text:
    A98A1420.
    VICKERS v. THE STATE.
    (507 SE2d 810)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of violating the Georgia Controlled Substances Act, by “unlawfully possessing] Cocaine” (Count 1) and by “unlawfully possessing] Marijuana, in an amount less than one ounce” (Count 2). The evidence adduced at his jury trial revealed the following: Lucius Turner Solomon, Jr., “chief custodian of all records for the [Georgia] Department of Public Safety,” identified State’s Exhibit 1 as the form “to notify a licenseet, i.e., defendant] of a suspension that has been placed on his record.” This notification was personally served on defendant by Trooper Waddell Brown, Jr. “on the 26th day of December, 1994.”

Approximately one year later, at 8:38 a.m. on December 19, 1995, Officer Randell L. Hoagland of the Gwinnett County Police Department initiated a traffic stop of “a blue Mazda with a broken windshield [on] Jimmy Carter Boulevard. . . .” Defendant told Officer Hoagland “that he had left his license ... at home that particular day.” Officer Hoagland requested “a check through NCIC and [defendant’s] license came back as being suspended.” Defendant was arrested and placed in the patrol car. Officer Hoagland “called for a wrecker to come by to pick the vehicle up, and at that time [Officer Hoagland] conducted [an] impound inventory on the vehicle.” During this inventory search of the vehicle, Officer Hoagland found “a small bag of what appeared to be marijuana, green leafy substance, and also another plastic little bag that had numerous amounts of roaches, burnt cigarette ends of what appeared to be marijuana. [He] also found a pack of rolling papers and a pair of hemostat type scissors.” Officer Hoagland had no recollection of handling the cocaine found in defendant’s car.

Lisa Andrzejewski, a crime scene technician with the Gwinnett County Police Department, identified State’s Exhibit 4 as the bag of “evidence [she] received [on January 16, 1996, with] Officer Hoagland[’s] request [that she] test for marijuana.” This contained “two packages, . . . along with hemostat scissors and cigarette papers.” One Ziploc bag [had] some burnt . . . [marijuana] cigarette butts in it[, which Andrzejewski] did not test . . . because of the burnt residue. . . . And the other package [was] a small green Ziploc bag, and it also has green leafy material. . . . [State’s Exhibit 3] is a small package [Andrzejewski discovered] when the green Ziploc bag was opened. . . . [She] found [this] in between the green leafy material such that it was not visible from the outside. . . . [So] when [Andrzejewski] opened the green Ziploc bag to test the green leafy material [she] found this [State’s Exhibit 3] in there[, i.e.,] a small white substance.” Andrzejewski “laid the small package aside and notified Officer Hoagland . . . [because] on the evidence sheet [State’s Exhibit 1] it just shows the contents of this package [without] including the white material.”

Ricky Collins, a former evidence technician with the Gwinnett County Police Department “notified] Officer Hoagland because of the additional material that was found inside the bag; therefore Officer Hoagland came . . . that morning to rebag the items because of the two different substances. . . . [Andrzejewski] doesn’t do any testing on any substance except [suspected] marijuana there on the premises. ... So that [white, chunky material] had to be bagged separately so that it could be [sent to the State Crime Laboratory].” Officer Hoagland rebagged the other item, in a “new property bag [with] the new information on [it, while Ricky Collins] put the Crime Lab number . . . and the case number.” •

The green leafy material tested positive for marijuana. Charles W. Bevill, a forensic chemist for the Georgia Bureau of Investigation Crime Laboratory identified State’s Exhibit 3 as a “plastic bag which contained a lumpy material, . . . received on January 19, 1996, from Officer Middleton from the Gwinnett County Police Department.” He “found the material to be positive for cocaine, a Schedule II substance, less than one gram of material.”

Defendant testified, admitting he had in an old gym bag what he called “shake marijuana. Kind of like when you get the last bowl of cereal from a box of cereal, that powdery substance at the bottom, that’s like shake. . . . The bag of marijuana that [defendant] had was virtually empty. It was just some of that shake. It was [not] enough to even roll a joint.” Defendant denied possessing any cocaine, first, because he does not use cocaine. Second, there was “such a small amount [of marijuana in the plastic bag] that there is no way [it would conceal] something [the size of the crack cocaine]. . . .” Nevertheless, the jury found defendant guilty of possession of cocaine and also guilty of possession of marijuana. His motion for new trial was denied, and this appeal followed. Held:

1. Defendant first enumerates the denial of his motion to suppress the contraband found in his vehicle, arguing the stop was pretextual and his arrest was without probable cause.

The trial court’s findings as to disputed facts in ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474). At the suppression hearing, defendant’s testimony was that the officer was unable to give him a reason for the traffic stop until after the officer inspected the car and noticed the crack in the windshield. He also argued it was physically impossible for the officer to see the crack in the windshield from across several lanes of traffic. Consequently, he argues the stop was pretextual and invalid.

But Officer Hoagland testified he initiated the traffic stop of defendant’s vehicle because it had a broken windshield. When asked for his driver’s license, defendant stated “that he had left [it] at home. ... [A] check though NCIC [indicated] the driver’s license came back suspended. It also had a served date on him. At that point [Officer Hoagland] brought [defendant] back to [the] patrol car and placed [defendant] under arrest for driving on a suspended license.” Officer Hoagland then “did an impound inspection on the vehicle. As [he] was going through the vehicle conducting the impound [inspection], that’s when [he] came across a small baggie of [what appeared to be] burnt roaches or marijuana cigarettes inside a gym bag.”

OCGA § 40-8-73 (e) provides: “No motor vehicle shall be operated with a windshield or rear window having a starburst or spider webbing effect greater than three inches by three inches.” “The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. O’Keefe v. State, 189 Ga. App. 519 (1) (376 SE2d 406) (1988); see also Hartley v. State, 159 Ga. App. 157 (1) (282 SE2d 684) (1981).” Gossett v. State, 199 Ga. App. 286 (1) (a) (404 SE2d 595). In the case sub judice, the evidence supports the trial court’s conclusion that the stop of defendant’s vehicle was not pretextual but was authorized, based upon an observed traffic violation. It follows that defendant was lawfully detained during the license check. Kingree v. State, 228 Ga. App. 71, 72 (2) (491 SE2d 123). He was then properly arrested based upon probable cause that he was driving while his license was suspended. McCullough v. State, 211 Ga. App. 16 (438 SE2d 369). The subsequent search of the vehicle, yielding the baggie containing suspected marijuana, is justified by the reasonable decision to impound the vehicle. Newman v. State, 216 Ga. App. 73, 74 (1) (453 SE2d 117). Consequently, the denial of defendant’s motion to suppress is not clearly erroneous and is affirmed.

2. Next, defendant contends the trial court erred in admitting the cocaine discovered in the baggie with the suspected marijuana, over a “chain of custody” objection. He argues the chain of custody was broken because Officer Hoagland never knowingly turned over the cocaine discovered by Andrzejewski when she first opened the baggie of suspected marijuana, and because Officer Hoagland did not remember rebagging the exhibits in the presence of Collins.

Decided September 29, 1998.

Christopher T. Adams, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

“ ‘Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence as that seized and show that there has been no tampering or substitution.’ Staples v. State, 209 Ga. App. 802, 805 (5) (434 SE2d 757). The State is not required to show that the substance was guarded every minute. Sims v. State, 213 Ga. App. 151 (1), 152 (444 SE2d 121).” Morrow v. State, 229 Ga. App. 242, 244 (2) (493 SE2d 616).

In the case sub judice, there is no material discrepancy in weight, as would authorize the inference that the cocaine was added to the baggie of marijuana sometime after Officer Hoagland turned the baggie over to the evidence custodian, nor is there any physical manifestation of tampering or unauthorized opening as would compromise the integrity of routine procedures for identifying unique exhibits. See Langham v. State, 196 Ga. App. 71 (1) (395 SE2d 345). Although Officer Hoagland does not remember rebagging the cocaine discovered by Andrzejewski, Ricky Collins testified this occurred in his presence. While it is obvious that one of the witnesses has faulty recollection on this particular point, “none of the points argued by [defendant] amounts to evidence of tampering or casts any doubt on the identity of the exhibits so as to amount to a broken chain of custody. There being, at most, bare speculation of tampering or substitution [due to the discovery of additional contraband], the trial court correctly admitted the [cocaine] into evidence.” (Citations and punctuation omitted.) Brinson v. State, 208 Ga. App. 556, 557 (2) (430 SE2d 875).

3. The evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of possessing the cocaine and marijuana (less than one ounce) discovered in his car, as alleged in the indictment. Semelis v. State, 228 Ga. App. 813, 816 (2) (493 SE2d 17).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1630.
    MANGHAM v. THE STATE.
    (507 SE2d 806)
   Ruffin, Judge.

A jury found Donald Mangham guilty of burglary and aggravated assault with intent to rape. On appeal, Mangham asserts (1) the trial court erred in admitting evidence of his prior aggravated sodomy conviction and (2) there is insufficient evidence of intent to support his convictions. We affirm.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC. 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the record shows that on August 10, 1995, Mangham and Greg Wilson joined a group of people standing in the road in front of the victim’s home. The victim, a 17-year-old female, joined this group and met Mangham for the first time. Later that evening, one of the victim’s female friends began dancing and took off her shirt and shorts. She did not remove her bra and underpants. The victim danced with her friend, but did not remove any of her clothing. Mangham and Wilson were present during the dancing.

