 (a), a person commits the offense of obstruction of a law enforcement officer when she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” Consequently, as an essential element of a prosecution for this offense, the State must prove that the officer was in the lawful discharge of his official duties at the time of the obstruction.

An officer may be engaged in the lawful discharge of his official duties even if he does not have probable cause to arrest an individual. Thus, for example, an individual who obstructs an officer during the investigation of a crime may be guilty of obstruction notwithstanding the lack of probable cause to arrest that individual. In the present case, however, the acts of obstruction committed by Green consisted of her attempts to resist arrest. If the arrest itself was unlawful, then the officers would not have been acting in the lawful discharge of their official duties by attempting to arrest Green, and her resistance to the arrest would not constitute obstruction. Consequently, under the facts of this case, the State was required to prove the lawfulness of the arrest in order to prove an essential element of the offense.

The trial court correctly instructed the jury on the essential elements of the offense, charging that “a person commits the offense of obstruction of an officer when that person knowingly and willfully obstructs or hinders a law enforcement officer in the lawful discharge of his official duties.” The trial court also instructed the jury that the State has the burden of proving every essential element of the crime charged beyond a reasonable doubt. Furthermore, the trial court correctly charged that a law enforcement officer may arrest an individual without a warrant if the officer has probable cause to believe that an act of family violence has been committed.

Green’s characterization of her challenge to the legality of the arrest as an affirmative defense is erroneous. We have previously held that

[w]ith a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet [these] criteria[,] i.e., justification, self-defense or defense of others, rendering assistance to law enforcement officers, defense of habitation, defense of property other than habitation, entrapment, and coercion. See OCGA §§ 16-3-20 through 16-3-28. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense. In fact, even under the more general provision of OCGA § 16-3-20 (6), the defense of justification can only be claimed “(i)n all other instances which stand upon the same footing of reason and justice as those enumerated in this article (Article 2 of Chapter 3 of Title 16).”

In raising the “defense” that the arrest was unlawful, Green is not admitting the essential elements of the crime of obstruction, but is asserting that the State failed to prove an essential element — that the officers were acting in the lawful discharge of their official duties by attempting to arrest her. If the arrest was unlawful, then Green’s resistance would not constitute obstruction, and there would be no need for her to rely on a “defense” of justification. Thus, under the facts of this case, the alleged unlawfulness of the arrest is not an affirmative defense to the charge as suggested by Green.

Jury instructions must be viewed as a whole, and it is not error to refuse to give a requested charge “when the same principles are fairly given to the jury in the general charge of the court.” In this case, the jury was instructed, among other things, that the State must prove beyond a reasonable doubt that the officer was acting in the lawful discharge of his official duties. If the jury determined that the arrest was unlawful, it would have been required to acquit Green because of the State’s failure to prove an essential element of the crime, not because her resistance was “justified.” Thus, a charge on the right to resist an unlawful arrest would have added little, if anything, to the court’s charge and would certainly not have aided the jury in determining what constitutes an unlawful arrest. Because the principle of Green’s suggested charge was fairly covered by the remainder of the court’s charge, the trial court did not err in refiising to give the charge.

2. In a separate enumeration, Green contends that the trial court erred in finding as a matter of law that her arrest was legal. It is true that, as discussed above, the legality of the arrest was a matter for the jury to decide in determining whether the State had proven the essential elements of the crime beyond a reasonable doubt. Unlike in a civil case, the trial court in a criminal case may not direct a verdict for the State on an essential element, no matter how compelling the evidence. This is because “[a]lthough a jury has a duty to convict when the evidence proves guilt beyond a reasonable doubt, its duty is distinct from its power, and a jury has the power to acquit the defendant even if its verdict is contrary to the law and the evidence.” However, although the trial court stated outside the presence of the jury that it believed there was probable cause for the arrest, the legality of the arrest was in fact submitted to the jury, which was instructed on the State’s burden to prove all essential elements of the offense. Accordingly, this enumeration presents no basis for reversal.

3. Green contends that the trial court erred in failing to charge on an arresting officer’s duty to identify himself and to inform the accused of the nature of the charge against her. The written request to charge is not contained in the record. However, the State admits the language of the request in its brief, stating that the charge read as follows: “It is the duty of the officer to disclose his official character to the person whom he is arresting and the officer must inform the accused of the nature of the charge.” Pretermitting whether Green waived this enumeration by failing to include the written request in the record, the trial court did not err in failing to give the charge because it is not a complete and accurate statement of the law. The correct principle, as set forth by the Supreme Court in Morton v. State, is as follows: “It is the duty of an officer, when authorized to arrest, but where the circumstances afford reason to believe that his object and official character are unknown to the person whom he seeks to arrest, so to inform him.”

As we have held previously, “[a] request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” Because Green’s requested charge was not a complete and accurate statement of the law, the trial court did not err in refusing to give it.

4. Green contends that the trial court erred in refusing to instruct the jury on when an individual is under arrest. Again, although the written request to charge is not included in the record, the State admits that the language of the request was as follows: “Where a person is in the custody of law enforcement and is not free to leave, that person is under arrest.” Pretermitting whether Green waived the right to assert this enumeration on appeal, she has failed to show how such an instruction would have been relevant to any issue in this case, or how she was harmed by the failure to give such an instruction. The relevant issue in this case was whether the officers were acting in the lawful performance of their official duties at the time Green committed the acts of obstruction. Moreover, Green’s proposed instruction is not a complete statement of the law. As we have previously held, “not every detention is an arrest.” Rather, “[a] person is under arrest if he is not free to leave and a reasonable person in his position would not think that the detention was temporary." Because Green’s proposed charge was not a complete and accurate statement of the law, the trial court did not err in refusing to give it.

5. Finally, Green contends that “[t]he trial court erred in failing to instruct the jury on what constituted an illegal arrest.” However, the record does not reflect that Green requested such a charge in writing, and her appellate brief does not specify what charge she believes should have been given. Accordingly, this enumeration is without merit.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Smith and Eldridge, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because I believe the trial court erred in rejecting defendant Addie Green’s requested jury instruction on her only defense at trial — i.e., a person’s right to resist an unlawful arrest. Justification based on a person’s right to resist an unlawful arrest is a recognized defense in Georgia. See OCGA § 16-3-20 (5), (6); Davis v. State, 172 Ga. App. 193, 194 (1) (322 SE2d 497). Since defendant Green justified her resistance to arrest based on her perception that she was being illegally restrained by a law enforcement officer, the trial court erred in failing to charge the jury as to a person’s right to resist an unlawful arrest. A trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513).

The evidence which authorized defendant Green’s conviction reveals that she resisted arrest during a domestic violence investigation at her home. Defendant explained that she resisted a law enforcement officer’s efforts to handcuff her because the officer did not inform her that she was under arrest and because other officers informed her during their investigation that she was not under arrest. With this proof and other testimony regarding the circumstances of her arrest, defendant contends the trial court erred in rejecting her requested jury instruction oh a person’s right to resist an unlawful arrest. The trial court reasoned during the charge conference that such a charge was not authorized because the investigating officers had probable cause to arrest defendant. I believe this was error because the legality of defendant’s arrest was a question of fact for the jury. Davis v. State, 172 Ga. App. at 194 (1), supra.

Citing Stone v. State, 236 Ga. App. 365 (511 SE2d 915), the majority accepts the State’s contention that a charge on justification based on the right to resist an unlawful arrest was not required because such a charge speaks only to the sufficiency of the evidence. In Stone, the defendant was charged with possession of a dangerous weapon, a razor blade, by an inmate. Although the defendant’s sole defense in Stone was that his razor blade was not a dangerous weapon, this Court held that the trial court did not err in refusing to instruct the jury that the defendant’s razor was not a dangerous weapon because such an instruction would have spoken to the weight of the evidence regarding an essential element of the crime charged, not a recognized criminal defense. Id. at 366 (1). This holding is supported by reference to the rule in Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356), which provides that a trial court is not required to instruct that mere presence at the crime scene is insufficient to authorize a conviction because, even where “mere presence” is asserted as the sole defense, such a charge does not go to a recognized defense but “is really a corollary to the requirement that the [S]tate prove each element of the offense charged.” Id. I do not believe that the same reasoning applies in the case sub judice because justification based on a person’s right to resist an unlawful arrest is a recognized defense in Georgia. See OCGA § 16-3-20 (5), (6); Davis v. State, 172 Ga. App. at 194 (1), supra.