After dancing for approximately 15 to 20 minutes, the victim went inside her home to go to bed. Mangham and Wilson walked two of the victim’s female friends home, including the one who had removed her clothing while dancing. Wilson then returned to the victim’s home and, while standing outside her bedroom window, offered her money for oral sex. The victim declined, and Wilson left. After Wilson’s departure, the victim heard people talking outside, but she “couldn’t understand what they were saying.” Since she “didn’t feel right,” she closed and locked her bedroom window and let the blind down.

Approximately ten to fifteen minutes later, between 1:00 and 2:30 a.m., the victim heard a noise from her grandmother’s bedroom window. She went to her grandmother’s room and noticed that a fan had been removed from a window in the bedroom. She also saw Mangham climbing through the window with an oak stick in his hand. The victim hit Mangham with a stick used to hold the window open, but he “just kept coming.” The victim then ran outside into the street and screamed for help. Mangham chased her and grabbed her by the hair. After the victim fell, Mangham dragged her across the pavement toward an abandoned house across the street from her home. As the victim screamed and struggled to get away, Mangham hit her and said “shut up, bitch” and “it’s gonna happen anyway.” After Mangham dragged the victim to the bottom step of the abandoned house, a truck drove down the street while a neighbor screamed “leave that girl alone.” After the truck pulled up, Mangham walked away. Law enforcement officers arrived shortly thereafter.

A witness, Kendrick Dallas, testified that as he was walking home that evening, he saw Mangham standing with Wilson at the abandoned house. As Dallas continued down the street, he watched Mangham walk toward the victim’s home with a stick. When Wilson saw Dallas, he told Mangham “to come back.” Since Dallas “had a feeling they was fixing to do something,” he cut through a side yard and hid behind a tree. When he did not see anything as he looked up the street toward the victim’s home, he turned around and started walking toward his home again. When he heard a scream, he ran back to the tree and saw the victim on the side of the road with someone standing over her and beating her. Dallas then ran and called the police.

Officer Puckett testified that he investigated the case and obtained a statement from Mangham. In this statement, Mangham admitted he was with Wilson in the vicinity of the attack that evening. He also acknowledged he had been “drinking beer and smoking crack” that evening. When Officer Puckett asked Mangham, “[i]s it possible that you entered [the victimjs house through the window by taking the fan out and going inside and running her out,” Mangham replied, “I don’t see how I could go through a window ‘cause I was so high and drunk. I may have, I don’t know. I’m not sure. I could have did it, I don’t know. I was just so high and drunk.”

The trial court allowed the State to present evidence of Mangham’s 1988 conviction for aggravated sodomy of a young woman. Captain Jett testified that he questioned Mangham in connection with this charge and Mangham admitted “[a]ll day, I had been drinking beer and doing — smoking cocaine. In the evening, I walked down the park, and I seen this girl coming through there by herself and I just grabbed her. I stuck my penis in her mouth, and that was it.” When asked whether the victim resisted, Mangham replied, “She just opened her mouth, and I stuck it in. I was really high and I didn’t really know.” Officer Loeffer testified that she interrupted Mangham’s assault of the victim while responding to a report of screams and an attack in the park.

1. Mangham contends the trial court erred when it allowed the State to present evidence of his prior aggravated sodomy conviction. “[E]vidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion. . . .” Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). “It must be established that the State wishes to introduce evidence of the independent offense for an appropriate purpose; that the defendant committed the independent act; and that the independent act and the act for which the accused is being tried have a sufficient connection or similarity that proof of the former tends to prove the latter. The law does not require that in order to be admissible for a legitimate purpose as a similar transaction a crime be identical to the crime charged. . . . There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic evidence is offered, e.g., where similar transaction evidence is offered to prove identity, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. . . .” (Citation and punctuation omitted; emphasis in original.) Jones v. State, 226 Ga. App. 721, 723-724 (1) (487 SE2d 618) (1997). In this case, the prior offense was admitted to show motive, intent and state of mind.

“[T]he rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. [Cit.]” Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). Moreover, “[a] trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” Farmer v. State, 231 Ga. App. 78, 79 (1) (498 SE2d 559) (1998). In the present case, the similarities between the two offenses include Mangham’s (1) public assault of (2) a young woman (3) during the evening (4) after his admitted use of alcohol and drugs. Also, in both instances, Mangham left the scene of the attack after the arrival of a third party. We find the prior independent offense was sufficiently similar to authorize the trial court to allow it into evidence. See Lumsden, supra; McBee v. State, 228 Ga. App. 16, 18-20 (1) (491 SE2d 97) (1997).

2. Mangham contends there is insufficient evidence of intent to support his convictions of burglary and aggravated assault with intent to rape. Intent to rape, which is an essential element of both the burglary and aggravated assault charges against Mangham, may be shown by circumstantial evidence. See Kinney v. State, 155 Ga. App. 95-96 (1) (270 SE2d 209) (1980); Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990). “Whether appellant intended to rape the victim was a matter for the jury to determine and, as a general rule, the State must of necessity rely upon circumstantial evidence. [Cit.]” Id.

In Kinney, supra, this Court found sufficient evidence to affirm a burglary with intent to rape conviction. 155 Ga. App. at 96. The evidence at issue in Kinney showed the defendant entered the home of the victim without permission. The victim “was in the bathroom partially dressed when she heard a step in the hallway and saw defendant standing there. Hiding herself behind the bathroom door, she asked defendant what he was doing there. Defendant said he wanted to see her father. She told him her father did not live there any more and described where he could be found. When defendant walked toward her, she tried to shut the bathroom door but defendant blocked it. She opened the door and tried to run but defendant grabbed her arms, pulled her against his body, and told her he wanted to get to her. She struggled free of defendant, told him to get out, and ran into her bedroom to get her pants. She then held an outside door open and told him again to go. He caressed her arm and again said he wanted to get to her. When she told him again to leave he threw up his hands, said, ‘Okay, Okay, all right, all right, I’m gone,’ ran out the door, got into his car and drove away.” Id. at 95. The defendant “testified that he was a 62-year-old alcoholic, was intoxicated at the time of the alleged offense, had no memory of what occurred, and could not deny the truth of the victim’s testimony.” Id. “Another young woman testified that several years previously she had been a victim of similar conduct of defendant under similar circumstances.” Id.

Since the evidence in this case is very similar to the evidence at issue in Kinney, we find it sufficient to authorize a rational trier of fact to find Mangham guilty beyond a reasonable doubt. Kinney, supra. See also Butler, supra; Lester v. State, 173 Ga. App. 300 (325 SE2d 912) (1985).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided September 29, 1998.

Johnny B. Mostiler, for appellant.

William T McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

       Intent to commit a felony is an essential element of burglary. OCGA § 16-7-1 (a). The indictment alleged Mangham committed burglary “with the intent to commit a felony, to wit: Rape. . . .” It also alleged he committed aggravated assault with intent to rape. See OCGA § 16-5-21 (a) (1).


author: Johnson, Presiding Judge.

text:
    A98A1764.
    JONES v. THE STATE.
    (507 SE2d 804)
   Johnson, Presiding Judge.

A jury found Nehemiah Jones guilty of aggravated child molestation. He appeals from the conviction entered upon the verdict and the denial of his motion for new trial.

1. In two separate enumerations of error, Jones challenges the sufficiency of the evidence, arguing that the verdict was contrary to the law and against the weight of the evidence. Particularly, he claims the evidence was insufficient to establish that he was the person who molested the child.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Swift v. State, 229 Ga. App. 772, 773 (1) (495 SE2d 109) (1997).

Viewed in that light, the evidence shows that the eight-year-old victim and several relatives were spending the night at the home of the child’s aunt. Three men were present that night: Jones, his brother, and the aunt’s brother. After the child went to sleep, a man who smelled of alcohol and cigarettes came into the bedroom. The victim testified that the man said he was going to lick her in her vaginal area, did so and then sat on the bed.

The child’s ten-year-old cousin was sleeping in the same bed as the victim and woke up while the man was sitting on the bed. The cousin asked the man what was going on, to which the man replied he was reading the victim a story. The cousin knew all three men and was sure that Jones was the man who came in and claimed to have been reading a story to the victim. The man then left the room and later returned and asked the victim if she knew where his baseball cap was. The victim replied that she did not, and the man left again. The next morning, the victim’s aunt found Jones’ baseball cap under the bed in which the victim had been sleeping.

To support his argument that the identification evidence was insufficient, Jones points to testimony that he was asleep on the living room floor all night, the room was dark at the time the crime occurred, and the victim was unable to describe the perpetrator’s clothing. However, in addition to the evidence discussed above, there was evidence that Jones did not sleep in the living room, that light came into the bedroom from a bathroom and from streetlights outside, and that Jones, like the perpetrator, had an odor of alcohol and smoke about him that night. Moreover, the victim responded affirmatively at trial when asked whether Jones was the man who came into the bedroom.

Decided September 29, 1998.

Carolyn E. Moller, for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

“Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Reviere v. State, 231 Ga. App. 329, 333 (6) (498 SE2d 332) (1998). The transcript reveals ample evidence from which any rational trier of fact could have found Jones guilty beyond a reasonable doubt of aggravated child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Swift, supra; Perry v. State, 222 Ga. App. 445, 446 (474 SE2d 199) (1996).

2. Jones argues that he was unable to form the requisite criminal intent to commit the charged offense because he was intoxicated when the offense occurred. “Voluntary intoxication is a defense only when such intoxication has caused more than a temporary alteration of brain function which negates intent. [Cit.]” Wellons v. State, 266 Ga. 77, 88 (16) (463 SE2d 868) (1995). At trial, Jones specifically denied being intoxicated, said he had been drinking only “a little bit,” and added “[b]ecause you drink, that don’t mean you be out of your mind.” There being no evidence that Jones’ consumption of alcohol resulted in more than temporarily altered brain function which negated intent, this argument is without merit. Bright v. State, 265 Ga. 265, 273 (2) (e) (455 SE2d 37) (1995).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0870.
    HENDERSON et al. v. LOWE’S HOME CENTERS, INC.
    (507 SE2d 159)
   Johnson, Presiding Judge.

Elaine and Kenneth Henderson filed a personal injury action against Lowe’s Home Centers, Inc. for injuries sustained after Elaine Henderson tripped over a security cable outside a hardware store owned by Lowe’s. A jury returned a verdict in favor of Lowe’s. The Hendersons appeal from the judgment entered on the verdict.

The Hendersons contend the trial court erred by charging on assumption of risk because there was no evidence supporting such a defense. We disagree.

“Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Citation and punctuation omitted.) Mann v. Anderson, 206 Ga. App. 760, 763 (2) (426 SE2d 583) (1992). “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.” (Citation and punctuation omitted.) Evans v. Dept. of Transp., 226 Ga. App. 74, 75 (2) (485 SE2d 243) (1997).

Viewed in a light most favorable to the verdict, the evidence shows that the Hendersons walked from their parked car toward the front of the store. It was raining, and the Hendersons had no umbrellas. Rather than walking through the parking lot to reach the store entrance, the Hendersons traveled along a covered area which ran adjacent to the store. The area near the entrance was being used to display lawnmowers, wheelbarrows, garbage cans and other merchandise. Shopping carts were stored near the merchandise. The Hendersons walked between the store wall and the rows of merchandise until they saw that their path was blocked by the shopping carts. They noticed that the carts were connected by a security cable. The Hendersons turned around and began walking back the way they came. They saw what they thought was an opening between a displayed lawnmower and a wheelbarrow. In fact, the lawnmower and wheelbarrow were connected by a security cable. Instead of walking around the displayed merchandise, they proceeded between the items. Elaine Henderson tripped and fell over the security cable. At trial she admitted that the security cable was plainly visible in a photograph taken of the scene by Kenneth Henderson on the day of the accident.

That Elaine Henderson did not see this particular security cable before she fell does not mean the charge on assumption of risk was given in error. In Telligman v. Monumental Properties, 172 Ga. App. 783 (1) (323 SE2d 888) (1984), we found no error in the trial court’s charging the jury on assumption of risk where the plaintiff did not see the particular patch of ice upon which she slipped but saw other patches of ice on the sidewalk, knew the temperature was “around freezing” and knew the area looked wet. Similarly, in Taylor v. Citizens Bank, 185 Ga. App. 667, 668 (1) (365 SE2d 511) (1988), we held that an assumption of risk charge was authorized where the plaintiff knew of the general presence of ice on the ground and of the freezing temperature, even though the patch of ice upon which the plaintiff slipped may not have been visible unless a person “stooped down” and viewed it from a particular angle.

Elaine Henderson was aware that cable was being used in the area to connect or secure Lowe’s property. Yet she chose to take a shortcut through merchandise in the same area. The evidence in this case was sufficient to raise a jury question on the issue of assumption of risk. See Mann, supra; Evans, supra; see generally Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993) (plaintiff assumed risk of slipping on ice by stepping into puddle of water knowing surrounding area was covered with ice); Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994) (invitee who voluntarily departs from the route designated and maintained by the owner may assume the risk of hazards existent in the selected route); Lea v. American Home Equities, 210 Ga. App. 214, 215 (2) (435 SE2d 734) (1993) (plaintiff assumed risk of injury by voluntarily choosing a route upon which a known hazard exists).

The Supreme Court of Georgia’s ruling in Vaughn v. Pleasent, 266 Ga. 862 (471 SE2d 866) (1996), does not require a contrary result. In Vaughn, a police officer sued a truck driver for injuries he suffered after the truck driver turned left in front of him without adequately signaling. The officer, who was en route to an emergency, had his siren and blue lights on and was speeding at the time of the collision. The Supreme Court held an assumption of risk charge was not authorized because there was no evidence that the officer had actual knowledge that the driver intended to turn left in front of him and then voluntarily continued to speed through the intersection. Here, however, there was evidence that Elaine Henderson knew Lowe’s used cable in the area in such a manner as to secure its property and to block travel routes. Generally, whether a plaintiff assumed the risk of injury is an issue for the jury. See Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997). There was no error in giving the charge.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Decided September 11, 1998

Reconsideration denied September 30, 1998

Cannon & Meyer von Bremen, William E. Cannon, Jr., William H. Gregory II, for appellants.

Denney, Pease, Allison & Kirk, John W. Denney, for appellee.


author: Beasley, Judge.

text:
    A98A1264.
    SMITH v. SIMONDS et al.
    (506 SE2d 874)
   Beasley, Judge.

Eleanor Simonds and Roberta McKinley, as co-executrices of the estate of Coma Maxey Bridges, filed a suit for declaratory judgment against Lanier Smith. The trial court granted their motion for judgment on the pleadings and did not expressly rule on Smith’s similar countermotion.

Smith and Bridges were married in 1946 and divorced in 1958. After Bridges died in 1994, Smith made a claim to one-half the proceeds from the co-executrices’ sale of property owned by Bridges at her death which previously had constituted the marital residence. Smith’s claim is premised on a written agreement between himself and Bridges. It was signed after they executed a settlement agreement during the pendency of their divorce proceeding but before entry of a divorce decree incorporating the settlement agreement. The co-executrices sought a declaration that the side agreement is legally unenforceable.

Bridges’ divorce action against Smith culminated in a final judgment on September 22, 1958. The incorporated settlement agreement provided that in lieu of paying alimony, Smith would make a full conveyance of the marital residence to Bridges. He did so by deed dated and recorded on August 6, 1958.

Before entry of the divorce decree, Smith came to believe the agreement was unfair to him. He persuaded Bridges to allow him one-half of the net proceeds from any sale of the property in consideration of his acceding to the divorce. The signed agreement to this effect was eventually recorded in January 1959. Smith admitted in his counterclaim in this action, and by affidavit, that this written agreement was entered into shortly before rendition of the divorce decree.

1. Under these undisputed facts, the co-executrices were entitled to the relief sought under the principle that “[t]he judgment is conclusive on the parties, and the defendant therein can not set up prior or contemporaneous agreement the effect of which would be to alter or modify its terms.” The fact that Smith conveyed the property to Bridges prior to the parties’ execution of the written agreement is immaterial. Their rights did not become fixed until finalization of the divorce decree. The critical uncontested fact, shown by both Smith’s counterclaim and affidavit, is that the parties’ execution of the written agreement preceded the court’s entry of the divorce decree. Consequently, the co-executrices were entitled to judgment in their favor, both on the pleadings and summary-wise under OCGA §§9-11-12 (c) and 9-11-56. Any solicitation by the court of irrelevant testimony concerning child support or admission of evidence on this subject, at the hearing on the co-executrices’ motion, provides no basis for reversal.

Decided September 11, 1998

Reconsideration denied September 30, 1998

Dennis P. Helmreich, for appellant.

McLeod, Benton, Begnaud & Marshall, William C. Berryman, Jr., Hilary N. Shuford, for appellees.

2. Smith additionally enumerates as error the court’s refusal to grant summary judgment to him. He made no such motion, although in his response to plaintiffs’ motion for judgment on the pleadings he, too, demanded judgment on the pleadings. He presented no motion in this regard. Had he done so, it would stand denied in effect by the granting of plaintiffs’ motion.

Judgment affirmed.

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

        Estes v. Estes, 192 Ga. 100, 101-102 (14 SE2d 680) (1941); see also Cabaniss v. Cabaniss, 251 Ga. 177, 179 (4) (304 SE2d 65) (1983).

       Compare Spivey v. McClellan, 259 Ga. 181 (378 SE2d 123) (1989); Scott v. Mohr, 191 Ga. App. 825 (383 SE2d 190) (1989).


author: Blackburn, Judge.

text:
    A98A1842.
    RADCLIFFE v. THE STATE.
    (507 SE2d 759)
   Blackburn, Judge.

Anthony Scott Radcliffe was involved in an automobile accident on November 12, 1996. After the collision, the elderly driver of the other vehicle went into cardiac arrest and later died. Although Radcliffe did not show signs of being under the influence of alcohol or drugs, the investigating officer read Radcliffe his implied consent rights pursuant to OCGA § 40-5-67.1 (b), and Radcliffe agreed to submit to chemical tests of his blood and urine. See OCGA § 40-5-55 (requiring tests to be performed whenever anyone is involved in a traffic accident resulting in serious injuries or fatalities). These tests showed the presence of marijuana in Radcliffe’s blood. Radcliffe was convicted of driving with a controlled substance in his blood in violation of OCGA § 40-6-391 (a) (6). He appeals, contending that the trial court erred in denying his motion to exclude the results of his blood test.