Decided November 12, 1999

Robert L. Mack, Jr., for appellant.

Keith C. Martin, Solicitor, Michael L. Tripp, Assistant Solicitor, for appellee.

Since defendant justified her resistance to arrest based on her perception that she was being illegally restrained by a law enforcement officer, I believe the trial court erred in failing to charge the jury as to a person’s right to resist an unlawful arrest. This is so because a trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. at 606, supra.

       Although the written request to charge is not included in the record, the State admits the language of the request in its brief. Because of our ruling, it is not necessary to decide whether Green waived the right to raise this issue on appeal by failing to include the written request in the record.

       See Stone v. State, 236 Ga. App. 365, 366 (1) (511 SE2d 915) (1999).

       See Dixon v. State, 154 Ga. App. 828 (1) (269 SE2d 909) (1980).

       See Brown v. State, 163 Ga. App. 209, 212 (4) (c) (294 SE2d 305) (1982) (“a police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause”) (emphasis in original).

        Hightower v. State, 224 Ga. App. 703, 705 (2) (481 SE2d 867) (1997).

       It is true that, in certain cases, justification based on a right to resist an unlawful arrest may constitute an affirmative defense. For example, in Smith v. State, 84 Ga. App. 79 (65 SE2d 709) (1951), the defendant was charged with assault and battery upon a police officer who was attempting to make an illegal arrest. The defendant raised as an affirmative defense the issue of justification based on the right to resist an unlawful arrest. In that case, however, where the defendant was not charged with obstruction, the lawfulness of the arrest was not an essential element of the crimes charged.

       (Punctuation omitted.) Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980).

       See Johnson v. State, 223 Ga. App. 294, 295 (1) (477 SE2d 439) (1996).

       Id.

       190 Ga. 792, 799 (1) (a) (10 SE2d 836) (1940).

       (Emphasis supplied.) Id. Although the remainder of the rule is not applicable in this misdemeanor case, the rule continues as follows:
      but an omission to do so will not justify the person arrested, or sought to be arrested, in resisting the arrest if he in fact already knows, or on reasonable and probable grounds believes, that he is under a charge of felony for which an arrest is being attempted.
      Id.

       (Punctuation omitted; emphasis in original.) Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867) (1994).

        Smith v. State, 236 Ga. App. 548, 551 (2) (512 SE2d 19) (1999).

       (Emphasis supplied.) Brantley v. State, 226 Ga. App. 872, 874 (2) (b) (487 SE2d 412) (1997).

       See Stone v. State, supra at 366 (1); Pouncey v. Adams, 206 Ga. App. 126, 129-130 (2) (424 SE2d 376) (1992).


author: Smith, Judge.

text:
    A99A1464.
    GARNER v. HEILIG-MEYERS FURNITURE COMPANY et al.
    (525 SE2d 145)
   Smith, Judge.

Marilyn Fortes Garner brought suit against Heilig-Meyers Furniture Company, its collection manager, Ronald Kirby, and a collection agency employed by Heilig-Meyers, named in Garner’s complaint as John Doe Corporation d/b/a Metro Atlanta Investigations, alleging claims for false arrest, malicious prosecution, and defamation. Heilig-Meyers answered and filed a motion for summary judgment on Gamer’s claims for false arrest and malicious prosecution. The motion was granted, and Garner appeals. We conclude that the trial court correctly granted summary judgment in favor of HeiligMeyers and Kirby because they successfully pierced an essential element of Garner’s case by showing that the underlying prosecution was not terminated favorably to her. We therefore affirm the judgment.