1. Radcliffe contends that the implied consent warning failed to properly advise him of the purpose for which he was to be tested. In particular, he notes that the implied consent warning states that “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1). Radcliffe contends that this warning failed to advise him that the test results could also be used to prosecute him for driving with a controlled substance in his blood, which is a separate offense from driving while under the influence of alcohol or drugs. Compare OCGA § 40-6-391 (a) (1), (2) with OCGA § 40-6-391 (a) (6). Therefore, he argues that his consent was invalid and the results of his blood test should have been excluded.

This contention is without merit. As Radcliffe notes, we have held that “[t]he scope of the consent granted by a defendant to a test to determine alcohol or drug content of blood . . . may be derived from the wording of the implied consent warning read to a defendant.” State v. Jewell, 228 Ga. App. 825, 826 (492 SE2d 706) (1997) (State could not use blood test to support prosecution for possession of cocaine); see also State v. Burton, 230 Ga. App. 753 (489 SE2d 121) (1998) (same); State v. Frazier, 229 Ga. App. 344 (494 SE2d 36) (1997) (same); State v. Gerace, 210 Ga. App. 874, 875-876 (437 SE2d 862) (1993) (State could not use DNA test of blood sample to support prosecution for rape and sodomy).

None of these cases address the fact that OCGA § 40-5-55 (a) expressly sets forth the scope of a driver’s consent, stating that “any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.” (Emphasis supplied.) OCGA § 40-5-67.1 does not purport to define the scope of a driver’s consent, but rather requires the arresting officer to read a specified warning to the driver at the time the tests are requested, and provides that the test results are admissible if the officer follows this procedure. As this Court does not pass upon the constitutionality of statutes, and the Supreme Court has not held OCGA § 40-5-55 unconstitutional, it would appear that OCGA § 40-5-55, and not OCGA § 40-5-67.1, should govern the scope of the driver’s implied consent where that consent has not been withdrawn. However, we need not resolve this issue in this case, as the test results are admissible under either analysis.

We have held that “[c]ommon sense and reason dictate that a driver, who is informed that he is being tested Tor the purpose of determining if you are under the influence of alcohol or drugs,’ and who is further informed that he will lose his driving privileges if he does not consent to be tested, will reasonably believe, unless informed otherwise, that he is being tested only to determine whether he has committed a driving-related offense.” (Citation omitted.) Burton, supra at 754. In this case, the blood test was performed to determine whether Radcliffe had committed a driving-related offense — i.e., driving with the presence of marijuana in his blood. Accordingly, the implied consent warning properly advised Radcliffe of the purposes for which his blood was to be tested, and the trial court did not err in denying his motion to exclude the test results.

That this is the proper result is further indicated by examination of the implied consent laws. OCGA § 40-5-67.1 (b) (3) provides that “[i]f [the implied consent] notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person.” OCGA § 40-6-392 (a) provides that “evidence of the amount of alcohol or drug in a person’s blood” shall be admissible “[u]pon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391.” Radcliffe was in fact prosecuted for violating OCGA § 40-6-391 by driving with marijuana in his blood. Accordingly, unlike the cases cited above, Radcliffe’s blood sample was used for the legitimate purpose of determining whether he had committed a violation of OCGA § 40-6-391, and not for the purpose of determining whether he had committed any other violations of law.

2. Radcliffe contends the trial court erred in failing to exclude the blood test results because the State failed to perform the tests “according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation,” as required by OCGA § 40-6-392 (a) (1) (A). This contention is without merit, as Lisa Callahan, the forensic toxicologist for the DFS who conducted the tests at issue, testified that the tests were performed according to methods approved by the DFS.

Decided August 12, 1998

Reconsideration denied September 30, 1998

William Schneider, for appellant.

Cheryl E Custer, District Attorney, Charles C. Flinn, Assistant District Attorney, for appellee.

Despite Callahan’s testimony, Radcliffe contends that the machines used to perform the blood tests, the Hitachi 911 and the Abbott Axsym, were not in fact properly authorized. He relies on Rule 92-3-.06 (9) of the Rules of the Georgia Bureau of Investigation, which states that “[a]ll blood tests will be performed in accordance with a quantitative Gas Chromatographic technique or any equivalent procedure comparable in accuracy to Gas Chromatography when such is approved by the Director of the Division of Forensic Sciences.” He argues that Callahan’s testimony established that the Hitachi 911 and Abbott Axsym were not as accurate as gas chromatography, and that the blood test results were therefore inadmissible.

This argument is without merit. First, under OCGA § 40-6-392 (a) (1) (A), the power to approve methods of testing is vested not in the GBI, but in the DFS. Accordingly, it would appear that the DFS’ approval of a method of testing would satisfy the statute even if such approval conflicted with a rule issued by the GBI.

Moreover, even assuming that Rule 92-3-.06 (9) is applicable notwithstanding the DFS’ approval of the methods used in this case, the trial court correctly found that the rule was satisfied. Although Callahan testified that the Hitachi 911 and Abbott Axsym are not as accurate as gas chromatography in determining the exact amount of a substance in a person’s blood, she testified that they do indicate whether or not the substance is present in the blood, which is the relevant issue in this case. Accordingly, the trial court correctly found that the methods used were “comparable in accuracy” to gas chromatography.

Judgment affirmed.

McMurray, P. J, and Eldridge, J.,. concur.


author: Eldridge, Judge.

text:
    A98A1910.
    GOLDWIRE v. CLARK.
    (507 SE2d 209)
   Eldridge, Judge.

After an evidentiary hearing on December 8,1997, a disciplinary tribunal found Robert C. Clark, Jr., guilty of a violation of Rule 1 (d) of the Code of Student Discipline and Conduct for his participation in making a telephone call regarding a bomb at Effingham County High School. The Effingham County School Board adopted the tribunal’s findings, expelled Clark for the remainder of the 1997-1998 school year, and put him on permanent probation.

On petition for certiorari in the Superior Court of Effingham County, the reviewing court found that “there is insufficient evidence to support the verdict of the disciplinary tribunal and the Effingham County School Board.” The superior court remanded the case for a new trial. However, the court certified its decision for immediate appellate review. We granted interlocutory appeal in order to examine the application of the Rules of the Code of Student Conduct and Discipline to the evidence adduced at the evidentiary hearing. In so doing, we affirm the decision of the Superior Court of Effingham County.

The evidence presented at the hearing showed that five boys, Caleb V., Chris H., Francis T., Matthew B., and appellee Robert Clark, regularly got together during lunch period at the high school.

On November 17, 1997, during the Monday lunch period, the boys “were kind of hinting towards maybe calling in a bomb threat so we could get out of school for a little while.”

On Tuesday during lunch period, Caleb V. was absent. The remaining boys “walked down to the phones and Francis [T.] called 911 and told them that Trey Parrish had hemorrhoids, and then he hung up, and then we walked on back to the lunchroom.”

On Wednesday during second period health class, two hours prior to lunch, Robert Clark told a substitute teacher about the bomb threat: “[T]en minutes into the class one of the students decided that he was going to just right in the middle of class blurt out to me what was going to happen that day, and I quote, ‘Ms. Davis, we’re going to have a bomb threat today.’ And I turned around and looked at the student, and I said, ‘Oh, yeah, right, Robby [Robert Clark], just sit there and be quiet until the roll is taken.’ ” The teacher decided to “just shrug[ ] it off.”

The evidence showed that while Robert Clark was part of the group that on Monday discussed calling 911 regarding a bomb at the high school, “we were all laughing and I [Clark] thought it was a joke.” When “the same group of individuals continued the discussion to call 911 in regards to a bomb threat” on Wednesday, Clark was not sure if the bomb threat would be accomplished. “They decided about it, but I didn’t know if they would do it or not. I still thought they were joking.”

After the discussion among the group on Wednesday, Robert Clark went to sit with another group of friends. Shortly thereafter, Caleb V., Matthew B., and Chris H. got up from the lunch table and walked toward the telephones near the high school’s office. The boys motioned for Robert Clark to join them. He did. Robert Clark “assumed that they were walking to the phone to call a bomb threat to 911. . . but I wasn’t quite sure because we always walk that way.”

Clark stood near the telephones. Caleb V. made the call to 911. Caleb V. told the police that there was a bomb at South Effingham High School. Matthew B. and Chris H. were also at the telephone. Clark could not hear what was said on the telephone, but he “assume[d] that when they were at the phones that they were calling 911[.]” On Clark’s walk back to class after lunch, “Chris H. run up behind me and told me that we had just called 911.” The school was evacuated as a result of the bomb threat.

Later, Caleb V. made the following statement to the police: “I was asked to make the phone call on Monday but I didn’t. I don’t know why they asked me, I guess it is b/c they were too chicken themselves. They didn’t say nothing Tues. b/c I was not at school, when I got back Weds, they kept asking me to do it again so finally I did[.] I don’t care what any body thinks but as far as I am concerned they are as guilty as I am.”

Caleb V. was the sole inculpatory witness against Clark at the hearing. Caleb V. stated that when he went to the telephone to make the 911 call, Robert Clark was with him. The substance of Caleb V.’s inculpatory testimony against Clark is as follows: “[Q:] Who asked you to make the phone call on Monday? [A:] Well, no one person in particular, but it was all the people that were around me [names the four other boys including Clark]. [Q:] Was [Clark] ever any part of the telephone conversation and did he ever discuss anything with you as to what would be said? . . . [A:] Well, he was saying why you dort’t do it or something like that. [Q:] You don’t know what he said, do you, for sure? [A:] I know he was there. [Q:] But did he participate in it to your knowledge? [A:] He didn’t make the phone call, but he was there. . . . [Q:] Do you know anything that he said specifically? [A:] He was kind of encouraging me to make the phone call. [Q:] Do you remember anything about the words he might have said? [A:] No. . . . [Q:] Caleb, there is no doubt in your mind that Robby was encouraging you to make this call, is there? [A:] No. [Q:] And that he was with you at the time you made the call? [A:] Yes.” Held:

1. “The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this Court, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” (Citations and punctuation omitted; emphasis supplied.) City of Atlanta v. Smith, 228 Ga. App. 864, 865 (493 SE2d 51) (1997).

Appellant Goldwire asserts that the superior court failed to apply the above “any evidence” standard to its review of the School Board’s administrative decision, and that under such standard, the evidence was sufficient to uphold the Board’s determination. In his brief, appellant states that sufficient favorable evidence to support the School Board’s decision is shown as follows:

“There is certainly ‘substantial’ (some) evidence to support the tribunal decision in this case. The Student’s own attorney admitted in judicio that there was ‘conflicting evidence’ as to what part the Petitioner played in the bomb scare. The presence of ‘conflicting evidence’ is sufficient to satisfy the any evidence standard. Sawyer v. Reheis, 213 Ga. App. 727, 729 (445 SE2d 837) (1994). Although the Student disclaimed any participation in making the actual 911 call on Wednesday, he did admit on the stand that he was part of the group that started talking about making the bomb threat on the preceding Monday and Tuesday. Caleb V., the student who made the actual 911 call, positively testified that the Student was encouraging him to make the call and that the Student was there at the time that Caleb V. made the call. During questioning, the Student admitted that he had been having lunch with Caleb V., Chris H. and Matthew B. just before the phone call, that he was walking right behind Caleb V. when he and the others made their way to the telephone to make the 911 call and that he saw them at the telephone.” (Citations omitted.)

For the following reasons, even when taking the evidence in a light most favorable to upholding the School Board’s determination, i.e., as stated above by a representative of the School Board, we find that such evidence is insufficient to demonstrate a violation of Rule 1 (d) of the Code of Student Conduct and Discipline.

(a) There was no “admission in judicio.”

After the tribunal had found Clark guilty, Clark’s attorney made a plea for leniency in sentencing: “This man — young man has been taught a lesson and I hate to see him lose a school year. . . . He didn’t participate in this to the point that he made the telephone call. He told them no, and he did tell the teacher, and there is conflicting evidence as to what part he played, even by the ones that did play the part.”

The attorney’s argument to the tribunal is not an “admission in judicio.” “Judicial admissions are those made in court by a person’s attorney for the purpose of being used as a substitute for the regular legal evidence of the facts at the trial.” Black’s Law Dictionary, 6th ed., p. 48. Here, the attorney’s argument that “the facts are conflicting” does not establish the existence of any fact, conflicting or otherwise, so as to satisfy the “any evidence” standard pursuant to the case cited by appellant, Sawyer v. Reheis, supra. Indeed, it would make for an interesting change in the law if attorneys were held to statements made during persuasive argument as solemn “admissions in judicio.”

(b) Caleb V.’s testimony that Robert Clark “encouraged” him to call 911 is a conclusion, i.e., opinion testimony, for which no factual basis was provided.

In order to establish “any evidence” to uphold the findings of the School Board, appellant relies almost exclusively upon Caleb V.’s testimony that “[Clark] was kind of encouraging me to make the phone call” and Caleb V.’s response of “No” to the prosecutor’s question, “Caleb, there is no doubt in your mind that Robby was encouraging you to make this call, is there?” However, whether Clark’s actions constituted “encouragement” is purely Caleb V.’s conclusion, i.e., opinion, based upon Clark’s actions.

Generally, “opinions are admissible as long as the witness recites the facts on which his opinion is based. OCGA § 24-9-65.” Peterson v. RTM Mid-America, 209 Ga. App. 691, 692 (434 SE2d 521) (1993).

Thus, while Caleb V.’s opinion would be admissible, on review the question is whether there is “any evidence” of fact that supports Caleb V.’s conclusion that Clark’s conduct “encouraged” him to make the 911 call. The record is devoid of such evidence.

Caleb V. did not testify as to what Clark said that was “encouraging” and specifically testified that he “[did not] remember anything about the words [Clark] might have said.” Caleb V. did not testify as to what Clark did that encouraged him to make the call. There was no testimony that Clark gave him money to make the call, dialed the phone number, was ever part of the telephone conversation, or ever discussed anything about what should be said. Caleb V. could not testify that Clark specifically asked him to make the call; he testified that it was “no one in particular” who urged the call except “all the people that were around me,” of which Clark was simply one. The essence of Caleb V.’s testimony regarding Clark was that “he [Clark] was there.”

Accordingly, even under an “any evidence” standard of review, there is no factual basis by which a reviewing court might determine that Clark, specifically, “encouraged” Caleb V. to call 911 and report a bomb at the high school.

(c) “Knowledge” and “presence” are insufficient to demonstrate a violation of Rule 1 (d) of the Code of Student Conduct and Discipline.

The remaining evidence upon which the School Board relies is Robert Clark’s testimony wherein he “admitted on the stand that he was part of the group that started talking about making the bomb threat,” i.e., knowledge, and that “he was walking right behind Caleb V. when he and the others made their way to the telephone to make the 911 call and [] saw them at the telephone,” i.e., presence.

However, Clark was charged with the violation of Rule 1 (d) of the South Effingham High School Code of Student Conduct and Discipline. Rule 1 states as follows:

“No student shall:
“(a.) Block any entrance, occupy any school building, prevent any class or function from taking place, prevent any student, guest, or employee from using facilities, or block any normal pedestrian or vehicular traffic or otherwise deprive others of free access to, or use of, any facility, program or activity associated with the Effingham County Schools.
“(b.) Set fire to or in any school buildings or property.
“(b.l.) Cause a false alarm.
“(c.) Continually and intentionally make noise or act in any other manner as to interfere seriously with the teacher’s ability to conduct class.
“(d.) In any other manner, by the use of violence, force, noise, coercion, threat, intimidation, fear, passive resistance, or any other conduct, intentionally cause the disruption of any lawful mission, process or function of the school, or engage in any such conduct for the purpose of causing the disruption or obstruction of any such lawful mission, process or function.” (Emphasis supplied.)

Clearly, Rule 1, including subsection (d), requires conduct that actually causes the disruption of the school. The Rule was designed to reach the actor or actors who cause the disruption. There is no provision under the Rule that reaches mere knowledge and presence.

Further, to the extent that Rule 1 (d) can be expanded to reach a student who “aids and abets” a “main actor” such as Caleb V., under the language of the Rule, such student still must engage in conduct the purpose of which is to make an affirmative step toward aiding the main actor in the commission of the prohibited act, i.e., the disruption of the school. The Rule does not in any fashion address passive conduct, idle spectators, or bystanders. And perhaps rightly so in these days of “zero tolerance.”

There is wisdom behind the forging of rules that recognize the foibles of youth and the special environment that is high school. Rule 1 of the Student Code of Conduct and Discipline appears to be such a rule. A rule that requires an element of active conduct wisely recognizes that a school environment is a special one. It is a close society where many students have “knowledge” of possible events simply by virtue of their participation in school and interaction with other students. Such a rule recognizes that young adults are just that — young — and a teen’s ability to threaten unwise action, dare, boast, and brag at the lunch tables is part of that youth. The rule recognizes that the ones who actively participate in carrying out the act, or the ones who actively force, threaten, coerce, or intimidate another to carry out the act are the ones who violate the rule, the results of which violation provides the lesson as to the consequences of following through on what otherwise would be a mere threat of unwise action, a dare, a boast, or a brag. Thus, without evidence to satisfy the element of “active conduct,” a violation of the rule is not shown. Here, the record does not contain such evidence.

We wish to make it clear that by our decision, this Court does not condone or trivialize in any way the actions on the part of any person that led to the November 19, 1997 bomb threat and evacuation of South Effingham High School. Neither do we pass on the credibility of any of the witnesses that appeared before the disciplinary tribunal or upon the possibility that Clark violated some other school rule or policy through his actions. We hold only that the record upon which the School Board relies does not demonstrate that Clark engaged in “conduct that intentionally cause[d] the disruption” of school in violation of Rule 1 (d) of the Code of Student Conduct and Discipline. The Rule does not address passive conduct, which is what the evidence showed in the instant case. Accordingly, even under the “any evidence” standard of review, the evidence is insufficient to support the verdict of the disciplinary tribunal and the Effingham County School Board.

2. The superior court was incorrect in determining that there “are issues of fact involved,” simply because the “facts” did not support the tribunal’s verdict. Here, there are no issues of fact. A verdict premised on insufficient evidence is error as a matter of law. See, e.g., Lister v. Scriver, 216 Ga. App. 741, 744 (456 SE2d 83) (1995).

The trial court was correct, however, in remanding this case for further disposition in light of the high school’s rules and regulations. Accordingly, we remand this case to the Superior Court of Effingham County with instructions to remand the case to the Effingham County School Board for a decision not inconsistent with this opinion and for disposition of this case in adherence with the School Board’s policies and procedures. Lamb v. Tanner, 178 Ga. App. 740 (344 SE2d 534) (1986); Johnson v. Pulaski County Bd. of Ed., 231 Ga. App. 576, 579 (499 SE2d 345) (1998).