The record shows that Gamer purchased furniture from HeiligMeyers under a retail installment agreement. Under that agreement, Garner was obligated to make 16 payments of $46, commencing on December 1, 1995, followed by a final payment of $45.55. Garner admitted on her deposition that she made no payment between October 29,1996 and February 3,1997. Heilig-Meyers presented evidence that several demand letters were delivered to Gamer’s home in November 1996, although Garner denied receiving or refusing any. In December 1996, after several unsuccessful attempts to contact Garner, Kirby sent an outside collector to Garner’s home. The collector reported to Kirby that Garner’s husband told him to “get away from the door.” In his affidavit, Kirby stated that he went to Garner’s home personally to repossess the furniture, but no one answered the door. He also stated that other letters were taped to her door. On December 31, 1996, Kirby sent another letter to Garner, via express mail. The letter included a certified mail receipt. Kirby testified that delivery was refused.

When no payment from Garner was forthcoming, the store manager directed Kirby to execute an application for an arrest warrant. Kirby did so on January 27, 1997. Based upon the affidavit and supporting documents, a warrant was issued by a magistrate for Garner’s arrest for violating OCGA § 16-8-4, theft by conversion. Garner was arrested at her home on February 4, 1997. Her husband delivered the balance owed to Heilig-Meyers that day. Garner was ordered released when the warrant was recalled and dismissed by the magistrate the next day, after Heilig-Meyers executed a document captioned “Recommendation of Dismissal.”

1. Garner correctly concedes that because she was released before being brought before a committing court, an action lies only for false arrest and not for malicious prosecution.

If a criminal process is sued out without probable cause and an arrest is made under it, the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. If after the arrest the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie.

(Citations and punctuation omitted.) McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983). A claim for malicious arrest differs from one for malicious prosecution only in that malicious prosecution requires the additional element of showing that a prosecution was carried on. Id.

2. Either claim requires the claimant to show “that the prior criminal proceeding, whatever its extent, had terminated in her favor.” McCord, supra; Campbell v. Hyatt Regency, 193 Ga. App. 542 (2) (388 SE2d 341) (1989).

In Grist v. White, 14 Ga. App. 147, 149 (1) (80 SE 519) (1914), this court said: While, under the Code, an arrest under process of law will give rise to an action for damages, if the arrest be made with malice and without probable cause, still there must have been a judicial ascertainment of the fact that the arrest was unlawful, evidenced by an order dismissing the warrant or vacating the process under which the arrest was made.

(Citations and punctuation omitted; emphasis in original.) Bennett v. Fine Jewelers &c., 194 Ga. App. 377, 378-379 (1) (390 SE2d 625) (1990).

A prosecution may be terminated voluntarily by the party who instituted it. But the rule appears to be well settled that when it is not voluntarily abandoned but terminated because of a compromise and agreement of the parties, no action will lie. Laster v. Star Rental, 181 Ga. App. 609 (1) (353 SE2d 37) (1987) (malicious prosecution). In this case, notwithstanding the entry of an order dismissing the warrant and Garner’s protests to the contrary, it is clear that Garner’s release from jail and the dismissal of the warrant were brought about by the Garners’ compromise agreement, under which they paid the balance owed Heilig-Meyers. Even if, as Garner maintains, she entered into an agreement with Metro Atlanta Investigations before she was arrested to pay off the balance due, it is undisputed that the payment was actually made before the date Garner claims to have set for payment in her alleged agreement, and both Garner and her husband admitted that as soon as Gamer was arrested they borrowed the money to effect Garner’s release from jail. By paying the money Heilig-Meyers required to “recommend” dismissal of the warrant, Garner precluded a judicial resolution in her favor. Because termination in her favor was an essential element of Garner’s claim, and the defendants successfully showed the court this element was lacking, her “claim tumble [d] like a house of cards. All of the other disputes of fact [were] rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The trial court did not err in granting summary judgment to Heilig-Meyers and Kirby on Garner’s claim for false arrest.

Decided November 12, 1999.

Johnson, Kane & Penna, Derek A. Mendicino, for appellant.

Fine & Block, Kenneth I. Sokolov, for appellees.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Heilig-Meyers and Kirby also filed a motion for summary judgment as to Garner’s claim against them for defamation, and this motion was later granted, as well. John Doe Corporation d/b/a Metro Atlanta Investigations is not a party to this appeal.


author: Phipps, Judge.

text:
    A99A1045.
    MIGLIORE v. STATE OF GEORGIA.
    (525 SE2d 166)
   Phipps, Judge.