Judgment of the superior court is affirmed. Case remanded for further disposition not inconsistent with this opinion.

Decided September 18, 1998

Reconsideration denied September 30, 1998.

Brennan, Harris & Rominger, Richard J. Harris, James D. Kreyenbuhl, for appellant.

Ronald K. Thompson, for appellee.

McMurray, P. J., and Blackburn, J., concur.

       Appellant also asserts that testimony by Matthew B. that Clark was at the telephone with Caleb V. should be considered by this Court under the “any evidence” analysis. However, the record shows that Matthew B. testified that he had no personal knowledge of whether Robert Clark was at the telephones with Caleb V.: “I don’t know who was down there [the telephones], but that’s what everybody told me, Caleb and everybody told me.” The testimony of Caleb V. is before us on this subject. What “everybody else” may have said is hearsay with no probative value. Further, Clark admitted that he followed Caleb V. and stood near the telephones during the 911 call. Accordingly, we will assign no independent value to the testimony of Matthew B.


text:
    A98A1994.
    SMITH v. THE STATE.
    (506 SE2d 406)
   Eldridge, Judge.

Defendant-appellant Larry D. Smith appeals the denial of his motion for new trial, which followed his conviction for armed robbery, forgery, and driving with a suspended license. We affirm.

Viewed in the light most favorable to the jury’s verdict, the facts are as follows: On September 1, 1993, Debra Jean Marshall was employed by the United States Postal Service and was delivering mail in Columbus, Muscogee County. At approximately 11:35 a.m., as Marshall was reaching into her truck to retrieve some mail, she was confronted by a man who pointed a gun at her chest. She turned, ran up the street while screaming, and flagged down a vehicle. The driver of the vehicle and his passenger stopped and let Marshall get into the car. Marshall and the witnesses testified that the robber then fled in a tan Toyota Corolla, which was driven by another person. The Toyota had a baby seat in the back seat. The witnesses were unable to identify the driver except to note that he was “slouched down in the seat and he had on dark sunglasses, low hair cut, black male.” The witnesses took Marshall to a house, where Marshall called the police. After the police arrived, Marshall returned to her truck and discovered that mail for certain addresses was missing; she testified that several government benefits checks were included in the missing mail. The next day, a notice was sent to banks in the area regarding the stolen checks.

Within an hour after the robbery, defendant Smith arrived at the apartment of Schlunda Wilson; Wilson described her relationship with Smith as “hustling buddies.” Wilson testified that Smith had told her earlier in the day that he had “some business to take care of” and would contact her later. Between 12:00 noon and 1:00 p.m., Smith picked up Wilson and asked her to help him cash some checks. Smith was wearing dark sunglasses and was driving a brown Toyota Corolla with a baby seat in the back. The pair went to a separate location and had identification cards made which showed their pictures but used the names that were on the stolen checks. Utilizing the ID cards, Wilson and Smith cashed a check at a liquor store; they also cashed a check at Trust Company Bank.

However, the Trust Company Bank teller became suspicious about the transaction because the identification card was unfamiliar to him, the driver of the Toyota Corolla seemed to be nervous and impatient, and the driver avoided looking into the surveillance cameras. Acting on these suspicions, the teller noted on the back of the check the vehicle’s tag number, as well as its make and model. The bank’s security cameras also photographed the vehicle in the drive-through banking line. When the teller received the stolen checks notice the next day, he notified his supervisor that he had cashed one of the checks.

Smith and Wilson had more identification cards created the next day and attempted to cash a check at another bank. However, the teller noticed that the ID card looked “funny.” She had already received the stolen checks notice, and she notified her supervisor that the street name on the check matched those on the notice. While the teller stalled Smith and Wilson for several minutes, the branch manager wrote down the vehicle’s tag number and called police. Smith then told the teller that he could wait no longer and asked for the check back; a bank supervisor told him that he would have to come into the bank to retrieve the check. However, Smith sped off down the street.

The police quickly apprehended the pair, who were identified by the bank teller. At the time of his arrest, Smith had $1,118 in his pants pocket. Several fictitious Georgia ID cards were recovered in the glove compartment of the Toyota Corolla; the names on the cards matched those of the intended recipients of some of the stolen checks. The police later found several stolen checks on the ground where the vehicle had been stopped and, later, towed away. The checks were wrapped in a newspaper-type mailing. Wilson had alerted police that, at the time of the arrest, Smith had kicked the checks under the car. The evidence presented also showed that the Toyota Corolla used during the check-cashing incidents belonged to Smith’s sister, and that Smith had access to the vehicle on the day of the armed robbery.

Smith was indicted for armed'robbery, first degree forgery, and driving with a suspended license. He was tried on April 4-5, 1994, and was convicted by a jury on all counts. His motion for new trial was denied, and he appeals. Held:

1. In his first enumeration of error, Smith contends that the trial court erred when it denied his motion for new trial based upon his assertion that he was denied effective assistance of counsel at trial. On appeal, Smith specifically cites counsel’s failure to object when a witness for the State allegedly placed his character in evidence and counsel’s decision to waive an opening statement. Smith also refers indirectly to allegations of ineffective assistance that were raised in his motion for new trial.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (453 SE2d 443) (1995). See also Hudson v. State, 218 Ga. App. 671, 672 (462 SE2d 775) (1995). In order to rebut this presumption, appellant must show that “counsel’s representation fell below an objective standard of reasonableness. [Cit.]” Knight v. State, 266 Ga. 47, 48 (4) (464 SE2d 201) (1995). “The trial court’s ruling that counsel’s performance did not fall below an objective standard of reasonableness and that [appellant] failed to show a reasonable probability that the result would have been different but for the alleged errors must be upheld unless those findings are erroneous.” Harris v. State, 268 Ga. 412-413 (490 SE2d 96) (1997).

(a) Smith asserts that trial counsel’s performance was deficient because he failed to object to the following exchange between the State and Wilson: “[State:] How did you know [Smith]? [Wilson:] Well, I met Larry a couple of years ago. And I would say about two years after I met him he disappeared. Come to find out he was in prison.” The State did not pursue questioning based upon this response,, but immediately began questioning the witness about the day of the robbery.

(i) As a threshold issue, this Court finds that the witness’ statement was non-responsive to the question asked by the State. See Cochran v. State, 177 Ga. App. 471, 473 (3) (339 SE2d 749) (1986). Further, Georgia’s courts have consistently held that similar statements fell short of placing the defendant’s character in evidence. See, e.g., Zellner v. State, 260 Ga. 749, 751 (3) (b) (399 SE2d 206) (1991); Johnson v. State, 256 Ga. 604, 605 (2) (351 SE2d 623) (1987); Cochran v. State, supra at 473, and-cases cited therein.

(ii) However, even if the statement impermissibly placed Smith’s character in issue, trial counsel’s failure to object did not rise to the level of ineffective assistance of counsel. Such restraint may reasonably be seen as an issue of trial strategy, i.e., intentionally avoiding an objection which would draw the jury’s attention to the witness’ statement. See Fargason v. State, 266 Ga. 463, 465 (2) (467 SE2d 551) (1996). “[A]s a general rule, matters of tactics and strategy, whether wise or -unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Milliken v. State, 230 Ga. App. 810, 812 (2) (b) (498 SE2d 127) (1998). On a motion for new trial which asserts ineffective assistance, it is the defendant’s burden to present affirmative evidence to rebut the presumption that, “in the absence of contrary evidence, counsel’s actions are presumed strategic in nature. [Cits.]” Milliken v. State, supra at 813; Hudson v. State, supra at 672. Smith failed to carry this burden, so that the trial court’s finding on this issue was not clearly erroneous.

(b) After reviewing Smith’s remaining allegations of deficient performance by trial counsel, we find that the allegations are not supported by any evidence in the record or can reasonably be construed as issues involving trial strategy. See Hudson v. State, supra at 673 (1) (b). Accordingly, Smith was not entitled to a new trial on the basis of ineffective assistance of counsel.

2. Smith also contends that he was denied his right to a fair and impartial jury panel, asserting that he had a statutory right to a panel of 30 qualified jurors, i.e., 30 jurors who could not be excused for cause. However, Smith apparently misunderstands the statutory requirements for jury panels. Under OCGA § 15-12-160, a defendant in a non-death penalty felony trial is entitled to a panel of 30 jurors, of which at least 12 jurors must be qualified to serve. Although, generally, “under OCGA § 15-12-162, a challenge to the jury array must be in writing” to be considered on appeal, Lysfjord v. State, 208 Ga. App. 811, 812 (2) (432 SE2d 247) (1993), this Court will consider Smith’s contentions on its merits.

There is no dispute that 35 jurors were impaneled for this trial. The State voir dired the panel in accordance with OCGA § 15-12-164 (a) and received no responses. However, Smith claims that 11 members of the panel were, in his opinion, “suspect” because of varying levels of familiarity with the neighborhood of the crime, the witnesses, or the district attorney. The defense made no motion to strike any of these jurors for cause. While choosing the jury, the defense exercised ten of its twelve peremptory strikes; the State struck five jurors. Of the twelve selected jurors, the defense admits that only two of the “suspect” jurors were actually chosen to serve, i.e., juror nos. 21 and 27. Accordingly, the only remaining issue is whether these two jurors should have been excused for cause.

Smith argues that juror no. 21 knew a police officer witness, and that juror no. 27 previously had a Social Security check stolen. However, neither of these assertions rises to a basis for dismissing a juror for cause under OCGA § 15-12-163 (b). Further, both jurors testified that such familiarity would not influence them regarding their duty as jurors in this case. Accordingly, neither juror was subject to dismissal for cause. There was no error.

3. In his third enumeration, Smith complains that there was a fatal variance between the indictment for armed robbery and the proof at trial. Essentially, he asserts that the evidence showed that he was, at most, a party to the crime, but that he was indicted as a principal. This enumeration lacks merit.

Under OCGA § 16-2-20 (b) (3), a person is a party to the crime when he “[ijntentionally aids or abets in the commission of the crime.” A party may be charged with and convicted of the crime under OCGA § 16-2-20 (a). See also OCGA § 16-2-21. Although the State was required to prove that Smith was a party to the crime under these Code sections at trial, it was not necessary to allege these provisions in the indictment. See State v. Military Circle Pet Center No. 94, 257 Ga. 388, 389-390 (360 SE2d 248) (1987).

In this case, the first count of the indictment charged Smith with armed robbery, i.e., taking government checks from a postal employee, with intent to steal, through the use of a pistol. The evidence supported a finding that Smith aided and abetted the armed robbery by acting as the getaway driver for the actual assailant, who has not been identified. Accordingly, the State “was authorized to indict appellant for [armed robbery] since he ‘aided and abetted’ [the assailant] in the commission of the offense. [Cit.]” Thompson v. State, 168 Ga. App. 734, 736 (4) (310 SE2d 725) (1983). See also Lawrence v. State, 227 Ga. App. 70, 72 (4) (487 SE2d 608) (1997); Carter v. State, 168 Ga. App. 177, 178 (3) (308 SE2d 438) (1983). There was no fatal variance between the allegata and the probata.

Such indictment also was sufficient to ensure that Smith was informed of the charges against him and protected against another prosecution for the same offense. See OCGA § 17-7-71 (c); Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1935); DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969); Johnson v. State, 172 Ga. App. 333 (323 SE2d 255) (1984). Although Smith alleges that his defense would have been different had he not been “ambushed,” he fails to explain this contention by showing how the evidence presented at trial was a surprise, or by pointing to any evidence in the record or in a proffer to the trial court which would have been affected by the wording of the indictment. See id. at 334. There was no error.

4. In his next two enumerations of error, Smith contends that the State violated his rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), by failing to provide exculpatory evidence. We disagree.

“When a due process violation is claimed under [Brady], it is necessary that the defendant indicate the materiality and the favorable nature of the evidence. The defendant has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady Rule.” (Citations and punctuation omitted.) Kress v. State, 195 Ga. App. 519, 520 (3) (394 SE2d 139) (1990). Specifically, he must show “(1) that the State possessed evidence favorable to the defense; (2) that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” (Citations omitted.) Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994); Ramsay v. State, 220 Ga. App. 618, 624 (6) (469 SE2d 814) (1996).

(a) Smith claims that a taped statement by Wilson was “clearly” exculpatory because it “could have been used to aid in preparing for cross-examination of Wilson.” However, Smith admits that a “synopsis” of the statements was given to defense counsel prior to trial.

“Nothing in the record shows the tape would have been beneficial to [Smith], and the evidence indicates that [Smith] and his counsel were cognizant of the tape’s general contents.” Bertholf v. State, 224 Ga. App. 831, 832 (482 SE2d 469) (1997). Accordingly, any assertions that the tape contained exculpatory evidence that would have affected the outcome of the trial is mere speculation which is unsupported by the record and fails to satisfy Smith’s burden to establish a Brady violation. See id. at 832; see also Kosal v. State, 204 Ga. App. 708 (420 SE2d 621) (1992). This enumeration is without merit.

(b) Smith also contends that the State withheld evidence concerning an alleged deal with Wilson which would have provided favorable treatment in exchange for her guilty plea and her testimony against Smith. However, during cross-examination, Wilson stated that she was “not guilty” of the crimes charged, that she had so pled, and that no promises of favorable treatment or immunity had been made to her or discussed with prosecutors. Further, by denying Smith’s motion for a new trial, the trial court “implicitly concluded that no agreement existed” between Wilson and the State. Jolley v. State, 254 Ga. 624, 629 (5) (331 SE2d 516) (1985). See also Prescott v. State, 175 Ga. App. 125 (333 SE2d 8) (1985). This conclusion is authorized by the record before this Court on appeal, wherein Smith is unable to point to any evidence which supports his contention of a deal for favorable treatment of Wilson. Accordingly, this enumeration is without merit. See Childress v. State, 268 Ga. 386, 388 (489 SE2d 799) (1997); Prescott v. State, supra at 125-126.

5. Next, Smith complains that his constitutional right to cross-examine Wilson was violated when the trial court sustained an objection to one of his questions. However, upon review of the transcript, it is clear that the trial court did not, in fact, limit his cross-examination of Wilson, but simply required defense counsel to restate his question in the proper form. There was no error.

6. Smith claims that the State made improper remarks in his closing argument which inflamed and prejudiced the jury. He challenges two references by the State that $1,118 found in Smith’s pants pocket was the result of his cashing some of the stolen checks. However, according to testimony of the arresting officer, at the time of the arrest, Smith had $1,118 in his pants pocket. Wilson also testified that she had assisted Smith in cashing at least two stolen checks on the previous day.

“Attorneys will be allowed all reasonable latitude in the argument of cases to a jury provided they do not go outside the facts legitimately appearing from the trial and ‘lug’ in extraneous matters as if they were part of the case. Counsel may draw remote deductions and inferences from the evidence and there is no basis for objection even if the deductions and inferences are illogical or unreasonable.” (Citations omitted.) Callahan v. State, 179 Ga. App. 556, 563 (5) (347 SE2d 269) (1986). Because the challenged references were inferences from evidence presented during the trial, there was no error.

7. Finally, Smith contends that the evidence was insufficient to support the guilty verdict. In separate but related enumerations, Smith complains that the guilty verdict on the armed robbery charge was a result of circumstantial evidence which did not exclude every other reasonable theory other than guilt, and that his conviction for armed robbery was based on the uncorroborated testimony of an accomplice.

(a) “Although the evidence of recent, unexplained (or unsatisfactorily explained) possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the [robbery], the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Once it is shown that goods were stolen in a [robbery], absence of or unsatisfactory explanation of the possession of the goods will support a conviction for [robbery] based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.” (Citations and punctuation omitted.) Hanson v. State, 229 Ga. App. 205, 206 (1) (493 SE2d 605) (1997). See also Williams v. State, 252 Ga. 7, 9 (310 SE2d 528) (1984); Hestley v. State, 216 Ga. App. 573 (455 SE2d 333) (1995); Bolar v. State, 216 Ga. App. 195, 197 (4) (453 SE2d 790) (1995); Slater v. State, 209 Ga. App. 723 (434 SE2d 547) (1993); Bankston v. State, 159 Ga. App. 342, 343-344 (4) (283 SE2d 319) (1981).

In the case sub judice, the verdict reflects that the jury, after hearing all of the evidence, concluded that the only reasonable explanation for Smith’s possession of the stolen checks was his participation in the armed robbery. The evidence showed, inter alia, that someone robbed a postal employee at gunpoint at 11:35 a.m. on September 1, 1993; that a second man, wearing dark glasses and “slouching down” in the front seat, acted as the get-away driver; and that specific government checks were stolen. In addition, there was evidence of Smith’s comments to Wilson prior to the robbery; his unexplained possession of specific stolen checks within hours of the armed robbery; his possession of his sister’s car, the same vehicle as that utilized in the armed robbery; and similarities in his appearance to that of the getaway driver. Finally, supporting such evidence of his participation in the armed robbery was his possession of fake identification cards matching the names on the stolen checks; his forgeries of the stolen checks; and his attempt to flee the bank when he realized that a bank employee was writing down the vehicle’s tag number. The totality of the evidence is sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that Smith is guilty, beyond a reasonable doubt, of aiding and abetting an armed robbery. See Hanson v. State, supra; Bolar v. State, supra; Gearin v. State, 208 Ga. App. 878 (432 SE2d 818) (1993).

(b) However, even assuming arguendo that all the evidence adduced against Smith regarding his participation in the armed robbery was circumstantial, “we find that the quality and quantity of that evidence were such as to point overwhelmingly to [Smith’s] guilt.” (Emphasis supplied.) Bird v. State, 178 Ga. App. 687, 688 (344 SE2d 468) (1986). “To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” (Citation and punctuation omitted; emphasis supplied.) Slater v. State, supra at 724. See also OCGA § 24-4-6; Robinson v. State, 168 Ga. App. 569, 571 (309 SE2d 845) (1983). “Whether this burden has been met is a question for the jury. . . . This Court will not disturb the jury’s determination unless the verdict is insupportable as a matter of law.” (Citations and punctuation omitted.) Ezzard v. State, 230 Ga. App. 147, 149 (2) (495 SE2d 620) (1998). See also Harris v. State, 236 Ga. 242, 245 (1) (223 SE2d 643) (1976); Dean v. State, 203 Ga. App. 836 (418 SE2d 117) (1992). “Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found the evidence excluded every reasonable hypothesis except that of the defendant’s guilt.” (Emphasis supplied.) Slater v. State, supra at 724.