Michael Migliore appeals a civil in rem judgment forfeiting $40,867.47 and a safe seized in a car search.

On April 26, 1998, Migliore drove south on Interstate 95 accompanied by Jessica Tootle. In Liberty County, Migliore was stopped by Deputy Sheriff Shawn Fields after Fields observed Migliore’s car weaving. Fields told Migliore the reason for the stop. Migliore responded that he was traveling from Florence, South Carolina, and was very tired. Fields asked Migliore for his driver’s license and car registration. Migliore produced a Florida driver’s license and a car rental contract which listed the renter as William Moore. Migliore explained that Moore was his employer and had lent him the car to drive home. Fields asked Tootle if she knew who had rented the car, and she said she did not know. Fields asked Migliore and Tootle how long they had been in Florence and the nature of their relationship. Migliore said he had been working and vacationing in Florence and had been there for three weeks; Tootle said she had been there three days and was on her way home to Cocoa Beach, Florida. Migliore said Tootle was his girlfriend. Tootle said they were friends.

Fields then went to his patrol car and ran Migliore’s license. It came back valid. Next, Fields decided to deploy his drug dog Nora in a walk around Migliore’s car. Nora alerted and then was placed inside Migliore’s car. Marijuana, methamphetamine and the safe were found in the car. The safe contained $40,000 in cash. The remainder of the money — $867.47 — was taken from Migliore’s person.

Migliore asserts seven errors. Among them is a claim that the search of his car was illegal. We need address only the legality of Fields’s investigation for drugs. The trial court found, “[T]he statements and behavior of Migliore and Tootle as well as the alerts by drug detection dog ‘Nora’ were sufficient probable cause for the officer to conduct a lawful search of the vehicle without the consent of the [driver] or passenger.”

Fields presented the only testimony at the forfeiture hearing regarding the stop and incidents leading to the search. “Because the evidence at the [forfeiture] hearing was uncontroverted and no question regarding the credibility of witnesses was presented, we conduct a de novo review of the trial court’s application of law to the undisputed facts.” “On appeal, we accept the trial court’s findings of fact unless clearly erroneous, but owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.”

Investigative stops of vehicles are analogous to Terry stops. In Smith v. State this court stated the strict boundaries of a Terry stop:

While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

Further, “[a]n officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.”

This case bears striking similarities to Blair, Smith, and Simmons, and we find them controlling. In Blair, a Georgia state trooper stopped a vehicle on 1-85 because it had a dealer’s drive-out tag. There were four people in the car. The trooper questioned the driver and the front seat passenger. While the car was detained, a canine unit was called. Before the unit arrived, defendant Blair exited the car, fled on foot and ultimately dropped a bag containing marijuana. The trooper testified that he detained the car longer than necessary to investigate the drive-out tag because his suspicions had been aroused. He asserted that the occupants could not produce proof of ownership of the car, provided conflicting explanations for the purpose of their trip, and appeared very nervous and Blair, seated in the rear of the car, was clutching a black bag. We upheld a finding of the trial court that the officer abandoned investigation of the car’s registration and licensing and improperly detained the occupants to conduct a search for drugs. We held that the trial court was authorized to find the detention impermissible, because the officer did not have reasonable suspicion of drug activity. Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.

In Smith, an officer observed the defendant’s car weaving and stopped him for suspicion of driving under the influence. The officer asked the defendant for his driver’s license and inquired why he was weaving. The defendant explained that he had traveled from another state and was tired. The officer then abandoned his investigation of DUI, sought the defendant’s permission to search his vehicle and inquired whether the defendant had any drugs. The defendant denied having any drugs and refused to consent to a search of his vehicle. The officer then called for a drug dog.

While they waited for the dog to arrive, the defendant sat in his truck, and the officer observed part of a plastic bag sticking out of the defendant’s mouth. Ultimately, the officer retrieved the bag, which turned out to contain marijuana. We held, “At the point the officer initiated th[e] . . . probe [for drugs], he went beyond the permissible scope of the investigation and his further detention of [the defendant] went beyond that permitted by Terry and its progeny.”