Decided September 1, 1998

Reconsideration dismissed September 30, 1998.

David J. Grindle, for appellant.

Larry D. Smith, pro se.

(c) We also find Smith’s assertion that he was convicted based upon Wilson’s allegedly uncorroborated testimony to be unsupported by the record. “In Georgia, a defendant may not be convicted [solely] on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citation and punctuation omitted.) Young v. State, 213 Ga. App. 278, 279 (1) (444 SE2d 598) (1994).

As shown in the preceding subsections, Wilson’s specific, extensive testimony linking Smith to the armed robbery was corroborated by substantial evidence of Smith’s immediate, unexplained possession of the stolen checks, forged identification cards, and the vehicle utilized during the armed robbery. Accordingly, this enumeration is without merit.

Judgment affirmed.

McMurray, R J, and Blackburn, J., concur.

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

       Generally, these allegations involved trial counsel’s alleged failure to communicate with Smith; failure to file certain motions upon Smith’s request; and mistakes during voir dire. Smith also asserted that he was “not pleased” with counsel’s representation of him during trial.

       The State successfully moved to strike one juror for cause.

       The State objected to defense counsel’s inquiry to Wilson as to whether or not she was “guilty” of acquiring identification cards with names other than her own, reasoning that the word “guilty” was a “legal term.” Defense counsel immediately rephrased the question, to wit: “Did you participate in getting these cards with your picture on them and somebody else’s name on them?” After Wilson responded “Yes,” counsel said “Okay. All right. Good enough.”


text:
    A98A2149.
    EASON v. THE STATE.
    (507 SE2d 175)
   Eldridge, Judge.

. Prior to February 1, 1996, the Candler County Sheriffs Department received a number of complaints that drug sales were occurring at the residence of defendant Michael Joe Eason, Jr., and that he had been seen in possession of drugs. On February 21, 1996, a controlled buy through a confidential informant was made at the defendant’s residence. The informant told the officers that the defendant sold him cocaine. A follow-up controlled buy was made on that same day by the same informant. On February 29, 1996, a third controlled buy was conducted, and a search warrant was obtained based upon the controlled buys. The search warrant was executed late on the evening of February 29. When the warrant was executed, the only adults present were Ramon Kelly, defendant’s brother, and defendant. When the defendant was searched incident to arrest, he had $360 in his pocket, although neither man was employed and another $160 was found in the kitchen. Upon the search, 14 pieces of crack cocaine were found in the living room of the residence. At trial, one of the officers gave his expert opinion that such quantity of crack cocaine was possessed with the intent to distribute it, rather than for personal use, and had a street value of roughly $280. On October 27, 1997, jury selection was conducted, but was not taken down. At trial, the defendant did not have counsel, conducted his own defense, and called his brother, James Hamilton Kelly, Jr., to testify. James Kelly testified from his observations on February 29 that the drugs were Ramon Kelly’s because Ramon told someone to sell the drugs to a person who came to buy, but that Ramon gave possession of the drugs to Tim Edenfield, defendant’s cousin, who left the residence just prior to the search. The defendant was not present during such activity.

Ramon Antonio Kelly testified for the defense that the drugs were his and not the defendant’s and that he gave possession to Edenfield. The district attorney impeached Ramon by showing that, at his sentencing hearing on his plea of guilty to possession with intent to distribute, he denied ownership of the drugs.

The defendant testified in his own behalf. He testified that: “[o]n the night of February 29th they did not possess any drugs off of me as you’ve heard Ramon. . . . And he said that he owned the drugs and, you know, I don’t know anything about them. He’d owned up to them and he said that he let this other dude that was there hold the drugs. They didn’t get them off of him, but he’s confessing up to the drugs, and I didn’t have them.” The defendant claimed to have returned only five minutes prior to the search.

On November 3, 1997, the jury found the defendant guilty, and the trial court sentenced him. On December 2, 1997, the defendant moved for a new trial, which was amended. On April 13, 1998, the trial court denied the motion. On May 13, 1998, a notice of appeal was filed.

1. The defendant’s first enumeration of error is that “[t]he evidence being totally circumstantial against the defendant and the co-defendant having accepted responsibility and pled guilty for the cocaine the trial court erred in failing to acquit the defendant as a matter of law.” We do not agree.

“ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ (Citation and punctuation omitted.) Norris v. State, 227 Ga. App. 616, 619 (4) (489 SE2d 875) (1997). ‘As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ (Punctuation omitted.) Wilson v. State, 227 Ga. App. 59, 60 (1) (488 SE2d 121) (1997).” Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

The defendant failed to make a motion for directed verdict at the close of the evidence. Therefore, such enumeration of error goes to the issue of the sufficiency of the evidence on the motion for new trial. See Neel v. State, 140 Ga. App. 691, 692 (3) (231 SE2d 394) (1976), overruled on other grounds, Baker v. State, 245 Ga. 657, 665 (266 SE2d 477) (1980).

Under OCGA § 16-2-21, one who intentionally aids and abets in the commission of a crime is a party to the crime and may be convicted of the commission of the crime. Wakily v. State, 225 Ga. App. 56, 57 (1) (483 SE2d 313) (1997); Price v. State, 223 Ga. App. 185, 190-191 (10) (477 SE2d 353) (1996). The jury could find from the evidence that the drugs were in the joint constructive possession of not only Ramon Kelly and Edenfield, but also the defendant, notwithstanding the testimony by Ramon that the drugs were his and that Edenfield had temporary, actual possession prior to leaving. Thus, the jury could find that the totality of the evidence, although circumstantial, excluded every other reasonable hypothesis except defendant’s guilt. Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997); Harris v. State, 222 Ga. App. 56, 58-59 (473 SE2d 229) (1996). If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding. Blair v. State, 216 Ga. App. 545, 546-547 (1) (455 SE2d 97) (1995). The presence, conduct, and companionship of the defendant before and after the offense with his brother and cousin are circumstances from which the defendant’s aiding and abetting may be inferred. Cook v. State, 226 Ga. App. 113, 114-115 (1) (485 SE2d 595) (1997); see also Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996); Watson v. State, 214 Ga. App. 645 (448 SE2d 752) (1994); Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443) (1993); Searcy v. State, 162 Ga. App. 695, 696 (1) (291 SE2d 557) (1982); Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). “ ‘Moreover, where transactions involving relatives are under review slight circumstances are often sufficient to induce a belief that there was collusion between the parties.’ (Citations and punctuation omitted.) Carter v. State, 188 Ga. App. 464, 465 (1) (373 SE2d 277) (1988).” Watson v. State, supra at 645. Further, the interest and impeachment of the defense witnesses made the issue of guilt a jury question. Thus, unless the verdict is insupportable as a matter of law, when the jury is authorized to find that evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except defendant’s guilt, the verdict will not be disturbed. Walker v. State, 214 Ga. App. 691, 692-693 (1) (448 SE2d 924) (1994); see also Wilson v. State, 211 Ga. App. 791, 792 (1) (440 SE2d 534) (1994).

2. Defendant’s second enumeration of error is that “[t]he Trial Court erred in requiring the defendant to go to trial without legal counsel without determining that defendant knowingly, voluntarily and intelligently waived his right to counsel.” We do not agree.

In this case, defendant was not indigent and was not entitled to the appointment of counsel, although the trial court had private counsel sit through trial to advise the defendant.

For a non-indigent defendant, such as appellant, the “ ‘constitutional right [to counsel only] entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.’ ” (Emphasis in original.) Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). “Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.” (Citations and punctuation omitted.) Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990); see also Shaw v. State, supra at 112; In the Interest of T. D. W., 229 Ga. App. 273, 275-276 (1) (493 SE2d 736) (1997); Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992); Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990); Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987). “Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. [Cits.]” Id.

The trial court delayed the trial proceedings to inquire' as to why the defendant had not retained counsel. When the jury was selected the prior week, the defendant had informed the trial court that he could afford counsel and would have counsel at trial. At the hearing, the defendant contended that he had been unable to raise the necessary funds, but had half the fee. The trial court determined that the defendant had been warned of the risk of proceeding pro se and waived counsel through the lack of diligence in retaining counsel. The trial court further found that the absence of an attorney was not attributed to reasons beyond defendant’s control. The case was indicted nearly a year prior to the actual trial and had been on the trial calendar three times previously; a public defender was appointed but was discharged at defendant’s request; and defendant had been warned previously that he must hire an attorney. The trial court — on the record — ascertained that the defendant failed to exercise due diligence to retain counsel and was not prevented by reasons beyond defendant’s control. See In the Interest of T. D. W., supra at 276.

3. Defendant’s third enumeration of error is that the trial court erred in determining that the defendant was not diligent in attempting to retain counsel. Such is controlled by Division 2.

4. Defendant’s fourth enumeration of error is that the trial court erred in dismissing juror Barwick Hendrix. However, at the time that the trial court removed Barwick Hendrix from the jury, the defendant made no objection to preserve any potential error for the review. Therefore, any assertion of error is waived. See Johnston v. State, 178 Ga. App. 219, 222 (4) (342 SE2d 706) (1986); Moore v. State, 169 Ga. App. 24, 25 (3) (311 SE2d 226) (1983).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided September 16, 1998

Reconsideration denied September 30, 1998.

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

Richard D. Malone, District Attorney', Jennifer E. Hildebrand, Assistant District Attorney, for appellee.