In Simmons, two officers stopped the defendant for speeding and tailgating as he traveled northward on 1-75 in Butts County. After examining documents provided by the defendant, the officers returned the documents to him and warned him for the traffic violations. But they detained him further to ask him whether he was transporting narcotics and to walk a drug dog around his car. The dog alerted, and the officers found approximately 600 grams of cocaine in the defendant’s car.

The officers asserted their investigation for drugs was justified, because: (1) the defendant and his passenger both appeared nervous; (2) the rental contract for the defendant’s vehicle was in the name of a person not present in the vehicle; and (3) the defendant said he was nervous because he was married and the passenger was his girlfriend. We held that the factors cited by the police were insufficient to extend a traffic stop into an investigation for drugs.

In this case, Fields stopped Migliore’s vehicle for a traffic offense, Migliore produced a reasonable explanation, and Migliore’s driver’s license was valid. Rather than ticket Migliore for weaving or release him, Fields decided to search for drugs.

Fields had no reasonable suspicion that Migliore and Tootle were engaged in drug activity. At the bench trial, Fields testified that he “wanted to walk the canine because of the nervous acting — nervousness of both subjects and their stories not matching.” Reasonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness, differing statements regarding whether a relationship is romantic, or the length of time spent at a previous destination. The statements attributed to Tootle and Migliore are not meaningful inconsistencies. Tootle and Migliore may have gone to South Carolina at different times, and it is not uncommon for individuals to have different perceptions of the nature of their relationship. Also, Tootle did not say someone other than Migliore’s boss had rented the car. She said she did not know. Under the totality of the circumstances, we find that Fields exceeded the scope of permissible investigation.

The State cites the following cases as authority for the trial court’s ruling: Redd v. State, Gebremedhin v. State, and Roundtree v. State. These cases are distinguishable. Redd and Gebremedhin are factually inapposite. Roundtree presents a more substantial basis for a search.

In Redd, the denial of a motion to suppress was upheld where police received a tip that defendant was stealing mail, defendant matched a detailed description, defendant was found in the reported location, defendant evaded police questioning and instructions, and defendant fled into woods and discarded a case containing syringes and methamphetamine.

In Gebremedhin, denials of motions to suppress were upheld where: (1) a reliable confidential informant told police the defendant was selling drugs at a specified location and the defendant was seen there engaging in a hand-to-hand exchange; and (2) the defendant matched the description recorded from a lookout of a drug dealer given by an undercover agent.

In Roundtree a car traveling from Florida was stopped in Dooly County for following too closely. There were two occupants in the car. The driver told the officer the car belonged to the passenger’s brother. The passenger said the car belonged to his daughter’s mother. The driver and the passenger gave conflicting accounts of how long they had been in Florida. In addition, the officer stated that the driver became increasingly nervous as the encounter progressed. In Round-tree, there are clear differences between the stories of the passenger and the driver pertaining to matters more remarkable than whether the occupants were romantically involved; further, there was evidence of heightening anxiety and not simply general nervousness. Those factors distinguish Roundtree from this case.

The State argues that Migliore had no standing to challenge the search of the car because the rental contract in the car did not bear his name and was for a different vehicle. As Fields exceeded the permissible bounds of a Terry stop in his investigation, the proper inquiry is whether Migliore had standing to contest the Terry violation. Standing to contest the search and standing to contest the Terry seizure and detention are separate and distinct questions, and different privacy interests are involved.

Stops and detentions under Terry implicate personal privacy interests, and searches implicate possessory or property interests. In Dumas, the defendant sought to exclude evidence that was seized after he was stopped driving a van that had been rented by someone else. The Seventh Circuit Court of Appeals held, “whether or not he would have had standing to challenge a search of the rented van, [the defendant] undoubtedly has standing to challenge the seizure of his own person which occurred in the form of the stop and ensuing detention.” The same is true for Migliore. Moreover, we have found standing to challenge the search where the vehicle was borrowed and the driver had personalty in it.

Decided November 15, 1999.

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

J. Thomas Durden, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Judgment reversed.

Smith and Eldridge, JJ, concur.

       Although this is a forfeiture action, which is quasi-criminal in nature, the exclusionary rule applies. Pitts v. State of Ga., 207 Ga. App. 606, 607 (1) (428 SE2d 650) (1993).

        Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998).

        Espinoza v. State, 265 Ga. 171, 172 (1) (454 SE2d 765) (1995).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995).

       (Citations and punctuation omitted.) Id.

        State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999); Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

       Supra.

       Supra.

       Supra.

        Blair, supra at 340.

       Id. at 342 (citing generally Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994)).

        Blair, supra.

       See Hughes, supra; Vansant v. State, 264 Ga. 319, 320-321 (1) (443 SE2d 474) (1994).

        Smith, supra at 455.

        Simmons, supra at 782.

       Id.

       229 Ga. App. 364 (494 SE2d 31) (1997).

       202 Ga. App. 811 (415 SE2d 529) (1992).

       213 Ga. App. 793 (446 SE2d 204) (1994).

       Supra.

       Supra.

       Supra.

       See United States v. Dumas, 94 F3d 286, 290 (7th Cir. 1996).

       Id.

       Id.

       See State v. Marcus, 206 Ga. App. 385 (425 SE2d 351) (1992).


text:
    A99A1180.
    CORBIN v. THE STATE.
    (525 SE2d 365)
   Phipps, Judge.

Ronnie Corbin was convicted of aggravated assault upon a correctional officer. He appeals, raising five principal issues: (1) whether the trial court erred in ordering that he be restrained during his trial; (2) whether the trial court erred in admitting photographs of the officer’s injuries, when the State had not disclosed the existence of the photographs to Corbin; (3) whether the trial court erred in denying Corbin a continuance to gather evidence to rebut the photographs; (4) whether the evidence was sufficient for conviction; and (5) whether his attorney was ineffective. We decide the first four issues against Corbin and remand the case to the trial court for consideration of the ineffectiveness issue.

On June 30, 1996, Marion Hardwick, a guard at Georgia State Prison, told Corbin, an inmate, that he was playing his music too loudly and that he must turn down his radio. Corbin refused. Hard-wick referred the matter to a superior, who spoke with Corbin and got him to turn down his music. Later that morning as Hardwick walked past Corbin’s cell, Corbin called to him and threw a boiling hot, oily liquid into his face. Hardwick suffered burns to his face, neck and shoulder. He was treated immediately after the incident at the prison emergency room and later at a physician’s office.

1. On the day before trial, Corbin was transported from the prison to the trial court but was removed from the courtroom later because of his threatening behavior. As a result, the judge ordered that Corbin would be placed in restraints during trial. The next day, before the trial started, the prosecutor asked the judge to perfect the record regarding the use of restraints on Corbin during trial. A hearing was held during which a correctional officer testified that Corbin had threatened the judge and everyone with whom he came into contact the day before. Corbin’s conduct had been video recorded, and the tapes were introduced at the hearing. At the conclusion of the hearing, the judge ruled, based on the testimony at the hearing and his own observations of Corbin’s conduct the day before, that “restraints [were] necessary to maintain order and provide for the safety of persons in the courtroom.”

During its charge to the jury, the court instructed the jury to ignore the restraints in weighing the evidence and deciding Corbin’s guilt or innocence.

“[W]here there is good and sufficient cause, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. Abuse of discretion is the test on appeal where restraining devices have been used in the trial court.” [Cit.]

“[D]etailed, demonstrable evidence [must be] set forth in the record to support the infringement by the court on the defendant’s presumption of innocence,” however.

Neither Corbin nor his lawyer objected to the imposition of restraints on Corbin. Thus Corbin waived the issue. But we also find sufficient evidence in the record to demonstrate the necessity of placing restraints on Corbin. The trial court did not abuse its discretion in requiring Corbin to wear restraints during the trial.

2. The prosecuting attorney has a duty to make available to the defendant, for inspection and copying, photographs which are within the possession, custody or control of the prosecutor and which the prosecutor intends to introduce at trial. In response to Corbin’s discovery requests, the State did not mention photographs of Hard-wick’s injuries. Instead, it said, “Evidence available for inspection at . . . Georgia State Prison.”

At trial, Corbin objected to the introduction of the photographs, and the court found that the prosecutor did not give Corbin sufficient notice of their existence. Nevertheless, the court allowed the State to introduce them. The judge reasoned, “[T]he pictures at most can just corroborate [Hardwick’s] testimony.” After the ruling, Corbin’s attorney moved for a continuance “to find and produce whatever information I can that would rebut [the photographs].” The court denied the motion.

OCGA § 17-16-6 gives trial courts wide latitude in remedying discovery violations by the State.

If at any time during the course of proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.
“In reviewing a trial court’s decision as to whether to impose sanctions or take other corrective action as a result of the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion.”

Corbin did not show, and the record does not suggest, that the prosecutor acted with bad faith. Also we do not find that Corbin was prejudiced by lack of notice that the photographs would be introduced at trial. The State’s discovery to Corbin included the incident report from Georgia State Prison, which indicated under “Medical Findings” that a hot liquid was thrown on Hardwick’s face, neck and shoulder and that Hardwick’s face and hands were “burning” when he was treated at the prison. When the photographs were admitted, Hardwick had already testified that he had been burned by the liquid Corbin threw on him. Corbin’s attorney examined the photographs before they were admitted into evidence. Later in the trial, the nurse who treated Hardwick testified that when she saw Hardwick immediately after the incident, his face, neck and shoulder were red, and he appeared to her to have suffered first degree burns. In the absence of evidence of bad faith by the prosecutor and prejudice to Corbin, we do not find the trial court erred in admitting the photographs. Nor do we find that the court abused its discretion in denying Corbin’s request for a continuance.

3. Corbin challenges his conviction under general grounds and asserts that the evidence was insufficient to support his conviction. Under Jackson v. Virginia the test for insufficiency of the evidence is: “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Corbin emphasizes that no heating element was found during a search of his cell after the incident and that the State did not introduce Hard-wick’s uniform to show it was stained with an oily substance. Nonetheless, we find that the evidence was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that Corbin committed aggravated assault upon a correctional officer.

Decided November 15, 1999.

Samuel G. Oliver, for appellant.

Ronnie Corbin, pro se.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.

4. Corbin asserts that his trial attorney was ineffective in several respects. The trial court has never ruled on these issues. Corbin’s original appellate counsel was allowed to withdraw. These issues were properly raised for the first time on appeal, but Corbin and his newly appointed appellate counsel did not have the opportunity to raise these issues in the trial court because counsel began representing Corbin after the notice of appeal was filed. Under these circumstances, we remand this case to the trial court for a hearing solely on the issue of ineffective assistance of counsel. Corbin will have the right to appeal an adverse ruling.

Judgment affirmed and case remanded.

Pope, P. J., and Smith, J., concur.

        Pace v. State, 212 Ga. App. 489, 490 (1) (442 SE2d 307) (1994).

        Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988); accord Pace, supra.

       See, e.g., King v. Rowland, 977 F2d 1354, 1357 (9th Cir. 1992) and cit.; accord House v. State, 170 Ga. App. 88-89 (1) (316 SE2d 483) (1984).

       See Dennis v. State, 170 Ga. App. 630, 632-633 (3) (317 SE2d 874) (1984) (court recited facts that defendant had struggled with guards at arraignment and insulted court officials, and court gave curative instruction regarding restraints).

       OCGA § 17-16-4 (a) (3).

       On appeal, the State does not assert that it complied with OCGA § 17-16-4 (a) (3).

        Marshall v. State, 230 Ga. App. 116, 118 (2) (495 SE2d 585) (1998).

       (Emphasis supplied.) OCGA § 17-16-6.

       (Citation omitted.) Brown v. State, 236 Ga. App. 478, 481 (3) (512 SE2d 369) (1999).

       See id. (upheld admission of photographs despite lack of notice, because no bad faith and prejudice); Peeples v. State, 234 Ga. App. 454, 456-457 (2) (507 SE2d 197) (1998) (denial of continuance upheld where “[it was] unclear from the record exactly how [the defendant] was prejudiced”).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citation and emphasis omitted.) Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

       See King v. State, 238 Ga. App. 575, 577 (4) (519 SE2d 500) (1999).

       Id.

       Id.